Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (abuse of process);No violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Investigations concerning the applicant 's suspected involvement in illicit foreign adoptions began on an unspecified date in DATE .

On DATE ORG charged the applicant with trading in children and incitement to give false testimony . On DATE ORG remanded the applicant in custody .

On DATE the applicant was served with written grounds for the decision of DATE

NORP The applicant lodged an appeal against this decision . He argued , inter alia , that the acts which he had been charged with committing could not possibly amount to the crime of trading in children . He further argued that in view of the fact that a significant number of witnesses had already been questioned by the prosecuting authorities , there was no likelihood that his remaining at liberty would in any manner jeopardise progress in the proceedings .

On DATE ORG examined the appeals against the detention order lodged with the court by the applicant and by his lawyers , PERSON and PERSON The applicant was not present , whereas the public prosecutor , Ms I.K .- B. , attended the court session . The court allowed the lawyers to make oral interventions and then ordered them to leave the courtroom . Subsequently , the prosecutor addressed the court , arguing that the detention should be upheld . She argued that the legal qualification of the offence concerned was correct , relying on LAW .

By decision of the same date , the court dismissed the applicant 's appeal against the decision to remand him in custody . It first acknowledged that the case was without precedent and raised difficult questions of fact and law . The court stated that in examining the decision under appeal , it had limited itself to assessing , from the point of view of provisions governing ordering and maintenance of detention on remand , in particular LAW , the relevance and sufficiency of the evidence gathered against the applicant for ordering detention on remand . However , it stressed that it had refrained from examining closely the substantive - law issues involved in the case . The court further categorically observed that the evidence gathered so far did not justify a suspicion that the applicant had tried to exert undue pressure on policemen involved in the proceedings . However , the evidence in the case file did support a reasonable suspicion that he had committed an offence punishable under LAW of the transitional provisions of LAW , which covered abduction of and trading in children for any purpose and in any form , including , in the court 's opinion , situations in which offenders were motivated solely by profit . The court further considered that this provision should be interpreted in the light of LAW on the Rights of the Child , which had been ratified by GPE in DATE . The court disagreed with the applicant 's argument that he had been acting exclusively in his capacity as a lawyer , having regard to the fact that it transpired from the evidence that in his activities undertaken in connection with the adoption cases he had largely overstepped the limits of what would normally be expected from a lawyer in such cases . In particular , the applicant had been acting as a representative before the courts , but had also been actively seeking children for adoption . He had also been taking de facto and legal steps in order to create artificial situations , which would comply with the requirements of laws governing adoption . The court further agreed with the prosecutor 's conclusion that in many cases the applicant 's remuneration was improperly high , which seemed to contravene LAW . This , in the court 's view , indicated that the applicant had been motivated solely by profit .

The court further considered that the assessment of the evidence as a whole warranted a conclusion that the legal requirements for detention on remand had been complied with . Firstly , the voluminous evidence showed that the suspicions against the applicant were well - founded . Secondly , the complexity of the case and the need to take further timeconsuming measures , such as questioning further witnesses and examining numerous documents , argued in favour of the applicant 's continued detention in order to safeguard the proper conduct of the proceedings . The court finally considered that there was a risk that the applicant 's release would jeopardise the proceedings , having regard in particular to the nature of the charges against him which had included fabricating false evidence for the purposes of adoption proceedings in order to mislead the courts .

On DATE ORG examined the applicant 's request for release submitted to the Minister of Justice on DATE and refused to allow it .

On DATE the applicant asked to be released , or to have his detention replaced by a more lenient preventive measure .

On DATE ORG declined to entertain the applicant 's request for release . The prosecutor considered that , in the light of the applicant 's medical records and those of his wife , there were not sufficient grounds to accept his argument that he should be released as there were no indications that his continued detention entailed any danger to life or limb , or any particular hardship for him or for his family .

On DATE ORG ordered that a medical expert opinion be prepared by CARDINAL psychiatrists and CARDINAL psychologist in order to establish whether the applicant 's health was compatible with his detention and whether he could be held criminally responsible .

On DATE ORG dismissed the applicant 's appeal against the decision of DATE of ORG . ORG considered that the assessment of the applicant 's and his wife 's medical records by ORG had been correct . He further emphasised that the question whether the facts relied on by the prosecuting authorities to justify the applicant 's detention could be considered as falling under LAW transitional provisions of LAW had already been examined by ORG in his decision of DATE and by ORG in its decision of CARDINAL October CARDINAL . Although it was true that the court had regarded this legal qualification as “ controversial ” , it had accepted the prosecutor 's arguments that the applicant 's detention was justified .

On DATE ORG assigned a further expert , a neuropsychology specialist , to examine the applicant in order to complete the medical data gathered in preparing the expert report ordered by the decision of DATE .

On DATE the applicant asked to be interrogated by ORG .

On DATE ORG requested ORG to prolong the applicant 's detention until DATE .

NORP In reply to the applicant 's letter of DATE , ORG informed him on DATE that , in view of the fact that the expert report had to be prepared , he could not have been interrogated before the submission of the prosecutor 's request of CARDINAL DATE to the court for prolongation of the detention . It was further stated that the relevant legal provisions did not provide for a prosecutor 's request for prolongation of detention on remand to be served on an accused . The applicant was also informed that , in view of the fact that the evidence gathered in the investigations justified a conclusion that new developments were to be expected as regards further persons who would ultimately be charged in the case , his lawyer had been refused access to the case file in order to safeguard the proper conduct of the proceedings .

In a letter of DATE the applicant complained again that he had not been questioned in the investigations since DATE of his arrest .

On DATE ORG , at the request of ORG , prolonged the applicant 's detention for DATE .

In a letter of CARDINAL DATE to ORG the applicant complained that the proceedings concerning the extension of his pre - trial detention were not adversarial , contrary to the requirements of LAW as neither he nor his lawyer had been allowed access to the case file . He also complained that he was not allowed to participate in religious services in prison and requested permission to obtain new books and newspapers from his family .

In a reply of CARDINAL DATE ORG stated that the applicant had not been questioned because further evidence had to be gathered in order to ensure that his questioning be effective .

On DATE ORG examined the applicant 's appeal against the decision of DATE . The court stated that the acts with which the applicant had been charged could not reasonably be qualified as trading in children within the meaning of Article IX of the transitional provisions of LAW . This was so because , in the assessment of what could constitute an offence of “ trading in children ” , regard had necessarily to be had to the fact that adoption was in a child 's best interests , whereas the notion of trading in human beings inherently involved acts to the detriment of its victims . Whereas it was true , the court continued , that adoption did , to a certain extent , limit the liberty of the person to be adopted , its purpose was to improve the child 's living conditions and to enhance its prospects of well - being . Therefore , the adoption in itself had to be perceived as beneficial for the child . In the case under examination , it had not been established by the investigating authorities that the acts with which the applicant had been charged had caused any harm to any children or to other persons . The court attached particular importance to the fact that LAW transitional provisions of LAW , which penalised trading in human beings , was to be replaced , following a proposal of a committee charged with drafting a new code , by a separate offence of organising adoptions for commercial purposes . This indicated , the court emphasised , that it was impossible to charge the applicant with the offence laid down by LAW transitional provisions , as the offence of trading in human beings was considered by a unanimous opinion of eminent legal scholars , members of the drafting committee , to constitute an offence separate from that of organising adoptions for commercial purposes . The court concluded that the fact that the applicant had acted as a lawyer in many adoption proceedings , and had received fees for doing so , was of itself not sufficient to found a reasonable suspicion that an offence punishable under Article ORG had been committed . The applicant was released on DATE .

