Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr K .- F. was born in DATE and is a NORP national . He was formerly a lawyer and lives with his wife in GPE .

In DATE the applicant and his wife rented a holiday flat at Ulmen at a DATE rent of CARDINAL or MONEY ( ORG ) . They occupied the flat from CARDINAL DATE and paid DEM CARDINAL rent for their stay in DATE

On DATE the landlady of the flat , PERSON , asked PERSON for payment of rent arrears , including telephone calls , of MONEY CARDINAL .

On DATE , at CARDINAL , Mrs. PERSON telephoned Cochem - Zell police station and reported that PERSON and PERSON had caused a car accident . She added that they had rented her flat without intending to perform their obligations as tenants and were about to make off without paying what they owed .

Following that call , QUANTITY police officers went to the flat and took statements from the landlord and the landlady ( PERSON and PERSON ) and the tenants . The owners admitted that , for fear that PERSON and PERSON would make off without paying the rent , they had attempted to stop the couple ’s son from driving off ; they emphasised , however , that he had been determined to force his way through at all costs . PERSON and PERSON , on the other hand , said that the accident had been caused by PERSON aggressive and incomprehensible behaviour towards their son .

NORP After consulting the appropriate public prosecutor ( FAC ) , the police officers inquired into the address of the applicant and his wife at Bad GPE and discovered that it was merely a Post Office box . The Bad GPE police also informed them that the applicant had previously been under investigation for fraud .

At TIME on DATE Detective Sergeant Laux , accompanied by PERSON , PERSON and PERSON , arrested PERSON and PERSON and their son and took them to Cochem - Zell police station so that their identities could be checked . The son was released shortly afterwards but PERSON and PERSON K .- F. were provisionally held in police custody . In a report drawn up at TIME the police stated that they strongly suspected PERSON and PERSON of rent fraud ( PERSON ) and that there was a risk that they would abscond . The questioning ended at TIME

Inquiries made during TIME into the applicant ’s various addresses revealed that he had been the subject of other criminal proceedings on suspicion of fraud and that ORG ) had opened a preliminary investigation in respect of him for the same reason .

On TIME ( TIME and TIME ) , PERSON of the Cochem - Zell police questioned the applicant further . His wife was interviewed at TIME

At TIME ORG informed PERSON , likewise of the Cochem - Zell police , that he did not intend to issue a warrant for the applicant ’s arrest .

At TIME Mr and PERSON were released and taken back to Ulmen .

On DATE PERSON lodged a complaint against PERSON and PERSON alleging attempted rent fraud .

On DATE ORG discontinued the criminal proceedings against the applicant and his wife on the ground that it had not been proved that Mr and PERSON had not intended DATE or had not been able – to pay the rent owed , as they had paid most of the arrears in DATE and there was a civil dispute over the balance . Furthermore , the incident that had occurred at Ulmen on DATE did not justify concluding that PERSON and PERSON had not intended to pay their debts , as only their son had attempted to drive off and there was no concrete evidence to show that they had sought to make off surreptitiously .

On DATE Mr K .- F. lodged a complaint with ORG against the police officers and public prosecutors concerned in the events of CARDINAL and DATE alleging false imprisonment ( GPE ) , attempted coercion ( versuchter PERSON ) and insulting behaviour ( PERSON ) . He maintained that his arrest and detention at Cochem - Zell police station had been unlawful , since he had not committed any criminal offence as only the rent tribunal had jurisdiction to hear disputes over the amount of rent . The police officers had likewise acted unlawfully in recording his personal details .

On DATE ORG discontinued the proceedings against Detective PERSON and CARDINAL other police officers who had taken part in the arrest , and against the CARDINAL public prosecutors . The ORG considered that in all the circumstances they had not acted unlawfully . In particular , the police officers who had gone to Ulmen during TIME of CARDINAL DATE had had reasonable grounds for suspecting PERSON and PERSON of defrauding PERSON and PERSON and intending to leave without paying the sums due .

The applicant appealed against that decision to ORG ( Generalstaatsanwaltschaft ) , who confirmed the decision on DATE .

On DATE the applicant applied to ORG ( Oberlandesgericht ) for an order that Detective PERSON and PERSON , PERSON and PERSON be prosecuted for attempted coercion and false imprisonment .

He described what had happened and said that it had been agreed between his wife and PERSON that the rent would be paid on DATE . That agreement had not been to the liking of PERSON , who had assaulted his son to prevent him driving off . His wife had even called the police for assistance . Furthermore , neither he nor his wife had intended to leave the rented flat ; they had not started to pack any suitcases and their personal belongings were still in the cupboards and drawers . The police ORG brutal searching of him , his wife and his son , the searching of their home , their arrest and their subsequent detention had accordingly been totally illegal for want of any basis in law , as they had not complied with the requirements of either LAW taken together with LAW of LAW ( Strafprozeßordnung – see paragraph CARDINAL below ) .

On DATE ORG dismissed PERSON application on the ground that there was insufficient cause to prosecute the police officers ( kein hinreichender PERSON ) .

It held , inter alia :

“ There is sufficient cause to prosecute where , in the light of all the evidence and the prosecution ’s assessment of the facts , it is to be expected that the potential defendants will be convicted ( cf . ORG , [ Code of Criminal Procedure ] , CARDINALth ed . , § CARDINAL no . CARDINAL ) . The findings of the investigation do not found such an expectation . There would have been sufficient cause to prosecute for false imprisonment ( LAW ) if the accused police officers had unlawfully taken the applicants to the police station and held them there . The investigation did not disclose any such unlawful act . The inquiries made at Ulmen gave the police officers on duty cause to suspect a fraud on PERSON and PERSON [ S. ] ( rent arrears and telephone bills amounting to MONEY ) , especially as the applicants had admitted that they were not then able to find that sum . Furthermore , according to the statements of the witnesses [ J. ] and [ S. ] ( page CARDINAL of file FAC ) and the findings of the accused police officers ( position of the wheels of the vehicle ... – page CARDINAL of the above - mentioned file ) , the accused police officers had the impression that ‘ [ K .- F. ] intended to drive off come what might’ . The fact that the accused police officers , in the light of all these circumstances , consequently suspected the applicant of ‘ attempted rent ORG can not be criticised . The arrest was accordingly , on the facts , likewise justified . At the police station the alleged offenders , who had had the applicants’ address checked , learned that , according to inquiries made at Bad Orb , the address there was ‘ fictitious’ and that , according to further inquiries made of ORG , several sets of proceedings were pending against the applicants for fraud . The applicants’ detention at the police station was therefore justified . The question whether it was necessary to hold them until TIME can be left open in the instant case as , on grounds of intent at least , the potential GPE conviction on a charge of false imprisonment is unlikely .

Nor did the investigation disclose sufficient evidence of joint coercion ( LAW ) . On the basis of the information obtained at ORG that has previously been referred to , the accused police officers could reasonably presume that an offence had been committed . It was accordingly lawful in the circumstances to carry out a search ( LAW , third sentence , of LAW ) . Besides , even if it were to be accepted that there had been coercion , the accused police ORG behaviour could not be considered reprehensible within the meaning of LAW . For the purposes of that provision , reprehensible behaviour is behaviour which in all the circumstances is so manifestly objectionable that it calls for punishment under the criminal law as a gross interference with other people ’s exercise of free will ( see ORG of ORG , CARDINAL , CARDINAL ) .

Measured against these principles , the accused police ORG behaviour can not be said to have been reprehensible . The findings of the investigation at Ulmen – before the police officers entered the premises – and in particular the conduct of the ORG son , who , according to the [ S. ] family , sought to drive off aggressively in his car , could perfectly well have led the police officers to believe that the applicants might also make off without paying their relatively substantial rent arrears .

