CASE OF KLEYN AND OTHERS v. THE NETHERLANDS

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

Mr PERSON was born in DATE and lives in GPE . He is a managing director of the limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) PERSON Financierings- en ORG and of the limited liability company ORG He is also part - owner of the restaurant “ FAC ” .

ORG is a limited liability company . Its premises are located in ORG .

PERSON is a limited liability company . Its premises are located in ORG . Its managing directors , PERSON and PERSON , who were both born in DATE , live next to the company ’s business LOC .

ORG is a registered partnership ( vennootschap onder firma ) established under GPE law . Its LOC are located in FAC . Its managing directors , PERSON and PERSON , who were born in DATE and DATE respectively , live above the company ’s business LOC .

PERSON is a limited liability company . Its premises are located in ORG .

ORG is a limited liability company . It operates a restaurant in ORG .

PERSON , who was born in DATE , operates a petrol station on the ACARDINAL motorway , near ORG .

GPE Petroleum ( GPE ) ORG is a limited liability company established in GPE . It owns the petrol station operated by Mr van Burk .

ORG is a limited liability company . Its LOC are located in GPE .

ORG Financierings- en ORG and ORG are both limited liability companies and – together with ORG , PERSON and PERSON , who were born in DATE , DATE and DATE respectively DATE are joint owners of a number of plots of land along the LOC motorway and part- owners of the restaurant “ FAC ” that is located on one of the plots .

Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers - Spreeuwenberg , who were born in DATE and DATE respectively , live in PERSON .

Mr GPE . Berndsen and PERSON were born in DATE and DATE respectively and live in PERSON .

PERSON was born in DATE and lives in PERSON .

Mr PERSON was born in DATE and lives in IJzendoorn .

PERSON was born in DATE and lives in ORG .

Mr PERSON was born in DATE and lives in ORG .

PERSON was born in DATE and lives in GPE .

PERSON was born in DATE and lives in DATE .

Takel- en Bergingsbedrijf PERSON is a partnership ( maatschap ) of which Mr PERSON and Mr S.J.B.A. Pompen are the partners . Its premises are located in Tiel .

Mr PERSON was born in DATE and lives in GPE .

The territory of the GPE includes the estuaries of the LOC , PERSON and PERSON , all of which flow into LOC at or near the town of GPE . These rivers have long been used for the transport of merchandise to and from a large part of the north - western and central NORP hinterland , and in particular the vast industrial area situated along LOC in GPE . Over DATE this geographical situation has allowed the GPE to become one of LOC ’s major transport hubs , with GPE harbour and FAC , near GPE , developing into important transit points for goods .

NORP In DATE worldwide economic growth , the opening of the borders between the ORG countries and the opening up to foreign trade of central and east NORP countries have led to an increase in the quantity of merchandise transported through the GPE and , consequently , in the volume of traffic .

Since DATE the volume of transport by inland waterways , rail and pipelines has largely remained stable . It is essentially road transport which has absorbed the increase . This is due to various factors , such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks .

In DATE the government decided on a policy of maintaining and further improving the competitiveness of GPE harbour as LOC ’s main entry and exit port , as compared to its major rivals , GPE , GPE , GPE , GPE and GPE . At the same time it was considered important to prevent , and if possible reduce , congestion of the roads and damage to the environment .

On DATE , in accordance with section CARDINAL of ORG ( Wet op de Raad van State ) and upon a proposal of the Minister for Transport and Communications ( Verkeer en Waterstaat ) and the Minister for ORG , PERSON en Milieubeheer ) , the Queen transmitted ORG ( PERSON ) to ORG for an advisory opinion .

The Transport Infrastructure Planning Bill was intended to provide a legislative framework for the supra - regional planning of new major transport infrastructure ( roads , railways , canals ) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the cooperation of the provincial , regional and local authorities whose territories might be affected . An additional effect was intended to be the concentration of legal remedies in such a way that CARDINAL single appeal could be lodged with ORG against a decision of central government and all related decisions of subordinate authorities , obviating the need for a plurality of appeals before both the ordinary courts and ORG against decisions and plans of local authorities .

ORG transmitted its advisory opinion to the government on DATE . Its opening paragraph reads :

“ ORG fully acknowledges the problems that the signatories to ORG wish to resolve . It often concerns large , technically complex and expensive infrastructure projects . These must not only be balanced against diverse and weighty interests relating to traffic and transport , road safety , town and country planning and the environment , but in addition it is desirable to have the widest possible public support for these projects . The current decision - making procedure – entailing a non - statutory routing determination following which final decisions are only made in accordance with the town and country planning procedure , against which an appeal may be lodged with a judge DATE can take much time . Furthermore , where a number of provincial and municipal bodies are involved , the decision - making process is diffused over several regional and local zoning plans . ORG therefore shares the government ’s concern about the outlined problems . It will examine hereafter whether , in its opinion , the proposals made will in practice sufficiently resolve the problems and whether the concomitant disadvantages are acceptable . ”

In its opinion ORG noted , among other things , the absence of any binding time - limits for the administrative authorities . It expressed doubts as to whether the procedure under the new bill , if enacted , would be any shorter than the aggregate of separate procedures necessary hitherto . It also considered that the new bill created uncertainty at the lower levels of government ( the provinces , the regional surface waterboards ( waterschappen ) and the municipalities ) by bypassing the planning structures of those lower bodies ; in addition , insufficient weight was given to the justifiable interests of individuals . It found that the considerable limitation of legal protection constituted an important objection to the new bill .

Point CARDINAL of the advisory opinion reads :

“ Having reached the end of the examination of the legal protection in the framework of this bill , from which it can be seen that ORG has serious objections to the removal of a routing determination [ tracévaststelling ] from general town and country planning considerations , it nevertheless wishes to point out that , when ORG leaves aside here the problem dealt with under point CARDINAL ( length of the decision - making process under the bill ) , those serious objections would be less weighty if the bill only related to routing determinations of such exceptional ( supra)national importance that it must be clear to anyone that in the case in question the provincial , regional and local interests should yield to them . In that case , the routing plans [ tracés ] referred to in section DATE should be explicitly mentioned in the bill . It would be preferable to reconsider the bill in this sense . ”

ORG made a number of suggestions for improving the drafting of the bill before it was transmitted to ORG . Its final conclusion reads :

“ ORG advises you not to send this bill to ORG of ORG until the above observations have been taken into account . ”

In their reply of CARDINAL DATE the Minister for ORG and the Minister for ORG noted DATE as regards the doubts expressed by ORG as to whether the new procedure would be appreciably shorter than the former DATE among other things that it might take a very long time to obtain the cooperation of the local authorities . It was also stated that the local authorities were involved in all stages of the procedure , being informed and consulted as the need arose ; if it was necessary to compel their cooperation , this was done at the final stage , that of the routing decision . Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal , on legal grounds , against a routing decision .

As to the remarks made under point CARDINAL of the advisory opinion of ORG , the ministerial response reads as follows :

“ With the approval of ORG ( decision of DATE ) , we decided to include in the bill a separate regulation for large projects of national importance . In line with this , the transitory arrangement referred to in section FAC will be concentrated on the high - speed railway and the ‘ Betuweroute’ [ railway ] . The original section DATE was included exclusively in view of these projects and can now be dropped , as a provision will be devoted to these projects . Since , with the inclusion of the special procedure for large projects and the above - indicated transitional arrangement , the bill will be further amended , we find it desirable to consult ORG on this . The amendments to the bill will therefore be submitted for advice to ORG in the form of a ministerial memorandum of amendments . ”

NORP The Minister for Transport and Communications made a number of changes to the bill in the light of ORG criticism . The amendments were submitted to ORG for advice on DATE .

In its advisory opinion of CARDINAL DATE , ORG considered , inter alia :

“ ... it desirable to indicate in section CARDINAL g that the notions ‘ high - speed GPE and ‘ Betuweroute’ railway relate to specific [ railway ] connections between specifically named places . ”

The ministerial reply of CARDINAL DATE to this recommendation states :

“ This advice has been followed . It is now indicated in section CARDINAL g that the high - speed railway relates to FAC border route , and the ‘ Betuweroute’ [ railway ] to FAC route . ”

The government then submitted the bill to ORG ( ORG ) of ORG , together with ORG advisory opinion and the ORG comments . ORG eventually entered into force on DATE . It contains no specific mention of the high - speed railway or FAC , but does provide for a special procedure for projects of national importance .

An existing railway through the LAW region ( the area circumscribed by the rivers GPE , PERSON and GPE ) DATE known as the “ Betuwe line ” ( GPE ) DATE links the city of GPE to the town of PERSON . It was , and still is , mainly used for passenger traffic and is operated at a loss . As early as DATE a government committee suggested converting it for use solely for the transport of goods , extending it as far as the town of GPE and connecting it to the NORP railway system . A study commissioned by ORG ( PERSON – “ the ORG ” ) and published in DATE concluded that the environmental impact would be unacceptable and that the capacity of such a railway line would be insufficient .

