Remainder inadmissible;Violations of Art. 6-1;Violations of Art. 13;Violation of Art. 8;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the applicant , a member of the board of a wound - up company ( “ V. ” ) , was detained on suspicion of involvement in offences of aggravated fraud , debtor dishonesty and false book - keeping , allegedly committed in DATE , before the winding up of ORG

The criminal proceedings against his CARDINAL co - defendants began on DATE before the Salo ORG ( käräjäoikeus , tingsrätten ) . The charges were served on the applicant on DATE and DATE , respectively , and the trial against him apparently began on DATE .

On DATE the ORG gave its judgment . It convicted the applicant of aggravated fraud . The court found that the “ reasonable time ” requirement laid down in the LAW and the LAW had not been respected and that the applicant was therefore entitled to redress . The court considered that the redress had to be significant and , having regard to the exceptionally lengthy nature of the proceedings , it should also be substantial . The applicant had not contributed to the length of the proceedings . The court stated that it would reduce the applicant ’s sentence by CARDINAL , owing to the breach of the “ reasonable time ” requirement . It sentenced the applicant to CARDINAL months’ imprisonment .

The applicant and his co - defendants appealed to ORG ( hovioikeus , hovrätten ) .

One of the applicant ’s co - defendants requested that ORG terminate the proceedings immediately in his respect and dismiss all charges against him . He based his request on ORG judgment of CARDINAL DATE in the case PERSON v. GPE ( application no . CARDINAL ) , in which the ORG found a violation of LAW due to the excessive length of proceedings .

On DATE ORG rejected this request . The court found that ORG had not requested in its judgment that the proceedings be terminated .

On DATE ORG gave its judgment . It found that , taking into account the applicant ’s previous conviction , the applicant should have been sentenced to imprisonment of DATE . However , due to the excessive length , this sentence should be mitigated and the redress had to be more significant than that granted by ORG . ORG mitigated the applicant ’s sentence by CARDINAL owing to the breach of the “ reasonable time ” requirement and sentenced him to CARDINAL months’ imprisonment .

The applicant and his co - defendants appealed to ORG ( korkein oikeus , högsta domstolen ) .

On DATE ORG refused leave to appeal .

On DATE the bankruptcy estate of ORG lodged claims for damages against the applicant and CARDINAL other persons with ORG .

The court informed the applicant CARDINAL times , the first being on DATE , that the case had been adjourned in anticipation of the outcome of the criminal proceedings pending before ORG ( see above ) , which was based on the same facts as the civil proceedings . On DATE and DATE it issued decisions to the same effect .

The applicant objected and requested that the civil proceedings be continued . He also requested that the claims be dismissed because the length of the proceedings had already exceeded a reasonable time . On DATE the court rejected his request . It stated that the length of the proceedings was due to the need to await the outcome of the pending criminal proceedings , and adjourned the case .

The applicant complained to ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) . On DATE the Deputy Parliamentary Ombudsman found that the domestic legislation did not provide a possibility for the NORP courts to dismiss civil claims because of the length of proceedings . The applicable domestic law and practice were unsatisfactory , also in the light of LAW . However , as the instant case was pending before the domestic court and ORG , he could not rule on the complaint .

On DATE the applicant renewed his request to ORG that the claims be dismissed , arguing that during the pre - trial investigation the plaintiff ’s ( ORG ’s ) lawyer had seen and read legally privileged documents which could not be used as evidence against him . He also maintained that the proceedings had exceeded a reasonable time .

NORP The plaintiff objected . It gave an assurance that it would not use any privileged information in the forthcoming trial . It further stated that the appellate court would deliver its judgment in the criminal proceedings in DATE or DATE . If the first - instance court ’s judgment were upheld , there would be no grounds for continuing the civil proceedings against the applicant .

On DATE ORG rejected the applicant ’s request . It noted the plaintiff ’s submission that no prohibited privileged material would be used in the trial . Furthermore , the criminal proceedings were the main proceedings and consequently , in order to avoid unnecessary trial costs , the civil proceedings should only be resumed once the criminal proceedings had come to an end .

By a letter of DATE , the plaintiff in the civil proceedings withdrew its action . The case was expected to be pending for DATE more as ORG needed to decide on the costs and expenses .

On DATE ORG ( keskusrikospoliisi , centralkriminalpolisen , “ the police ” ) conducted a search of a storage facility , situated in GPE and rented by Mr O. The search was based on the suspicion that the applicant had not declared all his assets in debt recovery proceedings . The police seized a large number of documents belonging to some private persons , including , inter alia , correspondence between the applicant and his NORP lawyer , C.

NORP The applicant requested ORG to annul the seizure on grounds of its unlawfulness , since the documents seized contained privileged information between him and his lawyer . On DATE the court upheld the seizure . It found that the material seized contained documents which were protected by legal professional privilege under LAW , LAW ( oikeudenkäymiskaari , rättegångsbalken ) . Consequently , such documents could not be seized from the applicant ’s or his lawyer ’s possession . The court , however , went on to find that in the instant case the seized documents were not “ in the possession ” of the applicant or his lawyer within the meaning of LAW , section CARDINAL , subsection CARDINAL , of LAW ( pakkokeinolaki , tvångsmedelslagen ) as they had been stored in a storage facility together with other ORG belongings . The seizure had therefore been lawful .

The applicant appealed to ORG , claiming that LAW had been interpreted in a manner that contradicted the LAW , given that he had sole authority over the seized documents . They were thus “ in his possession ” and had only been stored in the storage facility .

On DATE ORG revoked the seizure in so far as it concerned the correspondence between the applicant and PERSON and ordered the documents to be returned to the applicant . It held that the correspondence had not been in the possession of a third party and was therefore protected by legal professional privilege . In its view , the domestic legislation had to be interpreted in the applicant ’s favour .

On DATE ORG refused the police leave to appeal .

Consequently , the police requested ORG to prolong the seizure until DATE . In their view , the correspondence between the applicant and C. was not privileged material which had been drafted for the applicant ’s defence in a pending trial but concerned his possessions abroad , thus falling outside legal professional privilege .

ORG disagreed . In its decision of DATE , it held that the correspondence might have contained legally privileged information . Thus it was , as a whole , subject to a prohibition on seizure .

Upon the applicant ’s request , the bailiff ordered the police to return the documents . The documents were to be stored in the bailiff ’s office until the decision on seizure had acquired legal force .

The police appealed to ORG , maintaining that the seized documents did not concern legally privileged information that the applicant had passed to C. for the purpose of pleading a case before a trial . In addition C. was not , at the time , the applicant ’s defence lawyer .

On DATE ORG upheld the decision .

Having granted interim measures , ORG granted the police leave to appeal on DATE . By decision of DATE it quashed ORG decision of CARDINAL DATE , finding that the revocation of the seizure had already acquired legal force on DATE when ORG had refused leave to appeal . On DATE the seizure was revoked and the documents were to be returned to the applicant . Consequently , it would not have been possible , even in theory , to prolong the seizure after that date . The court did not address the issue of whether the documents seized concerned legally privileged material . It also declined to examine the police ’s request to prolong the time - limit for prosecution as such a request should have been filed with ORG .

On CARDINAL DATE the police again seized the same documents on the basis that they could be used as evidence in forthcoming criminal proceedings against the applicant .

On DATE the police requested ORG to prolong the time - limit for bringing charges against the applicant and for the seizure of the documents , as they had not been allowed to examine the content of the seized documents due to the pending complaints concerning their allegedly privileged nature . The applicant objected , claiming that the police should not have seized the same documents twice . He further maintained that the material was privileged and could not be seized . In his view , the seizure was in breach of LAW .

ORG revoked the seizure on DATE , referring to ORG decision of DATE and finding that legal privilege applied to the correspondence .

The police appealed to ORG , renewing their argument that the documents seized did not concern information which the applicant had passed to C. for the purpose of pleading a case before a trial , and which , for that reason , could be covered by legal professional privilege .