On DATE ORG decided to separate the proceedings concerning another lawyer , ORG , charged , together with the applicant , with trading in children , from the applicant 's case .

On DATE the applicant was to be questioned by ORG . He maintained his earlier submissions and refused to testify , pleading that his defence counsel were absent . He also refused to comment on the documents collected as evidence during a search of his home on DATE .

On DATE the applicant was due to be questioned in the presence of CARDINAL of his defence counsel , PERSON The applicant refused to give evidence , invoking his professional obligation not to reveal information gathered when representing clients .

On DATE GPE for the western district of GPE , upon letters rogatory from ORG , ordered that certain witnesses be questioned in connection with the proceedings against the applicant . The court had regard to information submitted by the prosecutor to the effect that LAW Criminal Code forbade NORP citizens to intervene in adoption proceedings for commercial motives and for profit . The witnesses were to be heard in order to obtain information concerning how the adoptive parents had obtained knowledge of the possibility of adopting NORP children , how they had proceeded to obtain the final judicial decisions on the adoption and what had been the applicant 's role .

By letters of DATE , DATE and DATE ORG requested ORG to take steps with a view to expediting execution of letters rogatory addressed to the judicial authorities of the states of GPE , GPE and GPE .

On DATE the applicant complained to the Minister of ORG about the manner in which the proceedings were being conducted . He complained in particular that , despite the considerations set out in ORG decision of DATE to release him , the criminal proceedings were still being pursued . He further submitted that his private telephone was being tapped . He complained about a press campaign against him which , in his view , was inspired by PERSON , the President of ORG and at the same time a candidate in the national presidential election . He finally complained about the letters rogatory submitted to the NORP authorities on the ground that they erroneously stated that organising adoptions for commercial purposes was a criminal offence punishable under NORP law .

In reply , in a letter of CARDINAL DATE , ORG informed the applicant that an examination of the case files , comprising CARDINAL volumes , had shown that his complaints were ill - founded . The fact that ORG had ruled that the applicant 's detention should not be continued had no bearing on the issue of his criminal responsibility . As regards the complaint that his phone was being tapped , the prosecutor 's office had not issued any authorisation to that effect . If the applicant had any information indicating that his phone was being tapped illegally , it was open to him to request the institution of criminal investigations in this respect . In so far as the applicant complained that the criminal proceedings against him had been instituted for political motives , this complaint did not call for any comment , in particular in the light of the evidence gathered in the investigations and in view of GPE 's public statements . As regards the letters rogatory , their legal basis was to be found in LAW of LAW . The complaint that in the applicant 's case they amounted to an “ abuse of law ” was unfounded .

In a letter of CARDINAL DATE to the Minister of ORG the applicant alleged that the reply of CARDINAL DATE had failed to address his complaints adequately . He emphasised that in the light of ORG decision of DATE the legal qualification of the charges against him was untenable . He further insisted that the prosecutor was well aware of the phone - tapping and that his allegations on the subject were well - founded . He further stressed that he had in fact requested that an analysis be made , in the light of the material gathered by the police using informal methods of obtaining evidence , of the extent to which the manner of conducting his case had really been influenced by GPE , the President of ORG , who had made “ protection of the NORP family ” one of the crucial slogans of his presidential campaign . He finally reiterated that in the letters rogatory the NORP authorities had misled the NORP court as to the legal qualification of the charges against him , in that they had stated that the organising of adoptions amounted to a criminal offence .

By letter of CARDINAL DATE , ORG informed the prosecuting authorities that its request had been forwarded to the NORP embassy in GPE on DATE . On DATE ORG received the evidence collected in pursuance of letters rogatory by the judicial authorities of GPE .

On CARDINAL DATE ORG again requested ORG to intervene in order to expedite the execution of the letters rogatory . On DATE ORG forwarded this request to the NORP embassy in GPE . On DATE ORG transmitted certain evidence collected in GPE to ORG .

NORP By letters of DATE , DATE and DATE ORG submitted to ORG fresh requests for intervention in order to have letters rogatory carried out . The prosecutor stressed that the investigations could only be completed after collecting the necessary evidence from abroad , and asked for information as to a possible date of execution of the letters rogatory . In reply , by letters of DATE and DATE , ORG once again requested ORG in GPE to take the necessary steps to expedite their execution .

In a letter of CARDINAL DATE the applicant requested the Minister of ORG to supervise the conduct of the case . He complained that his passport had been invalidated and that the relevant proceedings were pending before ORG . He further submitted that he had not had any access to the investigation files . He complained that the case had been pending since DATE without any decision on the merits having been rendered , and that , as a result of these proceedings , his reputation had suffered badly .

On DATE ORG requested the GPE courts to take further evidence from CARDINAL witnesses .

By a letter of DATE , served on ORG on DATE , ORG asked the NORP authorities whether the last witness from the district of GPE was still to be questioned . In reply , they were informed on DATE that ORG was still awaiting the evidence from the witnesses from the districts of GPE and GPE .

On DATE ORG asked GPE consulate in GPE for assistance and intervention in order to accelerate the collection of evidence upon his letter rogatory of CARDINAL DATE .

On DATE ORG again asked ORG to intervene . The prosecuting authorities stressed that they were awaiting the testimony of CARDINAL witnesses from GPE and CARDINAL witnesses from GPE . They stressed that the length of the investigation was due exclusively to the delay in executing the letters rogatory .

In a letter received on DATE ORG obtained the testimony of one further witness . In that letter ORG asked for more detailed information concerning the whereabouts of witnesses to be questioned . By letter of DATE , ORG once again submitted the information requested .

On DATE ORG once again requested that ORG take appropriate steps for the evidence to be collected by GPE authorities . On DATE the Polish ORG informed ORG that no further evidence in the case had been submitted by GPE authorities .

By a letter of CARDINAL DATE served on ORG on DATE , ORG informed the NORP authorities that further steps had been taken in order to gather the evidence requested .

By a letter of CARDINAL DATE ORG reiterated its request , submitted to ORG , for prompt execution of the letters rogatory . In reply , on DATE ORG was supplied with further evidence , the testimony of one witness , PERSON

On DATE the investigations were prolonged until DATE . By a decision of CARDINAL DATE the Minister of ORG again prolonged the investigations , until DATE . He stressed that the process of collecting evidence following letters rogatory submitted to the GPE judicial authorities had not been completed . The same reason was invoked by him in his decision to prolong the investigations further until DATE .

On DATE witness PERSON was questioned by ORG .

On DATE ORG refused the applicant access to the case file , considering that this would jeopardise the proper course of proceedings in which evidence was still being gathered .