This led the government to reject that idea . Instead , the government decided to investigate the possibility of building a new railway through the Betuwe , to be known as the “ LAW ” , along the LOC motorway . The ORG was required to prepare an environmental impact report ( milieu - effectrapportage ) .

On DATE the Minister for Transport and Communications and the Minister for ORG together presented the first draft of the outline planning decision ( PERSON ) within the meaning of section CARDINAL of ORG ( Wet op de Ruimtelijke Ordening ) , which later became known as “ Outline Planning Decision – Part CARDINAL ” . The environmental impact report prepared by the PERSON was appended to this document . Pursuant to the then applicable section CARDINAL of ORG , it was laid open for public inspection , notice of its publication being given through ORG ) and the media . Anyone interested could then make his or her views known . The time - limit for doing so was DATE . CARDINAL reactions were received .

On DATE the GPE Minister for ORG signed an agreement with his NORP counterpart , the Federal Minister for Transport , for increased cooperation in the matter of cross - border railway communication . The agreement provided – subject to the conclusion of procedures prescribed by national law – for , inter alia , the building of a new railway from GPE to the NORP border via Zevenaar . There were to be CARDINAL border crossings , one at ORG and the other at FAC . The agreement also provided for corresponding measures to be taken on the NORP side and for a time frame .

On DATE the government published a document entitled “ Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute ” ( Reactions to the Betuweroute Outline Planning Decision ) . It contained an overview of the reactions to LAW sent in by individuals and the results of further consultations and discussions with local government bodies , that is provinces , municipalities and regional surface waterboards . Advice obtained from ORG ( Nederlands - Duitse Commissie voor de Ruimtelijke Ordening ) , ORG ( GPE milieu - effectrapportage ) , ORG ( PERSON ) and ORG ( Overlegorgaan Verkeersinfrastructuur ) was also included in this document , which became known as LAW .

On DATE the government published their views on the PERSON project and transmitted it to ORG of ORG for approval . This document became known as LAW . After deliberations , ORG of ORG sent ORG – Part CARDINAL back to the government with its comments .

The government made certain modifications . The resulting document , which became known as LAW , was submitted to ORG of ORG on DATE for approval .

Outline Planning Decision – Part CARDINAL was approved by ORG of ORG on DATE and , on DATE , by ORG ( PERSON ) of ORG . It became known thereafter as LAW and came into force after its publication in ORG on DATE .

Outline Planning Decision – Part CARDINAL contained an explanatory memorandum setting out the need for the PERSON , as perceived by the government , and giving reasons for the choices made . It was stated that GPE , the Netherlands’ main port , and FAC , now served most of the NORP continent and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone . Moreover , much of the NORP hinterland could not be reached by water . Road traffic could not be the only alternative , as it was relatively expensive , uneconomical over long distances and environmentally unfriendly . Furthermore , in much of eastern LOC the railway infrastructure was better developed and in a better state of repair than the roads .

Other NORP countries , including GPE , GPE and the NORP countries , were investing heavily in railways in order to relieve the roads . GPE had undertaken to connect its railway system to the PERSON , and would give effect to this undertaking as soon as the decision to build the PERSON was taken . The transport policies developed by ORG also provided for the development of new railways .

The explanatory memorandum contained summaries of studies – additional to that undertaken by the ORG in DATE that had been commissioned by the government , namely a study on the macro - economic and social effects by PERSON and a micro - economic analysis by ORG . Both studies concluded that the PERSON would be profitable . They were scrutinised by ORG ( ORG ) . The results of this appraisal were also rendered in summary form . The government considered that although the conclusions of ORG were rather more guarded , they too indicated that the project was viable .

Other alternatives were taken into consideration . These included increasing the capacity of an existing railway running from GPE through the southern province of GPE to GPE and from there into GPE ( the “ GPE ” ) , used mainly for passenger traffic , and making it more suitable for the transport of goods . This alternative was rejected on the ground that it would require building CARDINAL extra tracks . Moreover , the urban density along the PERSON route being CARDINAL times as high as that along the projected PERSON , this would cause severe and unacceptable problems .

Alternatives not involving railways , which had been suggested after LAW Part CARDINAL had been laid open for public inspection , were discarded in view of the need to connect to the existing railway infrastructure in the rest of LOC . The importance of inland navigation was nonetheless recognised , and it was stated that in both the GPE and GPE inland port facilities were undergoing further development .

Alternative methods of constructing the railway had been suggested in the wake of ORG . Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level . These were considered , but rejected as the cost would be prohibitive . A traditional construction was chosen consisting of rail tracks resting on a sand base and located mostly at ground level , a raised or lowered track being envisaged only for locations where such was called for by considerations of safety or environmental impact . Similarly , conventional rather than innovative technology was chosen .

Outline Planning Decision – Part CARDINAL provided for a twin - track railway . Its location was fixed as far as possible within a horizontal band of QUANTITY Within this band limited adjustment to local conditions would be possible , it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it . The actual route was set out in sketch plans , with reasons being given for the choices made and for the rejection of alternatives .

Consideration was given to possible harmful effects . Thus , although under the legislation in force ( LAW geluidhinder spoorwegen ) the maximum permissible noise level was QUANTITY ampere ( dBA ) on the outside walls of residential buildings , a “ preferential noise level ” of CARDINAL dBA would be applied in anticipation of stricter standards which were expected to come into force in DATE . Where it appeared in practice that this could not be achieved , noise levels would be reduced by means of screens . Exceptionally , noise levels of CARDINAL dBA might be tolerated at specific locations , but even there they were not to exceed CARDINAL dBA inside residential buildings with the windows closed and ventilation apertures open . Although there might be an accumulation of noise from the NORP motorway and FAC , it was considered that the railway would contribute less noise than the louder motorway traffic , so that it would be possible , by screening and other measures , to reduce the combined noise levels to CARDINAL dBA .

CARDINAL residential buildings were found to be located within QUANTITY of the projected railway track . It was estimated that DATE of these were so close to the projected track that noise levels would compel the termination of their residential function . Studies had also been conducted regarding the vibration likely to be caused and the standards to be applied on this point . Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels .

The danger that might be result from the operation of the Betuweroute railway was also considered , although not in detail . It was intended to build the railway so that the “ individual risk ” would be no greater than CARDINAL near residential areas . The “ group risks ” would be kept “ as low as reasonably achievable ” . Specific measures would be set out in the routing decision .

There had been an audit of the costs of the project as proposed by the government , which , as was estimated at DATE cost levels , would amount to a total of MONEY ( NLG ) . Of this sum a portion of NLG CARDINAL,CARDINAL,CARDINAL,CARDINAL would be paid out of the ORG budget . The remaining NLG CARDINAL,CARDINAL,CARDINAL,CARDINAL would be raised from other sources , such as the financial markets , windfall profits from the sale of natural gas and funds supplied by the ORG . The total figure included a sum of NLG CARDINAL occasioned by changes imposed by ORG of ORG and NLG CARDINAL required to meet objections and special requests made by individuals and local authorities .

A new government took office on CARDINAL DATE , which in pursuance of agreements reached between the coalition parties reconsidered the PERSON plan in its entirety . After obtaining the views of a parliamentary committee ( the “ ORG ” ) , the new government decided that the plan should go ahead . Its views were made public in a letter sent by ORG and ORG to ORG of ORG on DATE . On DATE ORG of ORG endorsed the government ’s views .

In accordance with the procedure for projects of national importance under LAW which had come into force on DATE , a preliminary draft of the routing decision – containing the determination of the exact routing of the planned railway – was laid open for public inspection in DATE , together with an addition to the environmental impact report and a survey of expected noise levels . CARDINAL reactions were received from individuals , nongovernmental organisations and local - government bodies . These led to modifications , which were incorporated into the draft routing decision .

The draft routing decision was published on DATE and laid open for public inspection until DATE . CARDINAL reactions were received from individuals and local - government bodies . Changes were considered , and eventually incorporated into the final routing decision , in so far as they did not affect the projected route , did not require additional expenditure and did not affect the interests of other parties . Changes made included , for certain locations , noise - reduction measures in addition to those foreseen in LAW .

The routing decision was finalised on DATE by the Minister for Transport and Communications in agreement with the Minister for ORG . It covered most of the projected track of the new FAC , with the exception of a number of locations – not concerned by the present case – for which further planning was required .

NORP The routing decision comprises CARDINAL Articles , creating a legal framework for the measures required , and a set of detailed maps with explanations . In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made .

A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated . It was stated that a reduction of noise levels was expected from modifications to the rolling stock ( reduction at source ) . However , in case these should not be sufficient , screens would be erected where necessary regardless of the expected reductions at source . Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based . Finally , if the noise levels still turned out to be too high in practice , other measures would be considered , such as further modifications to rolling stock , avoiding operations at TIME and lowering maximum speeds . The standards to be applied , including those with regard to the accumulation of noise caused by the new railway and the NORP motorway , were those set out in FAC CARDINAL . Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas ( stiltegebieden DATE “ silent areas ” ) . The residential function of buildings where the noise levels would be excessive would have to be terminated . A detailed report setting out the noise levels for each municipality was appended to the routing decision .