ORG was therefore right to discontinue the proceedings , there being insufficient cause to bring a prosecution for false imprisonment and coercion . ”

On DATE the applicant complained to ORG that no official decision had been taken on the allegations against PERSON of the Cochem - Zell police .

On DATE ORG discontinued proceedings in that case also . It said that the offences of insulting behaviour were statute - barred . As to the offences of attempted coercion and false imprisonment , it pointed to ORG judgment of CARDINAL DATE to justify discontinuing the proceedings .

The applicant appealed against that decision to ORG .

On DATE ORG reopened the investigation in respect of PERSON and took several written statements , including one from Mr K .- F. and one from PERSON .

On DATE ORG discontinued the proceedings permanently .

The applicant appealed against that decision to ORG , which confirmed it on DATE .

On DATE Mr K .- F. , relying on the same arguments as before ( see paragraph CARDINAL above ) , made a further application to ORG for an order that PERSON be prosecuted for attempted coercion , false imprisonment and insulting behaviour .

On DATE ORG dismissed the application on the ground that there was not sufficient cause to bring a prosecution against the superintendent .

It held , inter alia :

“ There would be sufficient cause to bring a prosecution for false imprisonment ( Article CARDINAL of LAW ) if the accused police officer had unlawfully prevented the applicant from leaving the police station . According to the reasons set out on p. CARDINAL of the ORG ’s judgment of CARDINAL DATE ( CARDINAL Ws DATE ) , the applicant was held at the police station lawfully . In the aforementioned judgment the ORG had already explained that the question whether it had been necessary to hold the applicant in detention until TIME could be left open as , on grounds of intent at least , the potential defendants ( PERSON , PERSON , PERSON and PERSON ) were unlikely to be convicted of false imprisonment . In his report dated DATE ( pp . CARDINAL et seq . of the file ) Detective PERSON said ( p. CARDINAL ) that ‘ PERSON and PERSON ] and their son were first taken to the police station so that their identity could be checked’ and PERSON and PERSON ] were held in police custody after consultation of ORG . PERSON . The second sentence of LAW provides that the checking of a person ’s identity by police officers must be conducted in accordance with LAW b LAW of that code . A person affected by a measure taken under LAW for the purposes of checking his identity can not be deprived of his liberty for TIME in all . The applicant was detained at TIME on CARDINAL DATE ( page CARDINAL ) and released at TIME on DATE ( page CARDINAL ) . For this detention , which lasted for TIME , PERSON was responsible . On the basis of the evidence as it currently stands , however , it appears unlikely that he would be convicted of false imprisonment as ultimately it will not be possible to establish that he was aware that the maximum permitted period had been exceeded .

A conviction for coercion ( LAW ) appears equally unlikely .

As to the applicant ’s allegation that he was ordered to leave the district ( GPE ) , the decision to discontinue the proceedings rightly points out that it is far removed from reality . The ‘ raised fist’ and the assertion that ‘ sparks are going to fly’ are denied in the accused police officer ’s statement . No other evidence , beyond the applicant ’s statements , is to be found . On the basis of the evidence as it currently stands , the decision to discontinue the proceedings can not be criticised . For these reasons , no offence of extorting a confession ( LAW ) has been made out either . Given the information to which the ORG has already referred in its judgment of CARDINAL DATE , the checking of the applicant ’s identity was justified . Nor , lastly , can the accused police officer be said to be guilty of coercive behaviour in having forbidden the applicant to enter the flat at Ulmen to collect personal belongings . In the police officer ’s view , his behaviour can not be shown to have been reprehensible since he had cause to believe that as the rent for the holiday flat had not been paid as agreed , the landlord was entitled to exercise a lien .

The application to the ORG against the refusal to prosecute ( ORG ) was at first sight also admissible in respect of the accusation of insulting behaviour , because the reported criminal act within the meaning of LAW also includes the offences of coercion and false imprisonment , which only ORG can prosecute ( PERSON ) . As , however , there is insufficient cause to bring a prosecution for the offences which can be prosecuted only officially , the third sentence of Article CARDINAL § CARDINAL of LAW again operates to bar ( Sperrwirkung ) the present proceedings to challenge the refusal to prosecute in respect of the alleged insulting behaviour , an offence that can be prosecuted privately ( PERSON ) , so that the ORG is unable to consider the merits of the related accusation . ”

On DATE the applicant lodged a constitutional complaint ( ORG ) with ORG ( Bundesverfassungsgericht ) alleging a violation of his fundamental rights .

On DATE ORG , sitting with CARDINAL members , declined to accept the complaint for adjudication .

The relevant provisions of LAW read as follows :

“ To the extent that they are necessary for the conduct of a criminal investigation or for the purposes of the criminal identification department , a suspect ’s photographs and fingerprints may be taken even against his will , his measurements may be recorded and other similar measures taken . ”

“ CARDINAL . A suspect ’s detention pending investigation may be ordered where it is strongly suspected that he has committed an offence and a ground for his detention exists . Detention shall not be ordered if it is disproportionate to the seriousness of the case and to the likely sentence or rehabilitative or security measure .

A ground for detention exists where , on the basis of definite facts :

( CARDINAL ) it is established that the suspect is on the run or in hiding ;

( CARDINAL ) the suspect ’s behaviour gives rise to a strong suspicion that he will

( a ) destroy , alter , dispose of , suppress , or falsify evidence ; or

( b ) improperly influence other suspects , witnesses or experts ; or

( c ) incite third parties to do so ;

and where as a result there is a danger that the discovery of the truth will be impeded ( risk of suppression of evidence ) .

“ CARDINAL . Anyone may provisionally arrest without a judicial warrant a person caught in the act of committing an offence or being pursued after committing one , if there is reason to believe that he is absconding or if his identity can not be immediately established . Identity checks by the public prosecutor ’s office or the police shall be carried out in accordance with LAW b LAW .

Members of the public prosecutor ’s office and police officers shall have authority to effect a provisional arrest in cases where there is imminent danger , provided that the conditions for the issue of an arrest warrant or warrant of commitment are satisfied .

“ CARDINAL . If not released , an arrested person must immediately DATE and in any event no later than the day after his arrest DATE be brought before a judge of ORG ( ORG ) in whose area he was arrested …

“ The police and the public prosecutor ’s office may take such measures as are necessary to establish the identity of a person suspected of an offence … They may arrest him if his identity can not be otherwise established or can only be established with great difficulty . On the conditions laid down in the second sentence , the suspect may be searched , articles in his possession examined and measures taken to enable him to be identified . ”

“ CARDINAL . A person affected by a measure provided for in LAW shall under no circumstances be detained for longer than is necessary for his identity to be checked . A person so detained must immediately be brought before a judge of ORG in whose area he was arrested for it to be decided whether the deprivation of liberty is lawful and whether it should be continued , unless it would foreseeably take longer to obtain a judicial decision than to check his identity .