By a letter of CARDINAL DATE ORG again asked ORG for the execution of outstanding letters rogatory without further delay .

By a letter of DATE ORG once again requested ORG to take appropriate steps in order for the execution of the letters rogatory to be completed . On DATE and CARDINAL DATE ORG resubmitted this request to ORG .

On DATE ORG received a letter from ORG , informing him that the GPE judicial authorities , in cooperation with the ORG , had taken the necessary steps to discover the place of residence of CARDINAL further witnesses , and that in the near future the prosecution should receive further information .

By a letter of DATE , served on ORG on DATE , ORG assured the NORP authorities that further evidence should be taken in the near future .

By a letter of CARDINAL DATE ORG once again asked ORG to accelerate the execution of the letters rogatory .

On DATE the applicant requested ORG to grant him access to the case file . On DATE this request was refused .

On DATE the applicant was summoned to appear before ORG on DATE . The prosecutor informed the applicant that on this date additional charges under the new Criminal Code were to be brought against him , and that afterwards he would be granted access to the case file .

By a letter of the same date the applicant requested ORG to set a later date for his examination . Furthermore , he informed ORG that on account of his earlier professional commitments he would not be able to read the case file until after DATE .

Subsequently , ORG fixed CARDINAL DATE as the date for questioning the applicant . On DATE the applicant was charged with CARDINAL counts of trading in children , CARDINAL counts of incitement to give false testimony and of forgery . On the basis of the evidence gathered abroad following letters rogatory , ORG calculated that the applicant 's financial profits gained from trading in children DATE were not less than CARDINAL,CARDINAL United States dollars and MONEY . During this period the applicant had paid to biological parents a sum of not MONEY .

The proceedings are still pending .

NORP criminal legislation was amended several times during the relevant period . LAW enacted in DATE ( the “ old ” Code ) was replaced by a new LAW , adopted by ORG ( PERSON ) on DATE , which entered into force on DATE . Likewise , the DATE LAW was replaced by MONEY adopted on DATE , which also entered into force on DATE .

The old Code of Criminal Procedure was significantly amended by the PERSON of DATE on LAW to LAW and Other Criminal Statutes . This PERSON entered into force on DATE . However , the entry into force of the provisions concerning the ordering of detention on remand was postponed until DATE . According to these provisions , detention on remand was to be ordered by a judge , whereas before it was ordered by a prosecutor .

The second amendment , effected by the PERSON of DATE on LAW to the LAW ( commonly referred to as “ LAW of DATE ” ) , entered into force on DATE .

LAW of DATE , applicable at the relevant time , listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .

CARDINAL

DATE . Article CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , as applicable at the material time , provided that detention on remand could be ordered if , inter alia , there was a reasonable risk that the accused would attempt to abscond , to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means , or if the accused had been charged with an offence which created a serious danger to society .

At the material time there were CARDINAL types of proceedings enabling a detainee to challenge the lawfulness of his or her detention and thus possibly obtain release . Under Article CARDINAL § CARDINAL of LAW of DATE he could appeal to a court against a detention order made by a prosecutor . Under LAW § § CARDINAL ( CARDINAL ) and CARDINAL he could appeal against a further decision by that court prolonging his detention at a prosecutor 's request . Finally , LAW CARDINAL an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case . Such an application had to be decided by the prosecutor or , after the bill of indictment had been lodged with the court competent to deal with the case , by that court , within DATE .

NORP Under all the relevant provisions of LAW of DATE read together , a detainee was entitled to appeal against any decision prolonging his or her detention on remand , regardless of whether it had been made at the investigative or the judicial stage of the proceedings .

The imposition and prolongation of preventive measures , including detention on remand , were examined by the courts in proceedings held in camera . The presence of the parties at court sessions other than hearings , including sessions held in proceedings concerning review of detention on remand , was regulated in ORG CARDINAL and CARDINAL of the Code of Criminal Procedure , the relevant parts of which provide :

“ The court pronounces its decisions at a hearing if the law so provides ; and otherwise , at a court session held in camera . ... ”

“ A court session in camera may be attended by a prosecutor ... ; other parties may attend if the law so provides . ”

According to LAW , before deciding on the application of preventive measures , the court must hear the person charged . The lawyer of the detainee should be allowed to attend the court session , if he or she is present . It is not mandatory to inform the lawyer of the date and time of the court session , unless the suspect so requests and if it will not hinder the proceedings .

Under the provisions of the new Code , the court has to inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand , or an appeal against a decision to order or to prolong detention on remand is to be considered .

Article IX of the transitional provisions of the DATE LAW provided that a person who delivered , enticed or abducted other persons for prostitution purposes , even with the person 's consent , committed an offence punishable by a prison sentence of not DATE . Under paragraph CARDINAL of this provision the same sentence could be imposed on a person who engaged in trading in women or children .

On DATE the then Deputy Minister of ORG , GPE , sent a letter to the presidents of regional courts stating that in DATE there had been a rapid growth of cases in which courts ruled on adoptions of NORP children of which the adoptive parents were foreigners . As a result , CARDINAL children had left the country for good . This data should be considered as disturbing , the more so as it had been mainly small children that had been adopted . Public opinion was alarmed by the growing numbers of foreign adoptions . It was true that NORP law laid down the same requirements for adoptions , regardless of the nationality of the future adoptive parents , and that the children 's welfare was a consideration of paramount importance for all adoption cases . However , the notion of a child 's welfare should also include protection of its national identity . Hence , foreign adoptions should take place only in exceptional cases and the courts should first examine whether the child could not find adoptive parents in GPE . The presidents of the courts were invited to consider whether in cases in which the same persons were repeatedly acting as intermediaries in connection with the adoption proceedings , it was not advisable to inform the prosecution authorities accordingly . The presidents were finally requested to supervise closely this category of cases and to take measures in order to eliminate the climate favouring foreign adoptions .

DATE . Under LAW transitional provisions of LAW , the transitional provisions to LAW were repealed .

Under LAW of LAW , a person who trades in human beings , even with their consent , commits an offence punishable by a prison sentence of not DATE . According to paragraph CARDINAL of the same LAW , a person who , with a view to obtaining profit , organises adoptions of children in a manner contrary to the law commits an offence punishable by a prison sentence of DATE .

On DATE the journal Rzeczpospolita published an article written by a renowned specialist in criminal law , entitled “ Is it really trading in children ? ” . The author expressed strong doubts as to whether the offence punishable by LAW transitional provisions of the DATE LAW could be applied in a context other than trading in human beings for the purposes of prostitution . It was emphasised that in view of the historical background to this provision , dating back to international treaties of DATE concluded for the purposes of combating international networks deriving profits from prostitution , it could not be applied to situations concerning adoptions of children in which no allegations were made of there being any links or intentions related to organising prostitution .

On DATE ORG replied in the negative to a legal question put to it by ORG , in the context of criminal proceedings concerning charges made under LAW transitional provisions of the DATE LAW ( namely , whether an intention to coerce a victim of the offence of trading in children into practising prostitution was a constituent element of this offence ) .