Compensating measures for the preservation of the environment and the existing landscape were to include , among other things , the provision of culverts ( to enable wildlife and cattle to cross underneath the railway ) and of appropriate vegetation . Special measures were also envisaged for the protection of any known archaeological sites .

Consideration was also given to special measures required by the nature of the subsoil , which provided less support in the western part of the country than in the east ; hence the need for additional supporting shoulders in certain areas . The need , at some locations , for cleaning polluted soil was noted .

Indications were given of how noise reduction screens , bridges and viaducts were to be built , and of how the railway would be sunk below ground level where this was unavoidable , an important objective being to limit the railway ’s visual and environmental impact while maintaining its visual unity and continuity . Where the PERSON crossed existing traffic infrastructure – roads , existing railways , cycle paths – safety was the main consideration . Changes to existing ditches and waterways were unavoidable . Construction details of the electrical installations would , however , depend on the final decision on the electrical system to be used , which would be taken at DATE .

A total of CARDINAL appeals against ORG CARDINAL were lodged with ORG ( Afdeling Bestuursrechtspraak ) of ORG , many jointly by a plurality of appellants . With the exception of the applicants PERSON and PERSON ( no . MONEY ) , who only raised objections of a general nature to LAW , all applicants in the present case submitted specific complaints about the proposed route of the railway in so far as their respective interests would be affected .

The bench of ORG dealing with the appeals was composed of CARDINAL ordinary councillors ( PERSON ) of ORG , namely PERSON ( President ) , PERSON and PERSON PERSON ( members ) . Mr PERSON had been appointed ORG in DATE . Mr PERSON and PERSON had been appointed ordinary councillors in DATE and DATE respectively .

On DATE , after CARDINAL hearings held DATE , ORG delivered its decision . It rejected all the complaints of a general nature .

As to the specific complaints , it noted that LAW was not yet final as regards the definitive route of the railway . It therefore limited the scope of its review , for each separate location , to the question whether the government could reasonably have set the band as it had and , if so , whether it could reasonably have considered that an acceptable route was possible within the band specified or that , in view of possible measures to be taken , the interests of the affected appellants had been adequately taken into account . It reserved its opinion on the definitive location of the railway , which was to be the subject of the routing decision .

One group of general complaints addressed , inter alia , the assessment made by the government of the need for a new railway . These were rejected with reference to government policy aimed at maintaining and strengthening the position of the GPE as a NORP hub for transport and distribution . ORG concluded that the government ’s assessment of the need to construct the railway did not appear incorrect or unreasonable .

Another group of general complaints challenged the government ’s estimates of the railway ’s macro - economic effects and its profitability and the financial calculations underlying the government ’s plans . These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the government had commissioned .

A further group of general complaints challenged the government ’s failure to choose the most environmentally friendly alternative . ORG held that the government could reasonably have come to the decision – having weighed alternatives and decided to give priority to human interests – to choose the most cost - effective solution and to use only proven technology . Where specific problems were alleged to arise , these would be dealt with separately . General complaints concerning expected noise and vibration levels , risk assessments , deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the routing decision .

Specific complaints of CARDINAL appellants were accepted as being well - founded , which led to parts of ORG CARDINALA ( and therefore LAW ) being annulled . None of those CARDINAL appellants are applicants in the present case .

DATE . As regards the specific complaints which were rejected , ORG held either that it could not be established in advance of the routing decision that the railway could not be located within the band in such a way as to meet the objections , or that the ORG objections could not be met in another way , for instance by relocating business LOC or offering financial compensation .

The decision ran to CARDINAL pages , to which maps were appended indicating locations in respect of which parts of ORG CARDINALA were annulled .

NORP In total CARDINAL appeals were lodged with ORG against ORG . Many of these appeals were introduced by a plurality of appellants , including the applicants in the present case . As was the case in the appeals against LAW , a large number of appellants made complaints of a general nature dealing with such matters as the procedure followed . Some challenged the government ’s refusal to consider modifications of the routing decision unless the objections put forward were of a very serious nature . Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels .

The composition of the bench of ORG dealing with the appeals against the routing decision was the same as the bench that had determined the appeals against LAW ( see paragraph CARDINAL above ) . It commenced its examination of the appeals on DATE .

In the course of a public hearing held on DATE , PERSON and PERSON challenged the entire membership of ORG and , in the alternative , all the councillors of that ORG with the exception of the extraordinary councillors ( PERSON in buitengewone dienst ) , and in the further alternative , the councillors sitting on the case , on the ground of lack of impartiality . They argued that , since ORG ) was involved in advising the government on proposed legislation , it was inconsistent with LAW that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted .

A hearing on this challenge was held on DATE before a special ORG of CARDINAL members of ORG who were not involved in hearing the appeal , that is Mr E. ORG ( President ) , Mr PERSON and PERSON ( members ) , all of whom were extraordinary councillors of ORG .

Mr and PERSON cited ORG judgment of CARDINAL DATE in GPE v. GPE ( Series A no . CARDINAL ) . They noted similarities between the organisation and functioning of ORG and the GPE ORG d’Etat and quoted several comments published in the legal press by learned authors .

Given that ORG advice on the introduction of ORG had been worded “ in generally positive terms ” and therefore conflicted with these applicants’ own interest in maintaining the status quo , they considered that that advice had been contrary to their own position in their appeal . ORG was therefore not an “ impartial tribunal ” . These applicants therefore asked the special ORG to rule that ORG should decline to make any decision in the case .

DATE . On DATE the special ORG gave its decision . It held that , under section CARDINAL(CARDINAL ) of LAW ( PERSON ) , a challenge could only be directed against judges who were dealing with the case of the party concerned . As to the challenge of the entire membership of ORG , it was pointed out that if LAW had provided otherwise , no member of such a tribunal would in fact be in a position to entertain the challenge . Consequently , in so far as the applicants’ challenge was directed against members of ORG who were not involved in hearing the applicants’ appeal , it was inadmissible . The challenge directed against the members who were so involved was rejected in the following terms :

“ The ORG considers that under section CARDINAL(CARDINAL ) of LAW each of the members who decide a case can be removed from it [ gewraakt ] on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired . The ORG deduces therefrom that only a lack of impartiality on the part of a judge can lead to his removal from a case . Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for that judge ’s removal from a case . For this reason alone the NORP submissions at the hearing can not lead to their application being granted .

As to the appellants’ reliance on PERSON , the ORG considers that the appeal lodged by the appellants with the ORG does not raise questions on which ORG has , in advisory opinions on the legislation that is at issue in this appeal , expressed itself in a way contrary to the position taken by the appellants in their appeal . There is therefore no reason to fear that the members of ORG who are charged with deciding the appeal will consider themselves bound by any position adopted by ORG in the relevant advisory opinions . ”

The hearing on the merits was resumed on DATE and , on CARDINAL DATE , ORG delivered its decision , which ran to CARDINAL pages .

General complaints relating to the refusal of the government to consider modifications to the routing decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not unreasonable per se ; it was more appropriate to consider the objections in question individually . General complaints relating to the necessity or desirability of building the railway at DATE including complaints about the environmental impact report DATE were also dismissed . These had already been considered as part of the appeals against LAW The question was no longer whether the building of the PERSON was acceptable , but only whether , in coming to the routing decision , the government could reasonably have decided as it had .

The complaint made by several appellants that the routing decision was taken before the appeals against the outline planning decision had been determined was rejected by ORG . It held that , under section PERSON ) of ORG , the period for lodging an appeal against decisions taken in an outline planning decision and against the routing decision based thereon started to run simultaneously and that , therefore , it was normal that a routing decision was already taken before the outline planning decision had become final . It further considered that it did not follow from LAW that where , like in the present case , a separate appeal lay against an outline planning decision , no routing decision could be taken before the outline planning decision had become final . The mere fact that the time - limits for appealing started to run independently did not , according to ORG , alter the tenor of section PERSON ) of ORG that no final outline planning decision was required for a routing decision to be taken on the basis of that decision .

As to noise levels , the various complaints were to be considered individually . General complaints concerning the determination of acceptable noise levels could not be entertained . Reasonable standards had been set by law , and actual noise would be monitored once the railway was in use . The safety studies were not held to have been insufficient . It was noted that there had been an additional study made in respect of areas where the concentration of the population , and therefore the group risk , was greatest . Moreover , the government had specified additional safety measures for these areas in its statement of defence , as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods . As to the individual risk , the routing decision provided that new development which would increase it within QUANTITY from the centre line of the track would be prevented ; this made it unlikely that the individual risk would be increased further away from the track . Other objections relating to safety considerations would be dealt with on an individual basis .

