Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the applicant , who was DATE at the time , and his sister entered GPE with their mother . The mother had a valid passport and a visa for DATE to visit the applicant ’s sister and brotherin - law , who had been granted permanent residence permits in GPE in DATE and DATE respectively .

Shortly thereafter , the applicant ’s mother requested asylum . Her request also applied to the applicant and his sister who were minors at the relevant time . According to a registration report of DATE , the applicant ’s mother submitted that she had been an active member of a monarchist organisation called GPE . She had printed leaflets about the king and distributed them in her home town . In so far as her statement involved the applicant it concerned a demonstration in which she and the applicant had participated on DATE . The applicant , who at the relevant time was DATE , had been arrested , detained and subjected to torture for DATE . The applicant ’s mother had never been convicted but feared being persecuted by the authorities because of the said activities . Allegedly , she had recently learned that all members of the organisation had been arrested .

DATE , the applicant ’s mother explained that she had been a member of GPE since DATE . On DATE , due to their participation in the demonstration , the applicant was arrested , tortured and detained for DATE . The applicant ’s mother ’s home was seized DATE after the demonstration , but thereafter the authorities had not made further contact with the family . When the applicant ’s mother left GPE , the organisation had still been active , but subsequent to her entry into GPE she had learnt that it had been uncovered , that its members had been arrested and that she was wanted by the authorities .

The immigration authorities held further interviews with the applicant ’s mother on DATE and DATE , during which she elaborated on her personal situation . As to the applicant , she explained that he had been detained for DATE in connection with the demonstration in DATE . The applicant ’s mother also submitted various documents in support of her request for asylum .

On DATE ORG ) refused to grant the applicant , his mother and sister asylum , finding that the applicant ’s mother lacked credibility and that the family did not fulfil the requirements for obtaining asylum .

The applicant , his mother and sister appealed against the decision to ORG ( PERSON ) , before which the applicant confirmed that he had been arrested in DATE for DATE .

On DATE ORG upheld the refusal to grant the family asylum . It noted that the applicant ’s mother had provided various divergent and unreliable versions of events and considered that she had failed to substantiate that the family had fulfilled the criteria to be granted asylum .

On DATE , a representative for the applicant ’s mother requested a re - opening of the proceedings which was refused by ORG on DATE .

On DATE , having reached the age of majority , the applicant requested that the proceedings be re - opened . He alleged that he had been politically active in GPE and recently learnt that he was wanted by the authorities . By decision of DATE ORG refused the applicant ’s request finding that he had failed to add significant new information or viewpoints to the case . The applicant was deported the following day .

By letter of CARDINAL DATE a representative for the applicant informed ORG that the applicant had been picked up by CARDINAL men in civilian clothing in GPE on CARDINAL DATE and that nobody had heard from him since . Accordingly , the representative requested a re - opening of the proceedings , which was refused by ORG on DATE .

Another request for a re - opening of the proceedings was lodged with ORG on DATE and refused by the latter on DATE .

A third request for a re - opening of the proceedings was lodged with ORG on DATE and refused by the latter on DATE .

On DATE the applicant re - entered GPE and applied for asylum . He maintained that , due to his previous political activities and asylum request , upon return to GPE he had been detained and subjected to torture for DATE . According to medical statements , inter alia by ORG dated DATE , the applicant suffered from post - traumatic stress disorder ( PTSD ) and depression which , it was assessed , was consistent with his claim that he had been subjected to torture .

By letters of DATE and DATE the applicant requested that ORG acknowledge liability in damages for the suffering inflicted on him as a consequence of ORG decision of CARDINAL DATE . By letter of DATE ORG informed the applicant that it could not acknowledge such liability .

On DATE , ORG granted the applicant asylum . It found that , although the applicant could not be considered to have been persecuted when he left GPE together with his mother and sister in DATE , it could be considered a fact that the applicant had been arrested by the NORP authorities shortly after his return to GPE at DATE and that he had been detained for a long time . In addition , the applicant had left GPE illegally . Accordingly , ORG found that if returned again to GPE the applicant would have a well - founded fear of persecution because the NORP authorities would incorrectly consider him to be involved in extensive political activities aimed at the regime .

On DATE the applicant brought an action for damages against ORG before ORG of Eastern GPE ( PERSON Landsret ) , requesting that the former be ordered to acknowledge that it was liable to pay compensation for pain and suffering in the amount of MONEY ( ORG ) equal to PERCENT ( ORG ) since by decisions of DATE and DATE ORG had refused to grant the applicant asylum , although allegedly at the relevant time he had amply demonstrated the risk he would face upon return to GPE of being subjected to arrest and torture , which subsequently happened .