Deprivation of liberty for the purpose of checking identity shall not exceed a total of TIME . ”

LAW , sub - paragraph CARDINAL , of the Rhineland - Palatinate Police Administration Act ( Rheinland - Pfälzisches Polizeiverwaltungsgesetz ) provides :

“ The police may take measures to establish or record identity where … such measures are necessary for the prevention of criminal offences because the person concerned is suspected of having committed a punishable offence and the nature of the offence and the manner in which it was committed are such that there is a danger that it may be repeated . ”

Article QUANTITY § CARDINAL and CARDINAL of the Code of Criminal Procedure provide :

“ CARDINAL . Seizure can only be ordered by a judge or , in cases where there is imminent danger , by the public prosecutor or a police officer …

An official who seizes goods without a judicial warrant must , within DATE , seek retrospective authority for the seizure from a judge if the seizure was carried out in the absence of the person concerned or a close adult relative , or if the person concerned or ( in his absence ) a close adult relative expressly objected to it . The person concerned may at any time apply to a judge for a decision …

Under LAW ( CARDINAL ) of LAW to LAW ( Einführungsgesetz zum Gerichtsverfassungsgesetz ) ,

“ The lawfulness of orders , injunctions or other measures issued by the judicial authorities in order to settle specific matters in the field of civil law ( bürgerliches ORG ) ... and the administration of criminal justice ( ORG ) , shall , upon application , be determined by the ordinary courts ... ”


Preliminary objections dismissed (non-exhaustion of domestic remedies, victim);Violation of Art. 5-1;Violation of Art. 5-3;Violations of Art. 5-4;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is currently serving a prison sentence in the penitentiary institution FGU IK-CARDINAL , situated in the ORG township of FAC .

At the time of the events described below the applicant was CARDINAL of the leading executives of GPE , a large oil company . On DATE a public prosecutor opened an investigation on suspicion of fraud committed in the course of the privatisation of a ORG - owned company in DATE by a group of top managers of ORG and affiliated companies . In DATE some of them were arrested and charged , including PERSON , the former head of GPE ; others , in fear of prosecution , left GPE .

On DATE the applicant was admitted to a hospital in connection with his chronic diseases . On DATE , while in the hospital , the applicant was arrested by the prosecuting authorities as a suspect in the above criminal case . He was taken from there to a pre - trial detention centre .

On DATE the prosecution charged the applicant and CARDINAL other persons with fraud and non - compliance with a court order . The prosecution asserted that in DATE the applicant had deceived the ORG : he had bought a stake in a large mining company at a privatisation tender , but had not made a return investment in the company even though that was an obligation for the winning bidder . Furthermore , the applicant had later disobeyed a judgment ordering him to return the stake in the company to the ORG .

The applicant ’s lawyers objected to the arrest and maintained that the applicant ’s detention was incompatible with his state of health . On DATE , DATE , the prosecution requested ORG of GPE to remand the applicant in custody .

The detention hearing was supposed to start on DATE at TIME The applicant asked the court to adjourn the hearing in order to allow his lawyers to participate in it . The court dismissed this request on the ground that the lawyers had been properly informed about the detention hearing TIME before but had failed to appear . The court decided to hear the detention request in private .

According to the applicant ’s lawyers , they learned about the time of the detention hearing TIME before it began . When they arrived at the courthouse they could not participate in the hearing because the judge had locked the room and refused to open it .

Having heard the applicant and the prosecution , the court decided to detain the applicant . The court decision did not specify the period of detention . With regard to the absence of the lawyers from the hearing , the court noted as follows :

“ The court finds unfounded and can not accept [ the applicant ’s ] motion to adjourn [ the decision ] until [ his lawyers ] may take part in the proceedings . The documents submitted by the investigating authorities prove that [ the lawyers ] were informed about the time and place of the hearing in advance , namely at TIME on DATE [ they ] were informed that at TIME on DATE [ ORG ] would examine [ the investigating officer ’s request for a detention order ] . In reality , the hearing ... began at CARDINAL p.m. on DATE , but [ the lawyers ] have still not arrived , nor have they presented valid reasons for their absence ... ”

The defence appealed against the detention order , but on DATE ORG upheld it . The applicant ’s lawyers were present at the appeal court hearing ; the applicant was absent . In the hearing the prosecution submitted additional evidence in favour of the applicant ’s detention . The appeal court gave the following reasons for its decision :

“ [ The prosecution has submitted ] evidence that [ the applicant ] has CARDINAL travel passports , that most of [ his ] money has been [ converted into ] foreign currency and is deposited in foreign ... bank accounts , that he has real estate abroad , and that his main business is located outside GPE . In the hearing [ the applicant ’s ] lawyers did not contest this evidence . [ This evidence ] , together with the fact that [ the applicant ] heads several commercial banks and maintains international links , supports the [ first - instance ] court ’s conclusion that [ the applicant ] , if he remains at large , may abscond from the investigation and trial , influence ... witnesses , destroy evidence , and otherwise obstruct the proceedings .... ”

Furthermore , the court of appeal found that the applicant ’s lawyers had been properly informed about the time of the hearing in ORG but failed to appear in time . The court noted that the applicant ’s lawyers had been notified about the hearing in the General Prosecutor ’s office situated a short distance away from the building of ORG . The defence lawyers had had TIME to get there , but had failed to appear in time . Consequently , the judge had had every reason not to let them in “ because when they arrived at the court the hearing had already started and it was closed to those who were not participating in it ” .

On DATE the investigation ended . On CARDINAL DATE the applicant and his lawyers began to study the prosecution files .

NORP The prosecution requested ORG to extend the applicant ’s detention CARDINAL times to let him study the prosecution files . On DATE the court extended the detention until DATE . The defence lodged an appeal against this decision which was dismissed on DATE by ORG .

On DATE the court extended the detention until DATE . An appeal by the defence against this detention order was dismissed on DATE by ORG .

On DATE the court extended the detention until DATE . The court repeated the reasons for detention , formulated in the detention order of DATE . The hearing of DATE was held in private .

On DATE the applicant ’s lawyer , and on DATE the applicant himself , lodged summary appeals against the decision of CARDINAL DATE . According to the ORG the record of the hearing of DATE was signed on CARDINAL DATE . However , it was not until DATE that the applicant ’s lawyers obtained it from the registry . The applicant asserted that the record was deposited with the registry of ORG DATE after the hearing . According to the Government , on DATE the court received comments on the record of the hearing from the applicant ’s lawyer ; on DATE it dismissed those comments , confirming the accuracy of the hearing record . On DATE the applicant ’s lawyer , and on CARDINAL DATE the applicant himself , lodged reasoned appeals against the decision of CARDINAL DATE . The reasoned appeals reached the court on DATE . On DATE ORG upheld the decision of DATE .

After the applicant had finished studying the prosecution files , on DATE the prosecution submitted the case to ORG of GPE for trial .

On DATE ORG set a preliminary hearing for DATE and decided that meanwhile the applicant should stay in detention . No reasons were given for that decision . It appears that the applicant was absent from this hearing ; however , his lawyer was present .

On DATE the applicant ’s lawyer lodged , by post , an appeal against this decision arguing that the court had failed to hear the applicant and to cite any reasons for the detention .

On DATE the applicant ’s lawyer asked the court to release the applicant because no court decision had authorised his detention from DATE , when the detention had expired , to DATE , when the court had accepted the case for trial . On DATE , DATE , the court rejected this request because the prosecution had submitted the case for trial in time , and because from that moment the court had jurisdiction over the applicant ( перечисление за судом ) . The court also decided that the applicant should remain in detention during the trial . In support of that decision the court relied on the reasons stated in the detention orders of DATE . Both the applicant and his lawyers were present at the hearing of DATE .

On DATE ORG received the applicant ’s lawyer ’s appeal against the decision of DATE , sent by post ( see paragraph CARDINAL above ) . On DATE the court sent it to the prosecution for comment . On DATE the court received the memoranda from the prosecution and the civil plaintiffs . On CARDINAL DATE the memoranda were received by the defence . On an unspecified date the court set a hearing for DATE . On CARDINAL DATE the applicant ’s lawyer lodged an additional appeal . The court sent the additional appeal to the prosecution for comment . Having received the comments , the court set a hearing for DATE .