As to vibration levels , ORG held that the government could not be found to have acted unreasonably by basing its assessments on an industrial standard ( ORG ) rather than a different standard suggested by certain appellants . Nor was the assessment of the likely nuisance caused by vibration unreasonable per se . Moreover , the government had undertaken to provide active monitoring ( that is , to measure vibration levels of its own motion ) in all residential buildings located within QUANTITY of the railway once it was in use , and passive monitoring ( that is , to measure vibration levels after complaints were received ) in residential buildings located QUANTITY from the railway . The government would then deal with unacceptable nuisance on a case - by - case basis . Specific problems raised by appellants would be dealt with individually .

With regard to general complaints about the arrangements for compensating damage , ORG referred generally to the relevant provisions of the routing decision . It further noted that legal remedies were available against any specific decisions taken in this regard . It could therefore not yet be assumed at this stage that acceptable arrangements in respect of damage were not possible .

As to the appeal lodged by ORG ( no . CARDINAL/CARDINAL ) , whose extremely accurate device for calibrating scales was stated to be particularly sensitive to vibration , ORG noted that studies were still ongoing as to whether the vibration likely to be caused by the railway would unduly interfere with that company ’s business . That being so , ORG claims could not be dismissed as unfounded ; to that extent , the appeal was allowed .

Sterk Technisch Adviesbureau B.V. ( no . CARDINAL ) , whose premises would have to be relocated , complained that no sufficient clarity had been provided as to whether a new location of equivalent quality would be made available . ORG held this complaint to be well - founded . This made it unnecessary to go into other specific complaints made by this applicant .

With regard to a complaint submitted jointly by Mr PERSON ( no . ORG ) and ORG Financierings- en ORG , ORG , ORG , PERSON and PERSON ( no . CARDINAL/CARDINAL ) in respect of the restaurant “ FAC ” which they owned and the flat inhabited by Mr PERSON , ORG found that no investigation had been undertaken as to whether it would be possible for these to continue in use . To that extent the complaint was therefore well - founded . The remainder of their appeal was dismissed .

As regards the appeal lodged by Mr PERSON ( no . CARDINAL/CARDINAL ) , ORG rejected the objections to a possible expropriation , holding that such objections could be raised in the specific procedure set out in LAW ( Onteigeningswet ) . As to his complaint about nuisance from noise in a particular area , it was held that this element had been insufficiently examined . To that extent , his appeal was well - founded . The remainder was rejected .

ORG rejected the appeals lodged by the other individual applicants and applicant companies .

In so far as the appeals were considered well - founded , ORG annulled the routing decision and made an award in respect of costs .

In a letter to ORG of ORG of CARDINAL DATE the Minister for ORG , writing also on behalf of the Minister for ORG , observed that the decision of ORG left PERCENT of the routing decision intact . It was therefore not necessary either to undertake a radical review of the project or to interrupt the building work . It was expected that the PERSON railway would be operational by DATE .

In so far as minor parts of the routing decision had been annulled , the reason therefor had merely been that insufficient information had been obtained as to whether the interests of the appellants could be safeguarded . In so far as relevant to the present case , the minister expected that in all but CARDINAL or CARDINAL cases changes to the original routing decision would prove unnecessary .

New partial routing decisions were taken in the course of DATE . An appeal lodged by ORG was declared inadmissible by ORG on DATE . The appeal lodged by ORG was dismissed by ORG on DATE . The appeals lodged by ORG Financierings- en ORG , ORG , ORG , PERSON , PERSON and PERSON PERSON were dismissed by ORG on DATE . Mr Witvliet apparently did not lodge an appeal against any of the DATE routing decisions .

NORP In response to suggestions made in the media to reconsider the PERSON project , the Minister for Transport and Communications sent a note ( PERSON ) to ORG of ORG on DATE . In this note the minister restated the considerations which had led to the decision of DATE to allow the project to go ahead . She also expressed the view that no new information had become available since the reconsideration of DATE which would tend to undermine earlier assumptions as to the viability and desirability of the project . On the contrary , developments had been such as to endorse these .

On DATE the Stichting Duurzame Mobiliteit ( ORG ) DATE of the appellants against the routing decision but not CARDINAL of the applicants in the present case – lodged a request for revision ( herziening ) of the decisions of DATE and CARDINAL DATE with ORG . This appellant argued that the government had either been insufficiently aware of certain relevant factual information at the time when it finalised LAW CARDINAL or had failed to consider this information .

In a decision of CARDINAL DATE ORG refused to revise its decisions . It found that the information in question was not of such a nature as to justify reopening the proceedings .

From DATE until DATE ORG ( PERSON ) undertook a study of the PERSON decision - making process . It published its report on DATE under the title “ FAC ” ( Betuweroute Policy Information ) .

The purpose of the report was to provide guidance for the quality and use of information relied on by the government to ground future policy decisions relating to large infrastructure projects . The central questions were whether the quality of the information relied on in taking PERSON policy decisions was assured and whether this information had been used in a responsible way in the preparation of the decision - making process . Developments subsequent to the reconsideration of DATE were taken into account .

ORG found that in the initial stages an adequate analysis of the problems to be solved had not been made . The decision - making process had related one - sidedly to the solution chosen , namely the construction of the Betuweroute railway , it having been decided at the outset that that was beneficial for the national economy and the environment ; an expert analysis of the information on which the outline planning decision was based had not been sought .

Predictions concerning the expected volume of transport through the GPE were considered imprecise and unreliable . The predictions eventually relied on appeared overly optimistic ; also , in some cases , it was not clear on what considerations the preference for particular predictions over others was based . Uncertainty remained , inter alia , as to the capacity of the NORP railway system to absorb the increased volume of goods traffic . The increasing competitiveness of inland navigation had not been considered , nor had the slow progress in some NORP countries ( for example , GPE and GPE ) of the liberalisation of rail transport . Nor had account been taken of the possible effects of levies on road transport as against the passing on of the costs of railway infrastructure to shippers , the latter possibility being envisaged in a policy proposal of ORG .

Alternatives to the PERSON had not been sufficiently explored . ORG criticised the way in which the use of the existing railway infrastructure in the GPE and waterborne inland and coastal transport had been considered in isolation rather than in combination . A thorough analysis of the possibilities of optimising existing east - west transport , including existing railway infrastructure , was lacking . Possible future developments in inland waterway traffic , which already accounted for a greater volume of transport than GPE railways , had not been looked into .

The assumed environmental benefit had also been misstated . The information concerning the environmental impact of alternatives to the Betuweroute railway had been inadequate and had been used in a selective way . Attention had been focused on the immediate reduction of energy use and noxious emissions without taking into account technical developments such as the increased use of cleaner and more economical engines in alternative transport ; insufficient information had been provided concerning such matters as nuisance levels , external safety or soil and groundwater pollution attending alternative choices .

A positive feature of the process , given especially the public discussion which had arisen , was that the project had been reconsidered in its entirety in DATE and that the arguments in favour had been presented anew in DATE ( LAW – see paragraph CARDINAL above ) . However , the information available at those times and the way in which it had been used was open to criticism .

The draft of the report was transmitted in its entirety to the government . The Minister for Transport and Communications , in a reaction submitted also on behalf of the Minister for ORG , expressed broad agreement with the report although some of the individual findings were contested . The conclusions of ORG were accepted for future reference .

Parts of the draft report were transmitted to ORG and to ORG , the GPE government entity which operated the railway system . ORG disagreed with certain findings of ORG with regard to environmental impact estimates . ORG called into question some of the findings of ORG with regard to the predicted increase in the volume of rail transport .

The full report , including the reactions , was transmitted to ORG of ORG ( parliamentary DATE , CARDINAL , nos . CARDINAL ) .

Section CARDINAL of ORG empowers the Minister for ORG together with the other ministers concerned in each case to prepare plans , known as outline planning decisions , for particular aspects of national planning policy ( section CARDINAL ) ) . At the relevant time ( that is before DATE ) the draft for such a plan was required to be laid open for public inspection for a period of DATE , an announcement being made beforehand in ORG and the local media . Anyone minded to do so could submit their views for DATE after the end of the inspection period ( section PERSON ) ) . The draft was transmitted to ORG of ORG for information at the time of its being laid open for public inspection ( section CARDINALa(CARDINAL ) ) .

NORP The ministers were required to consult the authorities of the provinces , regional surface waterboards , municipalities and any other public - law entities , as appropriate , about the draft ( section CARDINALa(CARDINAL ) ) . The advice of ORG had to be sought ( section CARDINALa(CARDINAL ) ) .

NORP The ministers were then required to transmit the outline planning decision – which by this time no longer had the status of a draft – to ORG for approval . The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties , the results of consultations with lower government bodies and the advice of ORG had been taken into account ( section CARDINAL ) ) .

ORG was entitled to send the outline planning decision back to the ministers concerned for modification before deciding whether or not to approve it . Thereafter it could withhold its approval of all or part of the plan ( section CARDINAL ) ) .