Referring to LAW , subsection CARDINAL of LAW ( GPE ) , according to which no appeal lay against decisions taken by ORG , ORG pleaded as a preliminary issue that ORG should dismiss the case .

ORG decided to determine the preliminary issue separately and decided on DATE that , despite the invoked provision of LAW , it had authority to examine the applicant ’s compensation claim on the merits . The reasoning was as follows :

“ As established , most recently by ORG decision published in ORG ( ORG , p. CARDINAL ) , as a result of section CARDINAL , subsection CARDINAL of LAW , according to which ORG decisions are final , the courts’ review of ORG decisions is limited to a review of legal questions , including shortcomings in the basis for the decision and illegal discretion . Consequently , the courts can not determine claims for compensation in so far as the claim in reality is based solely on the assumption that ORG made a mistake in its concrete assessment of the evidence and its discretion .

[ The applicant ’s ] compensation claim concerns the treatment to which he was subjected in GPE upon his return in DATE , and thus relates to ORG decisions of DATE and DATE . [ The applicant ] has maintained , among other things , that ORG failed to decide on the [ the applicant ’s ] risk of ill - treatment by the authorities resulting from his being returned [ to his country of origin ] after such a long period of absence .

Consequently , [ the applicant ] has invoked arguments which do not relate to ORG concrete assessment of the evidence and discretion . ”

ORG appealed to ORG ( Højesteret ) , submitting anew that the case should be dismissed .

By judgment of CARDINAL DATE ORG dismissed the applicant ’s claim for compensation in its entirety with the following reasoning :

“ The circumstances which [ the applicant ] has submitted in support of his argument that ORG were liable and therefore must grant him compensation , presuppose a review of ORG decisions of CARDINAL DATE and CARDINAL DATE . ORG agrees that such a review is limited to an assessment of the legality of the administrative decision in question , including shortcomings in the basis for the decision and illegal assessments , also in a case like the present [ concerning a compensation claim ] . In its decision to refuse to grant the applicant asylum , ORG took a stand on the main claim [ submitted by the applicant , his mother and sister ] , namely DATE of alleged membership of an illegal organisation , its being uncovered and the applicant ’s participation therein . Although not expressly stated in the decision , ORG finds no reason to assume that ORG did not make an assessment of [ the applicant ’s ] personal conditions including his participation in a demonstration in DATE and his subsequent short term detention , which was clearly mentioned in the facts part of the decision . It must also be assumed that ORG did take into account whether [ the applicant ] and his mother and sister personally were at risk upon entry and stay in GPE due to the long absence from their country since DATE . Against this background , ORG finds that the applicant ’s objections to ORG decisions in reality amount to a disagreement with ORG assessment of the evidence and its conclusive decision as to whether the facts of the case could justify asylum . ”

Under section CARDINAL § CARDINAL of LAW ( Erstatningsansvarsloven ) , a person who is responsible for an unlawful infringement of another ’s freedom , privacy , honour or person , is liable to pay damages to the injured party . An action for damages in this respect may be instituted before the ordinary courts in accordance with the rules set out in LAW ( Retsplejeloven ) .

By virtue of section CARDINAL of LAW ( GPE ) , asylum is granted to aliens who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by ORG and in the second instance by ORG , which is not subject to any instructions from ORG .

Pursuant to section CARDINAL of LAW , ORG comprises a chairman , deputy chairmen ( ORG ) and other members . The chairman and the deputy chairmen must be judges and the other members must be attorneys or serve with ORG . The judges are appointed upon nomination by ORG ) . The other members of ORG are appointed by ORG . The attorneys are appointed upon nomination by ORG ( PERSON ) and the other members are appointed upon nomination by the Minister for ORG . The members of ORG are independent and can not accept or seek directions from the appointing or nominating authority or organization . The term of appointment is for DATE . The members are eligible for re - appointment and the member will be re - appointed if he or she requests re - appointment . The office as member ceases when the member resigns by own wish ; when the member no longer has the organizational affiliation on which the original appointment was based ; or at DATE of the member ’s CARDINALth birthday . The members of ORG can only be removed by judgment under the rules applying to the removal of judges . The jurisdiction of ORG ( PERSON ) relating to judges applies equally to members of ORG . Cases tried by ORG are heard by the chairman or a deputy chairman , an attorney and a member serving with ORG .