On DATE ORG upheld the decision , rejecting the police ’s appeal .

Having granted the police leave to appeal , ORG quashed the decision by QUANTITY votes to CARDINAL on DATE . The decision became a precedent ( no . ORG ) . The majority found that the main issue in the proceedings was whether counsel ’s right not to testify against his client and the consequent prohibition on seizure extended also to material passing between a client and his lawyer if that material did not relate to a pending or forthcoming trial . They found the domestic legislation in this respect somewhat open to interpretation but concluded , having assessed the ORG ’s case - law , that as the seized documents did not concern information which the applicant had given to his lawyer in order to assist him in a trial , they could have been subject to seizure . CARDINAL of the Justices dissented , finding that the seizure had interfered with the applicant ’s fundamental rights . However , the applicable domestic legislation was not clear and unambiguous , and therefore it should have been applied with due regard to fundamental rights and the requirements of legal professional privilege . The dissenting Justices interpreted the domestic law to the effect that the correspondence between the applicant and C. was covered by the prohibition on seizure .

The documents seized were returned to the police and it appears that the seizure was prolonged a number of times until DATE .

On DATE the criminal proceedings started in ORG . On DATE the charges , CARDINAL counts of aggravated debtor fraud , were served on the applicant . On DATE ORG dismissed the first count as it was already statute - barred . This decision was upheld by ORG on DATE and by ORG on DATE .

On DATE ORG convicted the applicant on CARDINAL counts of aggravated debtor fraud and sentenced him to a DATE term of imprisonment . The court found that the pre - trial investigation had been excessively long in the applicant ’s case . The applicant would have been sentenced to CARDINAL months’ imprisonment but as he had already been sentenced to imprisonment on DATE and on DATE , his sentence was mitigated by DATE .

The applicant and the public prosecutor appealed to ORG where the case is apparently still pending .

Chapter DATE , Article CARDINAL , point CARDINAL , of LAW ( rikoslaki , strafflagen ; as amended by Act No . CARDINAL/CARDINAL which took effect on DATE ) reads :

“ In addition to what is provided above in section CARDINAL , grounds for mitigating the sentence that are also to be taken into consideration are

( CARDINAL ) a considerably long period that has passed since the commission of the offence ;

if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result . ”

In its judgment of DATE ( ORG CARDINAL ) , ORG noted that , although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings , such a dismissal or declaring a case inadmissible might in some exceptional circumstances , for example if their duration ruled out a good defence , be the only effective remedy satisfying the requirements of LAW . That was , however , not the case here . In considering whether there were grounds for applying LAW , DATE , of LAW , ORG held that it had to be decided in PERSON whether the duration of the proceedings ( here over DATE ) had been unreasonable . It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings .

In its judgment of DATE ( ORG CARDINAL ) ORG , applying LAW , DATE , of LAW , reduced the sentence by DATE owing to the lengthy proceedings ( DATE ) . It imposed an immediate term of CARDINAL months’ imprisonment , finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment .

According to LAW , section CARDINAL , of LAW No . PERSON , as in force at the relevant time ) , the police may conduct a search , inter alia , if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds CARDINAL months’ imprisonment . The search warrant is issued by the police themselves .

Chapter CARDINAL , section CARDINAL , subsection CARDINAL , of LAW provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in LAW , Article CARDINAL , of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed . A document may nevertheless be seized if , under section CARDINAL , subsection CARDINAL , of ORG ( esitutkintalaki , förundersökningslagen ; Act No . CARDINAL/CARDINAL ) , a person referred to in LAW , Article CARDINAL , of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre - trial investigation about the matter contained in the document .

Under LAW , DATE , subsection CARDINAL , of LAW , counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case , unless the client consents to such testimony . Although subsection CARDINAL provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of CARDINAL years’ imprisonment ( or attempting or aiding and abetting such an offence ) , this exception does not extend to counsel for an accused .

Under section CARDINAL ( CARDINAL ) of LAW ( laki asianajajista , lagen om advokater ) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity . Breach of this confidentiality obligation shall be punishable in accordance with LAW , LAW , of LAW , unless the law provides for a more severe punishment on another count .

According to section CARDINAL of the Pre - trial LAW , only such evidence as may be considered relevant in the case shall be entered in the records of investigation . As regards other evidence , any police officer is under an obligation to respect the confidentiality requirement .

ORG issued on DATE a precedent on the interpretation of LAW , LAW , of LAW ( ORG , no . CARDINAL , votes CARDINAL–CARDINAL ) . The decision concerned specifically the course of events in the present case . According to the decision of ORG , the documents seized from the applicant , related to the commission relationship between himself and his NORP legal counsel , did not contain information entrusted by the applicant to his legal counsel for the pursuit of a case as referred to in LAW , DATE , subsections CARDINAL and CARDINAL , of LAW . Therefore , there was no obstacle to seizing the documents from the applicant . ORG ruled on the case by CARDINAL votes to CARDINAL , sitting as an enlarged chamber presided by the President of the ORG .

ORG reiterated this position in its other precedent case , ORG .

Recommendation PERSON of ORG to member States on the freedom of exercise of the profession of lawyer provides , inter alia , as follows :

“ Principle I - General principles on the freedom of exercise of the profession of lawyer

... CARDINAL . All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer - client relationship . Exceptions to this principle should be allowed only if compatible with the rule of law . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

PERSON Alves PERSON , a NORP national , lives at Loures in GPE

By a notarial deed dated DATE the applicant and ORG jointly agreed to lend to PERSON and PERSON a total of QUANTITY , to be repaid within DATE , which period was renewable as often as the parties agreed . The loan bore interest at the rate of PERCENT per annum if repaid during the term and PERCENT if repaid late . The borrowers undertook to bear the costs incurred in securing and enforcing the debt . The capital and interest and other costs were secured by a mortgage over a property in Carcavelos ( jurisdiction of GPE ) . On DATE PERSON advanced the borrowers the portion of the capital she had undertaken to lend , namely PTE CARDINAL ; ORG paid the balance ( PTE CARDINAL ) on DATE . The borrowers failed to repay either capital or interest .

On DATE , as no voluntary repayment had been made , the lenders brought enforcement proceedings in ORG of ORG ( tribunal civel da comarca LOC ) against PERSON and PERSON for repayment of the mortgage . PERSON claimed PTE CARDINAL ( comprising the capital plus PTE CARDINAL in interest she considered to be due for the period from DATE to DATE ) ; ORG claimed PTE CARDINAL . They also sought an order for payment of accrued interest at the date of repayment of the loan in full and of costs and expenses .

On DATE ORG Instance requested ORG ( tribunal judicial da comarca de Cascais ) to serve a demand on the debtors . On CARDINAL and CARDINAL DATE ORG Instance served notice on the debtors requiring them , within DATE , to repay the debt or to draw up a list of property that could be seized . ORG Instance returned the executed request on CARDINAL DATE .

As the sum concerned was not repaid within the time allowed , ORG made a possession order in respect of the mortgaged property and requested ORG to enforce it . ORG of First Instance executed the order on DATE and returned the executed request on DATE .

After notice to other creditors had been published in newspapers carrying official announcements , the applicant applied on DATE for an order for sale of the property by the court .

On DATE ORG drew up a list of creditors classified as to rank ( sentença de graduação de créditos ) .

The auction was held at GPE on DATE . However , on DATE , ORG acting on behalf of ORG ( ORG ) , sought an order for annulment of the auction , which ORG made on DATE . On DATE the purchaser of the property appealed against that decision to ORG ) , which upheld the impugned decision on DATE . On DATE the case file was transferred to ORG .

An order was made for a fresh auction to be held on CARDINAL DATE . However , PERSON learned in the meantime that the property in question had already been sold on CARDINAL DATE in enforcement proceedings brought by ORG in connection with unpaid taxes . On CARDINAL DATE she applied for an attachment over the balance of the proceeds of that sale .