On DATE the ORG conducted a preliminary hearing into the criminal case of Mr PERSON and Mr GPE , the applicant ’s co - defendants . In the course of that hearing the court decided to join the applicant ’s case to his co - defendants’ cases , assigned the case for trial and confirmed that the applicant should remain in detention . The court also decided that the trial would be public . The applicant and his lawyers were absent from that hearing , whereas the prosecution was there .

On DATE ORG rejected the appeals against ORG decisions of CARDINAL and DATE . ORG confirmed the lawfulness of the applicant ’s detention DATE and DATE ; it also decided that the decisions of CARDINAL and DATE had been lawful .

On DATE ORG rejected the appeal against the decision of DATE . The applicant ’s lawyers participated in the appeal hearing , but the applicant was not there . ORG held that ORG decision extending the detention had been in conformity with the provisions of LAW and had been based on the material in the case file . Further , ORG obtained a medical certificate concerning PERSON PERSON from the prison doctor , who described the applicant ’s state of health as “ satisfactory ” . The court of appeal concluded that the applicant should remain in detention during the trial .

At the hearing on DATE the prosecutor asked the court to extend the applicant ’s detention on remand until DATE , since the previous detention order would expire on DATE . The defence objected but the court granted the motion and extended the applicant ’s detention on remand as requested . The reasons given by ORG in its decision of DATE repeated the reasons stated in the decision of DATE ( see paragraph CARDINAL above ) . On several occasions in DATE the applicant ’s detention was prolonged by ORG .

On DATE the ORG convicted the applicant and sentenced him to DATE imprisonment .

On DATE and CARDINAL DATE Mr PERSON , the applicant ’s lawyer , visited the applicant in prison . During the visit the applicant gave him notes concerning the trial . As PERSON was leaving , guards stopped him and confiscated the notes . Later the prosecution returned the notes .

On DATE PERSON , the applicant ’s other lawyer , was appointed to represent the applicant before the Court . On DATE she tried to visit the applicant in prison . However , the prison administration refused the visit because PERSON had no authority to represent the applicant before the domestic courts . In the following days PERSON was denied access to her client ; however , according to the register kept by the detention facility and produced by the Government , the applicant had meetings with his other lawyers . In particular , Mr PERSON visited him on DATE , CARDINAL and DATE , and CARDINAL to DATE . On DATE Ms PERSON received the appropriate authority and was allowed to visit the applicant . Later she complained about those facts to ORG , but on DATE the court ruled that it did not have jurisdiction to examine this complaint . In aggregate , within the period under consideration , the applicant had CARDINAL meetings with PERSON .

Article CARDINAL part QUANTITY of GPE provides that detention should be authorised by a court order . Detention without a court order is permitted only for TIME .

The Code of Criminal Procedure of DATE provides :

“ CARDINAL . Pre - trial detention as a measure of restraint shall be applied by a court only where it is impossible to apply a different , less severe , precautionary measure ...

When the need arises to apply detention as a measure of restraint ... the investigating officer should request the court accordingly ...

[ The request ] should be examined by a single judge of a district court ... with the participation of the suspect or the accused , the public prosecutor and the defender , if CARDINAL takes part in the proceedings . [ The request should be examined ] at the place of the preliminary investigation , or of the detention , within TIME of the receipt of the [ request ] to the court .... The non - justified absence of the parties , who were notified about the time of the hearing in good time , should not prevent [ the court ] from considering the request [ for detention ] , except for the cases of absence of the accused person .

Having examined the request [ for detention ] , the judge should take CARDINAL of the following decisions :

CARDINAL ) NORP to apply pre - trial detention as a measure of restraint in respect of the accused ;

CARDINAL ) NORP to dismiss the request [ for detention ] ;

CARDINAL ) NORP to adjourn the examination of the request for TIME so that the requesting party can produce additional evidence in support of the request . ”

“ CARDINAL . A period of detention during the investigation of criminal offences may not last longer than DATE .

NORP If it is impossible to complete the preliminary investigation within DATE and if there are no grounds for modification or cancellation of the preventive measure this time - limit may be extended by DATE by a judge of a district or garrison court of the relevant level according to the procedure provided in LAW . A further extension of this term DATE may be effected in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case , and provided there are grounds for application of this preventive measure , by a judge of the same court upon application of the investigator , filed with the consent of a prosecutor of a subject of GPE or a military prosecutor of equal status .

A term of detention may be extended beyond DATE and DATE only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [ a judge ] on application by an investigator filed with the consent of ORG or his deputy .

Further extension of the time - limit shall not be allowed . ... ”

“ CARDINAL . A preventive measure must be cancelled when it ceases to be necessary , or else changed into a stricter or CARDINAL if the grounds for application of a preventive measure ... change .

The cancellation or modification of a preventive measure should be effected by an order of the person carrying out the inquiry , the investigator , the prosecutor or the judge or by a court decision .

A preventive measure applied at the pre - trial stage by the prosecutor or by the investigator or the inquirer upon his written instructions may be cancelled or changed only with the prosecutor ’s approval . ”

“ Actions ( omissions ) and decisions of the agency conducting the inquiry , the inquirer , the investigator , the prosecutor and the court may be appealed against according to the procedure provided in the present Code by the participants in the criminal proceedings and by other persons to the extent that the procedural actions carried out and procedural decisions taken affect their interests . ”

“ CARDINAL . When a criminal case is submitted [ to the court ] , the judge must decide as follows : either

( i ) to forward the case to an [ appropriate ] jurisdiction ; or ,

( ii ) to hold a preliminary hearing ; or ,

( iii ) to hold a hearing .

The judge ’s decision shall take the form of a resolution ...

NORP The decision shall be taken within DATE of the submission of the case to the court . If the accused is detained , the judge must take the decision within DATE of the submission of the case to the court ... ”

“ Where a criminal case is submitted for trial , the judge must ascertain the following points in respect of each accused :

( i ) whether the court has jurisdiction to deal with the case ;

( ii ) NORP whether copies of the indictment have been served ;

( iii ) whether the measure of restraint should be lifted or changed ;

( iv ) whether the motions filed should be granted ... ”

“ CARDINAL . When there are no grounds to take CARDINAL of the decisions described in subparagraphs ( i ) or ( ii ) of the first paragraph of LAW , the judge should assign the case for trial ... In the resolution ... the judge should decide on the following matters :

( vi ) on the measure of restraint , except for the cases when detention on remand or house arrest are chosen ... ”

“ CARDINAL . During the trial the court may order , change , or lift a precautionary measure in respect of the accused .

NORP If the defendant has been detained before the trial , his detention may not exceed DATE from the moment the court receives the case for trial to the time when the court delivers the sentence , with exceptions provided by LAW .

The court [ ... ] may extend the accused ’s detention on remand . It is possible to extend detention only in respect of a defendant charged with serious crimes or especially serious crimes , and each time for a period of DATE ... ”

Article CARDINAL . NORP The hearing record

“ CARDINAL . During the hearing a record must be kept . ...

The hearing record must be made and signed by the presiding judge and the secretary of the court within DATE after the hearing . ... ”

Article CARDINAL . Setting the case down for the appeal hearing

“ CARDINAL . Having received the criminal case with the points of appeal ... , the judge must fix the date , time and venue of the [ appeal ] hearing .

The parties must be notified about the date , time and venue [ of the appeal hearing ] DATE before it . The court shall decide whether the convicted detainee should be summoned to the hearing .