On DATE ORG , in the same criminal proceedings in which CARDINAL accused had been charged with an offence punishable under LAW transitional provisions of the DATE LAW , discontinued the proceedings against them . The court recalled that in view of the fact that this LAW had ceased to be in force , the prosecuting authorities had amended the charges by qualifying the acts which the applicants had been charged with committing as an offence punishable under LAW of LAW . The court considered that this qualification could not be upheld . There were no grounds for accepting that the notion of “ trading in children ” also included the acts in question , which could only be regarded as organising illicit adoptions . It was only under LAW , in force from DATE , that organising illicit adoptions had become a criminal offence . Consequently , the court had to discontinue the proceedings pursuant to LAW , item CARDINAL , of the new Code , which provided that criminal proceedings had to be discontinued if the charges against the accused had not been made out .

On DATE ORG , following the prosecutor 's appeal against this decision , amended it in part , considering that the proceedings against the accused concerning the charges of trading in children should have been discontinued on the ground that the acts with which they had been charged had not amounted to a criminal offence punishable at the time of their commission . The court recalled that the accused had been indicted with trading in children on the basis that they had , with a view to profit , visited hospitals , orphanages and hostels for single mothers , trying to persuade the biological parents to place their children for adoption , in certain cases for money . Their actions had further been described as taking children away from their biological parents and taking further care of them , followed by taking steps to institute adoption proceedings . The accused had allegedly also arranged transfers of children to foreign citizens and made payments to the biological parents . The court considered that these acts could be qualified neither as trading in children within the meaning of the repealed LAW transitional provisions of the old LAW , nor as trading in human beings within the meaning of LAW of LAW . Such acts could only be construed , regard being had to their nature , as organising foreign adoptions , in certain cases for commercial motives . As a result , these acts at the time of their commission , that is , from DATE , had not constituted criminal offences , given that it was only under LAW , which had entered into force on DATE , that they could have been qualified as falling within the ambit of LAW of that LAW , penalising the organisation of adoptions for commercial motives . Consequently , the proceedings should have been discontinued on the ground that the acts concerned had not coincided with the constituent elements of the offence of trading in children as defined by the NORP law at the material time , and not on the ground that the charges against the accused had not been made out .

On DATE GPE ratified LAW on the Rights of the LAW which , in its relevant provisions , reads :

“ CARDINAL . DATE States Parties undertake to respect the right of the child to preserve his or her identity , including nationality , name and family relations as recognised by law without unlawful interference . ... ”

“ GPE Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall :

( a ) Ensure that the adoption of a child is authorized only by competent authorities who determine , in accordance with applicable law and procedures and on the basis of all pertinent and reliable information , that the adoption is permissible in view of the child 's status concerning parents , relatives and legal guardians and that , if required , the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ;

( b ) Recognize that inter - country adoption may be considered as an alternative means of childcare , if the child can not be placed in a foster or an adoptive family or can not in any suitable manner be cared for in the child 's country of origin ;

( c ) Ensure that the child concerned by inter - country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption ;

( d ) Take all appropriate measures to ensure that , in inter - country adoption , the placement does not result in improper financial gain for those involved in it ;

( e ) ORG , where appropriate , the objectives of the present article by concluding bilateral or multilateral arrangements or agreements , and endeavour , within this framework , to ensure that the placement of the child in another country is carried out by competent authorities or organs . ”

Chapter CARDINAL of the DATE Code of Criminal Procedure , as applicable at the material time , provided in LAW for compensation for damage arising out of manifestly unjustified detention on remand and for arrest and detention up to TIME . The regional court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation were met . The decision of the regional court could be appealed to the court of appeal .

According to LAW , a request for compensation for manifestly unjustified detention on remand had to be lodged within DATE from the date on which the last decision terminating the criminal proceedings in question had become final . Therefore , in practice , a request for compensation for unjustified detention under LAW could not be lodged until the criminal proceedings against the person concerned had been terminated ( see also the decision of ORG no . WRN CARDINAL , CARDINAL , published in ORG . i Pr.inter alia , the decision of ORG no . PERSON CARDINAL/CARDINAL , CARDINAL , published in ORG CARDINAL/CARDINAL - CARDINAL/CARDINAL ) .

Chapter DATE Code of Criminal Procedure provides for a request for compensation for , inter alia , unjustified detention . Article CARDINAL § CARDINAL of the current Code is an equivalent of LAW of LAW .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She was represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu .

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

On DATE the applicant married GPE and on DATE the same year they had a son , GPE

On DATE the applicant left for GPE to try to find work in order to raise money to help her husband pay off the debt he had allegedly accumulated as a result of several unsuccessful business ventures .

The applicant did not go back to GPE again until DATE , after she had obtained an NORP residence permit .

On DATE , when the applicant was already living in GPE , her husband brought divorce and custody proceedings against her .

By a judgment of DATE , ORG allowed the applicant ’s husband ’s action for divorce and awarded sole custody of the child to him . Relying , inter alia , on the testimony of the witnesses in support of the applicant ’s husband , the social investigation carried out at the minor ’s domicile by ORG attached to ORG , and the applicant ’s apparent lack of interest in the proceedings , the court established that as a result of the disagreements between the parties the applicant had left the family home and made no attempt to return or to reconcile with her husband . The parties’ relationship had been seriously damaged and the marriage could not continue as a result of the applicant ’s guilt . From the moment of her departure the minor had been left in the sole care of the father and the applicant had inquired about the child ’s well - being only over the phone . The father was able to offer the minor appropriate material and living conditions for his development and the child had developed a strong emotional bond with his father .

On an unspecified date in DATE , following her visit to GPE , the applicant lodged an appeal against the judgment of DATE . She argued that she had been unaware of the divorce proceedings brought by her husband against her and that the judgment of DATE of ORG had never been communicated to her .

By a judgment of DATE , ORG allowed the applicant ’s appeal , quashed the judgment of DATE and decided to re - examine the merits of the case . It held that the applicant had been summoned for the divorce proceedings at her home address in GPE , which the husband had provided as the correspondence address for her , even though he had been aware at the time that the applicant was living in GPE and he had known her exact address .

On DATE , as a result of domestic legislation amending the rules on civil procedure , ORG declined jurisdiction in respect of re - examining the merits of the applicant ’s case , in favour of ORG .

On DATE the divorce and custody proceedings were resumed before ORG .

NORP On DATE the applicant brought a separate set of divorce and custody proceedings against ORG before ORG . She asked the court to name her husband as the guilty party in their divorce and to grant the said divorce to her , to allow her to reclaim her maiden name , to grant her custody of the child , and to order ORG to pay her maintenance . Alternatively , if she was not granted custody of the child , she requested to be granted visiting rights for DATE , for DATE during each of the child ’s school holidays and for DATE during her own leave from work . Finally , she asked the court to allow the child to travel abroad . The applicant argued that her husband had accumulated a debt of MONEY ( ORG ) and that , as he had been banned from entering the LOC area , she had been the only family member able to travel to GPE to seek employment to raise the necessary money to pay the debt . She submitted that the money she had saved in GPE had enabled her to cover her husband ’s debt , as well as to save an additional amount of ORG CARDINAL owed in connection with an alleged accident that her husband had caused . Lastly , the applicant declared that before leaving GPE she had hired QUANTITY women to take care of their son .