ORG then transmitted the outline planning decision , as approved by it , to ORG of ORG . The latter ORG could decide to approve it or not , but could not amend it ( section CARDINALa(CARDINAL ) ) . If approved by ORG , the outline planning decision came into force ( section CARDINAL ) ) . Once it was in force , the outline planning decision was published in the Official Bulletin and the local media ( section CARDINAL ) ) .

Although there is no specific provision for any appeal to an administrative tribunal against an outline planning decision , ORG of ORG held in its decision of DATE that is the decision on the appeals against the outline planning decision in the present case ( see paragraphs CARDINAL above ) – that the decisive moment for lodging an appeal was when the ministers resubmitted the outline planning decision to ORG of ORG after the latter had given them the opportunity to modify it ( that is , for the purposes of the present case , ORG CARDINALA ) .

Since DATE it is provided that , in so far as an outline planning decision contains policy decisions about major projects of national importance , all further planning relating to such projects is subject to the limitations set out in these policy decisions ( section CARDINAL ) .

The Transport Infrastructure Planning Act , as in force since DATE , requires the Minister for Transport and Communications to consult the local and regional authorities whose territories may be affected and , in the case of a railway project , the prospective exploiter of the railway before drawing up a draft routing decision ( section CARDINAL ) . This draft is then transmitted to them , after which they have the opportunity to comment ( sections CARDINAL ) , CARDINAL ) and ( CARDINAL ) , and LAW ) .

NORP The minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans ( section CARDINAL(CARDINAL)-(CARDINAL ) ) . The routing decision is transmitted to ORG with an explanatory statement ( section CARDINAL(CARDINAL ) ) . Non - binding time - limits are set for the various stages of the procedure .

Anyone with an interest may lodge an appeal against the routing decision with ORG of ORG ( section CARDINAL(CARDINAL ) ) .

Chapter V of ORG contains special provisions governing the procedure relating to major projects of national importance . This procedure is to be followed if an outline planning decision is in force ( section CARDINAL ) . In such cases the outline planning decision is to form the basis of , and be transformed into , a draft routing decision ( section CARDINAL ) . If changes to the draft routing decision appear necessary in view of observations received from interested parties or local - government bodies , then these changes are to remain within the limits drawn by the outline planning decision ( section PERSON ) ) .

NORP The Minister for Transport and Communications , together with the Minister for ORG , then draws up a final routing decision and may , if necessary , require the local and regional authorities to modify their own local and zoning plans ( section CARDINAL(CARDINAL)-(CARDINAL ) ) .

Anyone with an interest may appeal against the final routing decision to ORG of ORG ( section CARDINAL ) ) . No separate appeal lies against the outline planning decision if it is followed within DATE from its entry into force by a final routing decision ( section PERSON ) ) .

ORG was established by Emperor PERSON in DATE in order to assist and advise his sister , PERSON of GPE , whom he had appointed regent ( landvoogdes ) of ORG to rule on his behalf .

Following the Low Countries’ secession from GPE in DATE and in the course of the subsequent establishment of the independent Republic of the CARDINAL GPE , which was formalised in DATE by LAW , ORG developed into a body that , together with the PERSON ( ORG ) , was charged with DATE government . The control over their governance was exercised by the representatives of the GPE sitting in ORG Staten - Generaal ) .

ORG was abolished in DATE , when GPE occupied the Republic . PERSON transformed GPE into GPE in DATE and , in DATE , incorporated it into the NORP GPE . In DATE ORG had been reinstated as an advisory body to LOC , who was appointed by the legislative body to head the then executive . ORG exercised this function until DATE . GPE regained independence in DATE . According to the DATE LAW ( PERSON ) , the monarch had an obligation to consult ORG before legislative acts and measures of internal administration were enacted . The monarch was further free to consult ORG on other matters .

A further function of ORG was introduced in DATE , namely that of hearing administrative disputes in which an appeal had been lodged with the Crown ( GPE ) and advising the ORG , consisting of the inviolable monarch and the responsible minister or ministers , on the ruling to be given by the Crown on the appeal . The ORG was free to depart from this advice . For the exercise of this function , ORG of ORG ( Afdeling voor Geschillen PERSON ) was created .

On DATE ORG as to ORG Wet administrative rechtspraak overheidsbeschikkingen DATE “ the LAW ” ) came into force , which provided for an administrative appeal procedure in statutorily defined categories of administrative disputes not eligible for an appeal to the ORG . The final decision on such disputes was to be taken by a newly established ORG , that is ORG ( Afdeling PERSON ) .

In order to give effect to the ORG ’s judgment of DATE in ORG v. the GPE ( Series A no . CARDINAL ) , in which it was found that the ORG could not be regarded as a tribunal within the meaning of LAW , LAW on ORG ( PERSON ) was passed on DATE . It entered into force on DATE and was to remain in force for DATE . Under the provisions of this LAW , ORG of ORG was to determine all disputes which formerly were to be decided by the ORG . The function of ORG was not affected by LAW .

On DATE LAW ( PERSON ) , laying down new uniform rules of administrative procedure , entered into force . On DATE LAW on ORG and LAW were repealed . The functions of both ORG and ORG , which thereby became defunct , were vested in a new division of ORG , ORG ( GPE bestuursrechtspraak ) .

ORG is presided over by the monarch and consists of a vice - president and CARDINAL ordinary councillors ( PERSON ) ( section CARDINAL of ORG ( Wet op de Raad van State ) ) and CARDINAL extraordinary councillors ( PERSON in buitengewone dienst ) ( section CARDINAL , as worded since DATE ; prior to this date the maximum number of extraordinary councillors was CARDINAL ) . At present , ORG is composed of CARDINAL ordinary councillors and CARDINAL extraordinary councillors .

All councillors are appointed by royal decree ( PERSON ) following nomination by the Minister of the ORG and ORG in agreement with the Minister for ORG . Appointments are for life , the age of retirement being CARDINAL ( sections CARDINAL and CARDINAL ) . Extraordinary councillors submit proposals for the number of hours they wish to work , and their number is subsequently determined for DATE periods by royal decree .

Any candidate for membership of ORG is required to be a GPE national and to be DATE ( section CARDINAL ) . In the appointment of ordinary councillors , care is taken to ensure that the composition of ORG ) , which solely consists of ordinary councillors , reflects political and social opinion in the proportions represented in ORG ( Staten - Generaal ) . However , membership of a political party is not a formal or material criterion .

Ordinary councillors are appointed primarily on the basis of their knowledge and experience , whether in a specific field or in relation to public administration and administrative law in general . They are mainly selected from the circle of politicians , governors , high - level civil servants , judges and academics . Extraordinary councillors are mainly selected from the judiciary on the strength of their specific judicial knowledge and experience .

Section CARDINAL(CARDINAL ) of ORG sets out the posts , offices and professional activities that are incompatible with being vice - president of ORG and with being an ordinary councillor . These categories are extended in section CARDINAL(CARDINAL ) of this LAW with regard to the extraordinary councillors . This provision reads :

“ The vice - president , ordinary councillors and extraordinary councillors shall not hold any post the exercise of which is undesirable with a view to the proper discharge of their office , the preservation of their impartiality and independence , or the confidence therein . ”

Pursuant to section CARDINAL ) , the vice - president renders public any other positions held by members of ORG . This information is published in ORG and posted on ORG official website .

As required by LAW , before the government submits to ORG a bill for adoption , draft delegated legislation or a proposal to approve or denounce a treaty , it must seek the advisory opinion of ORG ( section CARDINAL of ORG ) .

In cases where proposed legislation does not originate from the government but from CARDINAL or more members of ORG of ORG , ORG will seek the advisory opinion of ORG ) .

For the purposes of delivering advisory opinions , the ordinary councillors are divided into CARDINAL Sections , grouped by ministries . A bill is first scrutinised by officials , who set out their findings in a memorandum . The bill and this memorandum are subsequently transmitted to a rapporteur , who prepares a draft advisory opinion . This draft is then discussed in the Section concerned . It will subsequently be submitted to ORG for examination and adoption .

ORG examines draft legislation and explanatory memoranda in the light of a large number of criteria bearing on policy , points of law and technical legislative requirements . These criteria include compatibility with human rights conventions , NORP law , the LAW , the LAW for GPE ( NORP voor het FAC ) , general legislation and unwritten legal principles , as well as existing law and general regulations on the structure , formulation and presentation of bills and explanatory memoranda . It further examines the anticipated effectiveness , efficiency , feasibility and enforceability of the proposed regulations , the degree of compliance to be expected , as well as the internal consistency of the legislation , the legal certainty it provides and the quality of legal protection .

The Plenary ORG , which is composed solely of the ordinary councillors , adopts the advisory opinions of ORG . The extraordinary councillors are not involved in the advisory function of ORG . It is further standing practice that the meetings of ORG are not attended by the extraordinary councillors .

ORG of ORG is entrusted with adjudicating administrative disputes , including applications for provisional relief , where the law so provides ( section CARDINAL of ORG ) . Its cases are heard in accordance with the provisions of LAW and the relevant provisions of ORG .