On DATE ORG granted her application and requested ORG to attach the balance . On DATE the latter court was informed that the case file concerning the enforcement proceedings brought by ORG had been sent to ORG of ORG ( tribunal tributário de CARDINALa instância ) . On DATE ORG advised the applicant of that development and asked her to provide information about those enforcement proceedings . On DATE the applicant ’s lawyer provided the necessary details .

On DATE , CARDINAL DATE and CARDINAL DATE ORG Instance asked ORG to carry out the attachment in question .

On DATE PERSON renewed her application for an attachment .

On DATE ORG attached the balance of the proceeds of sale .

On DATE the applicant received a financial statement which , on DATE , she asked to be rectified after discovering that her claim had been recorded in the name of another person .

An order for rectification was made on DATE .

On DATE the ORG Deposits delivered a cheque for PTE CARDINAL to PERSON .

Set out below is a translation of the main provisions of LAW in force at the material time .

“ No one shall be entitled to use force to assert or protect his rights other than in the circumstances and within the limits prescribed by law . ”

“ For each right , except as otherwise provided by law , there is a corresponding action whose purpose is to secure judicial recognition of the right in question or to enforce it through coercion and such measures as shall be necessary to preserve the effectiveness of the action . ”

“ CARDINAL . There are CARDINAL types of action : declaratory actions ( declarativas ) and enforcement actions ( executivas ) .

Enforcement actions are those by which the plaintiff seeks adequate measures to secure effective reparation for a right that has been infringed . ”

“ Execution must be levied on the basis of an authority to execute , which shall serve to determine the aim and scope of the enforcement proceedings . ”

“ Enforcement proceedings may be brought only on the basis of :

( a ) a court judgment ; or

( b ) a document produced or authenticated by a notary ;

“ Documents produced or authenticated by a notary shall be enforceable provided that they establish the existence of an obligation . ”

“ No enforcement measures may be taken until the obligation has become indisputable and due if it is not clear from the authority to execute that that condition is satisfied . ”

“ The creditor must request that a demand be served on the debtor requiring him , within DATE , to make payment or to draw up a list of attachable property . ”

“ CARDINAL . The right to draw up a list of attachable property may be exercised by the creditor , irrespective of any decision , where :

the debtor has not drawn up such a list within the statutory time - limit ;

the debtor has failed to comply with the provisions of LAW when drawing up the list ; or

some of the property on the list is missing .

Once the attachment has been carried out in accordance with a list drawn up by either the debtor or the creditor , the creditor may add other property to the list where :

it is obvious that the listed goods are insufficient ;

the listed property is not free and clear of encumbrances , whereas the debtor has other property that is ;

a third - party contests the attachment ;

the creditor releases the attachment in accordance with LAW . ”

“ Payment may be made in cash , by auction of the attached property , or by payment into court of the income from such property or the proceeds of its sale . ”

Article CARDINAL of LAW is worded as follows :

“ CARDINAL . In cases concerning a pecuniary obligation , compensation shall take the form of interest from the date the payment becomes overdue .

Interest shall be payable at the statutory rate unless , before the payment becomes overdue , the parties have agreed on a higher rate of interest or on the payment of default interest at a rate different from the statutory rate .

NORP However , in cases concerning liability for unlawful acts or under an aleatory contract , creditors shall be entitled to show that the delay has caused them loss exceeding the amount of interest referred to in the preceding paragraphs and to require additional compensation for such additional loss . ”


Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr. PERSON is a NORP national and was born in DATE . He was formerly a regular army officer and as such last served in the NORP forces stationed in GPE with the rank of senior captain ( capitaine - commandant ) . He and his family now live in GPE and the NORP authorities have requested his extradition .

ORG On DATE , ORG ( commission judiciaire ) of ORG " A " , sitting at GPE , ordered the applicant ’s arrest and charged him with embezzlement of ORG funds . ORG was chaired by Mr. PERSON Even , a senior deputy auditeur militaire , who had questioned Mr. PERSON on DATE , and it said that its decision had been taken in view of the seriousness of the charges and the need to take statements from certain witnesses before the applicant could exert influence on them .

On his arrest TIME , the applicant lodged an application for his immediate release but on DATE ORG , again chaired by Mr. PERSON Even , confirmed the order in question on the same grounds .

ORG DATE , Mr. PERSON submitted to ORG a second application for his release . On DATE , ORG , after having heard the views of another deputy auditeur militaire , Mr. PERSON , declared the application admissible but ill - founded . ORG observed that during the preliminary investigation ORG had exclusive jurisdiction to hear such applications and determine whether or not detention should be ordered . It also found that the initial arrest warrant had been lawful .

The applicant immediately appealed to ORG sitting in GPE , which dismissed the appeal on DATE , upholding the contested judgment on every point .

On DATE , ORG , again chaired by Mr. PERSON Even , confirmed the arrest order for the second time .

On DATE , the applicant appealed to ORG against the judgment of ORG . He relied inter alia on paragraph CARDINAL of LAW , which provides that " save for offences discovered while being committed , no one may be arrested except pursuant to an order issued by a judge , which shall state the grounds on which it is based " . He argued that neither ORG nor any of its members had the status of judge or possessed the independence and impartiality inherent in such status . In particular , an auditeur militaire carried out his duties under the supervision and direction of the Minister of ORG ; he combined the functions of public prosecutor and investigating judge ; his interests as prosecutor and those of the remand prisoner or defendant were directly opposed ; and he alone was vested with the power of decision , since he was not bound by the dissenting opinion of either or both of the officers designated to sit on ORG ( see paragraph CARDINAL below ) .

On DATE , ORG dismissed the applicant ’s appeal . As regards the submission based on LAW , it held that paragraph CARDINAL had to be read in the light of LAW ( see paragraph CARDINAL below ) . In this context the term " judge " therefore meant a body on which judicial powers were conferred by the provisions governing military criminal procedure . Articles DATE and CARDINAL of the Code of Military Criminal Procedure , adopted under LAW of DATE , empowered ORG to issue arrest warrants . The drafting history showed that the auditeur militaire who chaired ORG performed the function of an investigating judge , in which capacity he was by definition independent .

ORG In the meantime , on CARDINAL DATE , Mr. PERSON had requested ORG to order his release on the ground that ORG had no power to issue and then confirm the warrant of DATE . On DATE , ORG declared this third application inadmissible on the ground that it was incompatible with the principle of res judicata , which applied to the decision of DATE . Before making its ruling , ORG had heard the views of the public prosecutor in the person of Mr. PERSON Even . The applicant immediately appealed to ORG , which dismissed his appeal on DATE as inadmissible and in any event ill - founded .

ORG A fourth application , on DATE , likewise failed . On DATE , ORG dismissed the application on similar grounds , after having heard the views of Mr. PERSON Even .

ORG On DATE , the applicant ’s lawyer had written direct to the auditeur général , who , on DATE , sent him the following reply ( translated from the NORP original ) :

" With reference to the application of DATE for PERSON to be released on bail ... , I have the honour to inform you that , having studied the application , I consider that there are not sufficient grounds for the question of his continued detention to be determined by my office under LAW .

However , I have asked the auditeur militaire of ORG to bring the case before the Court Martial as quickly as possible in order to enable that court to determine the merits and , at the same time , decide on any application for release . ... "

ORG On DATE , the senior deputy auditeur militaire , Mr. PERSON , issued a summons for the applicant to appear before ORG at GPE on DATE . On DATE , ORG ordered the applicant ’s release and adjourned the case sine die .

The trial proceedings resumed on DATE following a further summons , signed this time by Mr. PERSON ( on DATE ) . On DATE , the Court Martial agreed to allow Mr. PERSON to give evidence , under oath . Since the defence objected , ORG decided to join the issue to the merits . However , it elected to hear Mr. PERSON Even immediately .