Pursuant to LAW CARDINAL of LAW , decisions by ORG are final , which means that there is no avenue for appeal against the ORG ’s decisions . Aliens may , however , by virtue of LAW of LAW ( PERSON ) bring an appeal before the ordinary courts , which have authority to adjudge on any matter concerning the limits to the competence of a public authority .

LAW read as follows :

“ CARDINAL . The courts of justice shall be empowered to decide any question relating to the scope of the executives’ authority ; though any person wishing to question such authority shall not , by taking the case to the courts of justice , avoid temporary compliance with orders given by the executive authority . ”

The courts will normally confine the review to the question of deciding on the legality of the administrative decision , including shortcomings of the basis for the decision and illegal assessments , but will generally refrain from adjudging on the administrative discretion exercised .

The question of the scope of the finality rule set out in section CARDINAL(CARDINAL ) of LAW has been brought before the courts several times ( see , inter alia , ORG judgments of DATE , published in ORG ( ORG ) , ( UfR DATE , p. CARDINAL ) , CARDINAL DATE ( UfR CARDINAL , p. CARDINAL ) , DATE ( UfR DATE . p CARDINAL ) , CARDINAL DATE ( UfR DATE , p. CARDINAL ) , CARDINAL DATE ( UfR DATE , p. CARDINAL ) and DATE ( UfR DATE , p. CARDINAL ) . Reference was also made to more recent ORG judgments of DATE ( UfR DATE , p. DATE ) , CARDINAL judgments of CARDINAL DATE ( UfR DATE , p. CARDINAL ; GPE DATE , p. CARDINAL ; GPE DATE , p. CARDINAL ; and GPE DATE , p. MONEY ) , a judgment of CARDINAL DATE ( ORG case No . CARDINAL ) and CARDINAL judgments of CARDINAL DATE ( ORG cases Nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) ) . According to those judgments , judicial review of decisions issued by ORG is limited to a review of issues of law , including an inadequate basis for a decision , procedural errors and unlawful exercise of discretion .

The Government have also referred to a judgment of DATE from ORG , published in ORG ( DATE , p. CARDINAL ) , which in their view illustrated that ORG does not interpret section CARDINAL , subsection CARDINAL of LAW narrowly . In that case , ORG held that ORG was not entitled to make the granting of asylum status conditional upon the plaintiff being able to render probable that he was at a specific risk of having to carry out or assist in actions that might entail exclusion under international rules pursuant to LAW relating to ORG . ORG noted that :

“ the question of whether it is justified to set up these conditions , which relate to the disputed fact and the burden of proof as well as other issues , is an issue of law subject to judicial review regardless of the finality rule laid down in LAW , subsection CARDINAL of LAW . ”

Thus , the Government pointed out , the national courts can not substitute their own decision on the merits of a case embraced by LAW CARDINAL of LAW for that of ORG . However , if a decision issued by ORG is appealed against to a national court , and if that court finds that ORG decision suffers from material defects of law , including an inadequate basis for the decision , procedural errors or unlawful exercise of discretion , the court may remit the case to ORG for reconsideration . This was done by ORG in the above - mentioned judgment ( GPE DATE , p. CARDINAL . ) .


CASE OF AL-KHAWAJA AND TAHERY v. THE UNITED KINGDOM

Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

While working as a consultant physician in the field of rehabilitative medicine , the applicant was charged on CARDINAL counts of indecent assault on CARDINAL female patients while they were allegedly under hypnosis . CARDINAL of the complainants , ORG , committed suicide ( taken to be unrelated to the assault ) before the trial but , DATE after the alleged assault , had made a statement to the police .

On DATE , a preliminary hearing was held to determine whether ORG 's statement should be read to the jury . The judge stated that the contents of the statement were crucial to the prosecution on count one as there was no other direct evidence of what took place ; “ putting it bluntly , no statement , no count one . ” The defence accepted that if the statement was read to the jury at trial they would be in a position to rebut it through the cross - examination of other witnesses and expose inconsistencies in their evidence . The judge considered that this represented a route by which ORG statement and/or her credibility could be challenged ; however , he went on to underline the importance of the need for the trial judge to give directions to the jury as to the status of the evidence . The judge allowed the evidence to be admitted at trial .