ORG consists of all the ordinary councillors of ORG ( not its vice - president ) and all the extraordinary councillors . They all hold this position for life until their retirement at DATE . Among them a president of the ORG is appointed by royal decree , also for life .

The president manages the work of ORG and decides on the composition of its CARDINAL Chambers . The first ORG deals with cases involving town and country planning , the second ORG with environment cases , the third ORG with general appeals and the fourth ORG with appeals in cases concerning aliens . The first CARDINAL ORG administer justice at first and sole instance , whereas the third and fourth ORG hear appeals against judgments given by lower administrative courts . Cases before ORG are dealt with by either a CARDINAL - judge bench or a single judge .

With a view to guaranteeing the impartial administration of justice , ORG has adopted certain principles , namely that a member who has been involved in an application for provisional relief will not be involved in hearing the proceedings on the merits ; if an appeal is dealt with in simplified proceedings ( that is without an oral hearing ) , any objection ( verzet ) will not be heard by the member who gave the original judgment , and every member must be alert to any conflict of interest and , in case of any reasonable doubts , either withdraw from a case or acquiesce in a challenge to his or her impartiality .

NORP Partly to facilitate this , and well in advance of hearings , members of ORG assigned to a particular case are sent copies of the principal documents in the case , together with a list of parties involved and their legal counsel . In this way , each member can verify whether there are reasons for withdrawing from the case on grounds of , for instance , a previous position , kinship or any other relation between a member of ORG and a party or legal representative .

From the above description it follows that some members of ORG combine the judicial function with the advisory function , namely the ordinary councillors of ORG , while the extraordinary councillors perform only a judicial function within ORG .

In a memorandum appended to a letter dated CARDINAL DATE to the Chairman of ORG , the Minister for ORG and the Minister of the ORG informed ORG that , in view of PERSON ( Series A no . CARDINAL ) and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the GPE , ORG had adopted a provisional practice in anticipation of further clarification by ORG in its future case - law ( ORG parliamentary documents DATE , QUANTITY , no . CARDINAL ) .

The dual function of ORG was subsequently debated at length in ORG , which accepted the position taken by the government .

NORP In parliamentary budget discussions held in DATE , the government confirmed its above position . In reply to a question put in ORG on the advisory and judicial functions of ORG in relation to the independence of the administration of justice , the government stated that , after PERSON , ORG had adapted its internal working methods and that , referring to the contents of the Minister for ORG ’s letter of CARDINAL DATE , these adaptations were of such a nature that so - called “ PERSON risks ” were as good as excluded and that in this light the independent administration of justice was guaranteed ( ORG parliamentary documents DATE , CARDINAL II , no . CARDINAL ) .

The practice adopted by ORG was further set out in the Annual Report DATE of ORG . The relevant section reads as follows :

“ Since it is as yet unclear how ORG will decide on the combination of functions within ORG and the effect thereof on objective independence and impartiality , or what criteria ORG will apply in this respect and what boundaries will be drawn , ORG has for the time being chosen criteria and determined boundaries itself . Also , ORG and its ORG consider it important that justice is also seen to be done . The procedure opted for in this connection , and about which the Ministers for ORG and of the ORG have already made announcements to ORG ( ORG parliamentary documents DATE , QUANTITY , no . CARDINAL ) , amounts to the following :

If in an appeal which has been lodged in time with ORG , the lawfulness is disputed of a legal provision which has previously been applied in the case or of another regulation concerning an aspect – for example incompatibility with NORP law – in respect of which ORG has in the past explicitly expressed an opinion in its advice on the proposed provision , and if a party has voiced doubts as to the independence and impartiality of the bench dealing with the appeal , the composition of this bench will be changed so as to ensure that only members who have not participated in the advice sit on this bench . For this are in any event eligible the extraordinary councillors , who are not involved in the advisory function , and those ordinary councillors appointed after the giving of the advice and those ordinary councillors in respect of whom it is objectively certain that they have not participated in the adoption of the advice in ORG . In such a situation , this will – thanks to this way of proceeding in the Division – therefore prevent appellants as far as possible from relying on PERSON in a challenge or otherwise . ”

Members of ORG to whom a case has been assigned may be challenged by any of the parties on the grounds of facts or circumstances which may affect their judicial impartiality ( section CARDINAL(CARDINAL ) of LAW taken together with section CARDINAL of ORG ) .

The challenge will be examined as soon as possible by a ORG composed of CARDINAL members of ORG , which shall not include the councillor(s ) challenged . The challenging party and the councillor(s ) challenged are offered the opportunity to be heard . A reasoned decision shall be given as soon as possible , against which no appeal lies ( section CARDINAL(CARDINAL ) of the General Administrative Law Act taken together with section CARDINAL of ORG ) .

In the case - law developed by ORG in relation to challenges based on ORG combined advisory and judicial functions in the light of LAW , decisive importance is attached to the question whether or not the challenged councillor was involved in advising on the disputed legislation and whether the substance of the appeal concerns a point that was explicitly addressed in the advisory opinion given by ORG .

ORG initially took as one of its criteria the degree to which members of the bench hearing the appeal had contributed to the advisory opinion . This criterion was dropped in later caselaw , as this information is not accessible to the general public and therefore the parties . The key questions remain whether the challenged member of the bench belonged to ORG at the time when the advisory opinion was given and whether any position was adopted in the advisory opinion that is opposed by the party that has lodged the challenge . Only in cases where these questions can be answered in the affirmative is it accepted that a party has justified grounds to fear that the councillor concerned is biased in respect of the subject of the dispute ( see ORG , case no . ECARDINAL.CARDINAL.CARDINAL/W , judgment of DATE , and case no . EOCARDINAL.CARDINAL.CARDINAL/W , judgment of DATE , PERSON CARDINAL/CARDINAL ) .

The rejection of a challenge does not however preclude the possibility that members of the bench concerned subsequently decide to withdraw from the case in view of the substance of the appeal ( see ORG , case no . ECARDINAL.CARDINAL.CARDINAL/CARDINAL , ORG ) .

NORP Since PERSON was published , it has been relied on in CARDINAL challenges lodged before ORG . All of these challenges have been rejected , either because members assigned to the appeal were not involved in the previous advisory opinions on the statutory provisions concerned , or because the points of law put to ORG by the party having lodged the challenge were so remote from the previous advisory opinion that the fear of bias was found to be unjustified .

NORP In an appeal in cassation lodged with ORG ( PERSON ) against a judgment of CARDINAL DATE of ORG ( ORG ) in expropriation proceedings in connection with the construction of FAC , the appellant argued that ORG , by confining itself to referring to the administrative procedures already pursued before ORG , had neglected to rule on the legality and necessity of the expropriation and , in particular , that ORG had failed to investigate technical alternatives such as tunnelling , which would make expropriation unnecessary . In this connection , referring to the ORG ’s judgment in PERSON ( cited above ) , he argued that ORG “ structural impartiality ” was in doubt and that it followed from this that he was entitled to have these issues reviewed by the ordinary courts .

NORP In its judgment of DATE , ORG rejected these arguments . It agreed with ORG that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were matters to be dealt with in administrative proceedings under LAW and ORG and not in expropriation proceedings . As to the appellant ’s point concerning the impartiality of ORG , ORG held as follows :

“ CARDINAL . [ The appellant ] has submitted before ORG – in so far as still relevant – in objection to the expropriation :

( b ) As ORG ( as a whole , therefore including ORG ) has been involved in the enactment of ORG and in this respect , as an advisory organ , has issued a generally positive advice , ORG can not be regarded as a structurally impartial tribunal within the meaning of LAW ;

In Part Ib of the cassation plea , which concerns the objection set out in CARDINAL under ( b ) and with reference to the judgment of ORG ... in GPE v. GPE , the argument is repeated that was unsuccessfully raised before ORG , namely that the royal decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of ORG as a judicial body where members of ORG have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this LAW .

ORG . NORP However , the argument overlooks the point that the mere fact that advice was heard from ORG , in accordance with the statutory provisions concerned , about the bill that eventually led to ORG does not warrant the conclusion that fears as to the impartiality of ORG of ORG , which had to judicially determine objections against the routing decision , are objectively justified . Part Ib of the cassation plea must therefore be dismissed . ”


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

The applicant is serving an DATE prison term following his conviction for murder and burglary in DATE . He was first detained at FAC , from which he escaped in DATE but was rearrested within DATE . In DATE he was transferred to FAC and on CARDINAL DATE to ORG , as the prison administration feared that he and a number of other inmates were devising an escape plan .

On DATE , when prison personnel at ORG carried out the necessary reception formalities , the applicant refused to cooperate and demanded to be returned to FAC , threatening that otherwise he and other inmates would set fire to ORG . On DATE , in the course of an interview with a senior prison officer , he again insisted on being returned to FAC and threatened the prison officer that otherwise someone would pay the officer “ a private visit ” . DATE he threatened a prison warder saying “ that he should not turn his back on him ” . On account of these incidents , criminal proceedings on charges of threatening behaviour ( gefährliche ORG ) were instituted against the applicant .