A convicted detainee who has expressed a wish to be present [ at the appeal hearing ] shall have the right to be present personally or to submit his arguments by video link . The court shall decide in what form the participation of the convicted person in the hearing is to be secured . ... ”

On DATE ORG of GPE adopted Ruling no . CARDINAL on the complaint lodged by a group of individuals , including the applicant . They complained about the de facto extension of their detention after their case files had been sent by the prosecution authorities to the respective trial courts . The ORG found that the provisions of the LAW challenged by the applicant and other claimants complied with LAW . However , their practical interpretation by the courts might have contradicted their constitutional meaning . In part CARDINAL . of ORG held :

“ The second part of LAW provides that ... detention is permitted only on the basis of a court order ... Consequently , if the term of detention , as defined in the court order , expires , the court must decide on the extension of the detention , otherwise the accused person must be released ...

These rules are common for all stages of criminal proceedings , and also cover the transition from CARDINAL stage to another . ... The transition of the case to another stage does not automatically put an end to the measure of restraint applied at previous stages .

Therefore , when the case is transmitted by the prosecution to the trial court , the measure of restraint applied at the pre - trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [ imposing it ] ...

[ Under Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ] a judge , after having received the criminal case concerning a detained defendant , should , within DATE , set a hearing and establish “ whether the measure of restraint applied should be lifted or changed ” . This wording implies that the decision to detain the accused or extend his detention , taken at the pre - trial stage , may stand after the completion of the pre - trial investigation and transmittal of the case to the court , only until the end of the term for which the measure of restraint has been set .

The prosecution , in its turn , when approving the bill of indictment and transferring the case file to the court , should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [ on further detention of the accused pending trial ] . If by the time of transfer of the case file to the court this term has expired , or if it appears to be insufficient to allow the judge to take a decision [ on detention ] , the prosecutor , applying Articles CARDINAL and CARDINAL of LAW , [ must ] ask the court to extend the period of detention . ”

“ Since deprivation of liberty ... is permissible only pursuant to a court decision , taken at a hearing ... under the condition that a detainee has been provided an opportunity to submit his arguments to the court , the prohibition on issuing a detention order ... without a hearing should apply to all court decisions , whether they concern the initial imposition of this measure of restraint , or its confirmation . ”

“ LAW regulating the presence of a defendant remanded in custody before the appeal court ... can not be read as depriving the defendant held in custody ... of the right to express his opinion to the appeal court , by way of his personal attendance at the hearing or by other lawful means , on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms ... ”

Article CARDINAL § § CARDINAL and CARDINAL of LAW of DATE provide that the time spent by the accused person in pre - trial detention and detention pending trial is included in the duration of the deprivation of liberty pursuant to the conviction .


The applicants , Mr PERSON and Mr PERSON , are NORP nationals and live in GPE and NORP ( GPE ) . The first applicant is represented before the ORG by Mr G. Abela , a lawyer practising in GPE , while the second applicant is represented by Mr T. Abela and Mrs T. Cachia , CARDINAL lawyers practising respectively in ORG and GPE .

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

The applicants were CARDINAL judges of ORG . They had been suspected , inter alia , of having accepted a sum of money in order to neglect their duties as public officials .

On DATE , while the applicants were being interrogated by the police , the Prime Minister of GPE called a press conference at his office and issued a press release in LANGUAGE . The translation into LANGUAGE of this document read as follows :

“ I have convened ORG on a matter of importance which I feel that the public should be informed of officially .

The courts of our land have always enjoyed , and still do , the trust of our people .

I regret that I have to inform the public that DATE CARDINAL judges are being investigated by the police in connection with serious offences .

On DATE , judgment was delivered by ORG presided over by Chief Justice PERSON , Judge PERSON and Judge PERSON , in the case of “ GPE vs. PERSON ” .

Before ORG , the accused was found guilty , after he had filed a guilty plea , of offences regarding drug trafficking and other related offences , and was condemned to DATE imprisonment .

DATE before the judgment of ORG , it became known that contacts were being made on behalf of the accused with Judge PERSON and the Chief Justice so that the prison term to which he had been condemned be reduced by DATE , from DATE , and that these CARDINAL judges were promised amounts of CARDINAL of PERSON each .

Judgment was given as allegedly had been agreed .

The Police continued to follow subsequent events . After the judgment it resulted that monies were paid to the said CARDINAL judges .

The investigations together with interrogations of witnesses began after Judge PERSON returned from abroad on DATE .

The investigations are continuing DATE as the CARDINAL judges were separately asked to go to the Commissioner of Police .

On the ORG 's side , I want to assure everyone that this case will continue to be investigated to the end and that steps will be taken according to law .

TIME I informed the President of GPE about this all . Afterwards I also informed the Leader of the Opposition . We agreed that the matter is of national importance and that in no way should it be treated as a matter of partisan politics . I thank the Leader of the Opposition for this who like me understands the seriousness of the situation .

Afterwards I called a ORG meeting and it was decided to call ORG .

I appeal to the public to wait for the results of the investigations according to law and to consider that what is happening is a confirmation that the institutions of our land apply to everyone . Therefore , the public must still maintain its whole trust in them ” .

During the press conference , the Prime Minister was accompanied by his assistant , by the Minister of ORG and by the Minister of ORG . The press conference was shown live on the national television and several articles about it were published in the national newspapers .

On DATE the applicants were charged before ORG as a ORG .

Considering that the press conference and the publicity given to it had prejudiced their rights to a fair trial and to the presumption of innocence ( LAW and CARDINAL of the Convention and Article CARDINAL § § CARDINAL and CARDINAL of the LAW of GPE ) , at the first hearing before ORG , the applicants requested that the criminal proceedings be stayed and that their complaint be brought before ORG ( FAC ) in its constitutional jurisdiction .

In an order of CARDINAL DATE ORG considered that the applicants ' claim was not frivolous or vexatious as far as it concerned the press conference and referred the case to ORG . ORG rejected the applicants ' allegations regarding the alleged prejudice suffered because of the publicity given to the statements of the Prime Minister .

Before ORG , the applicants produced several newspaper articles which allegedly treated them as guilty . They also referred to a motion for their removal from duty which was pending before ORG . They alleged that , as there had been a breach of the presumption of innocence , no fair hearing was possible in their case .

In a judgment of DATE ORG held that the declarations made in the press conference could not be considered as statements of guilt and therefore declared that the applicants ' fundamental rights had not been breached . ORG directed ORG to continue the criminal proceedings instituted before it .

ORG first observed that the facts of the case were extraordinary and rather unique for GPE and that it was justified for the Prime Minister to call the press conference in order to inform the public and to avoid an institutional crisis . After having explained the background of the case , the Prime Minister gave assurances that the matter would have to be investigated according to law and requested the public to await the results of these investigations . Answering questions from the media , he reiterated that no conclusion could be drawn at that stage of the proceedings and that the applicants , like any other person , should enjoy the rights set forth in the law . In ORG opinion , these statements were not clear indications of guilt . The terms employed were those which were generally used on occasions in which reference was made to an ongoing investigation and to the results achieved by the police .

ORG recalled that according to the case - law of ORG , the presumption of innocence could not prevent the authorities from informing the public about the investigations in criminal matters .

The applicants appealed to ORG against the judgment of DATE .

In a judgment of DATE the ORG revoked the impugned decision and declared that there had been a violation of the applicants ' rights to a fair trial and to be presumed innocent . It further ordered that a copy of its judgment be placed in the records of the criminal proceedings pending against the applicants .

ORG noted that ORG should have addressed also the applicants ' complaint concerning the alleged lack of objective impartiality of the tribunal called upon to decide their case . However , this claim was unfounded , as even assuming that the presumption of innocence had been violated , this would not imply that the criminal proceedings could not be determined by an objectively independent and impartial court . The domestic legal system provided effective safeguards and guarantees in this respect .