DATE , the defendant appealed against this decision , but on DATE agreed that the proceedings should continue . In its decision of CARDINAL DATE , the Court Martial based its conclusion inter alia on Mr. PERSON ’s statements , which it ruled were admissible . It sentenced the applicant to CARDINAL years’ imprisonment and a fine of MONEY ( BF ) for forgery , uttering forged documents and embezzlement of ORG funds .

ORG On DATE , the applicant appealed to ORG , which ruled on his CARDINAL appeals in a single judgment of DATE .

In the first place , ORG quashed the decision of CARDINAL DATE concerning Mr. PERSON ’s testimony , on the ground that it did not give adequate reasons . It noted in addition that Mr. PERSON , acting not as investigating judge but as representative of the public prosecutor , had taken certain steps in the prosecution , and in particular had issued the summons of DATE . This meant that he had become a party to the proceedings and accordingly could not appear as a witness . His testimony should therefore have been disregarded .

On the merits , ORG reduced the sentence to CARDINAL years’ imprisonment and a fine of CARDINAL BF . It ordered that the applicant be dismissed the service ( LAW ) but , unlike the court below , did not order his immediate arrest .

ORG On DATE , ORG dismissed appeals on points of law which the public prosecutor and Mr. PERSON had entered against the judgment of ORG .

ORG By LAW , first paragraph , of the LAW , " special laws shall regulate the organisation of military courts , their powers , the rights and obligations of their members and the terms of office of the latter " .

Military criminal procedure is governed principally by LAW ) of DATE and the Code of Military Criminal Procedure ( PERSON ) of DATE .

ORG The auditeur militaire heads the auditeur militaire ’s office of a particular court martial . He is a member of the judiciary , and consequently is not subject to the military chain of command . The same is true of the senior deputies ( such as Mr. PERSON ) and the deputies ( such as Mr. PERSON ) , who assist the auditeur militaire .

Auditeurs militaires and their deputies , however , are not judges within the meaning of LAW . The King , who appoints them , may also dismiss them ( LAW ) . They are therefore not irremovable .

They are hierarchically subordinate to the auditeur général at ORG and to the Minister of ORG , but it is not disputed that in practice they are wholly independent in the performance of their duties .

ORG The auditeur militaire and his deputies discharge the functions of :

( a ) senior police officers ( officiers de police judiciaire - DATE of the PERSON ) ;

( b ) investigating judges , vested with powers identical to those of civilian investigating judges and which each individual exercises either alone or as chairman of ORG ( Article CARDINAL of the LAW and paragraph CARDINAL below ) ;

( c ) members of the public prosecutor ’s office , acting as prosecuting counsel before the courts martial , subject to the supervision and direction of the auditeur général ( LAW ) .

The Code of Military Criminal Procedure thus derogates from LAW , which prohibits such plurality of functions " except in the cases prescribed by law " .

ORG However , as a consequence of the PERSON judgment given by ORG DATE ( Series A no . CARDINAL ) , the auditeur général issued the following instructions on DATE ( Circular no . CARDINAL ) :

" ... ORG at ORG has informed me of his view that , in the light of the Schiesser judgment , it is absolutely essential to ensure that , in cases where a preliminary investigation is held , particularly those in which the accused is placed in detention on remand , the judicial officer who acts as prosecuting counsel before the court martial should not be the one who conducted the preliminary investigation .

I have explained to ORG at ORG why in many circumstances , in view of the limited number of auditeurs militaires and deputies , it will no doubt be physically impossible to comply with the rule he wishes to have applied , but have told him that the rule generally will be applied in future .

Pending a solution which will inevitably require legislative reform , I would therefore ask you to ensure that to the fullest extent possible , particularly in cases where the accused is held in detention on remand , the rule laid down by ORG at ORG is applied . "

In subsequent instructions issued on DATE , the auditeur général confirmed and clarified the distinction to be maintained between investigation and prosecution , " pending the necessary legislative reforms " :

" ... It has been held by ORG that a judge who may be required to act in a given case as prosecuting counsel does not afford the guarantees of independence and impartiality necessary for the performance of the judicial acts inherent in the process of investigation .

This case - law prompted my circular ( no . CARDINAL ) of CARDINAL DATE . I now consider that the time has come to take a further step towards separating the processes of investigation and prosecution . That is the purpose of the following instructions .

In all cases in which the auditeur militaire has exercised the judicial powers of investigating judge ( e.g. arrest warrant , hearing of witnesses under oath , search warrant , seizure , body search , or appointment of an expert by ORG ) , the investigation and the prosecution must be conducted by different judicial officers .

I would ask you :

to implement forthwith the instructions in this circular ;

to send to me by DATE a detailed report on the practical application of these instructions , on any problems to which such application has given rise , etc .

ORG In the case of ORG v. PERSON which came before ORG ( permanent NORP division ) , ORG made the following submissions ( translation ) :

" The auditeur militaire who chairs ORG discharges the judicial functions of an investigating judge ( PERSON . , CARDINAL DATE , RW [ Rechtskundig Weekblad ] , DATE , col . CARDINAL ) . LAW of DATE , taken together with LAW , lays on the chairman of ORG the duty to act as an independent judge , in particular in regard to the parties ( Cour mil . , DATE , ORG [ Revue de droit pénal et de criminologie ] , DATE , p. CARDINAL ) .

It has been held by ORG that the judge or other officer authorised by law to exercise judicial power during preliminary investigations , and more particularly when an arrest warrant is issued , must be independent of the executive and of the parties ( Schiesser judgment , DATE , Series A , no . CARDINAL , § § DATE ) . As an investigating judge , the auditeur militaire is independent of the executive , as under LAW of DATE ) he is only subject to the supervision and direction of the auditeur général when discharging his duties as a member of the public prosecutor ’s office .

ORG held in the cases of ORG and PERSON ( judgment of CARDINAL DATE , Series A , no . CARDINAL , § CARDINAL ) and PERSON , GPE and PERSON ( judgment , CARDINAL DATE , Series A , no . CARDINAL , § DATE ) that the NORP auditeur - militair , although independent of the military authorities , could not be independent of the parties during the preliminary stage of the trial because he was liable , at a subsequent stage , to become a party himself , in that instance as prosecuting authority .

Consequently , the NORP auditeur militaire , in that he intervenes as prosecuting authority , likewise does not afford the guarantees of impartiality and independence necessary for him to be able to perform the duties of investigating judge in the same case .

There is a danger that he might perform his duties as investigating judge from the point of view of the prosecuting authority at a subsequent stage of the proceedings .

This does not apply only to cases in which an arrest warrant is issued . The judicial function of investigating judge is indivisible and embraces all the judicial acts performed during a preliminary investigation .

The preliminary investigation and the prosecution must accordingly be conducted by different judicial officers ( Cour mil . , CARDINAL DATE , ORG , DATE , p. CARDINAL ) ; having a single judicial officer combine the functions of investigation and prosecution is incompatible with the impartiality and independence required of an investigating judge and accordingly violates Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of LAW as construed by ORG in the above - mentioned cases .

The explicit provisions of LAW regarding judicial safeguards lay down rights which are distinct but stem from the same basic idea , namely a citizen ’s right to a fair trial ( PERSON judgment , DATE , Series A , no . CARDINAL , § LAW and DATE ) . This basic right in a NORP society , as laid down in the LAW , has such a prominent place that a narrow interpretation of the Convention ’s explicit provisions in this field would not be in accordance with the ORG ’s object and purpose ( FAC judgment , DATE , Series A , no . CARDINAL , § § CARDINAL and CARDINAL ) . CARDINAL of the vital prerequisites of the right to a fair trial is precisely that the preliminary investigation and the prosecution should be separate , and LAW article CARDINAL ) of the LAW is but an application of this principle .

In the present case the same judicial officer combined the functions of investigating judge with those of public prosecutor , firstly - as chairman of ORG and with the military members of ORG - by ordering a report to be made by an expert and hearing the accused during the final questioning , and subsequently by participating in the trial as prosecutor .

