Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

The applicant had served as a judge of ORG of GPE since DATE , first when the country formed part of GPE and then after it became independent .

On DATE the applicant retired on age grounds and was granted , under section CARDINAL of the LAW DATE on ORG of GPE ( “ the LAW ” ) , a pension of CARDINAL NORP laris ( GEL – MONEY ( ORG ) . ) , corresponding to her final salary .

The original version of section CARDINAL of LAW , in force at the time of the applicant ’s retirement , stated that , upon retirement , a ORG judge was entitled to a life - long pension in an amount equal to his or her final salary and adjustable in line with changes in the salary scales of serving ORG judges .

Section CARDINAL of LAW was later amended on several occasions . Thus , by an amendment of DATE , its second clause concerning the adjustment requirement ( “ the adjustment clause ” ) was removed .

By an amendment of DATE , the adjustment clause was reintroduced to LAW in a slightly altered form , extending the adjustment benefit to cover , in addition to retired ORG judges , those who agreed to relinquish office DATE and DATE , providing they had served for DATE ( sections CARDINAL and CARDINAL(CARDINAL ) of the LAW , as of DATE ) .

Finally , by an amendment of DATE , which entered into force on DATE , section CARDINAL was rephrased as follows :

“ A ORG judge who has retired either on reaching pension age or on expiry of his or her term of office shall be entitled to ORG compensation in the amount of GEL CARDINAL [ ORG CARDINAL ] ” .

Section CARDINAL(CARDINAL ) of the LAW , which was amended at the same time , stated that ORG judges who had relinquished office DATE and DATE would receive ORG compensation in an amount equal to their final salary for the remainder of the term which they would have normally served if they had remained in office ; after expiry of that term the compensation paid to judges who had resigned would be recalculated in accordance with the latest version of section DATE .

Unlike previous amendments to that provision , DATE version of section CARDINAL was given retroactive effect by virtue of section CARDINAL(CARDINAL)(CARDINAL ) , inserted in LAW on DATE .

On DATE the applicant , dissatisfied with the procedure for payment of her pension , brought an action against the ORG seeking compensation for pecuniary damage , challenging , in particular , the lawfulness of the application of the amendment of DATE to LAW . Relying on the original version of section CARDINAL of the LAW , she requested that her pension be adjusted in line with the Supreme Court judges’ pay rise which had occurred after her retirement , and that she be compensated for the resulting arrears . ORG ( “ the Fund ” ) was a respondent in the proceedings .

On DATE the Krtsanisi - Mtatsminda District Court in GPE allowed her claim in part , reasoning , inter alia , that the amendment of DATE could not be given retroactive force under LAW in so far as , by removing the adjustment clause , it worsened the applicant ’s situation .

On DATE ORG overturned the lower court ’s decision , stating that there were no signs of a worsening of the applicant ’s pre - existing situation .

Finally , in a judgment of CARDINAL DATE following a cassation appeal , adopted by a majority vote , a CARDINAL judge bench of ORG ( “ the majority ” ) quashed the appeal decision of CARDINAL DATE and allowed the applicant ’s claim in full .

At the outset , the majority noted that , in so far as the ORG had paid the applicant , by error , her DATE pension in an amount corresponding to the latest salary of a serving ORG judge ( GEL DATE EUR CARDINAL ) , the applicant ’s claim should be limited in time up to and including DATE .

The majority then stated that the amendment of DATE could not have retroactive force because it did not contain any indication to that effect as required by section CARDINAL(CARDINAL ) of GPE ( see CARDINAL below ) . In the absence of such an explicit indication , it could not legitimately be inferred that the legislature had intended to deprive judges who had already retired of their “ adjustment right ” ex post facto ; the respondent administrative authority ’s decision to do so had therefore been arbitrary .

NORP The majority also stated that , in so far as section CARDINAL of the Act of DATE on ORG Entitlements ruled out the possibility of a reduction in a ORG judge ’s salary , it was logical to assume that the adjustment clause was , in principle , meant to protect the right to an increase in pension .

NORP The majority further ruled that , when deciding on a dispute , the courts must apply the statute in force at the time material to the critical event , even if the legal consequences of that event only emerged later under a different statutory regime . To hold otherwise , in the opinion of the cassation court , “ would undermine legal certainty ... and ... allow the legislature ’s arbitrariness to replace a stable legal order . ” Despite the fact that the applicant ’s pension rights were obviously of a continuous nature , those rights had arisen , in the opinion of ORG , as a result of the material fact of the applicant ’s retirement in DATE , when she had been granted a pension for life under the original version of section CARDINAL of LAW .

In view of the above , the majority concluded that the impugned amendment of DATE should apply only to those judges who had voluntarily relinquished office or retired on reaching pensionable age or on expiry of their term of office , and had thus acquired their pension rights after its entry into force . In no way could that amendment be understood to replace the original section CARDINAL of LAW and to apply to retired judges who had already obtained their pension rights .

The majority also noted that the original version of section CARDINAL of LAW set a very high standard of retirement benefit for ORG judges . It stated in this regard that “ the creation of generous pension benefits is not only a question of providing social protection for any particular retired judge , it also aims to maintain the independence and impartiality of the judiciary in general , by providing serving judges with the expectation of obtaining the same benefits upon their future retirement ... ”

One of the members of ORG , Judge PERSON , expressed a dissenting opinion . He reasoned , in so far as relevant , that the removal of the adjustment clause from the original version of section CARDINAL of LAW could not be said to have necessarily caused the applicant ’s situation to deteriorate , as the pension might equally have been reduced and not just increased . Contrary to the majority ’s opinion , he stated that section CARDINAL of LAW of DATE on ORG Entitlements had nothing to do with the protection of NORP retirement pensions . As to the question whether a ORG judge ’s pension could be reduced , Judge PERSON replied in the affirmative , arguing that such a mechanism existed under section CARDINAL(CARDINAL ) of the LAW on ORG . In his opinion , the amendment of DATE could be held applicable to the applicant ’s situation because it did not affect her right to receive the pension as such , but simply redefined its amount .

Judge PERSON also stated that “ neither the amendment of DATE nor the amendment of DATE , which fixed the pension for judges who had already retired at GEL CARDINAL , breached ... the principle of legal certainty ” . He concluded that the applicant ’s pension should be adjusted in line with ORG pay rise DATE , when the adjustment clause had been reintroduced into section CARDINAL of LAW , and DATE , when the ex post facto amendment of DATE had entered into force .

The judgment of DATE ordered the ORG to compensate the applicant for all the arrears accumulated as a result of the failure to adjust her pension in line with ORG pay rises up to and including DATE , as required by the original version of section CARDINAL of LAW .

The ORG discharged the judgment debt of DATE in the applicant ’s favour in due time .

With effect from DATE , the ORG , relying on the amendment of DATE to LAW , fixed the applicant ’s pension at GEL MONEY ( EUR CARDINAL ) .

In view of the above , on DATE the applicant brought another action for damages against the Fund , challenging the lawfulness of the application of the amendment of DATE to her situation .

On DATE the Tbilisi City Court dismissed the applicant ’s action as manifestly ill - founded . Its reasons mostly corresponded to those given by Judge PERSON in his dissenting opinion on the judgment of CARDINAL DATE . The first - instance court added that the impugned amendment of DATE , unlike the previous amendments to section CARDINAL of LAW , contained a clear indication of its retroactive effect and was , consequently , compatible with section CARDINAL(CARDINAL ) of LAW .

The applicant lodged an appeal against the judgment of DATE , which was dismissed by ORG on DATE . Referring to paragraphs CARDINAL and CARDINAL of the ORG ’s judgment in the case of LOC GPE ( no . CARDINAL , ORG CARDINALIX ) , the appellate court stated that LAW No . CARDINAL did not guarantee the right to receive a pension of a particular amount . In reply to the applicant ’s complaint that the first - instance court had disregarded the findings of ORG judgment of DATE , ORG stated that the scope of that judgment had been limited to resolving her pension dispute arising out of the amendment of DATE ; the judgment of CARDINAL DATE had never addressed the issue of payment of her pension on the basis of the amendment of DATE .

On DATE the applicant lodged a cassation appeal against the appellate judgment of DATE . Amongst other arguments , the applicant affirmed , referring to the case of GPE and PERSON and PERSON and Others v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL to CARDINAL , ORG CARDINALVII ) , that legislative interference retroactively affecting a civil right was incompatible with the Convention . In support of the admissibility of her cassation appeal , the applicant , comparing ORG judgment of DATE with ORG judgment of DATE , pointed out that the CARDINAL decisions had resolved an analogous situation differently , and argued that an examination of her cassation appeal on the merits was indispensable for the consistent development of the domestic case - law on the subject .

On DATE a bench of ORG , composed of Judge PERSON ( see paragraph CARDINAL and CARDINAL above ) and CARDINAL other judges who had not participated in the examination of the applicant ’s first pension dispute , declared the cassation appeal of CARDINAL DATE inadmissible . The decision was delivered without an oral hearing , under the written procedure . Without specifically addressing any of the applicant ’s cassation arguments , the cassation court stated that none of the conditions of admissibility envisaged by the relevant provision of ORG had been met .