ORG further observed that the authorities should impart information about pending criminal cases with the necessary caution and circumspection and that it could not be held that this requirement was satisfied simply because some reservations as to the need to await the result of the trial had been made . According to the case - law of ORG , the presumption of innocence was violated if a statement of a public official concerning a person charged with a criminal offence reflected an opinion that he was guilty before he had been proved so according to law . Even in the absence of a formal finding , it was sufficient that there was some reasoning suggesting that the official regarded the accused as guilty . The choice of words by the public official was of paramount importance but the existence of a breach of LAW had to be determined in the context of the particular circumstances in which the impugned statement had been made .

In the present case , the Prime Minister had used the words “ it became known ” and “ it resulted ” , which were incompatible with the required caution . It was , in fact , a clear declaration that the facts of which the applicants were accused had actually taken place , thus suggesting that the Prime Minister was considering the applicants guilty . This also resulted from some extracts of the press articles produced by the applicants , which showed that the reservations made at the end of the press conference did not have much effect on public opinion , which was de facto encouraged to believe that the accused had committed a criminal offence .

As the presumption of innocence was one of the elements of a fair criminal trial , the violation of paragraph CARDINAL of Article CARDINAL of the ORG also and necessarily entailed a breach of the first paragraph of this provision and of LAW .

In the light of its finding that there was no lack of objective impartiality on the part of the national tribunals , ORG considered that there was no room for ordering the suspension of the criminal proceedings against the applicants . However , it held that in order to provide a remedy for the violations found , and also with the ultimate aim of providing scrupulously and applying all safeguards contemplated and contained in LAW , its judgment should be brought to the attention of the court which would eventually be called upon to determine the criminal proceedings initiated against the applicants .

On DATE the applicants requested ORG to suspend the trial pending a decision from ORG .

In an order of DATE ORG rejected the applicants ' claim and decided to continue with the collection of evidence . It observed that considerations of public order militated against the requests of the defence and that in its judgment of CARDINAL DATE ORG had explicitly excluded the need to stop the criminal proceedings against the applicants .


Preliminary objection allowed (non-exhaustion of domestic remedies)

Mr PERSON lives in GPE . He is professor of the law of civil procedure in ORG .

ORG In DATE the head of ORG ( PERSON the ORG " ) , a public - law entity ( nomiko prosopo dimosiou dikeou ) with all the immunities and other privileges of the ORG , instructed the applicant - orally and saying that he was " acting on behalf of the ORG " - to draw up CARDINAL expert reports on proceedings brought against the ORG by Mr PERSON and Mr PERSON ; it was agreed that PERSON would be paid MONEY ( GRD ) for the CARDINAL reports . Mr PERSON , an engineer , had brought CARDINAL actions for damages against the ORG , which he accused of having badly defended his interests in an action to recover fees . Mr PERSON , a lawyer with a long - term contract with the ORG , had brought proceedings against it to challenge the termination of that contract .

Mr PERSON submitted the CARDINAL reports to the head of ORG on DATE . However , the agreed fees were not paid to him . According to the applicant , the relevant member ( paredros ) of ORG ( PERSON ) responsible for scrutinising the ORG ’s expenditure before payments were made orally opposed the payment on the ground that the reports could have been produced by ORG and that the expenditure was therefore not lawful .

ORG On DATE the ORG ’s ORG requested a working party of CARDINAL experts - including the applicant - to ( a ) draft a bill designed to amend the rules providing for the ORG ’s subrogation to ORG rights in their actions to recover fees , in the light of ORG Rights’ judgment on the matter ; ( b ) prepare a bill amending the provisions on the functioning of ORG ; ( c ) study the actions brought by Mr PERSON , in order to assist ORG by means of an expert opinion ; ( d ) express an opinion on the prospects of success of the appeals pending in the case brought against the ORG by PERSON ; and ( e ) give any other advice likely to facilitate the TEE ’s work . It was expressly stated in ORG decision that the working party ’s tasks were to be " carried out jointly and with the cooperation " of all its members .

The working party was to submit its report by DATE . The remuneration was to be LAW , which was to be paid to the members of the working party after submission of the report , by a decision of ORG and according to the work each had done . It was also stipulated that if the report was submitted late , the agreement would not be valid and the members of the working party would forgo any action against the ORG to recover fees .

ORG On DATE CARDINAL members of the working party informed ORG that they had instructed PERSON to advise the ORG on the cases brought against it by Mr PERSON and Mr GPE . The applicant was to be paid LAW out of the total sum offered by the ORG . The other tasks would be carried out by the other members , who would share the remainder of the sum .

ORG On DATE the vice - president of the ORG acknowledged receipt of the CARDINAL expert reports submitted by the applicant on DATE ( see paragraph CARDINAL above ) .

ORG On DATE the ORG issued a warrant ( no . CARDINAL ) in favour of Mr Beis for payment of GRD CARDINAL,CARDINAL,CARDINAL as remuneration for his membership of the working party DATE and DATE .

However , on DATE an auditor ( epitropos ) from ORG - carrying out the prior scrutiny of the lawfulness of the expenditure to which the ORG is subject under Presidential Decree no . CARDINAL/CARDINAL - refused to authorise payment of that sum , taking the view that the expenditure was unlawful ( decision no . CARDINAL of DATE ) ; in his view , the report drawn up by the working party had been within the competence of ORG . The ORG argued that the expenditure was lawful and on DATE resubmitted the warrant for payment for approval by ORG auditor . The latter , however , persisted in his refusal and on DATE sent the case to ORG .

ORG On DATE , as a result of some procrastination on the ORG ’s part in paying him the agreed remuneration , the applicant made an ex parte application to a single judge of ORG ( Monomeles Protodikio ) for an order to pay ( diatagi pliromis ) . His application was granted on DATE . The order to pay ( no . CARDINAL ) was based on the following documents : the decision of the ORG ’s ORG of CARDINAL DATE , the acknowledgment of receipt of CARDINAL DATE and ORG approval of DATE for payment of the fees to the applicant .

On DATE Mr PERSON served the order to pay and the notice to comply on the ORG , but the latter made no payment . He served them again on DATE , after the time during which the ORG could have made an application to have the order set aside ( anakopi ) had expired ( see paragraph CARDINAL below ) .

On DATE ORG , to which the auditor had sent the case , ruled as follows ( decision no . DATE ) :

" In order that special problems of major importance arising in connection with the ORG ’s activities may be studied , special advisory committees or working parties may be set up , composed of technicians or researchers who are members of the ORG and experts from other fields ( lawyers etc . ) who are not members of it , on the basis of a decision by ORG ( or a regional section of the ORG ) for which due reasons must be given ( as to the advisability of establishing such a body , its objectives , etc . ) .

These special advisory committees or working parties may sometimes be asked to study and carry out a specific ` scientific project’ connected with the general activities and functioning of the ORG and not solely of the specialised standing scientific committees ( section CARDINAL of Law no . CARDINAL ) , provided that the statutory requirements are satisfied , even where such a project comes within the competence of the ORG ’s standing bodies .

These special committees or working parties may , therefore , be given powers to study and carry out a scientific project relating to problems of major importance which normally come within the competence of ORG under LAW no . CARDINAL/CARDINAL .

As part of their task , these special committees or working parties draw up their opinion after a preliminary meeting and exchange of views ... ; only a procedure of this kind makes it possible to clarify the issue being dealt with and to facilitate a thorough study of it by the relevant executive bodies of the ORG .

An opinion given merely by a single member of CARDINAL of these committees or working parties therefore does not fulfil the law ’s intention , even if that person acts under powers granted him by the other members , since in that eventuality the participation of those other members in the collegiate bodies would be pointless .