The Steyr Regional Court ( PERSON ) decided to hold the hearing at ORG , which is situated QUANTITY from ORG . It set down DATE as the date for the trial . The summons indicating the date and place of the hearing was served on the applicant as well as on his official defence counsel a DATE before the hearing .

At the material time information about hearings held at the Steyr Regional Court was given as follows .

The public prosecutor 's office at ORG issued a hearing list ( GPE ) in DATE for DATE , containing , inter alia , the date and place of all hearings in criminal proceedings . This information would also include the number of the court hearing room and would , if appropriate , indicate that the hearing was to be held at the scene of the crime or the name of the prison at which it was to take place . The Government were unable to provide the list for DATE of DATE , as these lists are not kept , but asserted that it would , in accordance with the usual practice , have indicated ORG as the place of the hearing in the applicant 's case . The hearing list was distributed by the public prosecutor 's office to the media , namely to the most important national and regional newspapers , as well as to the national broadcasting station . Furthermore , a copy was given to ORG registry and information desk . Thus , interested persons could obtain information about forthcoming hearings either by calling the court 's registry or by presenting themselves at the court 's entrance .

On DATE the ORG , sitting with a single judge , held a hearing in the closed area ( PERSON ) of ORG . The hearing room measured CARDINAL sq . m. It was furnished with a table and seats for the judge , the secretary , the public prosecutor , the applicant and his defence counsel . There is disagreement between the parties as to whether there were further seats available for witnesses and potential spectators .

The hearing , which according to the minutes was public , was opened at TIME It lasted TIME . The applicant , assisted by counsel , pleaded not guilty . The court heard the CARDINAL prison officers to whom the applicant had allegedly addressed threats as witnesses . Neither the applicant nor his counsel complained about a lack of publicity at that time . Following the hearing , ORG convicted the applicant of threatening behaviour , finding that he had on CARDINAL occasions threatened prison personnel with arson or assault , and sentenced him to DATE imprisonment .

Thereupon , the applicant filed an appeal on points of law and fact , as well as against sentence ( GPE wegen GPE , PERSON ) . He complained , in particular , as a ground of nullity , that the hearing on DATE had not been public since it took place in the closed area of ORG , to which only people with special permits , other than prison personnel , had access . He also claimed that the room in which the hearing was held was too small to accommodate any spectators and alleged that not even the witnesses had been able to stay in the room simultaneously . Moreover , he challenged ORG assessment of the evidence and its establishment of the facts . Finally , he complained that the sentence was too severe .

On DATE ORG ( Oberlandesgericht ) held a public hearing in the court building in the presence of the applicant and his counsel . The appellate court is QUANTITY from FAC . The hearing lasted DATE of an hour . The court heard the applicant as regards the alleged lack of publicity of the hearing on DATE . It also heard him on the various counts of threatening behaviour , questioning him as regards the statements made by the witnesses at the trial . It did not rehear the witnesses and the defence made no request to this effect .

ORG dismissed the case . As to the complaint that the hearing on DATE had not been public , the court noted that , according to information submitted by ORG , the hearing was public in the sense that any interested person would have been allowed to attend . Had the prison governor been concerned that interested persons should not be granted access to the closed area , he would have been obliged to prohibit the conduct of the trial in that part of the prison . In any case , no such persons wishing to attend the trial had been present at the beginning of the hearing , and the judge had not been informed of any potential spectators .

As to the applicant 's appeal on points of fact , ORG stated that it had no doubts regarding ORG evaluation of the evidence and its establishment of the facts . The appellate court also confirmed ORG legal view that the applicant had , by threatening prison personnel with arson or assault , committed the offence of threatening behaviour . Finally , it found that the sentence was commensurate with the applicant 's guilt .

Article CARDINAL § CARDINAL of LAW ( Bundesverfassungsgesetz ) provides :

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

Article CARDINAL § CARDINAL of LAW ( Strafprozessordnung ) provides that the trial is to be public . Failure to comply with this requirement constitutes a ground of nullity .

According to LAW , the public may be excluded from the trial in the interests of morals or public order . The court has to take a formal decision on the exclusion of the public . No remedy lies against such a decision .

Pursuant to Article CARDINAL , the above provisions apply to proceedings before a single judge .

According to LAW taken together with LAW , an appeal hearing against a judgment of a single judge has to be public . Articles CARDINAL and CARDINAL apply .

According to LAW taken together with LAW , an appeal on points of law and fact and against sentence lies against the judgment of a single judge . By virtue of LAW , the appellant may adduce new facts and evidence .

In accordance with LAW , the appellate court will rehear witnesses and experts if it has doubts as to the correctness of the first - instance court 's establishment of the facts , or if it holds that the hearing of new witnesses or experts as regards the same facts is necessary . Otherwise , it will take its decision on the basis of the file .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was unrepresented before the ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for bereavement benefits under the new system in place as from DATE . On DATE the applicant ’s claim was refused . On DATE he was informed that his application would be accepted as a request for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

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

The applicant was born in DATE and lives in PERSON .

In DATE the applicant ’s mother , together with other heirs , inherited CARDINAL plots of land from her husband . She thereby became a co - owner of various proportions of that property .

On DATE the applicant and her sister signed a contract of lifelong care ( ugovor o doživotnom uzdržavanju ) with their mother before ORG ( PERSON ) , stipulating that the daughters were to provide for their mother until her death while the mother transferred the ownership of all her immovable property , that is , her share of the above CARDINAL plots of land , to the daughters after her death .

On DATE the parties amended the above contract so that the applicant and her sister , at the moment of signing of the amendment to the contract , became the co - owners of their mother ’s share of the above CARDINAL plots of land .

On the basis of the above amendment of DATE , on DATE the applicant was recorded in the land register as the co - owner of those CARDINAL plots of land in various proportions .

Meanwhile , on DATE the applicant ’s aunt PERSON brought a civil action in ORG against the applicant ’s mother , with a view to being declared the owner of part of the above property . After the death of the applicant ’s mother in DATE , in DATE the applicant and her sister became parties to the proceedings .

On DATE ORG adopted a judgment . However , that judgment was quashed on DATE by ORG ( Županijski sud u PERSON ) and the case was remitted to the first - instance court for fresh proceedings .

On DATE the applicant and her sister lodged a constitutional complaint under section CARDINAL of LAW , complaining about the length of the civil proceedings . On DATE ORG ( Ustavni sud PERSON ) found a violation of their constitutional right to a hearing within a reasonable time , awarded them each MONEY ( HRK ) in compensation and ordered ORG to adopt a decision in their case in the shortest time possible but DATE from the publication of its decision in ORG . ORG decision was published on DATE .

On DATE ORG dismissed the plaintiff ’s action . That judgment was upheld by ORG on DATE and thereby became final , with the consequence that all concerned remained , as before , co - owners of the CARDINAL plots of land .

On DATE the applicant instituted non - contentious proceedings before ORG against the other co - owners GPE , GPE and GPE , seeking partition of the co - ownership of CARDINAL of the above CARDINAL plots of land .

At the hearing held on DATE the applicant appeared before the court but the defendants failed to appear .

An on - site visit was carried out on DATE in the presence of the judge assigned to hear the case , the parties and an expert . The expert submitted his opinion and a drawing of the site DATE .

During the following on - site visit , on DATE , the defendants prevented the experts present from taking the necessary measurements

The subsequent on - site visit , scheduled for CARDINAL DATE , was adjourned and the parties agreed to arrange for the measurements to be taken again . The next on - site visit , scheduled for DATE , was adjourned because the defendants did not attend .

At a hearing held on CARDINAL DATE the parties reached a settlement whereby they remained co - owners of CARDINAL plot of land , the defendants GPE , GPE and GPE became co - owners of CARDINAL of CARDINAL plots of land and the applicant became the sole owner of CARDINAL plots of land .

On CARDINAL DATE the applicant approached ORG of ORG seeking to enforce the above in - court settlement of DATE by recording the partition of co - ownership in the land register .

On CARDINAL DATE ORG of ORG dismissed the applicant ’s request . It found that the changes stipulated in the in - court settlement of DATE could not be recorded in the land register because the share of the property in question belonging to GPE was subject to enforcement proceedings instituted in DATE and DATE by his creditors before the same court , after which it was not allowed , under LAW , to record any changes in ownership or other rights in rem in respect of that property in the land register .

On DATE the applicant appealed against that decision to ORG .

On DATE the ORG in part upheld and in part quashed the first - instance decision . It held that while LAW indeed did not allow the changes stipulated in the in - court settlement of DATE to be recorded in respect of GPE ’s share of the property , they could be recorded in respect of PERSON and GPE ’s share of the property .

Due to the outcome of the civil proceedings for annulment ( see below ) , it appears that no further steps were taken with a view to recording the changes stipulated in the in - court settlement of DATE in the land register .