This amounts to a violation of ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of LAW and is consequently unlawful in NORP domestic law ( PERSON . , CARDINAL DATE , Pas . [ Pasicrisie ] , DATE , CARDINAL ) .

The investigative measures taken in the PERSON case - the appointment of an expert and the final hearing of the accused by ORG - should therefore be declared null and void and the documents relating to those measures ( including the expert ’s report ) should be declared inadmissible in evidence .

Ruling that these documents are inadmissible , however , does not in any way prevent the court from reaching a decision on the basis of the other evidence , namely the police reports and the accused ’s statements to the auditeur militaire acting as senior police officer ( officier de police judiciaire ) .

For these reasons ,

Having regard to LAW , Articles DATE of the Code of Military Criminal Procedure and Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of LAW of DATE ) ,

I ask the court ,

firstly , to declare that the appointment of an expert by ORG and the Board ’s final hearing of the accused ( item CARDINAL in the file on the expert ’s report and items CARDINAL and CARDINAL in the file on the preliminary investigation ) together with the expert ’s report are null and void and to rule these items inadmissible in evidence ;

secondly , to order the costs of the expert ’s report to be paid by the ORG ; and

thirdly , taking its decision on the basis of the other evidence , to convict the accused in accordance with my oral submissions . " ( Journal des tribunaux , no . CARDINAL , CARDINAL DATE , pp . CARDINAL - CARDINAL )

On DATE , ORG gave its judgment , which included the following reasons ( translated from the NORP original ) :

" The auditeur général ’s office took the view that , as the same senior deputy auditeur militaire acted both as investigating judge and as prosecutor , several items relating to the investigative measures must be declared null and void and inadmissible in evidence , because the investigation and the prosecution must be conducted by different judicial officers .

Every citizen has a right to a fair trial , and CARDINAL of the vital prerequisites of the right to a fair trial is that the preliminary investigation and the prosecution shall be separate .

ORG has so held ( FAC case , judgment of DATE , Series A , no . CARDINAL , § § CARDINAL and CARDINAL ) , and ORG has likewise so decided on several occasions ( judgments of CARDINAL DATE , Pub . v. D ... and Pub . Pros . v. R ... and others , PERSON . GPE [ Jurisprudence de la cour d’appel de Liège ] , DATE , pp . CARDINAL - CARDINAL ) .

For these reasons :

THE COURT ,

Declares the appeals admissible ;

Holds that ORG appointment of an expert , the final hearing of the defendant by ORG and the expert ’s report are null and void and must be excluded as inadmissible evidence ;

Sets aside the decision appealed against in so far as it ordered the defendant to pay the costs of the expert opinion ( CARDINAL F ) ;

Orders the ORG to pay the costs of the expert opinion ;

... " ( ibid . , p. CARDINAL ) .

ORG On DATE , the auditeur général submitted to the Minister of ORG a new preliminary draft Code of Military Criminal Procedure which had been drawn up by an inter - departmental committee . CARDINAL of its purposes was to prevent any plurality of functions in the person of the auditeur militaire in peace time by creating CARDINAL categories of military judicial officer , namely auditeurs militaires , who would retain only the powers of public prosecutors , and judges , who would deal with preliminary investigations as chairmen of ORG .

According to the report submitted by Mr. PERSON on behalf of ORG , the existing LAW " has now been overtaken , in a number of fundamental respects , both by changes in human - rights case - law and by the new patterns of organisation entailed by the separation of preliminary investigation and prosecution " ( PERSON CARDINAL-VI ( DATE ) no . CARDINAL of DATE , p. CARDINAL ) .

ORG When constituted at the seat of ORG , ORG comprises - in addition to the auditeur militaire ( or deputy auditeur militaire ) , who chairs it - CARDINAL officers ( officiers commissaires ) appointed by the area commanding officer from among the officers of the garrison , normally for DATE . They are appointed in turn and in order of seniority ( Articles CARDINAL of the LAW ) .

The auditeur militaire is the sole permanent member of ORG . Th military members of ORG are changed frequently , on the expiry of their term of office or as operational needs require .

ORG The ORG conducts the written part of the investigation of the case ( LAW ) . In carrying out its task , it may issue a warrant for the arrest of a person who has been brought before the auditeur militaire . In such cases it must , at least once a month , review the detention in question ( auditeur général ’s Circular no . CARDINAL of DATE , paragraph III ( e)(CARDINAL ) ) . In addition , it may at any time order the accused ’s release on condition that he appear in person at any stage in the proceedings as soon as he is asked to do so ( LAW ) .

By LAW , the auditeur militaire " shall direct the investigation " . He must endeavour as much to establish the accused ’s innocence as to obtain evidence of his guilt and secure a confession ( LAW ) . The decisions of ORG are his sole responsibility , and any dissenting opinions of the CARDINAL officer members of ORG are not binding on him . The function of these CARDINAL members is merely to assist him , not as investigating judges but as technical advisers and as witnesses to the lawfulness of the investigation , which they guarantee by their presence and by their signature .

Responsibility for conducting the prosecution lies with the public prosecutor , in other words the auditeur militaire ( see paragraph CARDINAL above ) , and not with ORG . It falls to ORG to determine at the end of the investigation whether there is sufficient evidence to justify committal for trial , but the summons requiring the accused to appear before ORG is issued by the auditeur militaire or one of his deputies . On issue of the summons ORG ceases to have jurisdiction .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

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

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

NORP The applicant is a practising lawyer . By CARDINAL decisions given on DATE and DATE , ORG appointed him to represent a claimant in CARDINAL sets of constitutional proceedings brought under LAW and concerning an alleged breach of the claimant ’s rights under LAW and its constitutional equivalent . The appointment was made in the context of the claimant ’s request for legal aid . In the decisions , reference was made to section CARDINALa of LAW DATE and to Articles CARDINAL and CARDINAL of the Code of Civil Procedure . They specified that the applicant had been chosen as his office was in the town where the claimant was detained .

NORP In written submissions to ORG submitted on DATE and DATE , the president of the ordinary court concerned argued that there had been no breach of the claimant ’s rights .

On DATE and DATE the claimant informed ORG that he insisted on an examination of his case at an oral hearing .

On DATE and DATE ORG declared admissible the claimant ’s complaints under LAW and rejected the remaining claims . On the last - mentioned date it joined the CARDINAL cases , to the extent that they had been declared admissible .

NORP The president of the district court involved excused himself from the hearing scheduled for DATE . He cited a heavy workload and also the wish to avoid additional costs . He agreed to the hearing being held in the absence of any representative of his court . The applicant was not informed of that communication prior to the hearing .

On DATE the applicant met his client , at the latter ’s request , in order to complete the file and prepare the submissions which were to be made at the hearing .

On DATE the ORG heard the applicant and his client . The applicant submitted documentary evidence and arguments in support of the claimant ’s complaints . He also specified the claim in respect of his costs . It totalled CARDINAL NORP korunas ( SKK ) . That sum included SKK CARDINAL,CARDINAL in respect of the applicant ’s representation of the claimant at the hearing before ORG and time and costs relating to the applicant ’s journey to PERSON for the purpose of the hearing . The individual items claimed were based on the relevant provisions of Regulation CARDINAL/CARDINAL governing the payment of fees and costs to lawyers .

By a judgment of CARDINAL DATE ORG found that LAW had been breached on CARDINAL occasions due to the fact that : ( i ) an ordinary court had not displayed due diligence in examining applications for release lodged by the applicant ’s client ; and ( ii ) a different court had failed to comply with the requirement of equality of arms when extending the claimant ’s detention .