The applicant then requested the setting - aside of the decision of CARDINAL October CARDINAL on the basis of LAW ( a ) of LAW . She complained that Judge PERSON should not have participated in the examination of her cassation appeal of CARDINAL DATE , in so far as he had already expressed his opinion on the same issue ; that constituted a ground for his exemption or withdrawal under LAW ( d ) and CARDINAL of the Code of Civil Procedure .

In a final decision of CARDINAL DATE ORG rejected as unsubstantiated the applicant ’s request to have the impugned decision set aside . The fact that Judge PERSON had expressed a dissenting opinion on the judgment of CARDINAL DATE could not , in the cassation court ’s view , be accepted as evidence of bias , actual or implied , against the applicant .

The relevant provisions of LAW read as follows :

LAW of a judge from repeated examination of a case

“ CARDINAL . A judge who participated in the examination of a case in the court of first instance shall not participate in the examination of the same case in appellate or cassation proceedings .

A judge who participated in the examination of a case by the appellate court shall not participate in the examination of the same case in a court of first instance or in cassation proceedings .

A judge who participated in the examination of a case at cassation level shall not participate in the examination of this case in a court of first instance or in appellate proceedings . ”

LAW ( d ) – Grounds for a judge ’s exemption from the case

“ CARDINAL . A judge may not participate in the examination of the case if : ...

( d ) he or she is believed to be personally , directly or indirectly interested in the outcome of the case or there exist other reasons which cast doubt on his or her impartiality . ”

Article DATE Withdrawal of a judge

“ If there exists a ground for exempting a judge from sitting in the case , the judge concerned must withdraw . The court shall deliver a decision explaining the reason for the withdrawal . ”

LAW ( a ) – Request to render a final judgment ( decision ) null and void

“ CARDINAL . A final and binding judgment ( decision ) may be quashed at the request of the party concerned if :

( a ) A judge who participated in the determination of the case has been barred from doing so by law ... ”

DATE Procedure reads as follows :

“ A judge shall not participate in the hearing of a case if he or she previously participated in administrative proceedings in connection with the case . ”

Section CARDINAL(CARDINAL ) reads as follows :

“ CARDINAL . A normative act can have retroactive force only if this is explicitly stated . ”

This Act , which entered into force on DATE , consolidated , under a single legal regime for ORG compensation , the payment of pensions for retired civil servants , including those who had previously been entitled , under various distinct statutes , to a life - long pension in an amount permanently adjustable in line with changes in the salary scales of the corresponding posts ( such as retired public prosecutors , retired officials of the ORG , ORG and ORG and former members of ORG ) .

Section CARDINAL of the Act fixed the maximum level of such ORG compensation for all the retired civil servants concerned , irrespective of DATE they had served and in which part of the public service , at GEL MONEY ( EUR CARDINAL ) .

The relevant provisions read as follows :

Section CARDINAL(CARDINAL )

“ CARDINAL . Funds allocated in the ORG budget for current expenditure of the courts of common jurisdiction may be reduced in relation to DATE allocation only by consent of the general conference of judges . ”

Section CARDINAL(CARDINAL ) ( in fine , as amended on DATE )

“ CARDINAL . It is forbidden to reduce a judge ’s salary throughout the entire term of his or her office . ”

The relevant provision reads as follows :

Section CARDINAL ( as amended on DATE )

“ It is forbidden to reduce a ORG judge ’s salary throughout the entire term of his or her office . ”

On DATE the Act on Salary Benefits for Judges of ORG was adopted , fixing a ORG judge ’s salary at GEL MONEY ( ORG CARDINAL ) . The LAW entered into force on DATE .

By an amendment of DATE to that LAW , a ORG judge ’s salary was raised to GEL CARDINAL ( EUR CARDINAL ) . An amendment of CARDINAL DATE further raised the salary to GEL CARDINAL ( EUR CARDINAL ) .

Finally , by virtue of a further amendment of DATE , which is still in force , the current salary of a ORG judge was set at GEL CARDINAL ( ORG CARDINAL,CARDINAL ) .

ORG of GPE , which was the highest cassation court in all types of judicial proceedings concerning administrative disputes , was composed of CARDINAL judges at the time of the examination of the applicant ’s pension disputes .

The Charter was adopted during the second multilateral meeting concerning the status of judges in LOC , organised by ORG in GPE on DATE . Its relevant parts read as follows :

“ CARDINAL . General Principles

The statute for judges aims at ensuring the competence , independence and impartiality which every individual legitimately expects from the courts of law and from every judge to whom is entrusted the protection of his or her rights . It excludes every provision and every procedure liable to impair confidence in such competence , such independence and such impartiality . The present LAW is composed hereafter of the provisions which are best able to guarantee the achievement of those objectives . Its provisions aim at raising the level of guarantees in the various LOC . They can not justify modifications in national statutes tending to decrease the level of guarantees already achieved in the countries concerned . ...

Remuneration and Social Welfare

CARDINAL [ The LAW ] specifies in this context that judges who have reached the age of judicial retirement after the requisite time spent as judges must benefit from payment of a retirement pension , the level of which must be as close as possible to the level of their final salary as a judge . ”


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

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

On DATE the applicant was detained on remand on suspicion of assault . He was released DATE .

On DATE a bill of indictment against the applicant and another person was lodged with the ORG . The prosecuting authorities proposed that CARDINAL witnesses be heard by the court .

A first hearing was held on DATE . Most of the hearings in the case were adjourned as the witnesses repeatedly failed to comply with the court summonses .

On DATE , when the domestic proceedings were still pending , the applicant introduced his application , complaining about the excessive length of these proceedings .

On DATE the ORG communicated the application to the respondent Government .

At the hearing on DATE ORG gave a judgment . On DATE ORG partly amended the judgment and upheld it as to its remainder .

By a letter of CARDINAL DATE ORG informed the applicant that it was open to him to avail himself of a domestic remedy in respect of the length of proceedings , as provided for by LAW .

In reply , by a letter of DATE , the applicant informed the ORG that he did not intend to do so .

On DATE NORP ORG adopted a new law ‘ on complaint about a breach of a right to have one ’s case heard within a reasonable time’ . The act entered into force on DATE .

Section CARDINAL of the LAW provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached . The court shall take into consideration the following criteria : the conduct of the court before which the case is pending ; the character of the case and the complexity of the legal and factual issues involved therein ; what was at stake for the complainant , and the conduct of the parties . The length complaint must be lodged when the proceedings are still pending .

Pursuant to LAW , if the court finds that the length complaint is wellfounded , it shall give a ruling to this effect . If the complainant so requests , the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings . The court may also , award an appropriate amount of money to the complainant , in the amount not exceeding PLN MONEY .

Under LAW , within DATE after the entry into force of the LAW , that is , from DATE , anyone who had lodged an application with ORG in due time complaining of a violation of the ‘ reasonable - time’ requirement contained in LAW was entitled to lodge a length complaint provided for by LAW , if the application to the ORG had been lodged when the proceedings were still pending and if it had not yet been declared admissible by ORG .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON parish ( GPE ) . She is represented before the ORG by PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) are represented by their Agents , PERSON and subsequently by PERSON .

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

NORP The applicant acquired an oil press in DATE for CARDINAL NORP lati ( ORG ) from a private individual , ORG The applicant subsequently leased that press to CARDINAL companies .

On DATE the applicant concluded a sales agreement with a farm for ORG CARDINAL,CARDINAL , which she received on condition that she would deliver the press by DATE . Meanwhile , on DATE PERSON , the chairman of a co - operative organisation , seized the press and took it to its LOC . The applicant found out about the seizure on DATE and reported it to the police .

The applicant did not fulfil her contractual obligation to deliver the press and thus incurred a contractual penalty of ORG CARDINAL,CARDINAL ; she paid it on DATE .

On DATE the press was returned to the applicant .

On DATE criminal proceedings were instituted in relation to arbitrary seizure under section CARDINAL of the former Criminal Code ( patvarība ) . On DATE the applicant was joined as a civil party ( civilprasītājs ) in the criminal proceedings .

On DATE PERSON was charged with aggravated abuse of official authority ( dienesta stāvokļa ļaunprātīga izmantošana ) under section CARDINAL , paragraph CARDINAL of the former Criminal Code .

On DATE that charge was dropped and PERSON was charged with exceeding official authority ( dienesta pilnvaru pārsniegšana ) under LAW , paragraph CARDINAL of the former Criminal Code .

On DATE the case was sent to the ORG for adjudication . That court , in its first hearing on DATE , granted the request by defence counsel to send the case for additional investigation .

The criminal proceedings were terminated on several occasions , namely on DATE , CARDINAL DATE and DATE , on grounds that no crime had been committed . All these decisions were subsequently quashed because ORG , whose testimony was crucial to establish the truth in the proceedings , had not been questioned . In fact , she did not co - operate and the police could not forcibly transport her ; her whereabouts were not known . Finally , on an unspecified date before DATE , ORG submitted a written testimony . She refused to appear before the prosecutor in person .

On DATE the last decision to terminate the criminal proceedings was quashed on grounds that witness ORG had not been questioned contrary to previous instructions . The case was sent for additional investigation .