The jury heard evidence from a number of different witnesses and the defence were given the opportunity to cross - examine other witnesses who had produced similar fact evidence , including the second complainant who had produced supportive evidence . In his summing up , the trial judge directed the members of the jury , on CARDINAL separate occasions , as to how they should regard the read statement of the deceased complainant . The judge stated in his summing up :

“ It is very important that you [ the jury ] bear in mind when considering her [ ORG 's ] evidence that you have not seen her give evidence ; you have not heard her give evidence ; and you have not heard her evidence cross - examined [ by applicant 's counsel ] , who would undoubtedly have had a number of questions to put to her . ”

The judge later stated :

“ ... bear in mind ... that this evidence was read to you . The allegation is completely denied ... you must take that into account when considering her evidence . ”

On CARDINAL occasions the jury asked for clarification of points raised in the read statement of GPE

The applicant was convicted by a unanimous verdict on both counts of indecent assault . He was sentenced to a DATE custodial sentence on the first count and a DATE custodial sentence on the second count , to run consecutively .

The applicant appealed against his conviction to ORG . The appeal centred on the pre - trial ruling to admit ORG statement as evidence . It was also submitted that , in his summing up , the trial judge did not give adequate directions to the jury as to the consequential disadvantage of this evidence to the applicant .

On DATE the appeal was dismissed . ORG concluded on DATE that the applicant 's right to a fair trial had not been infringed . With regard to the admission in evidence of the statement of the deceased complainant , the court held that it was not necessarily incompatible with LAW ( d ) . Relying on PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL p CARDINAL , the court held that admissibility of evidence is primarily a matter of domestic law . It then found :

“ Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died , there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed . That was the case here . That public interest must not be allowed to override the requirement that the defendant have a fair trial . Like the court in GPE [ see relevant domestic law below ] we do not consider that the case law of ORG the conclusion that in such circumstances the trial will be unfair . The provision in Article CARDINAL ) that a person charged shall be able to [ have ] the witnesses against him examined is CARDINAL specific aspect of a fair trial : but if the opportunity is not provided , the question is ' whether the proceedings as a whole , including the way the evidence was taken , were fair ' – PERSON , paragraph CARDINAL . This was not a case where the witness had absented himself , whether through fear or otherwise , or had required anonymity , or had exercised a right to keep silent . The reason was death , which has a finality which brings in considerations of its own , as has been indicated at the start of this paragraph . ”

The court also considered that the applicant had been able to attack the accuracy of the deceased complainant 's statement by exploring the inconsistencies between it and the evidence given by witnesses and experts . Turning to the issue of the trial judge 's summing up , the court stated :

“ We consider that it would have been better if the judge had stated explicitly that the appellant was potentially disadvantaged by the absence of [ ORG ] and that in consequence of the inability to cross - examine her and of the jury to see her , her evidence should carry less weight with them . Nonetheless , in the circumstances of this case it must have been wholly clear to the jury from the directions the judge did give , that this was the purpose of his remarks . We therefore consider that the jury were given an adequate direction as to the consequences of [ ORG 's ] statement being in evidence in her absence , and that this is not a factor which might make the appellant 's trial unfair and in breach of LAW . We should also say that overall the evidence against the appellant was very strong . We were wholly unpersuaded that the verdicts were unsafe . ”

ORG refused leave to appeal to ORG but certified that a point of law of general public importance was involved in the decision .

On DATE the applicant petitioned ORG on the point of law certified by ORG . On DATE ORG refused the petition .

The applicant was born in DATE . On DATE he was involved in a fight with S. during which it is alleged that the applicant stabbed S. CARDINAL times in the back . The applicant was charged with wounding with intent and also with attempting to pervert the course of justice by telling the police that he had seen CARDINAL black men stab PERSON When witnesses were questioned at the scene , no - one claimed to have seen the applicant stab PERSON days later , however , CARDINAL of the witnesses , PERSON , made a statement to police that he had seen the applicant stab PERSON statement to the police , it is clear that he did not see who stabbed him . Both S. and T. were members of the NORP community in GPE .