At a hearing on CARDINAL DATE before ORG the applicant requested leave from the court to be allowed to submit documentary and testimonial evidence . She also asked the court to order both that her husband be heard and that a social investigation be carried out by the NORP authorities at her home in GPE to prove her ability to provide the material and living conditions required for her son ’s future development .

By an interim judgment ( încheiere ) delivered on DATE , ORG allowed the applicant ’s request in part . It adjourned the question of the social investigation to be carried out at the applicant ’s home in GPE and ordered her to submit proof , in particular an identity card , that her domicile was in GPE .

On DATE the CARDINAL sets of divorce and custody proceedings brought by the applicants against each other were joined before ORG .

At the hearing of CARDINAL DATE , the applicant reiterated her request that a social investigation be carried out at her home in GPE via international legal assistance instruments . The court heard the testimony of the CARDINAL witnesses allowed for the applicant , GPE and GPE , and those of the CARDINAL witnesses allowed for her husband , GPE and ORG The applicant submitted evidence that her own requests to the NORP authorities to carry out a social investigation at her home had been refused in the absence of a court order .

By an interim judgment delivered on DATE , ORG rejected the applicant ’s request for a social investigation as irrelevant to the proceedings at issue and allowed the applicant to submit proof of income , employment and information on her living conditions .

The Government informed the ORG that at the hearing of DATE ORG had granted the applicant ’s request for additional questions to be addressed to her husband . At the same time , the applicant had expressly stated that she did not wish to request that any additional evidence be attached to the file .

In her turn , the applicant alleged that at the last hearing before the court her husband had attached to the file , inter alia , a written statement by ORG , the child ’s kindergarten teacher ( educatoare ) , describing the child ’s development and his desire to live with his father . However , the applicant had not had the opportunity to ask ORG direct questions before the court .

Neither of the parties provided the ORG with a copy of the interim judgment delivered by ORG on DATE .

ORG adjourned the delivery of its judgment to DATE in order to allow the parties to submit written comments .

By the judgment of DATE the ORG granted the GPE divorce , and held that both spouses were equally responsible for the divorce . The court found that regardless of the reasons which had prompted the applicant to leave GPE , it was clear that the applicant had extended her stay in GPE until she was finally awarded a residence permit . Consequently , the court concluded that the applicant no longer wanted to return to GPE because she had prospects of better living conditions in GPE and the lengthy separation from her family , and in particular her son , did not appear to affect her . Moreover , according to the witness statement of GPE , in DATE the applicant had prevented her husband and her son from travelling to visit her in GPE on the ground that she had a new family . The court considered that the applicant ’s husband was equally responsible for the divorce because he had allowed his wife to leave and had not tried to persuade her to return home even though their son was of a very young age and he needed his mother ’s care .

ORG also awarded full custody of the child to the father . The court held that :

“ it was in the minor ’s best interest , an interest influenced by a series of factors , such as the child ’s young age , his sex , the opportunities offered by the father for his growth and education , the moral standing ( conduita morală ) of each of the parents , the emotional attachment shown by the father towards the child and by the child towards his father , and other similar factors . ”

The Prahova County Court further cited ORG testimony that the child had been looked after by his father since DATE and that during a phone conversation GPE had overheard between the applicant and her son , the child had refused to talk to her on the ground that he did not know her . Moreover , according to ORG testimony the applicant had asked her husband over the phone to travel to GPE alone without their son because she did not want to jeopardise her job by having them both there at the same time . Further , according to the statement of ORG the child had been waking up at night frightened at the prospect of leaving his father . In this context the court held that the applicant was a stranger to the child and she could not be considered as his mother on account of the fact that she had left him when he was DATE . Since then she had had contact with him only over the phone and had not seen him again until DATE . The child had had an emotional shock when the applicant had been introduced to him as his mother . Furthermore , the court took into account ORG ’s written statement attached to the file , according to which the child was well developed for his age . According to that statement , the child had publicly expressed in his class at the kindergarten his unwillingness to leave his father and his desire to live with him and his stepmother . ORG also held , according to the social investigation carried out at the father ’s home , that the father had been taking care of the child since the latter was DATE and the child was well cared for . The social investigation also showed that the child was well developed for his age , that he was attached to his father and stepmother and that the applicant inquired about him only twice a year .

The court rejected the statements made by the CARDINAL witnesses on behalf of the applicant as being indirect and subjective , given that they were members of the applicant ’s family .

The court , however , allowed in part the applicant ’s request for visiting rights and held that she could visit her son DATE , on DATE and DATE from TIME , at her former husband ’s home . It dismissed the remainder of the applicant ’s request concerning visiting rights on the ground that the child considered her a stranger and that to force the child to spend more time with a person he was afraid of might cause him to suffer psychological trauma which would affect his future development . Moreover , the child was about to start school and it would be stressful for him and against his best interests to be forced to follow the busy schedule proposed by the applicant .

Finally , the court dismissed the applicant ’s request to allow the child to travel to GPE with her on account of his young age , the applicant ’s lack of interest in her son and the risk of her not allowing him to return home .

On DATE the applicant lodged an appeal ( recurs ) against the judgment of DATE . She requested ORG to quash the judgment of ORG and to refer the case back to that court for the obtaining of additional evidence ( administrată ) , in particular :

a ) a social investigation at her home in GPE that would allow the domestic courts to assess her economic and social suitability for bringing up her son . The applicant alleged that by taking into account only the social investigation carried out at her husband ’s home when awarding custody of her son , the national courts had not compared the conditions offered by both the mother and the father of the child and could therefore not establish correctly what was in the best interests of the child . She also argued that the social investigation that had been performed at her former husband ’s home had been subjective and based solely on his own statements . Moreover , she argued that according to domestic law the absence from the file of a social investigation by ORG carried out at her home rendered the court ’s judgment unlawful in so far as the award of the child ’s custody was concerned ;

b ) a psychological report or a report by a qualified social worker that would assess the possibility of building a normal parent - child relationship between the applicant and her son ;

c ) the hearing in person of the witness PERSON , the child ’s kindergarten teacher . The applicant argued that ORG had attributed great importance to PERSON undated written statement attached to the file at the final hearing . She argued that she had not had the opportunity to ask ORG direct questions before the court , which had prevented her from defending herself against the allegations made against her . Furthermore , ORG had not referred to the statements of all the witnesses proposed by her husband but had only taken into account those that were favourable to him ;

d ) a list of her son ’s phone call conversations in order to verify the truthfulness of ORG ’s statement that she had been present at her former husband ’s home and had overheard a phone conversation between the applicant and her son where he seemed frightened of her and did not recognise her .

The applicant also emphasised that it could be seen from the letters she had exchanged with her husband during the time she lived in GPE , letters to which the domestic court did not attach any evidentiary value , that her husband had agreed to her seeking employment in GPE and that he had insisted on her continuing to work there . She further emphasised that her husband had been hiding from the child the fact that she , and not his father ’s present wife , was his mother while at the same time continuing to take advantage of the money which she sent him . In addition , her husband had been detained for DATE for an offence of fraud , and during that time the child had been looked after by strangers .

On DATE the applicant presented orally the appeal points submitted in writing before the domestic court . She mainly argued that a social investigation at her home in GPE was important for the court to be able to assess the situation objectively . Moreover , she considered that the court should also take into account the testimony of the applicant ’s witnesses and that her husband should be held to be the only guilty party for the divorce , on account of his behaviour towards the applicant and his family . Furthermore , she addressed the issue of the child ’s custody and of the personal ties between the child and herself . The latter could not improve , in her opinion , if the meetings between mother and son were held at her former husband ’s home . Finally , she asked the court to allow the appeal as submitted before the court .

By a final judgment delivered on DATE , CARDINAL DATE , ORG partly allowed the applicant ’s appeal and declared that both parties were equally guilty for the divorce on the ground that the parties had jointly taken the decision for the applicant to travel to GPE when the child was very young . Moreover , the applicant ’s husband had been unfaithful to the applicant and misinformed her about their family ’s situation .

In relation to the applicant ’s complaint concerning the need for a social investigation at her home in GPE , ORG dismissed her appeal and held that :

“ This part of the complaint is manifestly ill - founded . A social investigation must be performed at the domicile of the parties concerned . In the case at issue it appears from the documents that the petitioner ’s domicile in GPE is that of her lawyer ( thus the petitioner does not have her own domicile and a social inquiry could not be performed ) , nor does she have a domicile in GPE , which renders a social inquiry impossible . It appears from the documents that the address in GPE provided by the petitioner is that of GPE , by whom the petitioner is employed and for whom she performs household duties . The applicant also lives there , but this can not be considered a domicile within the meaning of the law . It follows that the county court correctly refused to order a social investigation at the petitioner ’s domicile in GPE on the ground that , as has been shown , the petitioner does not have her own domicile . ”

The Ploieşti Court of Appeal also dismissed her appeal concerning the custody proceedings , holding that :

“ the custody of the child was correctly awarded to the father , because the child has been brought up by his father and it is clear that they have developed an emotional bond , a factor taken into account by the lower courts when examining the custody issue . Since he has been looked after by his father up to DATE , it is in the minor ’s best interest to continue living with him . ”

In respect of all the other points formulated by the applicant in her appeal , ORG held that :

“ It is clear that it has been proved in the present case that the applicant ’s husband can ensure the appropriate material and moral conditions required for the child ’s normal development . The applicant ’s affection for her son is unquestionable , but owing to the factual situation mentioned above ( that is , that the child has grown up only with his father ) the applicant can not be awarded custody of the child because the main factor to be taken into account in this case , which is the child ’s attachment to his mother , is lacking as a result of her departure to GPE when the child was DATE and her failure to return . ”

Lastly , ORG dismissed the applicant ’s appeal in respect of her visiting rights decided by ORG on the grounds that she did not have a domicile in GPE and that the child could not be taken away from his father because the child did not know his mother and at his young age meeting her in a strange place without his father being present could prove traumatic for him .

In a letter to the ORG received on DATE the applicant informed the ORG that in DATE she had travelled to GPE CARDINAL times , in DATE , DATE and DATE . Each time she had seen her son once for TIME in the presence of her former husband and his second wife . During the entire time they had spent together , the child had been nervous and shy . She had allegedly informed ORG about the situation ; however , the investigation carried out by the authorities showed that there was no cause for concern . Lastly , the applicant stated that she had not opened a new set of proceedings seeking to be awarded the custody of the child or to have her access rights extended .

The relevant legal provisions , in particular the provisions of LAW in force at the time , are set forth in the judgments of PERSON v. GPE ( no . NORP , § CARDINAL , DATE ) , and ORG v. GPE ( no . CARDINAL ) , ( no . CARDINAL , § CARDINAL , CARDINAL DATE ) .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

ORG ( “ the Government ” ) are represented by their Agent , PERSON , Representative of GPE at ORG .

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

NORP In DATE the applicant bought a house together with the underlying plot of land which was formally QUANTITY wide and QUANTITY long .

By a letter of CARDINAL DATE the Head of ORG , apparently in reply to an inquiry made by a private law firm , informed the person concerned that , following an on - site examination , it had been established that , according to the relevant plan , the applicant ’s plot of land measured CARDINAL sq . m , but in reality it measured QUANTITY m , not including the walls , and QUANTITY . m , if including the walls . The width of the plot at the front was QUANTITY , while the middle part , CARDINAL along , was QUANTITY wide . It was also established that the owners of the neighbouring houses had seized part of the applicant ’s plot of land : CARDINAL sq . m , not including the walls , and QUANTITY . m , if including the walls .

On an unspecified date the applicant instituted proceedings before the ORG and ORG of GPE against his neighbours , claiming that they had built certain constructions encroaching on his plot of land , and seeking to recover his property .

During the court examination of the claim it was established that the constructions in question were the ORG houses which were owned by them .

On DATE the ORG and ORG of GPE partially granted his claim .

On DATE ORG dismissed his claim in full .

On DATE ORG quashed this judgment and remitted the case .

On DATE ORG , having re - examined the claim , decided to grant it . The court found that , according to the relevant property certificate and the plot ’s plan , the applicant ’s plot of land measured QUANTITY However , as stated in ORG letter of DATE , his neighbours had unlawfully seized part of that plot measuring CARDINAL sq . m , not including the walls , and QUANTITY . m , if including the walls . The court thus obliged the defendants to remove the unauthorised constructions and to return the unlawfully seized part of the plot of land according to the dimensions indicated in the letter of DATE .

No appeal was lodged against this judgment and it became final . A corresponding writ of execution was issued to the applicant on DATE .

On DATE the applicant requested ORG of ORG ( “ the LOC ” ) to institute enforcement proceedings .

On DATE the bailiff decided to institute the relevant enforcement proceedings . On the same date the bailiff ordered the applicant ’s neighbours to demolish the unauthorised constructions and to return the seized part of the plot of land to the applicant by TIME on DATE .

On DATE the bailiff decided to impose on the neighbours a fine of QUANTITY ( approx . EUR CARDINAL ) due to their failure to comply with the judgment .

On DATE the bailiff instituted court proceedings , seeking to have this fine levied .

On DATE the ORG and ORG of GPE left the bailiff ’s application unexamined due to his failure to appear .

On DATE the bailiff decided to apply to ORG with a request to clarify the execution writ , stating that on DATE the defendants had produced ownership certificates and argued that the constructions subject to demolition were not unauthorised . The bailiff decided to stay the enforcement proceedings until clarification was provided .

On DATE ORG dismissed this request , finding that the judgment of DATE had clearly stated that , according to ORG letter of DATE , the neighbours had unlawfully seized part of the applicant ’s plot of land measuring CARDINAL sq . m , not including the walls , and QUANTITY . m , if including the walls , on which they had built unauthorised constructions which were to be removed .

On DATE the bailiff decided to resume the enforcement proceedings .

On DATE the head bailiff applied to PERSON , requesting that the unauthorised constructions built by the defendants be pointed out on the spot .

By a letter of DATE PERSON Council informed the head bailiff that , in accordance with additional measurements taken by the employees of ORG with the participation of the bailiff , no unauthorised constructions built by the neighbours were disclosed on the applicant ’s plot of land . As to the letter of DATE , it referred to a land seizure of QUANTITY . m at the rear of the plot of land which was separated by an uncemented fence that could have been removed .

On DATE the bailiff decided to discontinue the enforcement proceedings on the ground that , as a result of additional measuring , no unauthorised constructions and land seizure had been disclosed in the disputed area and that the unauthorised constructions referred to in the execution writ were the ORG flats .

On an unspecified date the applicant complained about the bailiff ’s decision to the courts claiming that the judgment of DATE had not been complied with and seeking to annul the bailiff ’s decision and to resume the enforcement proceedings .

On DATE the ORG and ORG of GPE granted the complaint , quashed the bailiff ’s decision as being in contradiction to LAW of the PERSON on ORG ( “ the Enforcement Law ” ) and ordered the reopening of the enforcement proceedings .

On DATE the bailiff reopened the enforcement proceedings .

On DATE the head bailiff applied to ORG , asking for additional measurements to be taken , with participation of specialists and bailiffs , in order to clarify the existence of unauthorised constructions built by the defendants and the dimensions of the seized land on the spot .

By a letter of CARDINAL DATE the Head of ORG of ORG informed the bailiff that there were no unauthorised constructions and no unlawful land seizure on the applicant ’s plot of land by his neighbours .

On DATE the bailiff decided , based on the above letter , to discontinue the enforcement proceedings on the ground that there were no unauthorised constructions and no unlawful land seizure at the address in question .

On an unspecified date the applicant contested this decision before the courts . On DATE the ORG and ORG of GPE quashed the bailiff ’s decision on the ground that the bailiff had failed to enforce in substance the judgment of DATE and that his actions were in violation of LAW of LAW .

On an unspecified date the bailiff lodged an appeal .

On DATE ORG upheld the judgment of ORG .

On DATE the bailiff , based on the judgment of ORG , reopened the enforcement proceedings .

On DATE the Head of the Kanaker - Zeytun District Council , upon a request lodged by the bailiff on DATE , informed the latter that , in accordance with the examination carried out by the ORG ’s officials , the actual size of the houses built by the applicant ’s neighbours on their plots of land corresponded to that indicated in their ownership certificates .

On DATE the ORG and ORG of ORG , upon a request lodged by the bailiff on DATE , informed the latter that its officials had taken measurements of the applicant ’s house and plot of land , as a result of which it was found that the actual position and size of the applicant ’s house and the plot of land corresponded to the plan as indicated in the ownership certificate .

On DATE the bailiff again requested ORG to provide clarification of the execution writ .

On DATE the bailiff decided to stay the enforcement proceedings on this ground .

On DATE the bailiff applied to ORG , seeking to clarify whether the enforcement proceedings were to be discontinued or terminated .

On DATE ORG dismissed this application .

NORP On DATE the bailiff decided to reopen the enforcement proceedings and to terminate them , finding that the uncemented construction ( fence ) built by the defendants without authorisation at the rear of the plot had been removed .

On an unspecified date the applicant contested before the courts the bailiff ’s decision of CARDINAL DATE , claiming that it was in violation of LAW § CARDINAL ( CARDINAL ) of LAW since the final judgment of DATE had not actually been enforced .

On DATE the ORG and ORG of GPE dismissed the applicant ’s complaint . The applicant lodged an appeal .

On DATE ORG dismissed the applicant ’s appeal . In doing so , ORG made a reference to ORG letter of DATE , according to which the land seizure concerned the uncemented fence which was no longer found to be present during a new on - site examination on DATE . Hence , the judgment of DATE had in fact been enforced by DATE . The bailiff ’s decision to discontinue the enforcement proceedings was quashed on formal grounds , in particular , because the bailiff had not applied the correct legal provision for the termination of the enforcement proceedings , and not because the judgment had not been enforced . It would have been more correct to terminate the proceedings rather than to discontinue them . On DATE the applicant lodged an appeal on points of law against the judgment of CARDINAL DATE .

The applicant did not submit any further information concerning the case .

The PERSON on the Enforcement of Judicial Acts

According to LAW , the enforcement of judicial acts in GPE is ensured by ORG operating under ORG of GPE .

According to LAW , an execution writ issued according to a procedure prescribed by this PERSON shall provide grounds for taking enforcement measures .

According to LAW ( as amended on DATE ) , enforcement measures include , inter alia , imposition of a fine for failure to comply with the bailiff ’s decisions .

According to LAW and DATE , the enforcement measures shall be executed within DATE . This time - limit can be extended by DATE by ORG of GPE .

According to LAW , if the requirements contained in the execution writ are unclear the bailiff can apply to obtain clarification from the court which issued the writ .

According to LAW , the bailiff has the right to stay the enforcement proceedings if he has applied to obtain clarification from the court which issued the execution writ .

According to LAW , the bailiff shall discontinue the enforcement proceedings if ( CARDINAL ) the judgment beneficiary requests that the execution writ be withdrawn ; ( CARDINAL ) it is impossible to locate the debtor or his property while all permissible measures taken by the bailiff and/or the beneficiary have proved vain ; ( CARDINAL ) the debtor has no property or sources of income which might be confiscated while all the permissible measures undertaken by the bailiff and/or the beneficiary and directed at discovering the debtor ’s property have proved vain ; and ( CARDINAL ) the debtor ’s property is not sufficient to meet the demands of the beneficiary ; and ( CARDINAL ) the enforcement activities , as required by the execution writ , have been concluded ( this subparagraph was abolished on DATE ) .

According to LAW , the bailiff shall terminate the enforcement proceedings if the execution writ has in fact been executed .

According to LAW ( as in force at the material time ) , following the institution of enforcement proceedings the bailiff shall set a time - limit for the execution by the debtor of the execution writ obliging him to take certain actions . If no actions are taken within that time - limit , the bailiff shall impose on the debtor a fine and take other measures envisaged under LAW and ensure the enforcement of the execution writ by levying on the debtor CARDINAL times the enforcement costs .

According to LAW and CARDINAL § CARDINAL ( as amended on DATE ) , the deliberate non - compliance with the bailiff ’s decision entails liability prescribed by law . Fines imposed by the bailiff shall be levied by a court judgment .

According to Article CARDINAL ( as amended on DATE ) , the deliberate non - compliance with the bailiff ’s decision shall lead to the imposition of a fine between QUANTITY times the fixed minimum wage .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

On DATE the applicant concluded with E. a contract for property to vest in a third person on the owner 's death ( FAC ORG ) under which the applicant would receive the farming estate of E. situated in GPE after the latter 's death .

On DATE , after the death of PERSON , the applicant filed a request with the local ORG for PERSON ( Grundverkehrsbehörde ) at the office of ORG ) for the approval of the contract and submitted that he intended to work the land himself . On DATE ORG approved the contract concluded with E.

On DATE ORG ( ORG ) at ORG ( Amt der Landesregierung ) for ORG exercised his right of appeal to ORG ( ORG ) . On DATE the administrator of the deceased 's estate also appealed .

On DATE the applicant requested an oral hearing . On DATE ORG held a hearing in camera .

On DATE a new ORG was adopted , which came into force on DATE . According to this LAW the name and composition of ORG were changed .

On DATE the newly established ORG ( ORG ) granted the appeal of ORG and refused to approve the contract with PERSON As regards the appeal of the administrator of the deceased 's estate , ORG found that he lacked legal standing .

On DATE the applicant lodged a complaint with ORG ) . He complained , inter alia , that ORG had adopted its decision without offering him the opportunity of presenting his arguments in the course of an oral hearing before this body .

On DATE ORG dismissed the applicant 's complaint . Referring to its own case - law , the court found that an oral hearing in the present case was not obligatory .

NORP Under the Tyrol LAW DATE ( PERSON ) , a contract concerning the transfer of ownership of real property was subject to approval by the real property transactions authorities if agricultural and forestry land was involved or if the purchaser did not possess NORP nationality ( sections CARDINAL and CARDINAL ) . If approval was withheld , the acquisition was null and void ( section DATE ) ) .

On DATE a new LAW ( dated DATE ) came into force . According to LAW , the authority of second and final instance had been ORG ( PERSON ) . In the DATE Act ORG was replaced by ORG ( ORG ) .

The procedure before the real property transactions authorities is governed by LAW DATE ( ORG ) . Section CARDINAL(CARDINAL ) of this LAW deals with oral hearings and provides as follows :

“ Oral hearings shall be held in the presence of all known parties and the necessary witnesses and experts . If oral hearings have to be combined with an inspection of the location , they should , if possible , be held there or otherwise at the seat of the authority or another location which in the circumstances appears most suitable . ”

It is the consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise , as it is commonly understood that the principle of publicity does not extend to administrative proceedings ( see PERSON , PERSON , CARDINALth edition , GPE DATE , pp . CARDINAL - CARDINAL ) .

Article CARDINAL § CARDINAL of LAW provides :

“ Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . ”


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)

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

“ ... the witness in question is abroad , his statements [ made during the investigation ] have been read out and attempts to establish his current address are immaterial for the outcome of the proceedings . ”

“ With regard to the first charge , i.e. trafficking in drugs , it is first of all the testimonies of persons who were directly involved in the [ alleged ] criminal activities and who described them in detail , which persuade the court of PERSON guilt . It concerns primarily [ testimonies ] of PERSON , brothers PERSON and GPE as well as PERSON These witnesses ( ... ) in the course of the proceedings on a few occasions explained in detail their past , indicating persons with whom they had traded in drugs . They indicated not only the names or nicknames of the persons who had sold them drugs , but also indicated their buyers . They also indicated the quantity of drugs sold and their price . What is most important , they described in unison the role of PERSON in the enterprise .

It transpires from the testimonies of PERSON and GPE that the defendant [ the applicant ] proposed to cooperate with them in distributing drugs . They were to sell drugs supplied by PERSON and then to pay him back . ( ... )

PERSON described cooperation with the defendant in a similar manner . ( ... )

PERSON also made statements incriminating the applicant . ( ... ) It is true that in the course of the [ separate ] trial in a case before ORG CARDINAL/CARDINAL PERSON attempted to change his statements and argued that PERSON had nothing to do with drugs ; however , it was difficult to consider these statements convincing in the light of the earlier coherent and detailed depositions . ”

“ The assessment of the credibility of those testimonies is certainly not affected by the fact that GPE and PERSON could not have been heard directly before the court . These witnesses do not live at their places of residence and the court had good reason to disclose the testimonies of these witnesses in accordance with LAW . ”

ORG However , since PERSON was abroad at the material time ( a request to hear this witness by means of international judicial assistance was dismissed by the decision of DATE ) the court had the right to read out his statements made in the investigation stage of the proceedings .

The first - instance court correctly dismissed the request to hear other witnesses proposed by the defendant , including those indicated in his pleading of CARDINAL DATE ( ... ) . The circumstances on which they were to testify would have been irrelevant for the determination of the case , in particular in the light of other items of evidence ...

The first - instance court did not infringe the principle of directness [ pursuant to which all evidence should normally be produced at a public hearing ] and the applicant ’s right to defence . ( ... )

In any event , GPE , as well as the above - mentioned PERSON , were abroad . While , PERSON [ also ] referred to in the defendant ’s appeal was beyond the reach of the police . ( ... )

There can be no agreement with the appellants who allege that the first - instance court determined the quantity ( and the value ) of drugs in an arbitrary manner . On DATE as it transpires from the written reasoning of the impugned judgment – the court ’s findings in this respect result from detailed ( in so far as this is possible in this type of cases ) [ analysis of ] witnesses’ testimonies given – understandably , in particular in the circumstances of the present case – at the initial stage of the criminal proceedings , and in particular the testimonies of GPE and PERSON ( ... )

Significantly , as it transpires from the reasoning of the impugned judgment , the first - instance court took into account the minimum quantity and value [ of drugs ] . Therefore , it did not infringe LAW ( the in dubio pro reo principle ) . ”

“ As regards the complaints of an alleged violation of criminal procedure as a result of the trial court ’s refusal to hear CARDINAL witnesses and its reading out of the statements given by PERSON before the prosecutor , these are in fact directed against the trial court ’s judgment and it is obvious that , in a cassation appeal , only the judgment of the second - instance court may be challenged . The above complaints have already been raised in appeals and have been properly dismissed as ill - founded by the appellate court . ”

“ The time - limit is respected if , before its expiry , a letter was handed over ( ... ) in case of a person deprived of his or her liberty , to the administration of the respective detention facility . ”

Article CARDINAL of the Code provides as follows :

“ CARDINAL . If a witness has without good reason refused to testify , or has given testimony different from DATE , or has stated that he does not remember certain details , or if he is abroad , or a summons can not be served on him , or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him by virtue of LAW [ namely , because upon lodging the bill of indictment the prosecution asked that the records of his testimony be read out at trial ] , and also when a witness has died , the records of his previous statements may be read out , [ regardless of whether they ] were made during the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law .

NORP In the circumstances referred to in paragraph CARDINAL , and also in the case specified in LAW , the records of evidence that a witness has given when heard as an accused may also be read out . ”

Section CARDINAL(CARDINAL ) of ORG ( Combating ) Act DATE ( GPE z DATE r. o przeciwdziałaniu narkomanii ) provides as follows :

“ Whoever markets intoxicating or psychoactive substances or poppy straw or participates in the selling thereof shall be subject to a fine and imprisonment for a term of DATE . ”

Section CARDINAL(CARDINAL ) of the above - mentioned LAW provides as follows :

“ If the subject of the offence referred to in subsection CARDINAL is a significant quantity of intoxicating or psychoactive substances or poppy straw , the perpetrator shall be subject to a fine and imprisonment for DATE . ”