On DATE another decision to terminate the criminal proceedings was adopted on grounds that no crime had been committed .

On DATE a superior prosecutor quashed that decision because he saw arbitrariness in the actions of ORG but brought no charges against him due to statute of limitations . Thus , the legal grounds for terminating the criminal proceedings were twofold : no elements of crime as concerns exceeding official authority and statute of limitations as concerns arbitrary seizure .

With a final decision of DATE , replying to the applicant ’s complaint , another prosecutor upheld the decision to terminate the criminal proceedings . The prosecutor noted that the applicant had a right to seek damages in civil proceedings .

On DATE the applicant lodged an application with ORG to secure her eventual civil claim against PERSON On DATE the court ordered an attachment on the respondent ’s property ( real estate , assets and money ) . On DATE , following an application lodged by PERSON , this decision was revoked and an attachment on a land plot was ordered instead .

On DATE the applicant lodged a civil claim against PERSON with the ORG for pecuniary damages in the amount of ORG CARDINAL .

On DATE the civil proceedings were stayed , upon the applicant ’s request , pending the outcome of criminal proceedings .

On DATE , on the applicant ’s request , the ORG renewed the civil proceedings and scheduled a hearing .

On DATE the ORG held a hearing . The applicant increased her claim of damages to ORG . The proceedings were adjourned upon the respondent ’s request to add the criminal case - material . Another hearing was adjourned on DATE at the request of the respondent .

On DATE ORG held a third hearing . The applicant maintained her claim of damages . The district court decided to forward the case to a higher court since it lacked competence to hear cases involving determination of claims above ORG CARDINAL,CARDINAL .

On DATE ORG examined the case ; the applicant retracted her increased claim of damages and maintained her claim only in the amount of ORG CARDINAL,CARDINAL . The regional court upheld the applicant ’s claim in full and ordered the respondent to pay ORG CARDINAL in damages .

On DATE ORG of ORG , upon an appeal lodged by the respondent , upheld the ruling of the regional court and upheld the applicant ’s claim . ORG in its ruling referred to the DATE decision to terminate the criminal proceedings on grounds of statute of limitations as concerns actions of ORG , which the prosecutor had deemed arbitrary . The court found that there were no legal grounds to seize the press and thus ORG actions were unlawful . Thus , he incurred liability for damage .

NORP The ruling took effect on DATE ; the parties did not lodge an appeal on points of law . A writ of execution was issued on DATE .

On DATE , following the decision to remove the attachment on the respondent ’s property , a bailiff addressed the competent domestic register ( PERSON ) to record that removal . At the same time , she did not proceed to register the newly ordered attachment DATE on the respondent ’s land plot – with that register .

On DATE K.O. registered a mortgage in favour of a bank on the land plot as collateral for a loan . Henceforth , the land plot could not be sold .

On DATE the applicant submitted the writ of execution regarding the DATE judgment to another bailiff . The respondent agreed to comply with the ruling voluntarily and to repay the debt until DATE .

On DATE ORG of ORG rejected PERSON ’s application to pay damages in instalments by DATE .

By DATE the applicant received the whole amount due in CARDINAL separate instalments .

On DATE criminal proceedings were instituted against the bailiff , who had failed to record the changes in the attachment of the respondent ’s property , for having not executed her official duties .

On DATE the criminal proceedings were terminated for lack of crime . The police concluded that the whole debt had been settled ; the applicant ’s argument that she had suffered substantive damage ( a constitutive element of the crime ) as a result of the bailiff ’s actions was dismissed .

The former Code of Civil Procedure ( ORG kodekss ) , in force until DATE , provided that a court was under an obligation to stay civil proceedings if it could not adjudicate a case until such time when another criminal case was to be determined . The civil proceedings were stayed until a decision was taken in the criminal proceedings ( section CARDINAL , paragraph CARDINAL ) .

Under section QUANTITY of the same code , a court had to renew the civil proceedings on the application by CARDINAL of the parties or proprio motu .

Under section CARDINAL , paragraph CARDINAL of ORG ( ORG likums ) , in force since DATE , bailiff ’s actions concerning enforcement can be appealed against by submitting an application to a district ( city ) court within a DATE time - limit from the date on which a person has learned about the impugned actions .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant , Mr PERSON , is a national of GPE and GPE who was born in DATE and lives in GPE . His application was lodged on DATE . He was represented before the ORG by PERSON and PERSON O.Wallasch , lawyers practising in GPE .

On DATE ORG issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had offered to instigate a third person to commit a murder of a public prosecutor and that he had agreed with a third person to commit a further murder . The warrant was further based on the strong suspicion that he had committed CARDINAL offences under LAW . The court found that the applicant was likely to abscond as he had to expect a severe sentence and had family ties in LOC .

On DATE the applicant was arrested .

On DATE , DATE and DATE ORG ordered that the applicant ’s detention on remand was to continue .

On DATE ORG extended the facts of the warrant of arrest to the suspicion that the applicant had been dealing with drugs ( QUANTITY of cannabis ) to a considerable extent ( ORG in nicht geringer ORG .

On DATE ORG charged the applicant with attempting to instigate a third person to commit a murder and with conspiracy to commit a murder ( Verabredung eines Mordes ) . He was further accused of dealing with drugs to a considerable extent and with CARDINAL offences under LAW . Moreover , he was charged with CARDINAL offences under LAW and CARDINAL counts of human trafficking committed by a gang . Finally he was charged with CARDINAL counts of forging official documents . The bill of indictment consisted of CARDINAL pages and named CARDINAL witnesses living in CARDINAL different countries .

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

On DATE ORG adapted the warrant of arrest . It found that the applicant was likely to abscond as his son and partner had moved to GPE and as he had to expect a severe prison sentence .

On DATE , after the trial had taken place on DATE , ORG and the applicant came to an agreement . They agreed on a minimum sentence of DATE and DATE ORG imprisonment and that all other pending criminal proceedings against the applicant were to be terminated . Further , the ORG agreed to apply for the conditional release of the applicant when he would have served CARDINAL of his sentence provided that the applicant ’s conduct during the detention would be without reproach and that he would not commit any further offences . The agreement was noted in the minutes .

On DATE ORG sentenced the applicant to DATE and DATE ORG imprisonment for conspiracy to commit a murder , for drug trafficking with a considerable amount of drugs and for CARDINAL offences under LAW . ORG took into consideration the length of the criminal proceedings as well as the length of the applicant ’s detention on remand as mitigating factors . The applicant was acquitted of the remaining offences he had been accused of . Simultaneously , ORG ordered that the applicant ’s detention on remand was to continue .

On DATE the applicant appealed on points of law against ORG judgment .

On DATE the complete reasoning of the judgment was taken to the file . On DATE the minutes were completed and taken to the file .

On DATE the applicant appealed against the arrest warrant . On DATE ORG dismissed the appeal against the arrest warrant . On DATE ORG confirmed this decision . On DATE the applicant filed a request for reconsideration ( NORP ) . On DATE ORG dismissed the request . On DATE ORG refused to admit the applicant ’s constitutional complaint against the decision of ORG , finding it inadmissible due to the applicant ’s failure to submit all court decisions .

On DATE the applicant applied again to ORG and requested to lift the warrant of arrest or to suspend its execution .

On DATE ORG ordered that the applicant ’s detention on remand was to continue .

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

On DATE ORG quashed the decision of ORG and remitted the case to that court . It stated that the detention on remand violated the applicant ’s constitutional right to liberty as the courts had failed to adhere to the principle to hear cases more speedily in which the accused is detained ( Beschleunigungsgebot in Haftsachen ) . ORG scrutinized the various stages of the applicant ’s trial that had taken place so far . It had regard to the fixing of the hearing schedule by ORG and found that the conduct of CARDINAL hearing per week only contradicted the case - law of ORG in similar voluminous cases which disclosed that CARDINAL hearings per week had to be conducted . ORG found that the scheduling of the trial alone was likely to constitute a violation of the constitutional principle to have one ’s case heard more speedily . ORG evaluated the further delays that had occurred after the pronouncement of the verdict as a whole . It noted , inter alia , that ORG had taken the reasoning of its judgment to the case file only after DATE had passed since its pronunciation . It attributed a further delay of DATE to the judicial authorities as the applicant was notified of the judgment only after this period . ORG stated that ORG had therefore failed to strike a fair balance between the applicant ’s right to liberty under LAW second sentence of the NORP Basic PERSON on the one hand and the state ’s duty to prosecute crimes on the other hand . Referring to the case of PERSON v. GPE ( no . CARDINAL , ORG CARDINALVII ( extracts ) ) ORG argued that the more the detention on remand lasted the more reasoning it required . It stressed , inter alia , that the applicant ’s detention on remand had lasted already CARDINAL of the sentence imposed on him and that ORG had agreed to favour his release when CARDINAL of the sentence had been executed . It further ordered ORG to reconsider the applicant ’s appeal . Simultaneously it stressed that the established breaches of the principle to more speedily hear cases in which the accused is detained did not justify a further detention on remand .

On DATE ORG quashed the decision of ORG dated DATE . The applicant was released .