On DATE the applicant 's trial began at ORG . On DATE ( DATE of trial ) the prosecution made an application for leave to read ORG 's statement pursuant to section CARDINAL(CARDINAL ) ( e ) and ( CARDINAL ) of LAW DATE ( the “ ORG DATE ” ) . The prosecution argued under the ORG DATE that ORG was too fearful to attend trial before the jury and that he should qualify for special measures . The trial judge heard evidence from a police officer conducting the case who testified that the NORP community was close - knit and that ORG 's fear was genuine . The trial judge also heard evidence from PERSON himself who gave evidence to the judge from behind a screen . In ruling that leave should be given for the statement to be read to the jury , the trial judge stated :

“ I am satisfied in those circumstances upon the criminal standard of proof that this witness is genuinely in fear ; and I base that not only on his oral testimony , but also upon my opportunity while he was in the witness box to observe him . I therefore have to look , having looked at the contents of the statement , to any risk its admission or exclusion will result in unfairness to any party to the proceedings . I am satisfied that there would be an unfairness caused by its exclusion ; but I am equally satisfied that no unfairness would be caused by its admission . And in doing so , I have taken into account the words of the statute [ Section CARDINAL ( CARDINAL)(e ) of LAW DATE , see relevant domestic law below ] ; in particular how difficult it will be to challenge the statement if the relevant person does not give oral evidence . Challenge of a statement does not always come from cross - examination . Challenge of a statement can be caused by evidence given in rebuttal ; by either the defendant , if he chooses to do so , or by any other bystander – and we know that there were DATE who were on the street at that time . Consequently I am satisfied that the defendant 's evidence , if he chooses to give it , would be sufficient to rebut and to challenge the evidence that is contained in that statement . I have further considered other relevant factors , and I have also offered to the witness whilst he was in the witness box behind screens the possibility of him giving evidence with the same special measures in place . He told me his position would not change ; that he could not give evidence before a jury , and the reason that he could not was because he was in fear . Having taken all those matters into account in those circumstances , I am satisfied that this is the type of case which ORG envisaged might require a statement to be read . ”

T. 's witness statement was then read to the jury in his absence . The applicant also gave evidence . The judge , in his summing up , warned the jury about the danger of relying on the evidence of T. He stated :

“ That evidence , as you know , was read to you under the provisions that allow a witness who is frightened , it is not a question of nerves it is a question of fright , fear , for his statement to be read to you but you must be careful as to how you treat it . It is right , as has been pointed out by the defence , that they were deprived of an opportunity to test that evidence under cross - examination . It is right also that you did not have the advantage of seeing the witness and his demeanour in Court ... You must ask yourselves ' can we rely upon this statement ? Is it a statement which we find convincing ? ' It is only if you are satisfied so that you are sure that what is in the statement has accurately depicted what happened TIME and what the witness saw , that you could rely upon it . That goes for any witness . It is only if you find that the evidence is compelling and satisfies you so that you are sure that you act upon it . So you must always ask yourselves ' is the statement he made reliable ? ' You must bear in mind also , importantly , that it is agreed and acknowledged that it is not the defendant who is responsible for putting the witness in fear . ”

On DATE , the applicant was convicted by a majority verdict , principally of wounding with intent to cause grievous bodily harm , and later sentenced to DATE imprisonment to be served concurrently with a term of DATE imprisonment for doing an act intended to pervert the course of justice .

The applicant 's appeal was referred directly before the full ORG . The applicant argued that the inability to cross - examine T. infringed his right to a fair trial . The appeal judges were satisfied that if they were to refuse leave , under the ORG DATE , to have ORG 's statement read at trial there would be unfairness to the prosecution and that , were they to grant it , there would be no unfairness to the applicant . ORG acknowledged , however , that the ORG accepted that ORG 's statement was “ both important and probative of a major issue in the case ... and had it not been admitted the prospect of a conviction would have receded and that of an acquittal advanced . ” The court upheld the reasoning at first instance , stating that there was available not only cross - examination of other prosecution witnesses but also evidence from the applicant himself and the potential for evidence from other bystanders in order to prevent unfairness . It was also stated that the trial judge had explicitly warned the jury in detail as to how they should treat this evidence and properly directed them as to how they should consider it in reaching their verdict . Although the applicant maintained that even a proper direction by the judge could not cure the unfairness , ORG held that the jury was informed of all matters necessary to its decision - making process . The applicant 's sentence was reduced to DATE imprisonment .

Leave to appeal on conviction was refused on DATE .

At the time of the trial judge 's ruling and the trial in Mr PERSON case , the relevant statutory provisions were to be found in sections CARDINAL of LAW DATE . LAW provides for the admission of first hand documentary hearsay in a criminal trial :

“ CARDINAL.— ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if—

( CARDINAL)(a ) the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness ...