ORG ordered , inter alia , that FAC should be paid to the applicant for the costs of the claimant ’s representation . The relevant part of its decision reads :

“ ORG , with regard to section CARDINAL(CARDINAL ) of LAW DATE , considers ... it justified to make an award of SKK CARDINAL,CARDINAL in respect of the costs of the claimant ’s legal representation ... [ It does not ] grant the other costs claimed by the plaintiff ’s representative , including the costs related to participation at the hearing held on DATE , the time of the return journey from PERSON to PERSON , and travel and subsistence costs , as it does not consider them to have been necessarily incurred , as neither the representative nor the claimant put forward any facts in the course of the hearing which were unknown to ORG on the basis of the claimant ’s complaint and the files at its disposal . ”

The judgment specified that ORG had not considered documentary evidence which the applicant had submitted on behalf of his client in the course of the oral hearing , as that evidence had not concerned the subject - matter of the proceedings as determined by the decisions on the admissibility of the claimant ’s complaints .

Article CARDINAL § CARDINAL of the LAW guarantees to everyone the right to legal assistance in proceedings before courts , ORG authorities or public administration bodies under the conditions specified by law .

Proceedings before ORG are governed by LAW ( “ the DATE LAW ) .

Pursuant to Section CARDINAL(CARDINAL ) of the DATE Act , a person who wishes to bring proceedings before ORG has to submit for a mandate in favour of the lawyer representing him or her in the proceedings unless the DATE Act provides otherwise .

Pursuant to section CARDINAL(CARDINAL ) of the DATE Act , an oral hearing shall be held in proceedings concerning , inter alia , natural or legal ORG complaints brought under LAW . ORG may refrain from holding an oral hearing , subject to the parties’ agreement , where it can not be expected that relevant new information will be obtained thereby ( subsection CARDINAL of section CARDINAL ) . LAW ) of the DATE LAW and their representatives to attend oral hearings .

Pursuant to section CARDINAL(a ) of the DATE Act , unless the DATE LAW provides otherwise or unless it is excluded by the nature of the matter , the provisions of LAW and of LAW are to be used by analogy in proceedings before ORG .

Section CARDINAL(CARDINAL ) of the DATE LAW provides that parties to proceedings before ORG have to bear their costs and expenses . LAW CARDINAL entitles ORG , where justified and in accordance with the outcome of the proceedings , to order a party to fully or partially reimburse the costs and expenses of the other party .

DATE provides that courts should appoint a representative to a party to the proceedings , at the latter ’s request , provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party ’s interests .

Article CARDINAL § CARDINAL provides , inter alia , that courts may grant a party ’s request for waiver of court fees where it is justified by the situation of the party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success .

Article CARDINAL § CARDINAL provides that where a lawyer was appointed to represent a party to proceedings , the ORG shall pay that lawyer ’s fees and reimburse his or her costs .

Article CARDINAL § CARDINAL authorises courts to grant to a party who was fully successful in an action the reimbursement of the costs which were necessary for the effective exercise or protection of his or her rights vis - à - vis the unsuccessful party .

Section CARDINAL ) obliges lawyers to protect and pursue the rights and interests of their clients and to abide by the latter ’s instructions . Such instructions do not bind lawyers where they run contrary to generally binding legal rules . LAW of CARDINAL obliges lawyers to diligently use all legal means which they consider beneficial for their client . At the same time , lawyers should respect the principles of efficiency and economy while providing legal services .

Section CARDINAL(CARDINAL ) provides that , without prejudice to section DATE , a lawyer is entitled to refuse to provide legal services unless he has been appointed under special rules , such as ORG DATE and CARDINAL of the Code of Civil Procedure .

Section CARDINAL enumerates situations in which a lawyer is obliged to refuse to provide legal services . Thus , under point ( e ) , a lawyer has to refuse to provide legal services where he or she is unable , because of heavy workload or long - term absence , to duly protect the rights and interests of the client .

Pursuant to section DATE , when a lawyer has been appointed under the legal aid scheme to assist a client , the remuneration for his legal services is to be paid by the ORG .

Under section CARDINAL ) , a breach of an obligation under LAW DATE or an internal regulation of ORG attributable to a lawyer is qualified as a disciplinary offence . The sanctions for such offences are listed in subsection CARDINAL of section CARDINAL . They include a written warning , public reprimand , a fine , suspending the right to practice as a lawyer for a period from DATE and being struck off from the roll .

With reference to section CARDINALa of LAW , taken in conjunction with Articles CARDINAL and CARDINAL § CARDINAL of the Code of Civil Procedure , ORG has held that it may appoint a lawyer to represent a natural or legal person , at that person ’s request , provided that this is justified by the claimant ’s situation and that the case is not clearly devoid of any prospect of success .

In judgment II . ÚS CARDINAL/CARDINAL of DATE ORG ruled that the right to reimbursement of costs which were properly incurred is a part of the fundamental right to legal assistance . However , it did not find a breach of that provision in a situation where the ordinary court involved , while applying LAW , had made no award in respect of costs . ORG held that the law provided for discretion in the assessment of whether the costs claimed were necessarily incurred . It concluded that the very essence of the claimant ’s right under LAW had not been affected .

In judgment II . ÚS QUANTITY of DATE ORG found a breach of a person ’s right to a hearing within a reasonable time . That person was represented by the present applicant . ORG ordered the reimbursement of the applicant ’s fees and costs . The sum awarded also took into account the claimant ’s representation at the hearing held before FAC and time and costs relating to the applicant ’s journey to the seat of ORG for the hearing .

In accordance with ORG practice ( for example , decision CARDINAL Obo CARDINAL of DATE ) , courts should assess whether costs incurred are reasonable . They should grant reimbursement of expenses which were necessary for the exercise or protection of a party ’s right .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

The facts of the case , as submitted by the parties and as they appear from the documents on the file , may be summarised as follows .

The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered . The investigation also focused on whether there had been debtor dishonesty or fraud .

On DATE the applicant was questioned by the police as a suspect . The pre - trial investigation was completed on DATE . The applicant was subsequently charged with economic crime allegedly committed in DATE and DATE .

On DATE the ORG ( käräjäoikeus , tingsrätten ) upheld a co - defendant ’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible . On DATE ORG ( hovioikeus , hovrätten ) upheld the decision . On DATE ORG ( korkein oikeus , högsta domstolen ) quashed the previous decisions and remitted the case to ORG .

Meanwhile , a second hearing was held on DATE . At the third hearing on DATE , ORG upheld a co - defendant ’s claim that he had not been properly summoned . On DATE ORG quashed the decision . On DATE ORG upheld the appellate court ’s decision .

The applicant was summoned to appear before ORG for the first time at the above - mentioned third hearing held on DATE . The public prosecutor was found to be biased and a new prosecutor was assigned to the case , which was then adjourned until DATE .

On DATE ORG upheld a co - defendant ’s claim that he had not been properly summoned and that the statute of limitations had already expired . On DATE ORG quashed the decision and remitted the case to the lower court . On DATE ORG upheld the appellate court ’s decision .

Meanwhile , on DATE ORG noted in its minutes that the parties disagreed as to whether the “ reasonable time ” requirement in LAW had been complied with , and that the court would decide at a later stage whether the trial could continue .

On DATE ORG issued a separate decision dismissing a co - defendant ’s request that the charges against him should be declared inadmissible due to the length of the proceedings . It held , inter alia , that the case was exceptionally difficult , involving voluminous evidence and being of significant public interest . On DATE it dismissed a renewed request . On DATE a co - defendant lodged a procedural complaint with the appellate court . It was dismissed on DATE .

There were DATE of hearings in ORG up to DATE , held at CARDINAL DATE intervals .

On DATE a NORP court acceded to the request of ORG for the extradition of a co - defendant to GPE to serve a prison sentence which had previously been imposed on him . According to an arrangement , he would be granted immunity from further prosecution in GPE for offences he had previously committed . On DATE ORG found that the criminal case against the co - defendant was barred on the basis of his immunity . On DATE ORG applied to the NORP authorities for permission to continue his prosecution in GPE in respect of offences other than those for which he had been extradited . On DATE the relevant NORP court acceded to the request . The appeal was rejected on DATE . On DATE the Spanish Government consented to his continued prosecution in GPE . The co - defendant challenged the lawfulness of his continued prosecution before the NORP courts . During DATE he changed counsel . On DATE ORG rejected his claim for continued immunity , finding that the immunity had been annulled by the afore - mentioned decision of ORG . The decision was upheld by ORG on DATE .