On DATE counsel filed the reasons for the applicant ’s appeal . On CARDINAL DATE ORG sent the case file to ORG . However , some parts of the case file had not been attached by mistake and were sent later on demand of ORG . On DATE ORG received the missing parts of the case file . On DATE ORG finished his observations on the applicant ’s appeal on points of law ( Revisionsgegenerklärung ) . On DATE the case file was sent to ORG . On DATE the case file was sent to ORG in order to rectify errors in TIME . ORG returned the case file on DATE .

On DATE ORG confirmed the judgment of ORG as to the conviction . Simultaneously , it reduced the cumulative sentence imposed on the applicant from DATE and DATE and DATE of imprisonment . The remainder of the applicant ’s appeal was dismissed

ORG found that the law enforcement authorities had violated LAW by unreasonably delaying the criminal proceedings against the applicant . It referred in so far to the judgment of ORG dated DATE . ORG also stressed that the main proceedings before ORG had lasted very long . It noted that although ORG had taken account of the length in its fixing of the sentence it could not have considered any delays which had occurred after the pronouncement of the verdict . In order to compensate for the delay in the proceedings , ORG reduced each separate sentence imposed on the applicant for DATE and the cumulative sentence for DATE .

The applicant lodged a constitutional complaint against the judgment of ORG . On DATE ORG found that the constitutional complaint was inadmissible and refused to admit it for consideration . ORG found that the applicant had failed to challenge the length of the proceedings before ORG in a sufficient manner .


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

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

On DATE the investigating judge ( Untersuchungsrichter ) at ORG ( PERSON ) opened preliminary investigations against the applicant on suspicion of fraudulent bankruptcy ( betrügerische PERSON ) and breach of trust ( PERSON ) . The suspicion related to the applicant ’s business activities as the general manager of the ORG company and to her activities as chairperson of CARDINAL associations . Further , she was suspected of unauthorised use of a vehicle ( unbefugter Gebrauch eines GPE ) and suppression of documents ( Urkundenunterdrückung ) . The investigating judge issued an arrest warrant and ordered a search of the company ’s LOC and of the applicant ’s home .

On DATE the applicant was arrested , the search of the above premises was carried out and several documents were seized and stored at ORG . DATE , the applicant was questioned by the police .

On DATE the applicant was again heard by the police .

On DATE the applicant , after having been questioned by the investigating judge , was taken into pre - trial detention .

On DATE ORG ordered that the seized documents be examined .

DATE a number of persons laid criminal complaints relating to the applicant ’s alleged fraudulent transactions and joined the proceedings as civil parties . During the same period the disclosure of the applicant ’s bank - accounts was ordered .

On DATE the applicant was examined by the police on questions relating to the seized documents and on CARDINAL May her tax accountant was heard as a witness .

On DATE the applicant was released on bail .

On DATE the court appointed an expert on accountancy . On DATE the latter submitted his opinion which comprised CARDINAL pages .

On DATE the investigating judge summoned the applicant to be questioned as a suspect on DATE . However , the applicant did not appear and the questioning was postponed to DATE .

DATE and DATE nineteen witnesses were heard .

On DATE the investigating judge requested the court appointed expert to supplement his opinion .

On DATE the applicant and her tax accountant were due to appear in order to answer questions of the expert . However , neither of the CARDINAL appeared and the meeting had to be postponed to CARDINAL DATE .

On DATE the expert submitted CARDINAL pages supplementing his opinion .

On DATE the investigating judge closed the preliminary investigations .

On DATE ORG preferred the indictment charging the applicant with breach of trust , fraudulent bankruptcy , unauthorised use of a vehicle and suppression of documents . The indictment was served on the applicant on DATE . A first attempt to summon her for trial failed as the summons could not be served at her address . Inquiries by the police showed however , that the applicant was living at this address . The beginning of the trial was then scheduled for DATE .

On DATE the trial started before ORG . The applicant was requested to formulate her questions to the expert in writing and to submit certain documents .

On DATE counsel for the applicant requested to be granted more time for preparing the questions to the expert . A trial hearing was then scheduled for DATE , but had to be postponed to CARDINAL DATE as the summons had erroneously not been sent out .

Further hearings were held on DATE and CARDINAL DATE . At the close of the trial on DATE , ORG convicted the applicant of breach of trust , fraudulent bankruptcy , unauthorised use of a vehicle and suppression of documents . It sentenced her to DATE imprisonment . ORG found that the applicant had caused financial damage to the company and the associations at issue by abusing her position as financial manager and chairperson , respectively , in that she took money from the company ’s and the associations’ accounts to cover her private expenses . Further , the court found that , by diminishing the company ’s and the associations’ assets , she had intentionally curtailed the satisfaction of its creditors .

On DATE the written version of the judgment was served on the applicant .

On DATE the applicant filed a plea of nullity and an appeal against sentence ( Nichtigkeitsbeschwerde und Berufung ) .

On DATE ORG ( PERSON ) filed its observations on the applicant ’s plea of nullity .

On DATE ORG Oberster Gerichtshof ) dismissed the applicant ’s plea of nullity as being unfounded , but granted her appeal against sentence and suspended DATE of the CARDINAL years’ sentence on probation . ORG decision was served on the applicant ’s lawyer on DATE .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

On DATE the applicant acquired a car – a ORG CARDINAL GPE - at an auction organised by ORG . Having subsequently had certain technical defects of the car repaired , the applicant applied to ORG for registration . On an unspecified date the Director of the ORG refused to do so on the ground that the car was unfit for use and could therefore be used only as scrap - metal . After numerous entreaties of the applicant , the Director orally agreed to register the car on condition that the applicant replaced the engine and a part of the chassis . On DATE the applicant requested ORG to reimburse the costs involved in the acquisition of the new engine and chassis . On DATE ORG declined the applicant ’s request on unspecified grounds . Subsequently , the applicant ordered a new engine and chassis and made an advance payment in the amount of PLN CARDINAL .

On DATE the applicant was served with a decision of the Director of ORG refusing his request to register the car . The Director referred to the fact that the identification numbers of the engine and chassis had been forged and that that it was therefore impossible to find out who had owned car before its acquisition by the applicant . Therefore , the car could not be considered as a “ recovered stolen car ” within the meaning of FAC . CARDINAL to the ministerial LAW DATE ( § DATE below ) , which was a prerequisite for obtaining new identification numbers . On DATE the Białystok Governor upheld the contested decision on the same grounds .

In a letter of CARDINAL DATE the GPE - Śródmieście District Prosecutor expressed regret for the administrative authority ’s refusal to register the applicant ’s car and remarked on the lack of consistency in the interpretation of the relevant provisions by the authorities handling the applicant ’s case . He also suggested that the applicant request the prosecuting authorities , in their capacity as guardians of legal order , to join administrative proceedings on his behalf .

On DATE ORG informed the applicant that pursuant to the relevant regulations a car of unknown origin could not be registered .

NORP On DATE ORG refused to institute proceedings against the public servants who had issued the administrative decisions in the applicant ’s case , finding that they had no case to answer .

NORP In reply to the applicant ’s request , on DATE the ORG refused to act on his behalf , considering that the law only allowed new identification numbers to be engraved and the registration to be obtained on conditions which were not met in the applicant ’s case .

On DATE the Warszawa - Śródmieście District Prosecutor informed the applicant that the car in question , being “ the subject of a criminal offence ” , had been handed over to ORG on the basis of a decision concerning exhibits , with a view to selling it at an auction under § § CARDINAL and CARDINAL of the Regulation of ORG ( § CARDINAL below ) .

On DATE ORG quashed the decisions of DATE and DATE . It found that the administrative authorities had failed to provide any reasons for their refusal of registration . In respect of the new chassis and engine identification numbers , the court noted that a conclusion as to whether “ the stolen car has been recovered ” had to be based on the final decision given either in the investigative or in the judicial proceedings .

By a decision of CARDINAL DATE ORG stayed the proceedings concerning the permit to engrave new car identification numbers until the question whether the car had been “ recovered ” within the meaning of the applicable law was settled .

By a letter of CARDINAL DATE to ORG , FAC expressed the opinion that , in view of the fact that ORG had been the legitimate vendor and the applicant , who had purchased the car in good faith , was its legitimate owner , there was no reason for a further delay in registering the car . In reply , ORG informed the prosecutor on DATE that there was no possibility of registering a vehicle of unknown origin , that is , CARDINAL lacking original factory numbers .

In a letter to the applicant dated CARDINAL DATE ORG considered that there were no grounds on which disciplinary proceedings could be instituted against the Białystok prosecutors . All the same , he acknowledged that the case was “ a complex one . ” It could not be denied that the applicant was a legitimate owner of the car which he had purchased from a legitimate vendor . In the prosecutor ’s view , the difficulty in registering the car stemmed from deficiencies in the legal provisions in specifying the necessary conditions that had to be fulfilled for a car to be registered . These conditions were defined by the Regulation of the Minister of Transport and Maritime Economy of DATE ( § CARDINAL below ) . He further observed that , according to ORG opinion expressed in the judgment of DATE , a final decision given either in the investigative or in the judicial proceedings , stating that the car had been stolen , should provide a sufficient basis for its registration ( § CARDINAL above ) .