CARDINAL.—(CARDINAL ) NORP If , having regard to all the circumstances—

( a ) the ORG Court—

( i ) on a trial on indictment ;

( ii ) on an appeal from a magistrates ' court ; or

( iii ) on the hearing of an application under section CARDINAL of the [ DATE c. CARDINAL . ] Criminal Justice Act DATE ( applications for dismissal of charges of fraud transferred from magistrates ' court to ORG ) ; or

( b ) the criminal division of ORG ; or

( c ) a magistrates ' court on a trial of an information ,

is of the opinion that in the interests of justice a statement which is admissible by virtue of section CARDINAL or CARDINAL above nevertheless ought not to be admitted , it may direct that the statement shall not be admitted .

( CARDINAL ) Without prejudice to the generality of subsection ( CARDINAL ) above , it shall be the duty of the court to have regard—

( a ) to the nature and source of the document containing the statement and to whether or not , having regard to its nature and source and to any other circumstances that appear to the court to be relevant , it is likely that the document is authentic ;

( b ) to the extent to which the statement appears to supply evidence which would otherwise not be readily available ;

( c ) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings ; and

( d ) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness to the accused or , if there is CARDINAL , to any of them . ”

The following legislative provisions of LAW DATE were drafted as a means to tackle crime by providing special measures to protect witnesses who have a genuine fear of intimidation and repercussions . The LAW entered into force in DATE .

Section CARDINAL ( CARDINAL)(e ) of LAW DATE ( cases where a witness is unavailable ) states that :

“ In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if ... through fear the relevant person does not give ( or does not continue to give ) oral evidence in the proceedings , either at all or in connection with the subject matter of the statement , and the court gives leave for the statement to be given in evidence . ”

Section CARDINAL ( CARDINAL ) states :

“ Leave may be given under subsection ( DATE ) only if the court considers that the statement ought to be admitted in the interests of justice , having regard-

( a ) to the statement 's contents ,

( b ) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings ( and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence ) ...

( d ) to any other relevant circumstances . ”

This ORG 's judgment in PERSON v. GPE , no . CARDINAL , § CARDINAL , ORG CARDINALII was considered by ORG in NORP v. GPE and GPE [ DATE ] EWCA Crim CARDINAL , which concerned CARDINAL defendants who were alleged to have intimidated witnesses . Leave was given by the trial judge to have the witnesses ' statements read to the jury . The defendants appealed on the ground that the admission of the statements breached LAW read with CARDINAL ( d ) of the LAW . ORG dismissed the appeal . In considering the relevant case - law of this ORG , at paragraph CARDINAL of its judgment , it stated that what appeared from that case - law were the following propositions :

“ i ) The admissibility of evidence is primarily for the national law ;

ii ) Evidence must normally be produced at a public hearing and as a general rule Article CARDINAL ) and ( CARDINAL)(d ) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses ;

iii ) It is not necessarily incompatible with Article CARDINAL(CARDINAL ) and ( CARDINAL)(d ) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings . Article CARDINAL ) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held . The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue , whether , where statements have been read , the trial was fair .

iv ) The quality of the evidence and its inherent reliability , plus the degree of caution exercised in relation to reliance on it , will also be relevant to the question whether the trial was fair . ”

ORG then stated :

“ The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process , the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant . Certainly at first sight paragraph CARDINAL of PERSON seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of LAW , if the statements are the sole or decisive evidence . Furthermore there is some support for that position in the previous authorities . But neither PERSON nor any of the other authorities were concerned with a case where a witness , whose identity was well - known to a defendant , was being kept away by fear , although we must accept that the reference to ORG - type organisations and the trials thereof in paragraph CARDINAL shows that the court had extreme circumstances in mind . ”


The applicants , whose particulars appear in the appendix , were represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicants had originally served in the Police . On termination of their service they became entitled to a special DATE allowance for time served ( príspevok za službu ) pursuant to section CARDINAL et seq . of ORG in ORG ( Law no . PERSON . , as amended ) . The allowance was paid to them by ORG ( “ the NORP ” ) of ORG ( “ the Ministry ” ) and its amount was calculated as a percentage of the applicants ' DATE salary at the time of the termination of their service . The percentage depended on the number of DATE served . Under section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL Coll . the entitlement to the allowance expired once the officer in question recommenced “ service ” . The term “ service ” was understood to include also service in ORG ( PERSON informačná služba - “ the SIS ” ) . It was the duty of the officer receiving the allowance to report the recommencement of “ service ” to the ORG within DATE .

At various dates in DATE and DATE the individual applicants started to work for the ORG . They were subject to an order of the Director ( “ the Director ” ) of the ORG no . CARDINAL/CARDINAL which forbade them to report the recommencement of their “ service ” to the ORG so that their affiliation with the ORG would be concealed .