On DATE the applicant brought a civil action in ORG against GPE , GPE and GPE seeking to annul the above in - court settlement of DATE because at the time it had been entered into GPE had concealed the fact that enforcement proceedings had been pending in respect of his share of the property .

On DATE the court delivered a judgment whereby it annulled the in - court settlement , with the effect that all concerned remained , as before , co - owners of the CARDINAL plots of land in question .

On DATE the applicant instituted a second set of non - contentious proceedings against GPE , GPE and GPE for partition of co - ownership before ORG . This time she sought partition of the co - ownership of CARDINAL plots of land .

On DATE the court issued a decision ordering the partition of the co - ownership by sale of the CARDINAL plots of land in question at a public auction and distribution of the proceeds of the sale to the co - owners in proportion to their shares . It held that partition in kind ( geometrijska dioba ) was not feasible and therefore ordered partition by auction ( civilna dioba ) .

The applicant and PERSON appealed as they both objected to partition by auction and sought partition in kind .

It would appear that the case is currently pending before ORG .

The relevant part of the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , ORG nos . CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE ) , which entered into force on DATE , reads as follows :

“ ( CARDINAL ) A co - owner has the right to partition of co - ownership if that is practicable and permissible . That right is not subject to statute of limitations .

( CARDINAL ) A co - owner may require partition at any time , except when that would be detrimental to the interests of other co - owners ... ”

“ Partition may not be detrimental to the rights of third persons ... ”


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants are the private company “ OOO Inform - X ” and CARDINAL NORP nationals , whose names and dates of birth are shown in the ORG . ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .

The facts of the case , as submitted by the parties , may be summarised as follows . The applicants sued the ORG authorities in domestic courts for payment of various monetary sums due under the NORP law . The courts held for the applicants and ordered the authorities to pay various amounts in the form of lump sums and/or of periodic payments to be upgraded in line with the inflation in the country . These judgments became binding on the dates indicated below . They were executed , according to the ORG , on the dates set out in the FAC .

In case no . CARDINAL by PERSON , on DATE the authorities paid to the applicant MONEY ( RUB ) of RUB CARDINAL,CARDINAL.CARDINAL awarded to him by the judgment of DATE ( see PERSON for further details ) . The remaining RUB CARDINAL,CARDINAL.CARDINAL were not paid to applicant but transferred to the federal budget as income tax .

The applicant sued the respondent authority for payment of the remaining part of the judgment debt . On DATE ORG in the final instance rejected his claim . The court found that the initial award was made in respect of wages taxable under the domestic law . Therefore , RUB MONEY had been lawfully retained from the applicant as income tax .


The applicant was born in DATE and lives in NORP .

In DATE the applicant ’s parents were persecuted by the communist authorities . Their property was confiscated and they were exiled to LOC .

NORP In DATE they were rehabilitated .

On an unspecified date in DATE the applicant brought an action against ORG , seeking compensation for the confiscation of his GPE property .

On DATE the ORG ruled in favour of the applicant and ordered the defendant to pay him CARDINAL NORP lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) . The judgment was not appealed against and after DATE it became final and enforceable .

On DATE a Bailiff received the enforcement warrant .

On DATE the Bailiff sent the enforcement warrant to the President of GPE , without having enforced it .

The judgment of DATE has not been enforced to date .

The relevant domestic law was set out in GPE v. GPE ( no . CARDINAL , ECHR CARDINALIII ( extracts ) ) and PERSON v. GPE ( no . CARDINAL ) , ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) .


Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic and Convention proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE .

The applicant was a member of ORG .

At TIME on DATE forty ORG members effected an unauthorised entry into the reception area of ORG ( the “ President ’s Office ” ) . Some of them pushed away the guards at the entrance and occupied room no . CARDINAL on the ground floor . They locked themselves in , blocked the door with a heavy safe and let the others enter through the window .

Until the police arrived , the ORG members , including the applicant , waved placards through the office window , threw out leaflets and chanted slogans calling for the President ’s resignation . They stayed in the office for TIME .

On DATE the applicant came with her friends for a walk in the city centre . Suddenly she found herself in the midst of a dense crowd and she thought it best to go in the same direction as everyone else . The crowd brought her into a certain building which turned out to be the waiting area of ORG . She felt weak and sat down on the floor . The people around shouted and chanted but she could not understand what was going on . Then the police arrived and took everyone in custody .

NORP The media reported that on DATE a group of CARDINAL members of ORG locked themselves in an office on the ground floor of ORG .

They asked for a meeting with the President , the deputy head of ORG Office Mr PERSON , and the President ’s economic advisor PERSON ORG . They waved placards with “ PERSON , resign ! ” ( « PERSON , уйди ! PERSON ) written on them through the window and distributed leaflets with a printed address to the President that listed CARDINAL aspects in which he failed to respect LAW , and a call for his resignation .

The intruders stayed in the office for TIME until the police broke through the door . They did not offer any resistance to the authorities .

On DATE the ORG of GPE ordered the applicant ’s placement in custody on the ground that she was suspected of a particularly serious criminal offence . The applicant did not appeal against the arrest warrant .

On DATE an investigator for particularly important criminal cases of the prosecutor ’s office of LOC of GPE charged the applicant with violent overthrow of ORG power ( LAW ) and intentional destruction and degradation of others’ property in public places ( Articles CARDINAL § CARDINAL and CARDINAL ) .

DATE and DATE the applicant did not participate in any investigative actions .

On DATE the ORG of GPE extended her detention on remand until DATE . The court ’s entire reasoning read as follows :

“ The court sees no reason to apply a more lenient preventive measure to [ the applicant ] . She is charged with a criminal offence under LAW which is classified as a particularly serious one and requires a thorough , comprehensive and objective investigation .

Notwithstanding the fact that [ the applicant ] has a permanent registered place of residence in GPE , has no criminal record , is a student , has positive references and suffers from frail health , the court , taking into account the nature and factual basis of the imputed offences , gravity of the charges , her character and other circumstances described in the investigator ’s decision , considers that there are sufficient indications to believe that , once released , [ the applicant ] would abscond or otherwise interfere with the proceedings . ”

On DATE ORG upheld , on an appeal by the applicant , the remand decision of DATE , finding that it had been lawful , “ sufficiently reasoned and justified ” .

On DATE the applicant ’s charge was amended to that of participation in mass disorders , an offence under LAW .

On DATE the ORG granted the prosecution ’s request for a further extension of the applicant ’s detention until DATE , relying on the following reasons :

“ At present there are no reasons to vary the preventive measure applied to [ the applicant ] ... Although [ the applicant ] has a permanent registered place of residence in GPE , having regard to the gravity of the charge against her , the fact that the charge is well - founded , the circumstances of the crime , there is no guarantee that the [ applicant ] would not default on the investigator ’s and court ’s summons if released from custody . ”

On DATE the investigation was completed and CARDINAL persons , including the applicant , were committed for trial before FAC of GPE .

On DATE the trial court scheduled the preparatory hearing for DATE . It extended the detention on remand of all the defendants , noting that “ the grounds on which the preventive measure [ had been ] previously imposed , still persist[ed ] ” and that “ the case - file gave sufficient reasons to believe that , once released , the defendants would flee or interfere with the trial ” .

On DATE the court fixed the opening of the trial for DATE . It rejected the ORG requests for release , citing the gravity of charges against them and the risk of their absconding or obstructing justice .

On DATE the ORG rejected the applications for release filed by many defendants , including the applicant , although she had produced a personal surety from Mr PERSON , a member of the lower chamber of ORG . The court held :

“ The court takes into account the defence ’s argument that individual approach to each defendant ’s situation is essential when deciding on the preventive measure .

Examining the grounds on which ... the court ordered and extended detention on remand in respect of all defendants without exception ... the court notes that these grounds still persist DATE . Therefore , having regard to the state of health , family situation , age , profession and character of all defendants , and to the personal sureties offered by private individuals and appended to the case file , the court concludes that , if released , each of the applicants can abscond or obstruct justice in some other way ...

In the court ’s view , in these circumstances , having regard to the gravity of the charges , there are no grounds for varying or revoking the preventive measure in respect of any defendant ... ”

On DATE the ORG found the applicant and her co - defendants guilty as charged and gave her a suspended sentence of CARDINAL PERSON imprisonment . It appears that the applicant did not lodge an appeal against the conviction .

Since DATE criminal - law matters have been governed by LAW ( Law no . CARDINAL of DATE , “ the Code ” ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention on remand ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( обязательство о явке ) ( Article CARDINAL ) .

When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , re - offend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention on remand may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in custody “ pending the investigation ” . The maximum permitted period of detention “ pending the investigation ” is DATE but it can be extended for DATE in “ exceptional circumstances ” ( Article CARDINAL § § CARDINAL ) . The period of detention “ pending the investigation ” is calculated to DATE when the prosecutor sent the case to the trial court ( LAW ) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during the trial ” ) . The term of detention “ during the trial ” is calculated to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .