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

The respondent Government were represented by their Agent , Mr PERSON , ORG Attorney - General .

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

On DATE at TIME the applicant was arrested on suspicion of murdering QUANTITY persons in GPE , GPE . He was put in pre - trial detention , which was transformed into detention on remand on DATE .

On DATE the judicial investigation proceedings were instituted against the applicant by decision of the investigating judge of ORG ( Okrožno sodišče v PERSON ) .

On DATE ORG ( NORP državno tožilstvo v PERSON ) lodged a bill of indictment against the applicant , charging him with murder . The applicant ’s objection to the indictment was rejected by ORG on DATE .

DATE and DATE , ORG held CARDINAL hearings . The court heard CARDINAL witnesses . It also appointed and heard several experts in forensic science , including CARDINAL NORP experts who prepared expert opinions about the footprints found at the scene of the crime .

At the thirteenth hearing , held on DATE , the court decided to conduct the trial ab initio , as DATE had elapsed since the last hearing . The applicant requested that the witnesses and experts be examined again .

DATE and DATE , the court scheduled CARDINAL hearings , many of which were cancelled or adjourned due to the applicant ’s inability to attend the hearings while he was on hunger strike and due to his requests for withdrawal of different judges and experts .

On DATE the court requested ORG ( l’Institut de Police Scientifique ) of ORG to prepare another expert opinion about the footprints found at the scene of the crime .

On DATE the applicant was released from custody after DATE , DATE and DATE .

As DATE period since the last hearing had elapsed , the trial began again on DATE . The court held further hearings on CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE and DATE and DATE .

During these hearings , the court heard CARDINAL witnesses and CARDINAL different experts in forensic science . In addition , the court read out CARDINAL expert opinions , including the CARDINAL prepared by the NORP experts .

On DATE the court delivered a judgment finding the applicant guilty of committing CARDINAL murders and acquitting him of the other charges . He was sentenced to DATE of imprisonment .

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

On DATE the court dismissed the applicant ’s appeal , allowed ORG appeal and found the applicant guilty of all CARDINAL murders .

The applicant and his legal representative lodged separate appeals with ORG sodišče ) on DATE and DATE respectively .

On DATE the court allowed both appeals , annulled the first and second instance ORG judgments and remitted the case for re - examination .

On DATE the first instance court scheduled hearings for DATE , DATE , CARDINAL , DATE and DATE and CARDINAL , DATE , DATE , DATE , DATE and DATE . All hearings were held as planned .

During these hearings the court heard several witnesses . It also heard the CARDINAL experts in forensic science from GPE .

The court held further hearings on DATE .

At a hearing held on DATE , the court decided to appoint new experts in forensic science and ordered them to submit another expert opinion about the traces found at the scene of the crime . On DATE the court specified the questions they should answer . The production of the expert opinion was eventually entrusted to ORG in GPE , GPE .

The court held hearings on DATE and DATE .

In DATE the court held hearings on DATE , DATE and CARDINAL , DATE , DATE and DATE . During these hearings the court confronted NORP , NORP and NORP forensics experts .

On DATE the court made public the judgment delivered on DATE . The applicant was acquitted .

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

On DATE the court allowed the appeal , annulled the first instance court ’s judgment and remitted the case for re - examination .

On DATE , the applicant was caught in GPE in possession of narcotics and put in detention on suspicion of drug trafficking . Due to the applicant ’s absence , the court did not schedule any further hearings .

On DATE the court requested the applicant ’s attorney and ORG to make proposals with regard to evidence .

On DATE the applicant notified the court that there were no more obstacles to the trial being continued , as his arrest in GPE had been quashed .

On DATE the court again asked ORG to make proposals with regard to evidence .

On DATE LAW on ORG without undue Delay ( “ the DATE Act ” ) became operational ( see below ) .

As a result of the applicant ’s supervisory appeal ( an acceleratory remedy under LAW ) lodged on DATE , the court held a hearing on DATE .

During the hearing , the court decided to nominate ORG - a NORP institution - to deliver yet another expert opinion about the shoeprints found at the scene of the crime .

During the hearing held on DATE , the court detailed the questions the forensics institution should answer . The court also decided to hold the next hearing on DATE . Subsequently , the case - file was transmitted to an investigating judge in order to obtain the requested expert opinion .

On DATE the applicant made a request for the withdrawal of the nominated investigating judge , stating that she had been questioned as a witness in the previous stages of the trial .

The proceedings have been pending since then .

In the period DATE and DATE , the Police lodged CARDINAL criminal complaints with ORG apparently alleging that the applicant and several other individuals were involved in drug trafficking .

On DATE the investigating judge of ORG granted ORG request for a criminal investigation in respect of the applicant .

On DATE the applicant was put in detention on remand .

On DATE a “ group of public prosecutors for special matters ” appointed to prosecute organised crime , lodged a bill of indictment against the applicant and CARDINAL other individuals in ORG . They were chiefly charged with drug trafficking .

At the first hearing held on DATE , the court decided to return the case to the investigating judge to order the transcription of secretly recorded telephone conversations of the accused .

After the transcripts had been made , the court held a hearing on DATE . It decided to separate the proceedings concerning CARDINAL defendants who did not attend the hearing .

DATE and DATE , the court held CARDINAL further hearings .

On DATE the President of ORG , acting ex proprio motu , appointed an attorney for the applicant , although the applicant had been duly represented throughout all the previous stages of the proceedings .

On DATE the applicant requested that the hearings scheduled for DATE be adjourned till after DATE because the court had already scheduled hearings in that period in another set of proceedings in which the applicant was charged with QUANTITY murders ( see above ) .

The hearings scheduled for CARDINAL , DATE , DATE and for CARDINAL , DATE , DATE were cancelled pending the decision of ORG upon the requests of the applicant and other defendants for withdrawal of ORG of the sitting court panel and the presidents of LOC and ORG , lodged following the decision to appoint an attorney . It appears that all the requests were rejected .

On DATE and CARDINAL May and on DATE the court held hearings .

On DATE the court found the applicant and other defendants guilty and sentenced the applicant to DATE of imprisonment . The judgment was pronounced only orally . The court stated that a written judgment would be delivered in due course .

On DATE the court decided to extend the applicant ’s detention until the first instance judgment became final . On DATE the applicant appealed against this decision . He also requested the court to issue a written judgment in order to enable him to appeal against it .

The written judgment of the first instance court was served on the applicant ’s attorney on DATE .

On DATE the applicant appealed to ORG .

On DATE ORG upheld the applicant ’s appeal as well as the appeals of the other defendants and annulled the first instance court ’s judgment . CARDINAL of the defendants was acquitted and the case , in respect of the other defendants , including the applicant , was remitted to the first instance court for re - examination . It appears that the applicant was released from custody on DATE .

The first hearing of the new trial scheduled for DATE was adjourned due to the absence of ORG , the defence counsel , and the applicant .

The hearings scheduled for CARDINAL , DATE , DATE , for CARDINAL , DATE , DATE , for DATE , for DATE , for CARDINAL and DATE were cancelled or adjourned due to various reasons , including requests for withdrawal of the judges , the applicant ’s , other defendants’ or attorneys’ absence or illness .

The hearings fixed for CARDINAL and DATE were adjourned as the applicant did not appear at the court . The inquiries made by the court disclosed that the applicant had been arrested in GPE ( see above ) .

According to the ORG ’s submissions , no hearings could be called in DATE due to the applicant ’s detention and the trial against him in GPE .

The proceedings have been pending since then .

In a letter of DATE the ORG Attorney General officially informed the ORG that , further to its judgment in GPE v. GPE ( no . CARDINAL , § § DATE and CARDINAL , ORG CARDINALX ) binding ORG to adopt appropriate legal measures and administrative practices in order to secure the right to a trial within reasonable time , GPE Right to a Trial without undue Delay ( “ the CARDINAL Act ” ) had been enacted on DATE . LAW came into force on DATE and became operational on CARDINAL DATE .

On DATE the applicant lodged a supervisory appeal with the ORG concerning the first set of proceedings . Relying on LAW , he complained that after ORG last judgment had been delivered on DATE , his case was only re - assigned to different judges . He further argued that none of these judges had ever tried to set a date for a hearing nor had they made any efforts to obtain a new expert opinion as instructed by ORG . As in his letter of DATE , he stressed that there were no more obstacles deriving from the criminal trial against him in GPE that would prevent the continuation of the impugned proceedings .

On DATE the President of ORG , after acquiring a report of ORG of the sitting court panel ( “ the judge ” ) , decided that the court had been unduly protracting the decision - making and ordered the judge to set a date for a hearing on DATE , at the latest . He further ordered the judge to submit a report indicating performed procedural acts within the same period . The decision was served on the applicant on DATE .

LAW has been implemented since DATE . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for a party to court proceedings , a participant under the LAW governing non - contentious proceedings and an injured party in criminal proceedings .

Section CARDINAL provides for CARDINAL remedies to expedite pending proceedings - a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) - and , ultimately , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) .

Section CARDINAL defines the criteria that domestic authorities should take into account when assessing the complaints :

“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”

The supervisory appeal is governed by sections CARDINAL , CARDINAL and DATE which , in so far as relevant , provide as follows :

“ ( CARDINAL ) If a party considers that the court is unduly protracting the decision - making , he or she may lodge a supervisory appeal in writing before the court hearing the case ; the decision thereon is taken by the ... president of the court ( hereinafter ‘ the president of the ORG ) .

( CARDINAL ) ... , the president of the court shall , ... request the ... judge or chair of a court panel ( hereinafter ‘ the judge’ ) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings , not DATE after receiving the request of the president of the court or after obtaining the file , if necessary for drawing up the report . The report shall include the declaration in respect of criteria referred to in DATE of this LAW and the opinion on the time - limit within which the case may be resolved ...

( CARDINAL ) If the president of the court ... in view of the criteria referred to in LAW CARDINAL of this Act , ( he )

“ ( CARDINAL ) If the president of the court acts in compliance with LAW , the party may not file a new supervisory appeal nor a motion for a deadline concerning the same case before the expiry of deadlines set in the notification or ruling of the president of the court ...

Section CARDINAL defines the motion for a deadline . It reads , in so far as relevant , as follows :

“ ( CARDINAL ) If , ... , the president of the court dismisses the supervisory appeal or fails to respond to the party within DATE or fails to send the notification referred to in section CARDINAL(CARDINAL ) of this LAW within the said time - limit or if appropriate procedural acts have not been performed within the time - limit set in the notification or ruling of the president of the court , the party may lodge a motion for a deadline under section CARDINAL(CARDINAL ) of this LAW with the court hearing the case .

( CARDINAL ) The party may lodge the motion for a deadline within DATE after receiving the ruling or after the time - limits provided for in paragraph QUANTITY of this section . ”

Further to section CARDINAL , just satisfaction may be provided by payment of monetary compensation , a written statement of ORG or the publication of a judgment :

“ ( CARDINAL ) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged , the party may claim just satisfaction under the present Act .

Section CARDINAL provides for a compensatory remedy for non - pecuniary damage and fixes the maximum amount that could be awarded , that is MONEY .

Sections CARDINAL , DATE and QUANTITY govern just satisfaction proceedings and proceedings in respect of pecuniary damage :

“ ( CARDINAL ) Proceedings to enforce a claim for just satisfaction , provided that the condition referred to in section CARDINAL ) of this Act is met , shall be instituted by a party by means of a motion for settlement lodged with the State Attorney ’s Office with a view to reaching an agreement on the type or amount of just satisfaction . The party may lodge such motion within DATE after the final resolution of the case . The ORG Attorney ’s Office shall rule on the motion of the party within DATE if it establishes that the just satisfaction claim is substantiated . Until the expiry of the above - mentioned period , the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court .

( CARDINAL ) If , in accordance with paragraph CARDINAL of this section , the agreement has been reached with the party , the State Attorney ’s Office shall enter into an out - of - court settlement with the party . ”

“ ( CARDINAL ) If no agreement under LAW of this LAW is reached upon the motion for settlement , or the ORG Attorney ’s ORG and the party fail to negotiate an agreement within DATE of the motion being lodged , the party may bring an action for damages .

( CARDINAL ) An action for damages against GPE shall be brought not DATE after the final resolution of the party ’s case .

“ ( CARDINAL ) Action in respect of pecuniary damage caused by a violation of the right to a trial without undue delay may be brought by the party within DATE of the final ruling of the court on the party ’s case in accordance with the provisions of LAW concerning pecuniary damage .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in born in DATE and lives in GPE . She is the owner of a plot of land in GPE . At the time of the events she was building a house on her land .

On DATE officers of ORG ( PERSON ) inspected the construction site and found that CARDINAL persons of NORP nationality , who were carrying out plaster works , had no permit to work in GPE .

On DATE ORG submitted a report to ORG ( Magistrat ) alleging that the applicant had illegally employed CARDINAL foreigners . Thereupon , ORG opened administrative criminal proceedings against the applicant under LAW ( ORG ) and invited her , by letter of DATE , to comment on the charge against her . As the applicant was out of town , this letter did not reach her prior to DATE , when ORG ordered the applicant to pay a fine in the amount of ORG CARDINAL ( ORG CARDINAL,CARDINAL.CARDINAL ) for having illegally employed CARDINAL foreigners contrary to the provisions of ORG . This order was served on the applicant on DATE . According to the applicant , this was the first time that she became aware that proceedings had been instituted against her .

On DATE the applicant , assisted by counsel , filed a request for reinstatement into the first instance proceedings ( Wiedereinsetzungsantrag ) and lodged an appeal with ORG ( PERSON , hereafter referred to as “ ORG ” ) against the order of DATE .

On DATE ORG rejected the request for reinstatement into the proceedings . The applicant appealed on DATE to the ORG .

On DATE the ORG summoned the parties to a hearing scheduled for DATE and invited the applicant to comment on the charge . The applicant did so on DATE .

On DATE the ORG dismissed her appeal concerning reinstatement . It found that the invitation to comment on the charge of CARDINAL DATE had been served in accordance with the provisions of LAW ( Zustellgesetz ) and that therefore ORG decision of DATE to refuse reinstatement into the proceedings had been lawful . This decision was served on the applicant on CARDINAL DATE . The applicant 's complaint of CARDINAL DATE against the ORG 's decision was rejected by ORG ( Verwaltungsgerichtshof ) on DATE .

On DATE the ORG also examined the applicant 's appeal of CARDINAL DATE against the order of CARDINAL DATE to pay the fine in the amount of ORG CARDINAL . Having deliberated , the ORG rejected the applicant 's appeal DATE .

On DATE the ORG finalised the written version of its decision on the applicant 's appeal of DATE . It found that the applicant had concluded work contracts with foreigners which required a valid work permit under LAW . The decision was served on DATE .

On DATE the applicant filed a complaint with ORG ) .

By a decision of DATE ORG refused to deal with the complaint for lack of prospects of success and transferred the case to ORG . This decision was served on DATE .

On DATE the ORG commented on the applicant 's complaint and , on DATE , the applicant submitted observations in reply .

On DATE ORG dismissed the applicant 's complaint . This decision was served on DATE .

Pursuant to LAW , the NORP law no application may be lodged with ORG against the administrative authorities ' failure to decide ( ORG ) in administrative criminal proceedings . This provision was adopted in DATE ( BGBl . CARDINAL/CARDINAL ) . The legislative committee stated in its respective report ( ORG , ORG . ORG ) , referring to LAW ( GPE ) , that the exclusion of this remedy was justified as the administrative authorities had to decide on appeals within a short time - limit . The provisions to which the legislative committee referred provide as follows :

Pursuant to LAW , administrative authorities have to decide on appeals within DATE and if they do not comply with this time - limit the proceedings have to be discontinued . This time - limit does not apply to proceedings , in which CARDINAL party has a right to appeal . Periods during which proceedings before ORG and ORG are pending shall not be counted for the purpose of DATE time - limit .

Pursuant to LAW and CARDINAL of the Code of Administrative Offences , the prosecuting authority has to institute administrative criminal proceedings against a person suspected of having committed an administrative offence within DATE or as regards specific offences - as the offence at issue - within DATE after the perpetration of the offence .

Pursuant to LAW of LAW , the authorities may only sentence a person suspected of an administrative offence within DATE after the perpetration of the offence . Periods during which proceedings before ORG , ORG and ORG are pending shall not be counted for the purpose of the period of prescription .

NORP In administrative criminal proceedings in which CARDINAL party has the right to appeal , e.g. in proceedings where also ORG has locus standi , legal protection against the authorities ' failure to decide is only safeguarded by the limitation of DATE within which a penal order has to be issued . The public pronouncement of the decision is considered to be sufficient for complying with this time - limit .

Pursuant to LAW of LAW in connection with Sections DATE of LAW ( Strafprozessordnung ) , the administrative authorities have to consider an unreasonable length of the proceedings as mitigating circumstance .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant company is the owner and hire purchaser of a fleet of vehicles registered in GPE and licensed as “ Z ” vehicles .

On CARDINALst DATE ORG of GPE delivered judgment in a civil action lodged by the applicant against another company , ORG , also in the car hire business . ORG held , inter alia , that the applicant having legally terminated an agreement with Diprose , permitting the use and exploitation by the latter of the “ Z ” fleet of cars , it was entitled to take possession thereof and to sell them in satisfaction of a debt of CARDINAL Cypriot pounds owed to it by Diprose , by way of rental under the said agreement , and to pay the remaining amount in satisfaction of debts owed by the applicant to a number of banks which had financed the purchase of the fleet by the applicant . Furthermore , ORG ordered Diprose to deliver the cars to the applicant . Diprose obtained a stay of execution of the judgment on condition that it regularly paid certain instalments to the applicant for the use of the vehicles which the applicant had given to it in the past for rental to third parties .

Diprose failed to keep up the instalments and , as a result , on DATE , ORG of GPE allowed the applicant to collect the vehicles . In the meantime , Diprose had been wound up and , by letter of CARDINAL DATE , the liquidator declared that he was willing to return the vehicles , which apparently had been wrongfully given to another company , ORG , belonging to the same group as Diprose , without the consent of the applicant .

In the meantime , PERSON had instituted proceedings ( action CARDINAL ) seeking damages from the applicant for breach of the agreement which they had allegedly concluded on DATE . PERSON contended that , under that agreement , CARDINAL vehicles had been rented to it by the applicant but a number of them was still in the applicant 's possession . ORG further sought to obtain a decision preventing the applicant company from interfering with PERSON ' activities under the agreement and ordering it to hand over to PERSON a number of the vehicles which were still in the applicant 's possession .

Whilst the applicant was in the process of collecting the vehicles , ORG obtained in fresh proceedings before ORG of GPE , and on an ex parte basis , an interim decision which ordered the applicant to deliver the said vehicles to PERSON . This order was issued on DATE and served on the same date on the applicant .

The order was to be enforced on DATE . On DATE , the applicant 's lawyer appeared before the court and requested time to appeal against the order . The court fixed the case for directions on CARDINAL DATE and then again on CARDINAL , DATE and DATE May in order to afford time to the parties to settle their dispute . The court invited the lawyer to file an appeal DATE before CARDINAL DATE .

NORP However , the applicant filed its appeal on CARDINAL DATE . The applicant maintained that the court had been misled by PERSON , which had failed to disclose the real facts of the case and the previous judgment and decision of ORG . The applicant invited ORG to hold a hearing as soon as possible in view of the fact that the fleet of “ Z ” cars was worth CARDINAL Cypriot pounds . Furthermore , the applicant alleged that the unauthorised use of the vehicles under the interim decision would entail a reduction of their value and would prevent the applicant from presenting them to the competent authorities in order to have their licenses renewed . Finally , the applicant affirmed that it had never entered into such an agreement with PERSON .

As the parties had reached no settlement of the case by CARDINAL DATE , ORG fixed the hearing for DATE . On DATE , the judge stopped the hearing at TIME , because of the “ lateness of TIME ” , and adjourned it until DATE , during the DATE recess . However , the judge pointed out that he would be working during this period .

The hearing started on DATE . Evidence given by PERSON was completed on DATE .

According to the applicant , the hearing should have been completed in DATE or at DATE . However , it was repeatedly adjourned due to the illness of either the advocate for the plaintiff or the judge dealing with the case , as well as to the latter 's transfer to other pending court proceedings .

At the end of the hearing on DATE , the applicant 's lawyer had indicated CARDINAL dates in DATE on which he could make himself available for the continuation of the hearing , but the advocate for the plaintiff declared that he would be unavailable due to other court commitments .

Adjournments were thus ordered until DATE ( because the advocate for the plaintiff had to undergo an operation ) , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE ( due to the court 's lack of time and the illness of the advocate for the plaintiff ) , DATE , DATE , DATE ( on which date the case was heard by another judge because the judge dealing with the case was ill ) , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE , and CARDINAL and DATE .

On DATE and as a result of the repeated adjournments , the applicant filed an application for certiorari and prohibition with ORG . It sought the annulment of the interim order because of the excessive delay in the proceedings before ORG . The applicant also alleged that the court had exceeded its jurisdiction on a matter of construction involving section CARDINAL of LAW . On DATE ORG refused the application . On DATE the applicant appealed against that decision and , by way of a letter to the President of ORG , invited him to expedite the proceedings .

Following a letter from the applicant 's lawyer , who complained about the delay in the proceedings , the President of ORG assigned the case to a new judge on DATE .

In the meantime , on DATE , PERSON had applied for an order of imprisonment of the applicant 's managers for contempt of the interim order of DATE . Initially fixed for DATE , the hearing was adjourned until DATE and then until DATE , because of the direct relevance of these proceedings to those concerning the interim order . Due to the DATE recess both sets of proceedings were fixed for hearing on DATE .

On DATE ORG decided that the hearing relating to the interim order should precede the contempt hearing . The hearing commenced on DATE and was adjourned until DATE , and then until DATE because the plaintiff 's advocate had failed to summon a witness whom he wished to call to give evidence . The hearing continued on DATE , but on DATE it was adjourned until DATE at the request of the plaintiff 's advocate . The court rejected the objection by the applicant 's lawyer 's on the ground that the adjournment was granted in order to permit the other party to prepare a document which would expedite the proceedings . The hearing continued on CARDINAL , DATE and DATE and the court heard CARDINAL witnesses .

On DATE , when the hearing was to be resumed , the advocate for the plaintiff requested an adjournment because his bad state of health necessitated an operation abroad . The continuation of the hearing was fixed for DATE .

On DATE , the date on which the hearing in the contempt proceedings ought to have taken place , ORG again ordered an adjournment until DATE and then until DATE because the plaintiff 's advocate was hospitalised abroad . However , following a protest by the applicant 's lawyer , the court affirmed that no further request for an adjournment would be granted .

On DATE ORG again adjourned the hearing until DATE in order to give time to the newly appointed lawyer for the plaintiff to familiarise himself with the case . The applicant 's lawyer did not object because he stated that he had other court commitments .

The hearing resumed on DATE with the testimonies of CARDINAL witnesses , thus bringing to CARDINAL the total number of witnesses heard . On DATE , the parties made their final addresses .

By judgment of CARDINAL DATE , ORG held that the interim order was no longer in force . It declared it null and void because the plaintiff had failed to prove its allegations ; it also held , at page CARDINAL of the judgment , that the failure of ORG to file the Statement of Claim over a DATE period could not be attributed to the illness of the lawyer .

Section CARDINAL of PERSON . CARDINAL ( Civil Procedure ) reads as follows :

“ The court may at any time during a pending action make an order for the ... preservation , custody , sale , detention or inspection of any property being the subject of the action , or an order for preventing any loss , damage or prejudice which but for the making of the order might be occasioned to any person or property , pending a final judgment on some question affecting such person or property or pending the execution of the judgment . ”

“ ( CARDINAL ) Any order which the court has power to make may , upon proof of urgency or other special circumstances , be made on the application of any party to the action without notice to the other party .

( CARDINAL ) Before making any such order without notice the court shall require the person applying for it to enter into a recognisance , with or without a surety or sureties as the court thinks fit , as a security for his being answerable in damages to the person against whom the order is sought .

( CARDINAL ) No such order made without notice shall remain in force for a longer period than is necessary for service of notice of it on all persons affected by it and enabling them to appear before the court and object to it ; and every such order shall at DATE cease to be in force , unless the court , upon hearing the parties or any of them , shall otherwise direct ; and every such order shall be dealt with in the action as the court thinks just .

( CARDINAL ) Nothing in this section shall be construed to affect or apply to the powers of the court to issue writs of execution . ”

In some recent judgments ORG has ruled that the procedure for deciding an interim order which is issued on an ex parte basis is an exceptional one and must therefore be dealt with and treated as a matter of urgency . In CARDINAL cases , ORG decided that such an order must be served within DATE and be brought before the judge for trial within DATE ( judgments of DATE and DATE ) . ORG found that periods of CARDINAL and DATE to serve the order , and give the other party an opportunity to oppose it , were excessive . In the case of SPE Agias Fylas v. PERSON ( judgment of DATE ) , ORG ruled that , if a court issued an ex parte order which is not urgent , it will be set aside for excess of jurisdiction .


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

On DATE the applicant was arrested on suspicion of membership of an illegal organisation , the THKP - C ( ORG ) .

On DATE the applicant was detained on remand .

On DATE ORG filed a bill of indictment with ORG against the applicant and CARDINAL other defendants . ORG accused the applicant , inter alia , of membership of an illegal armed organisation , namely the THKP / C , whose object was to undermine the constitutional order and replace it with a NORP - Leninist regime . He further charged the applicant with having been involved in a number of crimes such as bombing and armed robbery of ORG private properties , and killing of several individuals at a security directorate .

The prosecution sought the death penalty under LAW .

By decisions of DATE and CARDINAL and DATE the ORG ( ağır ceza mahkemesi ) declined jurisdiction ratione materiae in respect of the criminal proceedings brought before it against the applicant . The court held that the alleged crimes fell within the jurisdiction of the martial courts . The case - files were joined to the case before GPE ORG .

In a judgment of CARDINAL DATE the İstanbul Martial Law Court convicted the applicant of membership of the THKP / C and his involvement in the alleged crimes . It sentenced the applicant to death penalty under LAW .

As the applicant ’s sentence exceeded CARDINAL years’ imprisonment , his case was automatically referred to ORG ( PERSON ) .

On DATE ORG quashed the judgment of the first instance court on the ground that the latter failed to establish the guilt of the applicant in some of the alleged crimes . It referred the case to the Istanbul Martial Law Court .

On DATE ORG convicted the applicant under LAW and sentenced him to lifetime imprisonment , permanently debarred him from employment in the civil service and placed him under judicial guardianship . The applicant appealed .

On DATE the İstanbul Martial Law Court ordered the applicant ’s release pending trial .

Following promulgation of the Law of DATE , which abolished the jurisdiction of ORG , ORG ( Yargıtay ) acquired jurisdiction over the case and on DATE the case file was transmitted to it .

On DATE ORG upheld the applicant ’s conviction .

Article CARDINAL § CARDINAL of the Criminal Code provides :

“ Whosoever shall attempt to alter or amend in whole or in part LAW or to effect a coup ORG formed under LAW or to prevent it by force from carrying out its functions shall be liable to the death penalty . ”


The particulars of the applicants appear in the appendix . Mr PERSON and Mr PERSON were represented by PERSON , a lawyer practising in GPE . ORG of GPE were represented by Mr PERSON , their Agent .

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

In DATE ORG convicted the applicants of criminal offences relating to the rape and subsequent murder of a student . Prison terms of CARDINAL were imposed . In DATE ORG of GPE upheld the firstinstance judgment .

On DATE ORG of the NORP and GPE , upon a complaint lodged by ORG , quashed the decisions convicting the applicants . The case was sent back to ORG for a fresh examination .

In DATE and DATE ORG took several procedural steps .