The applicants thus continued receiving the allowance from the ORG ( “ the paid allowance ” ) . At the same time they were receiving a salary from the ORG . The ORG was however withholding a part of this salary ( “ the withheld salary ” ) in an amount equal to the paid allowance . The applicants understood that the ORG would transfer the withheld salary to the ORG budget .

At various dates in DATE and DATE the applicants ' service in the ORG terminated and the latter reported the termination to the ORG .

The ORG subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title . The applicants unsuccessfully challenged the decision before the ORG . The applicants PERSON and PERSON refused to accept the debt and it was collected from them by a judicial enforcement officer . The remaining applicants commenced paying the amounts owed voluntarily in instalments .

The applicants then lodged demands with the ORG for repayment of the withheld salary . As their demands were not met , they lodged a claim with GPE ORG ( ORG súd ) and also sought interest for late payment of the principal amount .

In several separate decisions taken DATE ORG found that it had no jurisdiction to deal with the applicants ' claims against the ORG and that the body to determine the matter was the Director . ORG based its finding on sections CARDINAL ( CARDINAL ) , CARDINAL and CARDINAL et seq . of ORG in the Police , the ORG , ORG and ORG ( Law no . DATE . , as amended ) and section CARDINAL ( b ) of the LAW on ORG ( Law no . CARDINAL/CARDINAL Coll . , as amended ) . ORG thus referred the actions under LAW of ORG to the ORG for a determination by its Director and discontinued the judicial proceedings in their respect . ORG ( PERSON súd ) upheld the decision on appeal .

On numerous subsequent occasions applicants again turned to the ORG claiming repayment of the withheld salary plus penalty interests . Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them .

In DATE the ORG transferred an amount of money equal to the withheld salary to the ORG . In substance this amount was identical to the paid allowance . In DATE the ORG returned to the applicants the part of the paid allowance which they had already repaid in the meantime .

The ORG also later paid to the applicants PERSON and PERSON the costs of the enforcement of their debt to the ORG .

LAW CARDINAL governs the administrative judiciary . In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrativelaw actions under LAW ) CARDINAL of that LAW and administrativelaw appeals under LAW of that LAW . From DATE the relevant provisions of this LAW were amended by PERSON no . PERSON . in that administrative tribunals also have the jurisdiction to review the “ official conduct ” of public administration authorities . Law no . PERSON . further amended the provisions of this LAW by defining detailed rules concerning actions against the inactivity of authorities of public administration . These rules are laid down in a new LAW and entered into force on DATE .

By virtue of LAW the notion of “ official conduct ” also includes inactivity of the administrative authority concerned .

Pursuant to LAW administrative tribunals are entitled to decide in administrativelaw actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies .

Under LAW in conjunction with LAW t any natural or legal person who alleges that an authority of public administration is not pursuing a matter , contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed time limit which can not be longer than DATE . Under Article CARDINALu a failure to comply with the order can be sanctioned by a fine of CARDINAL NORP korunas .

In its judgment ( rozsudok ) of DATE ( file no . CARDINAL Sž CARDINAL ) ORG found that ORG had been inactive in a set of administrative proceedings and ordered that the ORG give a final decision in the matter within DATE from delivery of its judgment .

In a resolution ( uznesenie ) of DATE ( file no . CARDINAL S CARDINAL/CARDINAL ) PERSON found that ORG wrongfully failed to determine the plaintiff 's objections in land adjustment proceedings which were conducted before that office . ORG ordered that ORG determine the objections within DATE and awarded the plaintiff reimbursement of her costs .

The right to protection of a person 's dignity , honour , reputation and good name is guaranteed by LAW . of LAW . According to LAW any natural person has the right to protection of his or her personal integrity , in particular his or her life and health , civil and human dignity , privacy , name and personal characteristics .

Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction ( LAW ) .

LAW provides that in cases when the satisfaction obtained under LAW is insufficient , in particular because a person 's dignity and position in society have been considerably diminished , the injured person is entitled to financial compensation for non - pecuniary damage .


Violation of Art. 6-1 and 6-3;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Sverre Erik Jebens

The first applicant , Mr PERSON , and the second applicant , Mr Per PERSON , were born in DATE and DATE respectively and both live in GPE .

On DATE ORG convicted the first applicant of illegal possession of a firearm and , with CARDINAL other co - accused , namely the second applicant and “ C ” , of possessing QUANTITY of amphetamines and attempting to import those drugs by ferry from GPE ( GPE ) to GPE on DATE . The first applicant was given a prison sentence of DATE , the second applicant DATE and C six years .