The remuneration which may be paid to the members of these special committees or working parties , as provided in section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL and in Article CARDINAL(d ) of the legislative decree of DATE ( ratified by PERSON no . CARDINAL/CARDINAL ) , is laid down by ORG . If the recipient is a civil servant or a salaried employee in the public sector ( ORG , public - law entities , etc . ) referred to in DATE ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL ... - a university professor , for example - this remuneration must not exceed the threshold laid down in LAW no . CARDINAL/CARDINAL , in other words PERCENT of the office - holder ’s usual total salary , as laid down in joint decision no . CARDINAL of the Prime Minister and Minister of Finance ... , adopted under section CARDINAL(CARDINAL ) of the aforementioned PERSON , which includes the basic salary , the length - of - service allowance , the study allowance , the family allowance , the corrective amount , the wage - indexation allowance and other allowances specific to certain categories of employee or civil servant .

The setting up of the working party to study ` jointly and in ORG the special issues mentioned in decision no . CARDINAL adopted by ORG at its CARDINALth meeting on DATE and to carry out the tasks set out in that decision must be regarded as lawful ... , regard being had to the capital importance of the issues in question for the functioning of the ORG and the inability of ORG , which had competence in this instance , to deal with the issues satisfactorily .

The carrying out of this project individually by PERSON , CARDINAL of the members of the working party , who drew up his opinions without any preparatory meeting being held or any exchange of views on the issues between the members of the working party , does not comply either with ORG decision no . CARDINAL DATE , whereby the members of the working party were instructed to carry out the whole project ` jointly’ , or with the provisions of LAW presidential decree of DATE and DATE .

The joint statement of CARDINAL DATE by CARDINAL of the members of the working party , whereby they entrusted the carrying out of part of the project to Professor PERSON , was made in contravention of the general principles of the functioning of collegiate administrative bodies , since there is nothing to show that all the ( CARDINAL ) members of the working party were invited to a joint meeting to take a decision ; furthermore , it contravenes the terms of implementation of the whole project laid down by ORG in decision no . DATE and the provisions of LAW of the presidential decree of DATE and DATE .

The expenditure which was the subject of the ORG ’s payment warrant was accordingly not lawful , by reason of , inter alia , the irregularities in the project ’s implementation .

In this connection , it is of little importance that it has not been proved in the instant case that the remuneration of a public servant for participation in a public - sector working party was within the limits laid down in section CARDINAL(CARDINAL ) of Law no . DATE . The payment warrant in issue must accordingly not be approved . "

ORG On DATE , when the judicial order to pay had become final by virtue of LAW ( see paragraph CARDINAL below ) , PERSON applied to ORG for attachment of a sum of GRD CARDINAL,CARDINAL,CARDINAL in the ORG ’s account at the bank ; the bank , however , did not react .

In the meantime , pursuant to the order to pay obtained ex parte , the ORG issued CARDINAL new payment warrants ( nos . CARDINAL and CARDINAL ) for a total of GRD CARDINAL,CARDINAL,CARDINAL . On DATE , however , the auditor in charge of the file at ORG refused to authorise payment on the ground that ORG was not bound by the fact that the judicial order to pay had become final after expiry of the time allowed for any application to have it set aside . Under ORG settled case - law ( see paragraph CARDINAL below ) , the effect of orders of this kind is indeed limited and does not correspond to that referred to in LAW para . CARDINAL of Presidential Decree no . CARDINAL on ORG ( see paragraph CARDINAL below ) . An ex parte order to pay therefore does not constitute a judicial act comparable to a final court decision .

ORG The relevant provisions of LAW are as follows :

" Under the special procedure set out in Articles CARDINAL of the Code of Civil Procedure , an order to pay may be sought in respect of a pecuniary claim or CARDINAL pertaining to securities if the debt and the amount owed are proved by an officially recorded document or a private one . "

" The justice of the peace shall be competent to issue an order to pay where the claim comes within the jurisdiction of his court . In all other cases a single judge of the court of first instance shall be competent . No hearing shall be held upon an application for an order to pay . "

" The judge shall rule on the application as soon as possible , without summoning the debtor to attend ... ; the judge shall , however , be entitled

( a ) to require the applicant to attend to give explanations answering his application ;

" CARDINAL . The judge shall dismiss the application

( a ) if the legal requirements for making an order to pay are not satisfied ;

" The judge shall grant the application in so far as it is , in his view , founded in law and in fact , and shall order the debtor to pay the sum due and legal costs ... "

" A judicial order to pay shall be enforceable . "

" A debtor against whom an order to pay has been issued may apply to have it set aside within DATE of service of the order . The application to set aside shall be made to the court having jurisdiction ratione materiae to hear the case . "

" CARDINAL . If an application to set aside has been properly made within the time prescribed by law and the reasons given for it are lawful and well - founded , the court shall set aside the order to pay ; otherwise it shall dismiss the application to set aside and confirm the order to pay .

If the application to set aside has not been made within the time prescribed by law , the party in favour of whom the order to pay has been made may again serve that order on the debtor , who shall again be entitled to apply to have it set aside within DATE ... If no application to set aside has been made within that time , the order to pay shall become final and may only be challenged by means of proceedings to reopen the case . "

ORG In a decision adopted at the tenth session of the full court on DATE ORG held :

" It follows from the [ aforementioned ] provisions ... that when verifying the lawfulness of expenditure , ORG also , if necessary , verifies the entitlement of the creditor of the ORG , local authority or other public - law entity . If the issue of entitlement has become res judicata ( within the meaning of Articles CARDINAL et seq . of ORG ) as a result of a judgment by a civil court , that judgment is binding on ORG .

It is clear that the estoppel per rem judicatam which thus prevents ORG reopening that issue derives from the fact that the civil court has examined the merits , in law and in fact , of the claim ...

If , further , it is taken into consideration that by LAW para . CARDINAL ( b ) of LAW , an order to pay does not create an estoppel per rem judicatam but merely ‘ becomes final’ , it may be asserted that the effect of an ex parte order to pay , just like its limits in objective and subjective terms , is not identical with that of a court decision and of its functions and limits .

This is because an order to pay is not a court decision and , by Articles CARDINAL and CARDINAL para . CARDINAL ( b ) of LAW , is made , after the special procedure laid down in Articles CARDINAL et seq . of that Code , solely to provide an enforceable instrument .

The review undertaken when an application is made under ORG CARDINAL and CARDINAL of the Code of Civil Procedure to set aside an order to pay does not cover the right in issue but relates merely to the validity of the order to pay as an enforceable instrument .

In the light of the foregoing , accepting the contrary argument that the effect of an order to pay does not differ from that of a court decision or is not of limited scope is to call in question the constitutionality of the effect of an order to pay , as the latter is made without the debtor being summoned and without any adversarial hearing

It must therefore be considered that the effect of an order to pay is merely to deprive the defendant of his right to raise preliminary objections unreasonably , such an estoppel resembling ... the negative aspect of the estoppel per rem judicatam created by a court decision ( in that the objections may not be considered again ) .

Consequently , the effect of an order to pay does not extend to a finding as to the right in issue ( the positive aspect of res judicata ) ; that being so , ORG is not bound by such an order when it verifies the lawfulness of expenditure , the claim merely being made enforceable by such an order .

None of the foregoing deprives an order to pay of its enforceability , although naturally that does not prejudice the provisions on immunity from execution enjoyed under LAW no . ORG by ORG and , as a result of a broad construction of that statute , by local authorities and other public - law entities .

Acknowledgment and settlement of expenditure , like the orders to pay relating to it , presuppose that the right of the creditor of the ORG , local authority or other public - law entity has been proved by means of relevant documents , as it is not sufficient to rely on a claim whose enforceability derives from a judicial order to pay , even if that order has become final .