A hearing scheduled for CARDINAL DATE had to be adjourned as CARDINAL of the accused had challenged the presiding judge . On DATE the president of ORG decided that the judge in question was not disqualified .

On DATE ORG appointed experts with a view to having the mental health of CARDINAL of the accused examined . The experts were ordered to submit their opinion before DATE . The case was adjourned . The experts submitted their opinion on CARDINAL DATE .

A hearing which was to be held from DATE to DATE had to be adjourned as CARDINAL of the accused persons and several witnesses could not attend .

On DATE the presiding judge requested the experts to supplement their opinion concerning the mental health of CARDINAL of the accused , who had attempted to commit suicide .

A hearing was held DATE and DATE at which several witnesses failed to appear . On the latter date the case was adjourned as one of the judges had fallen ill .

On DATE ORG stayed the proceedings in respect of PERSON as the experts had established that he suffered from a mental disorder as a result of which he was not capable of understanding the purpose of the criminal proceedings . ORG further decided that the charges against Mr ORG would be dealt with in a separate set of proceedings ( see below ) .

A hearing in the proceedings against the above CARDINAL applicants was scheduled for DATE . On DATE ORG requested that several witnesses be brought by the police .

At the hearing held DATE ORG heard witnesses and experts . Several witnesses failed to appear and the case was adjourned .

Another hearing was held from DATE to DATE . On the latter date the case was adjourned as several witnesses and an expert did not appear .

On DATE the lawyer of CARDINAL of the accused requested ORG not to proceed with the case before DATE because of her absence .

On DATE the presiding judge asked the police to bring CARDINAL witnesses to the hearing scheduled for CARDINAL DATE .

On CARDINAL and DATE the case was adjourned as the police had failed to comply with the above request . On DATE the police informed ORG that the whereabouts of CARDINAL of the witnesses in question were unknown and that the other witness had stayed abroad .

On DATE ORG scheduled the next hearing for DATE . On DATE the lawyer of CARDINAL of the accused informed the court that she could not attend as she was on maternity leave until DATE . On DATE the presiding judge adjourned the case until DATE .

The next hearing was scheduled for DATE . On DATE ORG requested the police to ensure the attendance of CARDINAL witnesses .

On DATE the hearing was cancelled as the lawyer of CARDINAL of the accused persons had informed the court that she had ceased to represent her client . The accused was requested to appoint another lawyer to represent him in the proceedings .

On DATE the lawyer of another accused informed ORG that her authority had expired .

On DATE the case was assigned to Judge PERSON On DATE the latter requested the lawyers of the accused to inform the court of the addresses of their clients . The lawyers replied between CARDINAL and DATE .

On DATE CARDINAL of the accused persons was requested to appoint a lawyer to represent him in the proceedings or , in the alternative , to inform the court whether he wished to have an official lawyer assigned .

In DATE ORG made enquiries with a view to finding out whether CARDINAL of the accused persons were represented by a lawyer and establishing the whereabouts of CARDINAL of them .

On DATE , owing to the illness of Judge PERSON , the President of ORG assigned a different judge to preside in the case as well as a new judge to sit in the case . The decision was quashed upon the return of Judge PERSON

On DATE CARDINAL of the accused persons applied to have Judge PERSON disqualified on the ground that he had been involved in the case at the initial stage of the proceedings leading to the applicants’ conviction . On CARDINAL DATE Judge PERSON submitted written comments on the request and the case file was submitted to ORG on DATE . On DATE ORG found that Judge PERSON was not disqualified . The case file was returned to ORG on DATE .

On DATE the President of ORG appointed a new presiding judge and another judge as Judge PERSON had been suspended from his duties by the Minister of ORG .

On DATE the case was assigned to a different presiding judge on account of the transfer of the judge who had been appointed on DATE .

The presiding judge appointed on DATE resigned . For this reason the President of ORG assigned the case , on DATE , to Judge PERSON

A hearing scheduled for DATE was adjourned as Judge PERSON had expressed doubts about his own impartiality and a complaint to that effect had also been made by the accused persons .

On DATE ORG found that Judge PERSON was not disqualified from dealing with the case . On DATE a panel of judges of ORG dismissed the accused ORG complaint about Judge PERSON

The case was adjourned in DATE and on DATE .

On DATE the President of ORG assigned a different judge to preside over the case on the ground that Judge PERSON had fallen ill .

On DATE the judge heard evidence from PERSON . DATE and CARDINAL DATE the presiding judge made several enquiries with a view to having the expert opinion concerning Mr ORG ’s health supplemented .

On DATE ORG appointed an official lawyer to represent Mr ORG .

On DATE an expert recommended that Mr ORG be examined in hospital . On DATE ORG issued a decision to that effect .

On DATE Mr ORG informed the presiding judge that he had not yet been summoned to an examination and complained about delays in the proceedings .

On DATE the experts informed ORG that they had examined PERSON and that a further examination by means of psychological tests appeared necessary . On DATE the presiding judge agreed to such an examination . Its results were submitted on DATE . The psychologist diagnosed no anomalies which would affect the ability of Mr ORG to participate in the proceedings .

On DATE Mr ORG asked to be exempted from the obligation to pay his lawyer ’s fees .

A new comprehensive expert opinion concerning the health of Mr ORG was submitted on DATE . In it the experts concluded that he suffered from a mental disorder which prevented him from understanding the purpose of the criminal proceedings , and that he required continued treatment .

On DATE ORG invited the experts who had submitted the above opinions of CARDINAL DATE and of DATE to harmonise their conclusions . The CARDINAL experts who had submitted the opinion on DATE explained their position on DATE .

On DATE the case was assigned to another judge .

On DATE Mr PERSON requested the Minister of ORG to prevent further delays in the proceedings .

On DATE ORG decided on the experts’ fees .

On DATE the psychologist who had examined Mr ORG amended his opinion of CARDINAL DATE . He stated that the long - term development of the health of PERSON justified the other CARDINAL experts’ conclusion that he could not understand the purpose of the criminal proceedings against him .

In a note of DATE included in the case file the judge stated that , in view of the experts’ conclusions , the decision to stay the proceedings was still justified .

According to the explanation submitted by the President of ORG in DATE , the criminal proceedings against Mr ORG could not be discontinued as his mental disorder had begun after the offences in question had been committed . The note further stated that ORG would examine the validity of the reasons for staying the proceedings at sixmonth intervals .

On DATE the case file was submitted to ORG , which was to examine whether the case was covered by the presidential pardon of DATE .

LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon a petition ( podnet ) presented by any individual or a corporation claiming that their rights had been violated .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms under LAW , the relevant part of which provides :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of a failure to act , ORG may order [ the authority ] which violated the rights or freedoms in question to take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order the authority concerned to abstain from violating fundamental rights and freedoms ... or , where appropriate , order those who violated the rights or freedoms set out in paragraph CARDINAL to restore the situation existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

The implementation of the above constitutional provisions is set out in more detail in sections CARDINAL of Law no . CARDINAL/CARDINAL ( LAW ) , as amended . The relevant amendments entered into force on DATE and provide the following .

Pursuant to section CARDINAL(CARDINAL ) , a person claiming adequate financial compensation must specify the amount and explain the reasons for such a claim .

Section CARDINAL(CARDINAL ) provides that , when a violation of fundamental rights or freedoms is found , ORG may order the authority liable for the violation to proceed in accordance with the relevant rules . It may also return the case to the authority concerned for further proceedings , prohibit the continuation of the violation or , as the case may be , order the restoration of the situation existing prior to the violation .

Under section CARDINAL(CARDINAL ) , ORG may grant adequate financial compensation for non - pecuniary damage to a person whose rights or freedoms were violated .

Section CARDINAL(CARDINAL ) provides that the authority which violated a person ’s rights is in such a case obliged to pay the compensation within DATE after ORG decision has become final .

According to its case - law under former LAW of LAW , as in force until DATE , ORG lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .

On DATE the ORG delivered decision No . III . ÚS CARDINAL in which it found , upon a complaint under LAW , a violation of LAW and of LAW as a result of undue delays in proceedings concerning the plaintiff ’s action for recovery of property filed with the general court on DATE .

ORG decision stated that the firstinstance court dealing with the case had remained inactive for a total period of DATE and that the property claimed by the plaintiff was necessary for the every day life of the latter and of her children .

The plaintiff had claimed CARDINAL NORP korunas

In its decision of DATE in a case registered as No . I. ÚS CARDINAL/CARDINAL ORG found a violation of the GPE rights under LAW . At the moment of the delivery of ORG decision the civil proceedings complained of had been pending for DATE at first instance . ORG examined their length in the light of the criteria established by its case - law , namely the complexity of the matter and the conduct of the parties . It established delays in the proceedings imputable to the court dealing with the case , the total length of which amounted to DATE .

In view of this finding , ORG ordered the general court concerned to proceed with the case without further delays . ORG granted in full the GPE claim for SKK CARDINAL,CARDINAL each in compensation for non - pecuniary damage , and pointed out that the general court in question was obliged to pay those sums within DATE after ORG decision had become final . The decision expressly stated that , when deciding on the above claim , ORG had also considered the relevant case - law of ORG Reference was made to the ORG ’s judgment in the case of PERSON v. GPE ( DATE , Series A no . CARDINAL-B ) .

ORG has subsequently delivered several other decisions to the same effect .

According to an explanatory letter of DATE by the President of ORG , nothing prevents ORG from dealing with complaints about the length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed .

The letter further states that ORG can also examine complaints about delays in proceedings in cases in which it has earlier found a violation of LAW . In such cases , ORG would only consider the period after the delivery of its first decision . However , it would take into account the fact that a violation of LAW had earlier been found in the proceedings under consideration .


No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

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

On DATE at TIME the applicant , with PERSON , had a fight with a taxi driver , PERSON , and damaged his car . The taxi driver informed an operator at the taxi call centre that he had been assaulted . CARDINAL more taxis , which at that time were nearby , arrived and the taxi drivers tried to stop the fight . Another fight broke out , at the end of which the applicant and PERSON were thrown to the ground and held face down . PERSON ran away . In the meantime police arrived and arrested the applicant and PERSON

They were brought to ORG ( Київська міська наркологічна лікарня ) where on DATE at TIME the applicant was examined by a doctor , who concluded that the applicant was drunk and noted , inter alia , that he had some scratches on his forehead and a bruise to his eye . The applicant and PERSON were subsequently taken to LOC ( PERSON відділення міліції Солом’янського районного управління ORG в м.Києві ) .

According to the applicant , the police officer , NORP , demanded that the applicant sign a statement admitting that he had been involved in an assault . When the applicant refused to do so , he was allegedly beaten with a truncheon .

When the applicant complained of a headache and nausea , around TIME an ambulance was called for him . The applicant was found to have sustained numerous injuries to his face , head and ears . His body and especially his back had numerous bruises from blows , possibly from sticks . The ambulance doctor further concluded that the applicant had symptoms of concussion . According to the ambulance medical report , the applicant told the doctors that he had been beaten up by taxi drivers . The doctors recommended that the applicant be hospitalised .

On DATE at TIME the applicant was released from the police station . The applicant ’s mother called an ambulance to the police station and at TIME the applicant was hospitalised with a closed cerebral trauma , concussion and numerous bruises on his back . The applicant told doctors that he had been beaten up by the police officers during his arrest .

On DATE the ambulance doctor informed the police that the applicant and PERSON had been hospitalised . According to the doctor , the applicant and PERSON had said that they had been beaten up by the police . The police officer , PERSON , noted this and reported it to the head of LOC . His report was added to the evidence in the criminal case against the applicant ( see below ) .

On DATE an expert medical examination performed at the applicant ’s request , revealed that the applicant had had minor physical injuries ( numerous scratches and bruises and concussion ) , some of which could have been inflicted by a rubber truncheon . The applicant told the expert that unknown persons had beaten him with sticks on TIME CARDINAL DATE .

On DATE the applicant left the hospital . According to the applicant , he was forced to leave , though he was not fully recovered ; he stayed at home afterwards for DATE .

On DATE the police instituted criminal proceedings against the applicant for hooliganism .

On DATE the applicant was charged with the above crime .

On DATE the preliminary investigation was completed and the case was referred to the court for examination .

On DATE the ORG of Kyiv discharged the applicant from criminal liability in view of “ the change in the situation eliminating public danger of the offence and of the applicant ” . The applicant appealed , stating , inter alia , that he had never agreed to the termination of the criminal proceedings on this ground . On DATE ORG upheld the decision of CARDINAL DATE . On DATE ORG rejected the applicant ’s cassation appeal .

By a letter of DATE ORG informed the applicant ’s mother that it had been decided to request the applicant ’s case file in order to decide whether to review his case under the extraordinary review procedure . The applicant did not inform the Court of the outcome of these proceedings .

On DATE the applicant ’s mother complained of his ill - treatment and unlawful detention through the special police hotline “ ORG ” . The applicant ’s mother was then invited to a meeting with police officials at ORG on DATE to give evidence and submit an official complaint .

On DATE the investigating officer , PERSON , sent the materials of the case related to the applicant ’s allegations that he had been beaten up by the police officer , for additional scrutiny to ORG ( прокуратура Солом’янського району PERSON ) .

On DATE the applicant filed with the prosecution authorities a similar complaint about having been assaulted by the police . On DATE ORG refused to institute criminal proceedings for want of evidence of any ill - treatment by the police , since they held that the injuries in question had been inflicted upon the applicant by the taxi drivers during the fight . On an unidentified date DATE this decision was quashed and the case was remitted for further investigation .

NORP In a letter of DATE the human resources officer at ORG ( ORG управління МВС PERSON ) informed the applicant that the materials of the internal inquiry had been forwarded to ORG . The unnamed officials at FAC were disciplined for keeping the applicant in custody without any record of his detention .

On DATE ORG decided not to bring any charges against the police officers for alleged ill - treatment of the applicant .

On DATE ORG ( прокуратура PERSON ) found that the inquiry was flawed , quashed the conclusions of ORG and ordered further inquiries into the applicant ’s allegations . On DATE ORG instituted criminal proceedings against the police for exceeding their powers .

DATE these proceedings were twice terminated and subsequently reopened by the prosecutor .

On DATE the investigator with ORG found that the police were not responsible for the injuries sustained by the applicant .

On DATE ORG Office quashed the decision of DATE and the case was remitted to ORG ( прокуратура PERSON PERSON ) for further inquiries .

On DATE ORG terminated the criminal proceedings in the absence of evidence of crime . In particular , PERSON and PERSON ( taxi passengers ) and PERSON ( taxi driver ) testified that the police officers had not beaten the applicant during his arrest . It was further found that the injuries could have been inflicted on the applicant by the taxi drivers . It was also stated that in a court hearing during the consideration of the criminal case against him PERSON had testified that CARDINAL or CARDINAL taxi drivers had beaten him and the applicant . As a result PERSON had had his nose and CARDINAL rib broken .

On DATE the ORG quashed this decision and remitted the case for a further investigation to ORG . The court pointed out that PERSON and PERSON had not been properly questioned about the argument which had led to another fight ; other taxi drivers had not been questioned ; confrontations had not been held , in particular , between the applicant and NORP Moreover , the court found that after the case had been remitted for further investigation the investigating officer , PERSON , had not taken any action and had based his decision entirely on already existing materials .

The investigation still appears to be pending .

On an unidentified date the applicant instituted proceedings in LOC of GPE complaining of unlawful detention on DATE . On CARDINAL DATE the court rejected the applicant ’s complaint . On DATE ORG quashed this decision and found that the applicant ’s detention had been unlawful .

The relevant provision of the LAW of GPE reads as follows :

Article CARDINAL

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

Article CARDINAL of the LAW provides that the court , prosecutor or investigator must , to the extent that it is within their power to do so , institute criminal proceedings in every case where evidence of a crime has been discovered , take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them .

Articles CARDINAL ) and CARDINAL of the LAW provides that an investigator ’s decision not to institute or to discontinue the proceedings can be appealed against to the prosecutor or to the court .


No violation of Art. 14+6;No violation of Art. 14+8

The applicant , Mr. PERSON , is a NORP citizen , born in DATE . He currently works as a clerk and resides in PERSON .

He was married in DATE . During the marriage , CARDINAL children were born , a boy in DATE and a girl , GPE , on DATE . The applicant had grounds , even before the latter 's birth , for assuming that another man might be the father ; however , in order to save the marriage , he took no steps to have paternity determined .

In DATE , Mr. PERSON and his wife applied for a separation ( separation ved bevilling ) , which they obtained on DATE . In accordance with their agreement , Mrs. PERSON retained custody of the children and the competent authority issued a decision to the effect that Mr. PERSON should pay maintenance for them from DATE . He in fact did so from that date until DATE .

In DATE , the applicant , who had previously still nurtured hopes of preserving the marriage , took some steps to institute proceedings to challenge his paternity of GPE . To this end , he applied for legal aid . However , he did not pursue the matter since , on DATE , he and his wife signed an agreement whereby she waived all claims for maintenance for the child and he undertook to refrain from bringing any such proceedings .

In DATE , the applicant and his wife applied for a divorce ( skilmisse ved bevilling ) , which was granted on DATE . On this occasion , he reaffirmed before the authorities that the mother should have sole custody of the children and was once more ordered to pay maintenance for them . He did not raise any objection .

On DATE , DATE before GPE 's fifth birthday , the applicant 's former wife wrote to him asserting that she was not bound by the agreement of CARDINAL DATE . She later lodged with the public authorities a renewed petition for maintenance , which was granted by order effective from DATE . Since then , Mr. PERSON has regularly paid the maintenance .

On DATE , Mr. PERSON sought leave from ORG ( PERSON ) to institute proceedings out of time to determine the paternity of the girl ( see paragraph CARDINAL below ) .

In accordance with the normal procedure , the police , at ORG request , interviewed Mr. PERSON and his former wife in DATE and recorded their statements in a report .

ORG refused the application on DATE , for the reason that the statutory conditions for granting leave at that time were not satisfied ( see paragraph CARDINAL below ) .

The applicant did not appeal against the decision within the statutory time - limit . However , on DATE , he petitioned ORG for leave to appeal out of time to ORG ( Højesteret ) , but this was refused on DATE .

On DATE , Mr. PERSON applied again to ORG for leave to institute paternity proceedings . His former wife opposed the application , on the ground that such proceedings would have a detrimental effect on the child .

By a decision of DATE , ORG refused the application for the reason that the applicant had not brought the action contesting paternity within the time - limits provided for in section CARDINAL(CARDINAL ) of LAW on the Legal Status of Children ( " LAW " - Lov nr . CARDINAL af CARDINAL om børns retsstilling ; see paragraph CARDINAL below ) and that there was no cause to grant him any exemption since the conditions laid down in section CARDINAL(CARDINAL ) were not met . A similar decision was given by ORG on DATE .

Prior to the enactment of LAW , which applied in Mr. PERSON 's case , the status of children was regulated in LAW of DATE and LAW . LAW of the latter provided that proceedings to contest paternity of a legitimate child could be instituted by the mother , the husband , the child or a person appointed guardian of the child . No time - limit was laid down for the institution of such proceedings .

According to NORP case - law and legal writing , however , a husband could be estopped from contesting paternity of a child born in wedlock if , knowing that his wife had had sexual intercourse with another man during the relevant period , he had expressly or tacitly acknowledged after the child 's birth that he was the father . The " doctrine of acknowledgement " ( anerkendelseslaeren ) was first established in DATE by a judgment of ORG , reported in GPE for Retsvaesen ( ORG . NORP ) DATE , p. CARDINAL . Although there was no case - law on the point , legal writers expressed the view that this doctrine applied also to mothers ( see , for instance , ORG , ORG I , DATE , p. CARDINAL ) .

In DATE , ORG set up a committee , called ORG , to consider , inter alia , certain aspects of the status of children born in wedlock . In DATE , the ORG submitted its report ( no . CARDINAL/CARDINAL ) on the amendment of the rules regarding determination of paternity .

As to the husband 's right to institute proceedings to challenge paternity of a child born in wedlock , ORG recommended the institution of a double time - limit of DATE from the time when the husband became aware of the facts affording grounds for contesting his paternity and not DATE from the birth of the child ; but that ORG should be empowered to grant exemption from these time - limits in special circumstances . The ORG took the view that the welfare of the child ( and of the marriage ) required that his status should be established as soon as possible and that the husband 's interests should yield to these considerations ( page CARDINAL of the report ) . CARDINAL of the reasons given by ORG for this recommendation was that a paternity suit instituted by the husband DATE after the child 's birth would place the child in a worse position than if proceedings had been instituted earlier : the court would possibly have to give judgment in the husband 's favour on the basis of the blood - group determination , while it would be difficult to obtain a paternity and a maintenance order against another man .

On the other hand , the ORG found that the child 's right to institute proceedings should not be subject to any time - limit , since the views which might lead to restricting the husband 's right to institute proceedings were not of relevance in the case of an action brought by the child . For the same reasons , there should likewise be no time - limit with regard to actions brought by the child 's guardian or the mother ( page CARDINAL of the report ) .

ORG also discussed the question whether the doctrine of acknowledgement should be embodied in legislation . However , it considered that this was a matter which was better left to the courts to decide on a case - by - case basis .

The Government subsequently introduced a PERSON which incorporated in part the recommendations of ORG but increased the time - limits to DATE and DATE respectively and conferred competence to grant exemption on ORG . This legislation entered into force , as LAW , on DATE . It provided in section CARDINAL ) that proceedings to challenge paternity of a child could be brought by the husband , the mother , the child or a guardian of the child . Sub - sections CARDINAL and CARDINAL of section CARDINAL read as follows :

" ( CARDINAL ) Paternity proceedings must be instituted by the husband within DATE after he becomes cognizant of the circumstances which may give grounds for his renunciation of paternity , and not DATE after the birth of the child .

( CARDINAL ) However , a ORG may , on the conditions set out in section CARDINALr , sub - section CARDINAL , of ORG , grant leave to institute proceedings after the expiry of the time - limits set out in sub - section CARDINAL above . "

Section CARDINALr , sub - section CARDINAL , of ORG concerns re - opening of a paternity case after the expiry of the applicable time - limit or time - limits .

LAW did not impose any restriction on the mother 's right to institute paternity proceedings , nor did it refer to the doctrine of acknowledgement ( see paragraph CARDINAL above ) .

In case - law , however , the " doctrine of acknowledgement " continued to be applied and there were ORG and ORG decisions confirming the earlier view that the doctrine also applied to mothers .

The circumstances which , under the doctrine of acknowledgement , estop the husband from contesting paternity will , as a general rule , also militate against granting him leave to institute proceedings out of time . However , a decision to grant leave is without prejudice to the outcome of the subsequent procedure ( see ORG judgment of DATE , ORG . DATE , p. CARDINAL ) .

In DATE , ORG set up a committee , called ORG " , to consider whether the evolution of social conditions , and notably the changes in the social status of women and the resultant changes in the conception of the institution of marriage since the introduction of LAW , called for amendment of , inter alia , the provisions governing the legal status , during marriage and after separation or divorce , of children born in wedlock . In fact , the proportion of women working outside their homes has increased to MONEY . As a result , men are , to a much higher degree than before , looking after the children and are more frequently granted their custody in the event of separation or divorce . Mothers are therefore now more likely to challenge paternity in order to prevent custody being given to the husband . In a report on cohabitation without marriage ( samliv uden aegteskab I - no CARDINAL/CARDINAL , p. CARDINAL ) , published in DATE , ORG stated :

" There is consensus in the ORG that also the mother 's right to institute paternity proceedings and request re - opening should be subject to a relatively short time - limit , for example corresponding to the time - limits which DATE apply to the father . Furthermore , the ORG is to some degree in favour of an absolute time - limit , applicable to all , for instituting and re - opening paternity proceedings . "

On the basis of the recommendations of ORG , the ORG tabled a PERSON before ORG in DATE , proposing certain amendments to LAW .

The explanatory memorandum to this PERSON referred to the PERSON case , then pending before ORG . On DATE , it mentioned that the Agent of the Government had declared in evidence before the ORG that new legislation on the matter would be introduced , establishing uniform time - limits within which both men and women could contest the husband 's paternity ; the memorandum added that ORG considered such legislation " desirable in the interest of the child 's needs " ( af hensyn til barnets tarv ) .

On CARDINAL DATE , the NORP legislature passed an LAW amending LAW , which entered into force on DATE .

Following this amendment , sub - sections CARDINAL of section CARDINAL of LAW now provide :

" ( CARDINAL ) Paternity proceedings must be instituted not DATE after the birth of the child . This provision shall not apply , however , where proceedings are instituted by the child after having attained DATE .

( CARDINAL ) A Court of Appeal may grant leave to institute proceedings after the expiry of the time - limit set out in the first sentence of sub - section CARDINAL of this section where quite exceptional grounds are given as to why proceedings were not instituted at an earlier stage , in circumstances where institution of proceedings is especially warranted , and where it can be presumed that the proceedings will not cause the child any great inconvenience . "

The " doctrine of acknowledgement " is still applied by the NORP courts to estop spouses from contesting paternity of a child ( see ORG judgment of DATE ) .


The applicant is a NORP businessman who with CARDINAL accomplices was prosecuted for a series of economic offences , including a large number of frauds in the management of CARDINAL companies . He was arrested on DATE and placed in pre - trial detention with CARDINAL of his co - accused , on the grounds that there was a risk of absconding , collusion and repetition of offences .

The first complaints relating to him had reached the criminal police of the GPE of GPE in DATE , inter alia following a number of fraudulent bankruptcies . In DATE the cantonal authorities asked the ORG agencies in GPE , GPE , GPE , GPE and several LOC countries to make inquiries about the applicant , and opened a preliminary investigation against him on DATE .

In view of the complexity of the case they set up in DATE a subsection of the office of the investigating judge ( ORG ) of the GPE of GPE , consisting of CARDINAL investigating judges assigned exclusively to the investigation , under the authority of a cantonal attorney at ORG ( Obergericht ) and the indictments chamber ( Anklagekammer ) of that court . They were assisted by specialist police officers and considerable facilities were made available to them ( secretariat , computer , archives ) .

In the period from DATE their investigation , which traced events back as far as DATE , gave rise to CARDINAL searches , including several at PERSON ’s residence and the office of the companies he controlled . Documents in large quantities were found there , mostly in utter disorder , some in the cellar , some in the bathroom and even some in bin bags ready to be destroyed . PERSON had in fact altered the accounts of his companies , some of which were incidentally fictitious , in order to thwart possible investigations .

On DATE the authorities froze assets in CARDINAL banks and issued warrants relating to other credit institutions . They drew up a list of CARDINAL accounts in all which were affected by the fraudulent dealings of the applicant and his accomplices .

In DATE and DATE money and valuables belonging to the applicant and his co - accused were seized following orders or searches . These were dated DATE and DATE , DATE , CARDINAL May , CARDINAL , DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , CARDINAL May , DATE , DATE and DATE and DATE .

The investigators also had to have recourse to international judicial assistance , in particular from the GPE public prosecutor ’s office . That office sent them a report dated DATE , as a result of which the NORP authorities extended their inquiries to GPE and took over criminal proceedings instituted against PERSON in that country .

On DATE the investigating judges requested CARDINAL insolvency practitioners to provide documents relating to CARDINAL companies . The last of these reached them in DATE and DATE .

On DATE , in view of the urgency , they severed the proceedings against the applicant from those against CARDINAL accomplices .

The applicant twice challenged the investigating judges . He also brought CARDINAL appeals and CARDINAL complaints against decisions by them restricting access to the case - file at the beginning of the investigation . The accused were eventually given access to CARDINAL of the file from DATE and the entire file from DATE . PERSON had meanwhile reacted by deciding on DATE to make no further statements .

On DATE he complained of other irregularities , stating that documents had not been given to him and his lawyer had been unable to obtain free photocopies of them . The indictments chamber dismissed his complaint on DATE . After the committal for trial ( see paragraph CARDINAL below ) the authorities on DATE and DATE and DATE allowed the case - file to be consulted by the defence for DATE respectively .

There was another incident when PERSON was not permitted to be present at certain investigative acts . On DATE the indictments chamber decided that in principle he had the right to attend these .

His request of CARDINAL DATE that there should be no supervision of the visits by his wife was dismissed by the indictments chamber on DATE and ORG on DATE .

During his pre - trial detention PERSON committed further offences , which resulted in an additional conviction for fraudulent bankruptcy and criminal mismanagement ( see paragraph CARDINAL below ) ; the general meeting of a company controlled by him , which took place in prison on DATE in the presence of a lawyer ( advocate and notary ) , had allowed the latter to use a power of attorney to issue bonds secured on the property of the said company and used as security for the applicant ’s personal debts .

Once the basic documentation had been collected and sorted , the authorities in DATE and DATE also ordered CARDINAL expert reports , CARDINAL from a psychiatrist and CARDINAL from accountants , the latter following a defence request for evidence of DATE , the only such request made by them in the course of the investigation . The reports were filed on DATE and in DATE . The psychiatric report concluded that the applicant was fully criminally liable , and described him as a confidence trickster ( Hochstapler ) and an unrestrained hedonist ( hemmungsloser Hedonist ) who had no scruples about causing harm to others .

On DATE the investigating judges declared , pursuant to LAW ( see paragraph CARDINAL below ) , that they would request the cantonal attorney ’s office to commit PERSON for trial before ORG ( Wirtschaftsstrafgericht ) of the canton . The order committing for trial ( ORG ) was made on DATE .

The investigators had carried out a total of CARDINAL interrogations . From DATE to CARDINAL DATE the applicant himself had been questioned CARDINAL times , but he had always refused to answer the questions put to him ( see paragraph CARDINAL above ) . The transcripts recording the questions and noting his silence filled CARDINAL pages .

In DATE the main case - file comprised CARDINAL binders . At the time of the trial there were CARDINAL , together with the original documents which themselves took up QUANTITY of shelving .

The amount of the damage had been estimated at MONEY .

From DATE to CARDINAL DATE , CARDINAL applications for release were submitted by the persons in pre - trial detention in this case . CARDINAL of them came from the applicant . The first of these , made on DATE , was dismissed by the indictments chamber on DATE . The indictments chamber also dismissed on CARDINAL DATE a complaint of DATE and on DATE a complaint of DATE , relating respectively to the lawyer who had been appointed for PERSON and his visiting rights .

On DATE the indictments chamber turned down a further application of CARDINAL DATE . A public law appeal to ORG was dismissed on DATE , as that court considered that all the conditions to which pre - trial detention was subject under LAW had been fulfilled ( see paragraph CARDINAL below ) . The court felt that the serious suspicions against PERSON were supported by the case - file ; moreover , he had transferred his residence to ORG , and his numerous stays in GPE , GPE , GPE and GPE also gave reason to fear that he might try to evade the NORP judicial authorities ; as to the very genuine risk of collusion , this resulted from the way in which the applicant ’s various companies were entangled and from the large number of his associates .

ORG , however , invited the investigators to act with diligence and in particular to question as soon as possible the persons likely to collude with the applicant , as in the court ’s opinion the complexity of the facts alone could not justify detention for DATE .

PERSON brought a third application for release on DATE . It was dismissed by the indictments chamber in a decision of CARDINAL DATE , which was upheld by ORG on DATE , following a public law appeal . ORG said that even a summary reading of certain transcripts of interrogations showed that there was serious suspicion against the applicant of multiple fraud and fraudulent bankruptcy ; he was wrong in claiming that this suspicion was unfounded in the specific cases cited by the indictments chamber in justifying the already considerable duration of the detention in issue .

Moreover , the danger of absconding and that of collusion still both persisted , the former because of the applicant ’s good relations with foreign countries and his stated intention of starting a new life in GPE , and the latter in the light of his conduct before his arrest and during the investigation . However , as the last of the co - accused had now been arrested and the principal witnesses had already made statements , this ground could no longer be relied upon without specifying the collusive acts which were feared .

Furthermore , PERSON was primarily responsible for the length of his detention ; the lack of any proper accounts of his companies had made it extremely difficult to identify the financial transfers by means of which the companies had been burdened for personal ends . Despite this , the investigating judges had worked intensively . All things considered , the detention complained of did not yet appear to be too long . It was nevertheless disturbing that not much progress had been made with the systematic processing of the documents and the production of a report for the purpose of indicting the applicant . Secondly , there was still some doubt as to whether expert reports on the accounting and psychiatric aspects were needed . A close watch had to be kept on these points .

A fourth application for release was made on DATE , and dismissed by the indictments chamber on DATE .

The applicant brought a public law appeal against this decision ; he complained of the time taken to produce the accounting report , and of the alleged inability of the authorities to complete the file . ORG gave its ruling on CARDINAL DATE . It considered that the applicant ’s disregard of the elementary rules of bookkeeping was the reason why it had not been possible to complete the expert report earlier ; and the accusation against PERSON was precisely that he had mingled funds of his various companies . Since the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) the authorities had taken account of its observations on the processing of the documents , so that in this respect the investigation could not be criticised , bearing in mind in particular the very large number of documents to be classified . That the authorities had entrusted the investigation to a team of CARDINAL investigating judges also showed the great importance they attached to it . As to the psychiatric report and accountancy reports , which were moreover on the point of being filed , there had been no delay in drawing them up , since PERSON was refusing to answer any questions at all . In short , the detention in issue had not yet exceeded the maximum period allowed .

The court added , however :

" ... a practice according to which an accused who was suspected of serious economic offences but not of acts of violence necessarily had to remain in detention until final judgment in his case , merely because of a general risk of absconding , would not be compatible with the fundamental right of personal freedom ... . It should also be taken into account in this respect that the incentive to abscond generally decreases as the proportion of time already spent in detention increases . The investigating judges , the public prosecutor ’s office and the indictments chamber will therefore , after carrying out the few investigative acts in respect of which a certain danger of collusion can still be presumed , but at the latest after a period of detention of DATE , have to consider the applicant ’s release subject to appropriate substitute measures within the meaning of Article PERSON of LAW . The case would be different only if specific indications of [ W. ’s ] intention to abscond were by then present . The risk of repeated offending ... would on the other hand probably not be of relevance as a ground for detention in the case of the applicant , who has no previous convictions . "

On CARDINAL DATE the applicant once more requested the indictments chamber to terminate his detention . This was refused in a decision of CARDINAL DATE .

ORG dismissed the applicant ’s public law appeal on CARDINAL DATE . In its opinion the slowing down of the investigation , noted since its last judgment ( see paragraph CARDINAL above ) , was not open to criticism , as the NORP authorities had in the meantime taken over the proceedings brought against PERSON by the GPE public prosecutor ’s office ( see paragraph CARDINAL above ) , and this had entailed additional work . In this respect the investigators could not be blamed either for having often questioned the applicant on these proceedings despite his refusal to make a statement ; their sole aim had been to allow PERSON to exercise his rights of defence . No failure to observe the requirement of acting swiftly had resulted ; rather it was the applicant ’s attitude which amounted to delaying the investigation by any legal means . In view of the minimum sentence of CARDINAL years’ imprisonment which the applicant was likely to receive , the pre - trial detention of DATE and DATE had in any event not yet reached the critical level .

ORG also invited the investigating judges to reconsider , by DATE , the length of the detention in issue . On DATE they took a decision to extend it ( Haftbelassungsbeschluß ) .

The applicant ’s sixth application for release had meanwhile been made to the indictments chamber on DATE . It had dismissed it on DATE on the grounds that nothing had changed since ORG last judgment of CARDINAL DATE ( see paragraph CARDINAL above ) ; it considered that there was still a danger of absconding and collusion . PERSON did not appeal against this decision .

On DATE he once more requested his release . The indictments chamber refused this on DATE , and he appealed to ORG .

ORG dismissed the appeal on DATE . It held that the indictments chamber had not breached the LAW or the LAW in considering that there was still a danger of absconding ; in his application of CARDINAL DATE , PERSON had moreover refused to provide a security .

Apart from the applicant himself , the authorities were also partly responsible for the delays in the investigation ; they had put forward in explanation reasons - such as the taking over of the NORP file ( see paragraph CARDINAL above ) and the different charges against the various co - accused - which they had already been aware of on CARDINAL DATE , when they said that the investigation would be completed in DATE . These delays admittedly had not brought about an excessive prolongation of the deprivation of liberty in issue , but in ORG opinion it was necessary to close the investigation as quickly as possible .

ORG said :

" The judge deciding on detention may prolong the pre - trial detention only to the extent that its duration does not come too close to the sentence to be expected in the specific case ; he must not , for example , take the possible maximum sentence as a reference point . Great attention must also be paid to this limit because the trial court might be inclined to take the length of pre - trial detention into account as CARDINAL factor in determining the sentence . To this extent there is thus a sort of absolute maximum length of pre - trial detention ... . However , even the European Convention institutions allow detention for DATE in cases which are both highly complex and also subject to heavy sentences ... "

In this instance the length of the detention had not yet reached the critical level , as the total sentence which could be expected was now considerably PERCENT DATE imprisonment .

On CARDINAL DATE the applicant submitted his eighth application for release ; he supplemented this on DATE by offering a security of a maximum of MONEY ( CHF ) . The indictments chamber dismissed the application on DATE , inter alia on the grounds that he had not given any information on the third party who would pay the money and that the sum appeared derisory in view of the size of the case and the personality of the defendant .

On a public law appeal by the applicant , ORG quashed the decision on the grounds that Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW had been violated , as PERSON had not had an opportunity to reply to the arguments of the investigating judge and the cantonal attorney before the indictments chamber .

Rehearing the application , the indictments chamber on DATE refused to release the applicant , who again appealed to ORG . That court gave judgment on DATE ; it considered that at this stage of the proceedings , after the end of the investigation and the committal for trial ( see paragraph CARDINAL above ) , pre - trial detention on the ground of a risk of collusion could only be justified by specific evidence , such as in this case the applicant ’s personality and the numerous examples of forgery and interference with witnesses already shown to have been done by him in specific cases . It quashed the decision , however , on the grounds that the indictments chamber , when assessing the maximum permissible period of the detention in issue , had omitted to consider whether there were special circumstances in PERSON ’s case which meant that the possibility of his conditional release should be taken into account .

On DATE the indictments chamber dismissed the application of CARDINAL DATE ( see paragraph CARDINAL above ) for the third time . ORG upheld its decision on DATE : having regard to the number and nature of the offences the applicant was accused of , and to his conduct during the investigation and the conclusions of the psychiatric report ( see paragraph CARDINAL above ) , the indictments chamber had been right to conclude that there were no reasons making conditional release appear very probable .

The trial before ORG ( see paragraph CARDINAL above ) opened on CARDINAL DATE and ended on DATE with the applicant being convicted and sentenced to CARDINAL years’ imprisonment and a fine of CHF MONEY , for offences including fraud on a professional basis ( gewerbsmäßiger FAC ) , fraudulent bankruptcy ( betrügerischer ORG ) , forgery of documents ( Urkundenfälschung ) and aggravated criminal mismanagement ( qualifizierte ungetreue PERSON ) . The DATE spent in pre - trial detention were deducted from the main sentence .

LAW ( PERSON über das NORP ) of the GPE of GPE provides that :

" When the investigating judge regards the investigation as sufficient , he shall notify this to the parties whose addresses are known . If it is for the investigating judge and the district attorney to decide on committal , the investigating judge shall state whether he intends to request that the proceedings be stayed or discontinued or the accused be committed for trial .

The parties may , within a period from such notification determined by the judge , apply in writing , giving brief reasons , for specified further investigative measures or additional questions and express their opinion on the outcome of the proceedings . If the investigative measures applied for are ordered , the parties may be present at their implementation . "

" During the preliminary investigation the accused shall as a rule remain at liberty .

The investigating judge shall however be empowered to arrest him if there are specific and serious grounds for suspecting him as perpetrator or accomplice , and in addition there are reasons for supposing

( a ) that there is a risk of absconding , or ( b ) that the accused would abuse his liberty in order to frustrate or endanger the discovery of the true facts of the matter , or ( c ) that the accused , if he has intentionally committed a further criminal offence ( Verbrechen oder Vergehen ) during the proceedings , will commit further criminal offences .

A risk of absconding shall be presumed if the accused has no fixed residence in GPE .

According to ORG , the unwritten constitutional right to individual freedom is to be interpreted in the light of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and the case - law of the GPE institutions , and requires that pre - trial detention must not be excessively prolonged . Each case must be assessed individually , with the accused ’s right to liberty being balanced against the ORG ’s right to bring criminal proceedings and enforce sentences . If the length of the detention is excessive , the detainee must be released even if serious suspicions and the danger of absconding still subsist ( Decisions of ORG , CARDINAL Ia CARDINAL ; CARDINAL Ia CARDINAL/CARDINAL ; CARDINAL Ia CARDINAL/CARDINAL ) .


Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicants , Mr PERSON and Mr PERSON , were born in DATE and DATE respectively and live in GPE , the GPE .

On DATE the applicants went together to the home of CARDINAL Y. , with whom they had quarrelled in a bar earlier . Finding Y. at home , CARDINAL of them – apparently PERSON – fired CARDINAL shots from a gun in his general direction .

The applicants were arrested on DATE and charged with the attempted murder , or in the alternative , the attempted manslaughter of PERSON applicant PERSON was in addition charged , in the further alternative , with aiding and abetting the attempted murder or manslaughter by PERSON .

The applicants were taken into police custody ( inverzekeringstelling ) and thereafter kept in detention on remand ( voorlopige hechtenis ) .

A first trial hearing took place before ORG ( arrondissementsrechtbank ) on DATE . On DATE ORG gave an interlocutory judgment remitting the case to the investigating judge ( rechter - commissaris ) for additional investigations .

A second trial hearing was held on DATE .

On DATE ORG gave judgment acquitting the applicants of all charges . This entailed the applicants ' immediate release from detention on remand .

The prosecution appealed .

Following a hearing on DATE , ORG ( gerechtshof ) gave judgment on DATE upholding ORG acquittal .

Since in the GPE no appeal on points of law is possible against an acquittal ( LAW ) – hereinafter “ ORG ” ) , this brought the criminal proceedings to an end .

Both applicants applied to ORG in DATE , each seeking monetary compensation in an amount of MONEY ( NLG ) for the time spent in pre - trial detention ( LAW CCP – see below ) .

A hearing was held on DATE .

On DATE ORG gave decisions dismissing the applicants ' claims . Its reasoning , identical in both decisions , was the following ( emphasis added ) :

“ ORG finds that the file contains sufficient evidence to prove that the applicant together with his brother went to the home of the victim [ Y. ] in ORG and that shots were fired by CARDINAL of them through [ Y. ] 's living - room window with a firearm . At that moment [ Y. ] was in that living - room . However , it has not been established conclusively ( onomstotelijk ) that the shooting was intended to kill [ Y. ] .

However , in view of the other circumstances as they appear from the file , the actions of the applicant and his brother amounted to threats , within the meaning of LAW ( Wetboek van Strafrecht – hereinafter “ CC ” ) .

The behaviour of the applicant together with his brother in any case justified that he be taken into police custody and subsequently held in detention on remand .

ORG , and also ORG , have had to consider the case on the basis of the indictment prepared by the public prosecutor ( officier van justitie ) . This indictment was limited to attempted murder / manslaughter . It did not contain any charge of threatening to commit a crime directed against life .

ORG and ORG found insufficient evidence to support the charges contained in the indictment , and the applicant had to be acquitted as a consequence .

In the light of the above , ORG acquittal can be qualified as a ' technical ' acquittal , since adding a further alternative charge , as indicated above , would have led to a conviction .

In the circumstances ORG finds no reasons in equity to award the applicant any compensation for the police custody and detention on remand . ”

“ CARDINAL . Threatening [ to commit ] ... any crime directed against life ... shall be punishable by a term of imprisonment not exceeding DATE or a fourth - category fine . ... ”

“ He who Deliberately deprives another of his life shall be guilty of manslaughter and shall be punished by a term of imprisonment not exceeding DATE or a fifth - category fine . ”

“ He who Deliberately and with malice aforethought ( met voorbedachten rade ) deprives another of his life shall be guilty of murder and shall be punished by imprisonment for life or for a term not exceeding twenty years or a fifth - category fine . ”

“ CARDINAL . If a case ends without the imposition of a punishment or measure , or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed , the court may , at the request of the former accused , grant him compensation at the expense of the ORG for the damage which he has suffered as a result of police custody , clinical observation or detention on remand . Such damage may include non - pecuniary damage . ... ”

Article CARDINAL

“ CARDINAL . Compensation shall be awarded in each case if and to the extent that the court , taking all circumstances into account , is of the opinion that there are reasons in equity to do so . ... ”

“ CARDINAL . The indictment shall comprise a description of the fact with which the accused is charged , stating the approximate time and location where it has allegedly been perpetrated ; it shall also mention the statutory provisions under which the fact has been penalised .

The indictment shall further set out the circumstances under which the fact has allegedly been perpetrated . ... ”

“ ... ORG shall Deliberate on the basis of the indictment ( op den grondslag der telastelegging ) and in the light of its investigation at the hearing as to whether it has been proven that the fact has been perpetrated by the accused , and , if so , what punishable act this gives rise to according to the law ; if the fact is found to be proven and punishable , then ORG shall Deliberate as to whether the accused can be punished and as to the imposition of a punishment or [ non - punitive ] measure as provided for by law . ”

“ CARDINAL . If ORG finds it not proven that the accused has perpetrated the fact charged in the indictment ( het hem telastegelegde TIME begaan ) , it shall acquit him . ... ”

Articles CARDINAL , CARDINAL and CARDINAL considered together are consistently construed in domestic case - law as meaning that the trial courts must base their findings exclusively on the allegations presented in the indictment . Consequently , they can not convict someone of any given criminal offence if they do not find that each and all of the elements constitutive of that offence , as defined by statute , have been covered in the indictment , even if the case file contains conclusive evidence that the accused is in fact guilty of the offence ( see , among other authorities , the judgments of the Hoge Raad ( Supreme Court ) of DATE , PERSON Law Reports DATE , nos . CARDINAL and CARDINAL ) .

Criminal appeal proceedings in the GPE being by way of a complete rehearing , the above provisions also apply on appeal ( LAW ) .