The present case was adjourned until DATE owing to the need to replace the public prosecutor , who had fallen ill .

Meanwhile , on DATE and DATE respectively , ORG dismissed the further requests of a co - defendant and the applicant to have the charges against them ruled inadmissible on account of the length of the proceedings . The applicant ’s procedural complaint was dismissed by the appellate court on DATE . On DATE ORG refused leave to appeal . On DATE ORG also dismissed the renewed request of the applicant , among others , observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings . The appellate court upheld the last - mentioned decision on DATE . On DATE ORG refused leave to appeal .

On DATE ORG dismissed a further request that the charges be declared inadmissible owing to the length of the proceedings .

During the trial the police conducted CARDINAL additional investigations , the last of which , according to the Government ’s observations in the case of PERSON v. GPE ( no . CARDINAL , § CARDINAL , DATE ) , was completed on DATE .

There had been a total of DATE of hearings DATE when ORG had started to obtain evidence . Thereafter , there were DATE of hearings up until DATE .

On DATE ORG , noting that he lacked competence to interfere with the ongoing proceedings , drew the ORG ’s attention to the need to allocate adequate financial resources to both ORG and the authorities involved in the case .

On DATE the ORG gave its judgment . It dismissed as time - barred the charge concerning aiding and abetting debtor dishonesty but convicted the applicant of an accounting offence .

The court found that the “ reasonable time ” requirement laid down in the LAW and the LAW had not been respected and that the applicant was therefore entitled to redress . The court noted that it had dismissed CARDINAL of the charges as time - barred . As the court was not allowed to pass judgment on the time - barred charge , redress for the length of the proceedings had to be given in some other way . Accordingly , the applicant ’s sentence should be mitigated . The court considered that the redress had to be significant and , having regard to the exceptionally lengthy nature of the proceedings , it should also be substantial . The applicant had not contributed to the length of the proceedings . The court stated that it was reducing the applicant ’s sentence by CARDINAL owing to the breach of the “ reasonable time ” requirement . It sentenced him to a suspended term of CARDINAL days’ imprisonment .

The applicant appealed . ORG held CARDINAL preparatory hearings in DATE . In the main hearing the case was heard over DATE in DATE .

On DATE ORG gave its judgment . It concurred with the lower court that the “ reasonable time ” requirement had not been respected and that the applicant was therefore entitled to redress , which had to be significant and substantial . It also had to be given in a clear and measurable manner . No reason had emerged not to impose a sentence . The court found that the applicant had not contributed to the length of the proceedings . It stated that it was reducing the applicant ’s sentence by CARDINAL owing to the lengthy proceedings .

ORG agreed with ORG that the standard sentence would be CARDINAL months’ imprisonment and noted that the lower court had mitigated that sentence by CARDINAL , that is , DATE . ORG further noted that it was not possible to mitigate the applicant ’s sentence to a fine , having regard to the harmful and dangerous nature of the offence , the motives and the guilt displayed by the offence . Applying LAW , article CARDINAL , point CARDINAL , of LAW ( as amended by Act no . CARDINAL/CARDINAL and with effect from DATE ; rikoslaki , strafflagen ) , ORG , owing to the breach of the “ reasonable time ” requirement , sentenced him to a suspended term of CARDINAL days’ imprisonment .

The applicant requested leave to appeal . On DATE ORG refused leave to appeal .

LAW , article CARDINAL , point CARDINAL , of the Penal Code reads :

“ In addition to what is provided above in section CARDINAL , grounds for mitigating the sentence that are also to be taken into consideration are

( CARDINAL ) a considerably long period that has passed since the commission of the offence ;

if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result . ”

LAW , article CARDINAL , point CARDINAL , of LAW ( as amended by Act no . CARDINAL/CARDINAL which took effect on DATE ) reads :

“ The court may waive the sentence if

CARDINAL ) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in LAW , article CARDINAL , point CARDINAL and LAW , article CARDINAL or the measures taken by social and health services ;

In its judgment of DATE ( ORG CARDINAL ) ORG noted that , although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings , such a dismissal or declaration of inadmissibility might in some exceptional circumstances , for example if their duration ruled out a good defence , be the only effective remedy satisfying the requirements of LAW . That was , however , not the case here . In considering whether there were grounds for applying LAW , article DATE , of LAW , ORG held that it had to be decided in PERSON whether the duration of the proceedings ( here over DATE ) had been unreasonable . It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings .

In its judgment of DATE ( ORG CARDINAL ) ORG , applying LAW , article DATE , of LAW , reduced the sentence by DATE owing to the lengthy proceedings ( DATE ) . It imposed an immediate term of CARDINAL months’ imprisonment , finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment .

On DATE ORG gave a judgment ( KKO CARDINAL:CARDINAL ) in which , applying LAW , article CARDINAL , point CARDINAL , of LAW , it afforded redress for the breach of the “ reasonable time ” requirement ( here the proceedings had lasted DATE ) by waiving the sentence .


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the Chief of the ORG ( GPE PERSON ) dismissed the applicant from the police service ( he was held accountable for accepting bribes ) .

On DATE the Chief of ORG ( ORG ) upheld the decision .

NORP In DATE the GPE prosecution authorities charged the applicant , a serving police officer at the time , with numerous counts of fraud .

On DATE a bill of indictment against the applicant and CARDINAL other suspects was lodged with ORG ( Sąd Rejonowy ) .

The applicant did not submit any information concerning the court ’s hearings DATE .

QUANTITY hearings , scheduled on DATE and DATE , were adjourned as some of the suspects failed to appear .

QUANTITY hearings , scheduled on DATE and DATE , were cancelled due to the judge ’s illness .

On DATE the court severed the charges against the applicant and CARDINAL other accused .

Subsequently , the trial court held hearings on CARDINAL and DATE , CARDINAL DATE , DATE , DATE and DATE , and CARDINAL DATE , DATE , DATE , DATE , CARDINAL and DATE and DATE .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment and a fine of MONEY ( PLN ) .

On DATE the applicant appealed .

On DATE his appeal was dismissed by ORG ( PERSON ) .

On DATE the applicant lodged a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) and asked for just satisfaction .

On DATE the ORG dismissed his complaint . It limited its examination of the length of proceedings issue to the period after the entry into force of LAW and stressed that the LAW could not be applied to the protracted length of court proceedings occurring before that date . Having analysed the conduct of ORG during the period after the entry into force of LAW , ORG found that there were no delays for which ORG could be held responsible . Pointing to the complexity of the case and the voluminous documentation gathered in the proceedings it held that the proceedings had been conducted with due diligence and within a reasonable time .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of PERSON v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


CASE OF VERENIGING WEEKBLAD BLUF! v. THE NETHERLANDS

Violation of Art. 10;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant is an association based in GPE and at the material time it published a DATE called PERSON ! for a left - wing readership . Since then the periodical has ceased publication .

ORG In DATE the editorial staff of PERSON ! came into possession of a DATE report by the internal security service ( Binnenlandse Veiligheidsdienst - " the BVD " ) . Dated DATE and marked " Confidential " , it was designed mainly to inform ORG staff and other officials who carried out work for the ORG about the organisation ’s activities . It showed that at that time the ORG was interested in , among other groups , ORG of the GPE and the anti - nuclear movement . It also mentioned ORG plan to open an office in GPE and gave information about the NORP , NORP and NORP security services’ activities in the GPE .

The editor of PERSON ! proposed to publish the report with a commentary as a supplement to issue no . CARDINAL of the journal on DATE .