It must accordingly be accepted that when verifying the lawfulness of expenditure , ORG is not bound by the limited effect of the order to pay ... , as that effect does not have the characteristics of the binding force referred to in paragraph CARDINAL of LAW no . DATE on ORG .

It follows that the right conferred by the effect of the order to pay on the person who is claiming to be entitled to the amount of the expenditure does not ipso facto make that expenditure lawful and that ORG is under an obligation to verify the lawfulness of that expenditure in all its aspects . "

Section CARDINAL of Law no . ORG provides :

" Enforcement of judicial decisions ( of civil or criminal courts , ORG and ORG ) whereby the ORG is ordered to pay a debt or legal costs shall be prohibited , as shall be that of any authority to execute to the effect that the ORG must pay such a debt .

Service of a demand for payment of such debts shall be prohibited and if it is effected nonetheless , such service shall in no way bind the ORG . "

ORG The courts have accepted that the statutory provisions whereby a public - law entity enjoys the same rights as the ORG in judicial matters ( Court of Cassation , judgment no . CARDINAL/CARDINAL , " ORG " no . CARDINAL , p. CARDINAL ) or " enjoys , in general , on the same footing as the ORG , all the judicial , administrative , financial or other immunities and rights of the ORG " ( decision no . CARDINAL of ORG , " Greek Lawyers’ Review " no . CARDINAL , p. CARDINAL ) have the consequence that the provisions of section CARDINAL of PERSON no . ORG apply to an entity of that kind .

ORG has ruled ( in judgment no . CARDINAL ) that section CARDINAL of PERSON no . ORG is consistent with LAW and LAW in these terms :

" The privilege of immunity from execution enjoyed by ORG ( ‘ the OSE’ ) is not contrary to Article CARDINAL para . CARDINAL of the LAW , relating to the equality of citizens before the law , as that provision excludes only the creation by the legislature of privileged positions with regard to certain persons ; it does not , however , preclude the legislature from making special rules ... where they are necessary in the interests of society or the public . Such reasons exist here because the preferential treatment given to the ORG is justified by the vital social objective the ORG pursues , namely the provision of rail transport ; it follows that the ORG has a direct interest in ensuring that the ORG operates without hindrance . Nor is this privilege contrary to LAW guaranteeing ORG rights to legal protection by the courts ... Furthermore , extension to the ORG of the privilege of immunity from execution enjoyed by the ORG is not contrary either to LAW ( PCARDINAL - CARDINAL ) of CARDINAL DATE ... or , lastly , to Article CARDINAL para . CARDINAL ( article CARDINAL ) of LAW of CARDINAL DATE ... , as those ORG ( PCARDINAL - CARDINAL , article DATE ) regulate other matters and not questions such as the present one , with which they are quite unconnected . "

As to the ORG , LAW of the presidential decree of DATE and DATE on the establishment of the ORG provides :

" The ORG shall correspond independently and enjoy all the privileges and immunities of the ORG , taking precedence immediately after ORG . "

ORG The relevant Articles of LAW provide :

" CARDINAL . Within DATE of service of the notice of the garnishee order , the garnishee shall be required to declare whether the attached debt exists , whether the attached asset is in his possession and whether the asset is subject to another garnishee order emanating from someone else and , if so , for what sum .

The declaration referred to in paragraph CARDINAL shall be made orally to the clerk to the justice of the peace for the declarant ’s place of residence , who shall make a record of it .

Failure to make a declaration shall be tantamount to a negative declaration . Failure to make a declaration or the making of an inaccurate CARDINAL shall render the garnishee liable in damages to the creditor . "

" Within DATE of the making of the declaration referred to in Article CARDINAL , the creditor shall be entitled to have the declaration set aside by the court ... An application for compensation under Article CARDINAL para . CARDINAL may be made at the same time . "

ORG In judgment no . CARDINAL/CARDINAL ORG , sitting as a full court , held that NORP banks were prohibited by their confidentiality obligations from supplying information about bank accounts even where the account - holder had consented to disclosure . The existence of that prohibition - failure to comply with which was a criminal offence - meant that a bank ’s failure to make the declaration referred to in LAW was not tantamount to a negative declaration within the meaning of that Article and could not be made the subject of an application to set aside under LAW . Thus the law indirectly prohibited attachments of assets in the hands of NORP banks , but that did not impair the legal protection afforded by court decisions or judicial orders to pay obtained ex parte . That conclusion was also confirmed by the fact that the legislature had not added to the rules on bankers’ confidentiality obligations a provision expressly permitting such attachments ( PERSON , vol . CARDINAL , DATE , pp . CARDINAL - CARDINAL ) .

ORG LAW no . CARDINAL/CARDINAL provides :

" There shall be set up within ORG with the following duties : ( a ) to be responsible for the conduct of litigation and proceedings to which the ORG is a party and the protection of the ORG ’s legal and non - legal interests before all judicial or administrative authorities ... ; ( b ) to assist the ORG ’s organs and departments by giving opinions on legal questions submitted to it ; ( c ) to produce the drafts of bills , decrees , etc . , suggested by the ORG ; and ( d ) to draw up contracts of all types between the ORG and third parties . "

In addition , by LAW of DATE and DATE establishing the ORG :

" ... If necessary , special committees shall be set up to consider specific problems or working parties to implement a specific scientific project ; in addition to [ members of the ORG ] , specialists in other fields who are not members of the ORG may also sit on these ... "

The ORG ’s expenditure is dealt with in the single LAW no . CARDINAL/CARDINAL , which provides :

" The following public - law entities shall not incur expenditure without prior authorisation from ORG : ... ( CARDINAL ) ORG ( TEE ) ... "

ORG LAW provides :

" CARDINAL . ORG shall be competent , in particular ,

( a ) to scrutinise expenditure by the ORG , local authorities or other public - law entities made subject to its control by special laws ...

The powers of ORG shall be determined and exercised in accordance with the law ...

The judgments of ORG in the cases referred to in paragraph CARDINAL shall not be subject to review by ORG . "

ORG LAW no . CARDINAL/CARDINAL on ORG provides :

" CARDINAL . ORG

( a ) ...

( b ) shall , under LAW , scrutinise the expenditure of the ORG and local authorities and other public - law entities made subject to this control by special laws , in order to verify that each item of expenditure is charged to an appropriation authorised by law and that it has been incurred in accordance with the provisions of LAW and the other relevant statutes or regulations .

In the exercise of its powers of review , ORG may , if necessary , examine any ancillary issue that arises , subject to the provisions on res judicata .

ORG shall not have jurisdiction to review the appropriateness of administrative acts .

The procedure for prior scrutiny of expenditure ( before payment ) is set out in LAW , which provides :

" CARDINAL . If the scrutiny carried out shows that the requirements of paragraph CARDINAL ( b ) of LAW are , in respect of a given item of expenditure , wholly or partly unsatisfied , the competent member or auditor shall , in a reasoned decision , refuse to approve the payment warrant issued by the authority concerned and shall return the warrant with a copy of his decision to that authority .

If the payment warrant is resubmitted to him , the relevant member or auditor may either approve it - if the impediments to approval have in the meantime be removed - or send it with his report to the appropriate division of ORG , which shall rule ...

The appropriate division of ORG ... may , on account of the major importance or public interest of the question raised , refer the case to the full court of ORG ...

If the payment warrant has not been approved , the appropriate Minister may seek the requisite approval from ORG on his own responsibility ...

If the warrant is approved on the Minister ’s responsibility , ORG at ORG shall file a report with ORG , the ORG and ORG stating why payment has not been approved . If ORG ... does not ratify the warrant thus approved , ORG , sitting as a full court , shall order that the Minister concerned shall be liable for the amount stipulated in the warrant .