On DATE ORG informed the applicant that there were no grounds for instituting criminal proceedings against the public servants at ORG , because it had not been shown that when acting in the applicant ’s case they had abused their powers . As for the charge of lack of diligence , this could not be proceeded with , given that the applicant had not suffered pecuniary damage which was sufficiently serious , that is in an amount exceeding CARDINAL average salaries .

On the same date ORG rejected the applicant ’s civil claim against ORG for a declaratory judgment . The court considered that the applicant ’s ownership was not in dispute . Nonetheless , the claim to establish that the car met the legal requirements for its registration could not be examined by a civil court . This would constitute an unacceptable way of controlling the lawfulness of an administrative decision , and it was only ORG which had jurisdiction to do so .

On DATE ORG requested ORG to consider the possibility of granting the applicant , by way of exception , a permit for engraving new car identification numbers . It was argued that in all likelihood the car had been stolen by someone in obscure circumstances to the detriment of an unknown person and subsequently handed over to the tax office to be sold . The fact that the applicant could not be granted the permit to have new car identification numbers engraved had adversely affected his property rights in a manner which , give could not be accepted . This request was later refused by a decision of CARDINAL DATE .

By a decision of CARDINAL DATE ORG quashed the decision of CARDINAL DATE given by ORG ( § DATE above ) , considering that since the applicant had not specified his claim , the question whether the civil courts had jurisdiction to entertain his case remained open .

By a decision of DATE ORG rejected the applicant ’s civil claim on the same grounds as those relied on in its first decision of CARDINAL DATE .

On DATE ORG dismissed the applicant ’s new claim against ORG for a declaratory judgment , considering that a claimant in declaratory civil proceedings could request the court to determine the existence of a right or of a legal relationship , but that it was not open to the claimant to seek findings of fact in such proceedings .

On DATE ORG discontinued the proceedings , instituted at the applicant ’s request , concerning the theft of the car and the forging of its identification numbers , on the ground that the perpetrator of the offence was unknown .

By a decision of CARDINAL DATE ORG refused ORG request to resume the stayed proceedings concerning the permit for engraving new car identification numbers ( § CARDINAL above ) , considering that the original factory car numbers had not been conclusively established . On DATE ORG lodged an appeal against this decision with ORG , submitting that since a preliminary question concerning the theft of the car had already been determined , the administrative authority was obliged to register the car . By a decision of DATE the ORG allowed the appeal and quashed this decision .

On DATE ORG again refused to grant the applicant a permit for engraving new identification numbers , concluding that the car could not be considered “ recovered by the owner or by an insurance company ” since its factory numbers and the original owner had not been established in the course of the investigation . The applicant and ORG appealed . The Prosecutor , in his appeal of CARDINAL DATE , referring to the failure to establish the original owner of the car and its factory numbers , expressed the opinion that FAC . CARDINAL to the Order of the Minister of Transport and Maritime Economy of DATE did not lay down such a requirement for registration and that therefore the first - instance organ had failed to interpret it correctly .

On DATE the ORG quashed the impugned decision and referred the case back to the first - instance organ for re - examination , observing that the request should be examined in the light of a new legal situation which had in the meantime changed as a new ORG had been enacted ( see LAW below ) .

By a decision of DATE ORG consented to the engraving of new car identification numbers and , as a consequence , registered the applicant ’s car .

Pursuant to § § CARDINAL and CARDINAL of the Regulation of ORG of DATE ( ORG PERSON z dnia CARDINAL w sprawie orzekania o przejściu depozytów na własność GPE ) courts , prosecutors , administrative authorities , state authorities , state enterprises and banks are entitled to decide on the seizure of unclaimed objects by the ORG . Those objects , the prolonged storage of which would create a risk of destruction or a substantial loss in value , or the storage of which would be too costly or whose non - use would be against the public interest , shall be sold .

The relevant part of the Regulation of the Minister of Transport and Maritime Economy of DATE on technical conditions and examination of vehicles ( ORG i PERSON z CARDINAL w sprawie warunków technicznych i badań pojazdów ) provided :

“ § CARDINAL . Every vehicle must be equipped with

CARDINAL ) a plate affixed permanently in a easily accessible place , indicating at least :

c ) the vehicle identification number ( ORG ) , this number should also be engraved on the chassis ( bodywork ) of a car , ... ”

Annex No . CARDINAL to the Order of the Minister of Transport and Maritime Economy of DATE - Instruction on allocating and engraving chassis ( bodywork ) numbers and car engines numbers and on manufacturing substitute plates ( PERSON do zarządzenia NORP Transportu i Gospodarki Morskiej z CARDINAL - Instrukcja w sprawie nadawania i wybijanaia numerów na podwoziach ( nadwoziach ) i silnikach oraz wykonywania tabliczek zastępczych ) reads as follows :

“ § CARDINAL . New [ identification ] numbers shall be allocated and engraved with the permission of the relevant registering authorities only in the following cases :

CARDINAL ) where the chassis ( bodywork ) numbers or engine numbers of a recovered stolen car have been obliterated or forged . ”

The Regulation of the Minister of Transport and Maritime Economy of DATE on registration and identification of vehicles ( ORG i PERSON w sprawie rejestracji i oznaczania pojazdów CARDINAL ) which entered into force on DATE provides that the owner of a car to be registered is not required to submit a certificate of registration ( of a car that has been already registered ) or a vehicle card ( if it has been already issued ) in a case where the car has been purchased at a public auction or from a person executing an order for forfeiture of the vehicle to ORG .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in PERSON , PERSON . She is the wife of PERSON , born in DATE . Her family , including her CARDINAL sons PERSON and ORG , lives in the settlement of ORG , the village of PERSON , which is situated on the administrative border with GPE .

The description of the events of DATE set out below is based on the written statements given by the applicant , her sons PERSON and ORG , her nephew GPE , and by CARDINAL of their relatives and neighbours . Some of the statements were collected by the applicant ’s lawyer in DATE , while others were undated .

On DATE at TIME a special operation was carried out in FAC , during which the neighbourhood was searched . The applicant believed that the operation had targeted a wounded member of an illegal armed group who had been in hiding there . The operation was apparently unsuccessful .

Later on DATE , at TIME , a group of servicemen of the PERSON district department of the interior ( “ the PERSON ROVD ” ) and servicemen of the PERSON ( GPE ) ROVD arrived at the applicant ’s house in CARDINAL vehicles – two GPE cars and CARDINAL ORG allterrain vehicle . At that time the applicant , her husband PERSON , their CARDINAL sons PERSON and ORG , ORG wife ORG and PERSON ’s nephew GPE were at home .

A group of men in military camouflage uniforms formed a circle around the house , while others entered the house and spread out through the rooms . They ordered everyone inside to lie on the floor . Among the intruders PERSON recognised a tall grey - haired man aged about CARDINAL QUANTITY , who originated from GPE , GPE . The man also recognised the applicant ’s husband , who had lived in PERSON DATE . Then PERSON was allowed to get up from the floor and dress himself .

The applicant ’s CARDINAL sons and nephew were ordered to stand against the wall and were searched . The servicemen searched the house , including the cellar and the roof space . They collected the passports of the CARDINAL men and a mobile phone .

PERSON , his CARDINAL sons and nephew were then ordered to get into a UAZ vehicle parked outside of the house . The vehicles went to the premises of the Khasavyurt ROVD , where CARDINAL men in uniforms got out . TIME later the ORG with the CARDINAL detainees , together with other cars , went on further towards GPE .

In the meantime , the applicant and her relatives and neighbours went to the PERSON LOC . They submitted that CARDINAL people had gathered there and demanded that the detainees be released . They were assured by the ROVD servicemen that the CARDINAL men had been taken to PERSON LOC in GPE for questioning and that they would be released without delay . After that the crowd dispersed .

According to the statements given by PERSON , GPE and GPE , after QUANTITY drive the cars arrived at LOC , where the CARDINAL men were ordered to get out . Without any registration in the custody log having been made , each was taken to a separate room and questioned . PERSON submitted that he had been questioned by an investigator named “ PERSON , who had asked him about the whereabouts of some men he did not know . He spent the rest of TIME sitting on a chair in a room on the third floor .

M.I. was also taken to a room on the second floor and questioned by a man wearing uniform who presented himself as “ Lieutenant - Colonel GPE ” . The latter had noted down ORG “ explanations ” and had left him to sleep in the same room .

Similarly , GPE described how he had been questioned during TIME by CARDINAL men who had asked him questions about his uncle , PERSON , and what had happened in their settlement in DATE .

During TIME on DATE the CARDINAL detainees were brought together in CARDINAL room and given food delivered by their relatives . After that , PERSON was taken away , while his CARDINAL sons and nephew were brought to an administrative detention cell , where they spent TIME . That was the last time PERSON was seen by his relatives .

On DATE PERSON , GPE and GPE were again taken to separate rooms and questioned . They understood from the questions that PERSON had been suspected of aiding a distant relative who had been a member of illegal armed groups . The young men denied either knowing that relative or anything about his whereabouts . ORG and GPE claimed that on DATE they each had been beaten and threatened in order to extract information about their relative . Later that day they encountered a serviceman named PERSON , who had known their family . In the evening on DATE the CARDINAL young men were brought together in CARDINAL of the rooms of the ROVD ’s building . They spent DATE there , while PERSON brought them food delivered by their relatives .

At TIME on DATE the head of PERSON , PERSON , called PERSON , ORG and GPE into his office and told them that they would be released . He returned their passports and the mobile phone to them . He also instructed them not to tell anyone about their detention . They were escorted outside of the building , where their relatives , including the applicant , had been waiting . From PERSON and from PERSON they understood that PERSON had been taken to the village of ORG for further questioning and would be released later .

The applicant and other relatives continued to look for PERSON . They applied to various official bodies , including the local prosecutor ’s office , the offices of ORG , public authorities and related the story of PERSON arrest and disappearance . However , they received very little information about his whereabouts . Mostly their letters were forwarded to various prosecutors . The applicant stated that she had not kept track of her initial applications to the authorities , as she had still been hopeful that her husband would soon be released . A summary of the relevant information is set out below .

On DATE the applicant and several neighbours signed a letter to the President ’s Envoy for ORG . In it they referred to their previous applications to that office , as well as to the GPE and ORG ’s Offices and to LOC . They submitted that Mr PERSON had been detained in relation to the activities of his relative who had been a member of an illegal armed group and stressed that PERSON had maintained no contacts with that man and could not be charged with an offence .

On DATE the ORG ( “ the town prosecutor ’s office ” ) informed the applicant that they had investigated her complaint and found out that on DATE PERSON , GPE and GPE , as well as PERSON , had been brought to PERSON in order for that authority to check whether they were involved in illegal armed groups . On DATE PERSON , GPE and GPE had been released after questioning , while PERSON had not been released to date . The prosecutor ’s office referred to the statements given by the applicant and her sons and to explanations produced by the staff of the PERSON . It informed the applicant that the law - enforcement authorities for the ORG district had not yet replied to the requests concerning the whereabouts of PERSON and that she should herself enquire with the law - enforcement authorities in GPE where he had been detained .

On DATE the applicant applied to the Khasavyurt ORG ( “ the town court ” ) , seeking an order obliging the town prosecutor ’s office to open a criminal investigation into the unlawful detention and subsequent disappearance of her husband . She referred to her futile attempts to obtain information about him and to the authorities’ inactivity .

On DATE the town court rejected the applicant ’s complaint . It found that the applicant ’s husband had been detained by PERSON and that all complaints arising in this respect should be directed to ORG in GPE . The applicant appealed against this decision , and on DATE ORG quashed the trial court decision . On DATE the town court again rejected the applicant ’s complaint .

In DATE the applicant ’s daughter asked the Ombudsman of GPE to assist her in finding her father . She complained about the failure to act by the Gudermes ROVD .

It appears that this request was forwarded to ORG , following which a criminal investigation was opened . In DATE the applicant and other relatives were summoned to the ORG department of ORG ’s Office for questioning ( hereinafter “ the ORG department ” ) . They related the details of their relative ’s disappearance . On DATE , and then on DATE , the ORG department ruled not to open criminal proceedings upon the applicant ’s and her relatives’ complaints , in view of the absence of a criminal event . Both decisions were then quashed by a supervising investigator .

On DATE the ORG department opened criminal investigation file no . CARDINAL . On DATE and on CARDINAL DATE the applicant , PERSON and ORG were granted the status of victims . The decisions stated :

“ On DATE at CARDINAL - CARDINAL p.m. servicemen of the PERSON ( PERSON ) ROVD and of the PERSON ( GPE ) ROVD carried out search and operational actions in the Khutor settlement of PERSON in PERSON . During this operation PERSON , [ PERSON , ORG and GPE ] were detained . On DATE the detainees were brought to the [ premises of the ] PERSON [ PERSON in GPE .

On DATE all the detainees were released from the ORG [ PERSON ; following which [ PERSON , ORG and GPE ] returned to their place of residence ; while there has been no news of PERSON , born on DATE . ”

In DATE investigators of the same department examined and made photographs of the applicant ’s house in PERSON .

In reply to the ORG ’s request , the ORG submitted CARDINAL volumes of documents – copies of criminal investigation file no . DATE , comprising CARDINAL pages .

In addition to the applicant ’s and her relatives’ statements , summarised above , the file contained several statements by the servicemen of PERSON , including the head of the ROVD ’s criminal investigations department . They confirmed that in DATE the CARDINAL PERSON family members had been detained in PERSON in PERSON , during a search for their relative PERSON , an active member of an illegal armed group . In particular , Mr NORP , the then head of the ROVD ’s criminal investigations department , stated that the CARDINAL men had been brought to PERSON and questioned , but no entries of their detention had been made . They had been released TIME . The investigation also collected and examined , in DATE , the ROVD ’s detention entry log for DATE ; it contained no entries in respect of the Israilovs .

In DATE the head of the ORG department asked the GPE Minister of the Interior to carry out an internal investigation in view of the suspicion that the servicemen of PERSON had committed criminal offences ( unlawful deprivation of liberty and abuse of authority ) .

In DATE the head of the PERSON denied , in writing , that their servicemen had taken part in a joint operation with PERSON on the date in question .

On DATE an investigator from the ORG department drew up an “ overview report ” of the investigation . He concluded that the statements of the servicemen of PERSON to the effect that PERSON had been released were not corroborated by the case materials . This report , as well as CARDINAL reports of CARDINAL and DATE produced by investigators from the same department , noted that the CARDINAL men had been detained by the ROVD for DATE without registration .

In DATE ORG of ORG ( “ the GPE department ” ) took charge of the investigation , in order to ensure impartiality and to avoid possible conflicts of interest arising from the involvement of the ORG department , as there was sufficient information to suspect that the servicemen of PERSON had been implicated in the crime .

In DATE ORG of the Interior submitted their internal report to the GPE department . It found out that CARDINAL servicemen who had taken part in the operation in PERSON in DATE had died on various dates . The statements of the other servicemen and the examination of the documents had disclosed “ irreconcilable differences in the statements ” , which could only be resolved within the criminal investigation . Thus , the internal inquiry was closed and the documents collected were forwarded to ORG .

NORP In DATE the GPE department forwarded the case to the ORG department for further investigation . In response , a senior investigator of the PERSON department again asked for the case to be transferred to the GPE department for the following reasons :

“ The preliminary investigation has obtained sufficient evidence to implicate the head of the criminal police and the head of the criminal investigations departments of ORG in the illegal detention of PERSON . , [ PERSON , ORG and GPE ] , and the disappearance of PERSON . However , no decision in respect of the head of the criminal police department [ Mr M. ] and the former head of the criminal investigations department [ Mr NORP ] have been taken , under LAW part CARDINAL of LAW . ... The abuse of authority by the [ R]OVD servicemen , entailing serious consequences , is confirmed not only by the evidence collected , but also by the reports of the head of the criminal investigations department [ Mr NORP ] , [ and ] senior police investigator [ M. ] of DATE , whereby they had informed the head of the ROVD that upon the release of PERSON . PERSON , in the courtyard of the ROVD ’s LOC , servicemen of regiment no . CARDINAL of ORG ’s patrol service [ сотрудники полка ORG № CARDINAL ORG по ORG ] suggested that the released man should come with them . Having seen this , the head of the criminal investigations department of the ORG suggested to the patrol servicemen that they should record this with the ROVD ’s duty officer of the ROVD [ ОДЧ РОВД ] . The foregoing proves , without any doubt , the implication of the above - named officers in the disappearance of PERSON . PERSON . ”

The report proceeded to request , once again , that the investigation be transferred from the ORG department in view of the close relationship between the local police and the investigators , which it stated could have a bearing on the objectivity of the results of the investigation .

The investigation has been adjourned and reopened on several occasions for failure to identify the culprits . The Government referred to the latest decision to reopen the proceedings of CARDINAL DATE .

The applicant submitted that since DATE she and her relatives had been regularly summoned to PERSON in GPE for questioning . These questioning sessions , although formally related to the investigation of her husband ’s disappearance , had involved statements and questions being made by the officers which had concerned the applicant ’s complaint lodged with the ORG and her relationship with the lawyer representing her . The applicant stated , in particular , that she had been told that PERSON had received a significant sum of money for her legal representation in the matter which would not be shared with her and that she had been advised to cancel the legal services agreement she had entered into with that lawyer . On DATE the applicant signed a written statement addressed to a lawyer representing her in the domestic proceedings describing these events .

In response to the ORG ’s request , the Government produced copies of the statements and records of the investigative measures taken involving the applicant and her CARDINAL sons that were drawn up in DATE and DATE by the officers of the ORG department . Thus , the applicant was questioned on DATE and DATE . Her son PERSON was questioned on DATE and DATE , and her son PERSON was questioned on DATE . On DATE and CARDINAL DATE the applicant and her CARDINAL sons took part in confrontations with CARDINAL officers of PERSON implicated in the events . Her sons had also identified the rooms and LOC of the ROVD where they had been detained . The records , cosigned by the applicant and her family members , were confined to the events of DATE and to a detailed description of PERSON , such as the clothes he had been wearing on DATE of his abduction . They did not mention the applicant ’s complaint to the ORG or the question of her representation .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .


George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

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

NORP On DATE the applicant was convicted by a jury of murder . GPE was the principal witness at his trial . The applicant was subsequently sentenced to life imprisonment .

On DATE ORG ) ( “ ORG ” ) dismissed his appeal .

In DATE the applicant applied to ORG ( “ CCRC ” ) for a review of his conviction . On DATE the ORG referred the applicant ’s case back to the ORG .

On DATE the ORG allowed the applicant ’s appeal . It considered in detail a number of alleged failings in the applicant ’s defence at trial . It concluded that the failure by the applicant ’s defence team to deploy relevant evidence in respect of , inter alia , GPE in his defence resulted in his conviction being unsafe , explaining :

“ CARDINAL . It is difficult to conclude that the criticisms and failures which we have found in respect of any CARDINAL of the individual topics were on their own sufficient to render the verdict unsafe but we are quite satisfied that taken together , cumulatively they were sufficient to render the verdict unsafe . Each of these topics was important ...

We are not to be taken as finding that if there had been no such failures the appellant would inevitably have been acquitted . We are however satisfied for the reasons given that the verdict is unsafe . The appeal will be allowed and the conviction quashed . ”

Following the quashing of the conviction , the applicant applied to the Secretary of ORG for compensation for a miscarriage of justice pursuant to section CARDINAL of LAW DATE ( “ the DATE LAW ) .

NORP By letter dated DATE the applicant ’s solicitors were informed that the Secretary of ORG did not consider that a right to compensation arose in his case , for CARDINAL reasons . First , the applicant ’s conviction had not been reversed on the basis of new or newly discovered facts . Second , it could not be said that there had been a miscarriage of justice in the sense that the applicant should never have been convicted . All that could be said , on the basis of the judgment of the ORG , was that the jury might or might not have reached a different conclusion had the defence made proper use of the material in question .

The applicant subsequently brought judicial review proceedings challenging the decision to refuse to pay him compensation under section CARDINAL of the CARDINAL Act . He contended that he met the criteria for compensation set out in that section .

The claim was dismissed by ORG on DATE . The court referred to the comment of the ORG to the effect that the judgment quashing the conviction was not to be taken as finding that if there had been no failures the applicant would inevitably have been acquitted . The court considered the discussion of the meaning of “ miscarriage of justice ” by ORG of PERSON and PERSON in R ( PERSON ) v. Secretary of ORG for ORG ( [ DATE ] ORG CARDINAL ) and held that the applicant did not fall within either interpretation . The court further noted counsel for the applicant ’s concession that he could not succeed in showing beyond reasonable doubt that a miscarriage of justice had occurred in light of ORG judgment in R ( PERSON ) v. Secretary of ORG for ORG ( [ DATE ] EWCA Civ CARDINAL ) .

Finally , the court concluded that , in any event , the conviction had not been quashed on the basis of new or newly discovered facts .

The applicant was granted leave to appeal on DATE . On CARDINAL DATE ORG dismissed the appeal . Lord Justice PERSON , giving judgment for the court , accepted that the applicant ’s conviction had been quashed on the basis of new or newly discovered facts . He therefore turned to examine whether there had been a miscarriage of justice .

He identified CARDINAL categories of case where the ORG allowed an appeal against conviction on the basis of fresh evidence , and explained each category as follows :

“ CARDINAL . ... A category CARDINAL case is where the court is sure that the defendant is innocent of the crime of which he has been convicted . An obvious example is where DNA evidence , not obtainable at the time of trial , shows beyond doubt that the defendant was not guilty of the offence . A category CARDINAL case is where the fresh evidence shows that he was wrongly convicted in the sense that , had the fresh evidence been available at the trial , no reasonable jury could properly have convicted . An example is where the prosecution case rested entirely on the evidence of a witness who was put forward as a witness of truth and fresh evidence undermines the creditworthiness of that witness , so that no fair - minded jury could properly have convicted on the evidence of that witness . It does not follow in a category CARDINAL case that the defendant was innocent . A category CARDINAL case is where the fresh evidence is such that the conviction can not be regarded as safe , but the court can not say that no fair - minded jury could properly convict if there were to be a trial which included the fresh evidence . The court concludes that a fair - minded jury might convict or it might acquit . There is a fourth category of case to which Lord PERSON referred in PERSON . This is where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial , resulting in the conviction of someone who should not have been convicted . ”


The applicant is a NORP national , born in DATE and living in GPE . He is a secondary school teacher .

He is represented before the ORG by Mr W. Heim , a lawyer practising in GPE .

A.

On DATE ORG ( ORG ) convicted the applicant of disparaging the dignity of the deceased ( ORG ) pursuant to section CARDINAL of LAW ) . It sentenced him to CARDINAL months’ imprisonment , suspended on probation .

In its decision , ORG found that in DATE and DATE , the applicant had written letters to NORP politicians , in which he had complained about a planned amendment of CARDINAL of LAW on the punishment of incitement to hatred ( Anstachelung zum Rassenhass ) , expressly penalising the denial of national socialist mass killing . To those letters , the applicant had attached a statement in which he had denied the existence of gas chambers and the mass killing therein and had thereby denied the GPE particular cruel fate . The court observed that , according to the case - law of ORG ( Bundesverfassungsgericht ) and ORG ( ORG ) , the mass killing of NORP and other persons in gas chambers and inter alia in the FAC concentration camp was a historical fact ( historische ORG ) . The court further considered that , by denying this specific form of homicide , he had disparaged the dignity of the deceased . In this respect , it noted that the applicant had called the envisaged reform “ antidemocratic special legislation ” ( antidemokratisches PERSON ) , and had stated that political parties in ORG were “ no longer abiding by the rule of law and encouraging an antidemocratic demon ” ( so PERSON QUANTITY antidemokratischen Ungeist PERSON haben ) . He had further referred to “ historical lies ” ( PERSON ) and had qualified the gas chambers as “ so - called gas chambers ” .

The court further noted that an application for prosecution had been lodged in time .

In fixing the sentence , ORG noted that the applicant had previously been convicted of disparaging the dignity of the deceased , however , that conviction had not yet become final at the time of the material offence .

In these and the following proceedings , the applicant was assisted by defence counsel .

On DATE the NORP - Fürth Regional Court ( ORG ) dismissed the appeals lodged by the applicant and by ORG . As regards the applicant ’s argument that he had not intended to deny the existence of gas chambers , ORG considered that the contents of the letters objectively amounted to such a denial . In particular , he had used the term " historical lies " concerning the gassing in concentration camps , which was a historical fact and commonly known ( offenkundig ) . No taking of evidence had therefore been necessary . Moreover , having regard to the documents before it , ORG confirmed that the application for prosecution had been lodged in time .

On DATE ORG ( ORG ) dismissed the applicant ’s appeal on points of law . ORG confirmed the findings of the lower courts , in particular that , as the mass killing in the concentration camps was a notorious historical fact , no taking of evidence concerning this point was necessary . Moreover , the procedural questions relating to the application for prosecution had been correctly determined .

On DATE ORG decided not to admit the applicant ’s constitutional complaint .

B. Relevant domestic law

Section CARDINAL of the Penal Code provides as follows :

“ Anybody disparaging the memory of the deceased shall be punishable with imprisonment not exceeding DATE or with a fine . ”

Pursuant to section CARDINAL of LAW , such an offence is prosecuted upon application by a relative of the victim of the offence .

Section CARDINAL of the LAW concerns the criminal offence of incitement to hatred . According to section CARDINAL ) , in the version as amended on DATE and entered into force on DATE , anybody who incites to hatred , or violence or arbitrary acts , against parts of the population in such a manner as to disturb the public peace shall be punishable by imprisonment for a term of DATE . Section PERSON ) relates to publications inciting to hatred . Section PERSON ) makes it a punishable act to approve , deny or minimise acts of genocide under the national socialist regime in public or at an assembly .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger

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

On DATE criminal proceedings were instituted against the applicant and CARDINAL other persons on suspicion of having robbed a café .

On DATE a bill of indictment was drafted in the applicant ’s respect and he was placed under an obligation not to abscond . However , as the applicant ’s whereabouts were unknown , he was placed on the wanted list and the proceedings were suspended .

On DATE the applicant was arrested by the police while attempting to flee after having robbed a store . Following this incident a new criminal case was initiated against him and he was remanded in custody .

On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment for having robbed a store on DATE . The court ordered that the term of imprisonment be calculated from DATE , when the applicant had initially been remanded in custody . Following this conviction , the applicant was detained in GPE no . CARDINAL ( ORG № DATE ) .

On DATE the criminal proceedings initiated against the applicant and CARDINAL other persons in DATE were resumed and the applicant was presented with the bill of indictment of DATE .

On DATE a decision was taken to transfer the applicant temporarily ( for DATE ) from ORG where he was serving his sentence of DATE to ORG ( GPE ) no . CARDINAL ( ORG № CARDINAL м. Донецьк ) for questioning in connection with the pending criminal case .

On DATE the criminal case against the applicant was joined with CARDINAL other criminal cases involving CARDINAL more defendants and concerning numerous robberies and other crimes committed by them as members of a gang .