ORG On DATE , before the journal was published or sent out to subscribers , the director of the ORG informed the public prosecutor ( PERSON ) of the plan to publish the report and pointed out that its dissemination was likely to infringe Article PERSON paras . CARDINAL and CARDINAL and Article CARDINAL para . CARDINAL of LAW ( GPE - see paragraph CARDINAL below ) . In his letter he stated :

" Although , in my opinion , the various contributions taken separately do not ( or do not any longer ) contain any ORG secrets , they do - taken together and read in conjunction - amount to information whose confidentiality is necessary in the interests of the ORG or its allies . This is because the juxtaposition of the facts gives an overview , in the various sectors of interest , of the information available to the security service and of the ORG ’s activities and method of operation . "

ORG On DATE a preliminary judicial investigation ( gerechtelijk vooronderzoek ) in respect of a person or persons unknown was commenced on an application by the public prosecutor . The investigating judge ( rechter - commissaris ) of ORG ( arrondissementsrechtbank ) ordered the applicant association ’s LOC to be searched and had the entire print run of issue no . CARDINAL of GPE ! , including the supplement , seized . The police apparently did not take away the offset plates remaining on the printing presses . CARDINAL people were arrested but released DATE .

ORG During TIME CARDINAL DATE , unknown to the authorities , the staff of the applicant association managed to reprint the issue that had been seized . CARDINAL copies were sold in the streets of GPE DATE , which was the ORG ’s birthday and a national holiday . The authorities decided not to put a stop to this so as not to cause any public disorder .

ORG On DATE the investigating judge closed the investigation on the ground that he had no basis on which to continue it . In a letter of CARDINAL DATE the public prosecutor informed the applicant association that proceedings against the CARDINAL people arrested during the seizure were being dropped , as the evidence against CARDINAL of them was insufficient and the third had played a minimal role .

ORG In the meantime , on CARDINAL DATE , the applicant association had complained of the seizure to ORG of ORG under Article PERSON of LAW ( PERSON - see paragraph QUANTITY below ) , seeking the return of the confiscated copies , their supplements and the wrappers so that they could be sent out to subscribers in time .

This application was dismissed on DATE in so far as it related to the copies of the journal and supplement . The court considered that , in view of their content , it was not " highly unlikely " that in the criminal proceedings an order would be made for the periodical ’s withdrawal from circulation ( onttrekking aan het verkeer ) . The court did , however , order the return of an insert entitled " A Contribution to the Jewish History Museum " and the wrappers .

ORG In a judgment of CARDINAL DATE ( PERSON ( GPE ) DATE , CARDINAL ) ORG dismissed appeals on points of law that the applicant association and the public prosecutor lodged against that decision . In respect of the applicant association ’s ground of appeal based on a violation of LAW ( see paragraph CARDINAL below ) , the court held that the right secured in that provision was limited by the phrase " subject to each person ’s liability under the law " and that the seizure of the printed matter to be distributed was among the measures capable of safeguarding the interests which ORG and FAC of LAW were intended to protect .

ORG In the interval , on CARDINAL DATE , the applicant association had lodged a second complaint with ORG of ORG . Relying on DATE ( article CARDINAL ) of the Convention , it challenged the lawfulness ( rechtmatigheid ) of the seizure . In the alternative , it sought the return of the confiscated items on the ground that as the judicial investigation had been terminated , the measure had ceased to be justified .

On DATE the court dismissed the complaint . It ruled that it was identical with the CARDINAL of CARDINAL DATE and that no new factor justified returning the property . Relying on the statement from the public prosecutor ’s office to the effect that it would make an application to have the journal withdrawn from circulation as soon as ORG had given judgment on the appeal on points of law against the decision of DATE , the court held that it was still not to be excluded that such a measure might be taken . Consequently , it rejected the applicant association ’s submission based on the decision not to prosecute ( see paragraph CARDINAL above ) .

ORG On DATE the public prosecutor applied to ORG for an order that issue no . CARDINAL of GPE ! should be withdrawn from circulation .

ORG On DATE the court allowed the application on the basis of ORG and ORG of LAW ( see paragraph CARDINAL below ) . It held that as the seized items were designed to commit the offence set out in LAW and/or Article CARDINALa para . CARDINAL taken together with para . CARDINAL of LAW , the unsupervised possession of them was contrary to the law and the public interest . Moreover , the measure was justified under LAW ) of the Convention on the grounds of maintaining " national security " .

ORG In a judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) ORG dismissed an appeal on points of law by the applicant association .

It held that the court below had clearly established that an offence covered either by Article CARDINALa para . CARDINAL taken together with para . CARDINAL or by LAW had been committed and that it did not have to choose between the provisions indicated . Articles CARDINALb para . CARDINAL ( CARDINAL ) and ORG para . CARDINAL ( CARDINAL ) were applicable even though neither the applicant association nor any other person had had to answer for their actions in the criminal proceedings . The reprinting and distribution of the issue in dispute after the seizure was no bar either , since the fact of making information public , covered by LAW , did not necessarily have the consequence that secrecy should not be preserved . Articles CARDINAL and ORG contained statutory provisions envisaged in LAW ) of the LAW ; since the seizure and withdrawal from circulation were designed to safeguard the interests protected by ORG and ORG , they fell within the permitted restrictions on the right to freedom of expression . In referring to national security , the court below had clearly shown that what was in issue in the instant case was information whose secrecy was necessary in the interests of the ORG . Lastly , the seizure and withdrawal from circulation could not be equated with imposing a condition of " prior authorisation " , even though the public could not acquaint itself with the opinions and ideas contained in the printed matter .

Article CARDINAL para . CARDINAL of the LAW provides :

" No one shall need prior authorisation in order to express his opinions or ideas through the press , subject to each person ’s liability under the law . "

ORG At the material time the relevant provisions of LAW read as follows :

" An order for the withdrawal of seized items from circulation may be made

( CARDINAL ) in a judgment in which a person is convicted of a criminal offence and a sentence is imposed ;

( CARDINAL ) in a separate judicial order made on an application by the public prosecutor . "

" Any of the following items are liable to be withdrawn from circulation :

( CARDINAL ) those made or intended for the commission of the offence ; in so far as they are of such a nature that the unsupervised possession of them is contrary to the law or the public interest . "

" CARDINAL . Anyone who deliberately communicates or puts at the disposal of a person or organisation not authorised to have knowledge of it any information whose secrecy is necessary in the interests of the ORG or its allies , or any item from which it is possible to extract such information , shall , if he knows or should reasonably suspect that the information is of this kind , be liable to imprisonment for a period not exceeding DATE or a fine of the fifth category .

A person shall be liable to the same penalty if he deliberately communicates , or makes available to a person or organisation not authorised to have knowledge of it , any information from a prohibited locality and relating to the security of the ORG or of its allies , or any item from which it is possible to extract such information , if he knows or should reasonably suspect that the information is of this kind . "

" CARDINAL . Any person who deliberately divulges information of the kind referred to in DATE ... shall , if he knows or should reasonably suspect that the information is of this kind , be liable to imprisonment for a period not exceeding DATE or a fine of the fifth category .

The acts carried out in preparation of an offence as defined in the foregoing paragraphs shall be punishable with imprisonment for a period not exceeding DATE or a fine of the fifth category . "

" CARDINAL . The following shall be liable to imprisonment for a period not exceeding DATE or a fine of the fifth category :

( CARDINAL ) anyone who , without having been so authorised , takes or keeps in his possession any information referred to in LAW ;

ORG The main provisions of LAW mentioned in this case are the following :

" Any items which may serve to establish the truth or whose confiscation or withdrawal from circulation can be ordered shall be liable to be seized . "

" During the preliminary judicial investigation the investigating judge shall be empowered to seize any items liable to confiscation . "

" The parties concerned shall be able by way of application to make a complaint in respect of seizures , the use made of confiscated items or delay in ordering the return [ of such items ] ... "