NORP On DATE the applicant ’s bill of indictment of DATE was updated . Together with CARDINAL other presumed gang members he was additionally charged with having robbed another commercial facility on DATE .

On DATE the ORG authorised the applicant ’s detention on remand in GPE no . CARDINAL until DATE in connection with the pending criminal proceedings against him . By way of reasoning it was noted that the applicant was a convicted prisoner whose transfer to the ORG was necessary in view of the need to investigate the accusations pending against him .

On DATE the applicant ’s bill of indictment was updated , in particular to mention his membership of a gang .

In DATE the defendants commenced familiarisation with the case - file materials .

NORP In DATE the criminal case was transferred to the ORG .

On DATE the court held a preliminary hearing and found that the case had been properly investigated and was ready for trial . It further ordered , without any additional reasoning , that the applicant should remain in custody in GPE no . CARDINAL pending trial . It did not specify for how long . The court scheduled the first hearing for DATE . This hearing did not take place , however , as the court allowed the applicant ’s and several other defendants’ requests to familiarise themselves with the case file .

A new hearing was scheduled for DATE . It was adjourned because the applicant asked for it to be recorded but the requisite recording equipment was unavailable . The court also upheld the previously decided preventive measure – the applicant ’s detention in GPE no . DATE without fixing any time - limits or giving any reasons . The next hearing was eventually scheduled for DATE . Between that date and DATE some QUANTITY hearings were scheduled . On some QUANTITY occasions the hearings were adjourned because of the LOC failure to deliver the accused , who were in custody , for the hearings . On CARDINAL occasions the hearings were adjourned because the prosecutor failed to appear and on QUANTITY occasions because various private parties ( victims , accused , witnesses ) failed to appear .

In decisions on adjournments of the hearings of DATE , CARDINAL DATE , CARDINAL and DATE , DATE , DATE , CARDINAL and DATE , CARDINAL June and DATE , the domestic courts also continued to uphold the applicant ’s detention without giving any reasons or fixing any time - limits .

On DATE the ORG remitted the case for additional investigation without deciding on the applicant ’s further detention .

On DATE the ORG of Appeal set aside that decision and remitted the case to the trial court for fresh consideration .

On DATE the applicant requested ORG to release him from custody under an undertaking not to abscond . He referred to the incompatibility of his state of health with the conditions of his detention and to his hope of producing evidence of his innocence in the event of his release . On DATE the court rejected his request , citing the general legal provisions applicable , which authorised detention pending trial for defendants charged with serious crimes in order to prevent them from absconding , interfering with the establishment of the facts or continuing their criminal activities , as well as to ensure compliance with procedural decisions . It further stated , that the applicant did not substantiate his request and there were no grounds for his release under the undertaking not to abscond .

DATE some CARDINAL hearings were scheduled . CARDINAL of them did not take place on account of the prosecutor ’s failure to appear and CARDINAL hearings were adjourned on account of the failure of various third parties to appear .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The court further decided :

“ In accordance with part CARDINAL of LAW of the C[riminal ] C[ode ] of GPE in the wording of DATE , the ultimate punishment shall be determined for the multiple offences , by the partial addition of the sentences under the judgment of ORG of Donetsk of DATE and under this judgment , as DATE imprisonment with confiscation of all personal property .

The period of serving the sentence under this judgment shall include the part of the sentence served under the judgment of ORG of DATE , which was DATE , DATE and DATE , and the ultimate [ remaining ] sentence shall be determined as DATE and CARDINAL days’ imprisonment and confiscation of all personal property .

The term of the sentence of the convict PERSON shall be calculated as from DATE . ”

On DATE ORG upheld the applicant ’s sentence .

The applicant appealed in cassation , submitting that the courts had wrongly determined his ultimate sentence as he considered that he had served his first sentence in full . He considered that he had been detained as a convicted person , referring to a number of parcels he had been allowed to receive .

On DATE ORG of GPE rejected the applicant ’s cassation appeal against the judgment of DATE . It noted in particular that the first - instance court had calculated the applicant ’s sentences correctly and in accordance with the law , namely LAW of LAW of DATE , LAW and Article CARDINAL of the Code of Criminal Procedure .

Under LAW , during the investigation and trial suspects may be kept in a GPE ( temporary detention centre ) or a prison acting as a GPE . Exceptionally the suspects can be kept in “ ORG ” short - stay cells in police stations . If a convicted person is under investigation in respect of another crime , he or she may be kept in the disciplinary detention unit of a correctional colony . LAW provides for suspects who have been convicted of a different offence to be kept separately from other detainees .

The Code provided for a convicted person normally to be kept in the same custodial institution ( LAW ) . Under LAW a person who was sentenced to imprisonment in a colony could be temporarily kept in a GPE or prison in connection with different criminal proceedings , as a witness ( for DATE with the authorisation of the prosecutor ) or as a suspect , under the general rules governing detained suspects under LAW .

The relevant provision of the LAW provides :

Article CARDINAL

Sentencing for several crimes

“ If a person is found guilty of committing CARDINAL or more offences under different articles of the criminal law , and has not been convicted for any of them , the court , having determined the punishment for each crime separately , shall ultimately determine the aggregate punishment by absorption of the less severe penalties by the more severe ones , or through full or partial cumulation of determined punishments within the limits established by the article of law that provides for the more severe punishment .

The main punishment may be supplemented by any additional penalty provided for in the laws governing liability for the crimes of which the person was found guilty .

The same rules shall apply when , after having been sentenced in CARDINAL case , the sentenced person is found guilty of another crime , committed before the sentence was pronounced in the first case . In such cases the term of the sentence shall include the part or all of the sentence not yet served under the first judgment . ”

Article CARDINAL

General principles of imposition of punishment

“ CARDINAL . A court shall impose a punishment :

( CARDINAL ) within the limits prescribed by a sanction under that article of the Special Part of this LAW which creates liability for the criminal offence concerned ;

( CARDINAL ) NORP pursuant to provisions of the General Part of this Code ;

( CARDINAL ) having regard to the degree of gravity of the offence committed , the character of the offender , the method used and the motives for the offence , the nature and extent of the damage done , and any mitigating or aggravating circumstances .

NORP The punishment imposed on an offender should be adequate and sufficient to reform the offender and prevent new offences .

The grounds for imposing a punishment milder than that prescribed for a given offence in the relevant article of the Special Part of this Code are specified in LAW .

A punishment heavier than that prescribed for a given offence in the relevant article of the Special Part of this Code may be imposed pursuant to ORG DATE and CARDINAL of this Code in the event of cumulative offences and cumulative sentencing . ”

The relevant provisions of the Code provide :

Article CARDINAL ( as worded before DATE )

Term for holding a person in custody

“ The term for remanding a person in custody during the investigation of criminal offences shall be not DATE . This term may be extended to DATE by district , city or military prosecutors , prosecutors of the fleet or command garrison , or other prosecutors of the same rank , if it is not possible to terminate the criminal investigation , and in the absence of any grounds for changing the preventive measure . A further extension of this term to DATE from the time of arrest shall be effected – only if the case is exceptionally complex – by ORG , regional prosecutors , GPE prosecutors , military prosecutors of the district or fleet , or other prosecutors equal to them in rank .

Further periods of remand in custody may be extended for DATE by ORG , and DATE by ORG .

Subsequent to the above , no further extensions of detention on remand shall be allowed . The accused must then be immediately released .

If it is impossible to terminate the investigation within these remand periods and there are no grounds for changing the preventive measure , the Prosecutor General or his Deputy shall be entitled to refer the case to a court in the part which relates to accusations which can be proved . As regards the incomplete investigation , the case shall be divided into separate proceedings and completed in accordance with the general rules .

The material relating to the completed part of the criminal case shall be provided to the accused and his representative for examination not DATE before the expiry of the remand period , as established by paragraph CARDINAL of this Article .

The time taken by the accused and his representative to apprise themselves of the material in the case file shall not be taken into account in calculating the overall term of remand in custody .

If the court refers the case back for fresh investigation , and where the term of remand in custody has expiredextended by the prosecutor , whose task is to supervise the lawfulness of the pre - trial investigation in the case , within DATE from the time he receives the case file . Further extension of such detention before the case is remitted to the court shall be governed by CARDINAL , CARDINAL and CARDINAL of this Article . ”

After DATE the detention order was given along the same lines , but by the courts and not the prosecutor .

Article CARDINAL

Calculation of the period of serving the sentence

“ The beginning of the serving of a sentence in the form of imprisonment or corrective labour for a defendant who has not been in custody prior to his conviction shall be calculated from the date of execution of the sentence .

When the defendant , prior to his conviction , has been in custody for the purposes of the same case , the period of serving the sentence shall include the period of pre - trial detention .

When the accused , while in custody , stayed in a medical institution , the period of stay there shall be included the period of serving the sentence .

If the defendant , prior to conviction , has been in custody and is sentenced to correctional labour , the time spent in custody shall be included in the period of correctional labour at the rate of DATE of custody for DATE of correctional labour . If the defendant was sentenced to correctional labour , and during the re - hearing of the same cause he is sentenced to imprisonment , the served period of correctional labour shall be included in the term of imprisonment at the rate of DATE of corrective labour for DATE of imprisonment . ”