The summary of facts contained in ORG judgment took note of statements made to the NORP police by a fourth person , “ ORG , concerning transportation of the drugs from GPE to GPE by “ FAC ( the second applicant ’s nickname ) and another person . Before driving his car onto the ferry in GPE , T.A. was stopped by NORP customs officials , who found a total of QUANTITY of amphetamines in a rucksack and a bag in the car boot . Immediately after ORG arrest , NORP police officers travelled to FAC to take part in his questioning . PERSON was tried and convicted in GPE in DATE .

NORP In its reasoning in the first applicant ’s conviction , ORG based its decision on circumstantial evidence , notably on his and his cohabitant ’s use of a mobile telephone , and its finding that there could be no doubt that the telephone in question , which used CARDINAL specific pre - paid card numbers , had functioned as a means of communication in the operation and had played a central role in the case .

On DATE ORG , in separate proceedings , convicted a fifth person , “ D ” ( who had absconded to GPE but later returned ) , in relation to the same offences and sentenced him to CARDINAL years’ imprisonment .

The first applicant , the second applicant , C and D subsequently appealed to ORG , which decided to join the proceedings . Whereas D appealed only against the sentence , the other appellants appealed against other aspects , including the procedure , the assessment of evidence and the application of the law with regard to the question of guilt .

In the appeal proceedings before ORG , the prosecutor requested that D be heard first , before the other defendants , because the giving of testimonies in this order would be the most appropriate in the interests of elucidating the case and ensuring effective administration of justice . The applicants’ respective defence lawyers protested against the order requested by the prosecutor . ORG considered that , since NORP was to give evidence on matters of relevance to his sentence , normal practice should be followed , which was to hear first those defendants who had appealed against the lower court ’s judgment as a whole . After C , the first applicant and the second applicant had given oral evidence , it transpired that D did not wish to give oral evidence . As to the procedure thereafter , the court record states :

“ The prosecution asked , with reference to LAW , for permission to read out the depositions that the accused [ D ] had made to the police on DATE , DATE and DATE .

[ D ] ’s defence counsel , Mr PERSON , had no objections to this . Mr PERSON , defence counsel for [ C ] , wanted the depositions to be read out . Mr ORG , defence counsel for [ the first applicant ] , did not wish to express any particular opinion on the right to read them out . Mr PERSON , defence counsel for [ the second applicant ] , opposed the reading - out of the police depositions . He argued that such a reading would be in conflict with the requirements of a fair trial laid down in FAC , and would also be in conflict with the minimum rights contained in LAW ( d ) of the LAW , namely the right of the accused to examine witnesses against him , inasmuch as he maintained that testimony from [ D ] at this stage of the case would have the nature of witness testimony .

The ORG thereafter ruled as follows :

The High Court finds that the reading - out of [ D ] ’s police depositions is permissible under LAW . Reference is made to the ORG commentary [ on LAW ] , volume II , page CARDINAL , from which the following citation is taken :

‘ In ORG an appeal against the assessment of the evidence may be joined to a limited appeal ... During the appeal hearing , all the accused will normally be present . The reading - out of their previous depositions must be done in accordance with the rules of LAW , not LAW , even if the deposition to be read concerns a co - accused , that is , someone other than the person giving the deposition himself . The procedure is different when a former co - accused has had his case finally and enforceably adjudicated and is appearing as a witness in the case.’

The High Court finds accordingly and can not otherwise see that the reading - out of [ D ] ’s depositions will be in conflict with ... LAW ( d ) ... of the LAW . [ D ] has the status of an accused , and the High Court finds that this must be decisive even if he has lodged a limited appeal in the case . ”

The second applicant ’s counsel then asked ORG to adjourn the proceedings in so far as the second applicant was concerned until a legally enforceable judgment existed with respect to D , so that D could be summoned as a witness with an obligation to testify . ORG rejected the request for adjournment .

NORP The prosecutor then read out D ’s statement , following which the second applicant ’s counsel asked to put a question to NORP He referred to the fact that in CARDINAL of his statements to the police D had stated that his deposition contained so many errors that he saw no point in going through it any further . In this connection , the court record states :

“ The President of the ORG noted that [ D ] had invoked his right to remain silent , and that it would not therefore be permitted to question him directly , but that the President would ask [ D ] whether he wanted to testify , wholly or in part .

[ D ] replied that he still wished to remain silent , including in response to the questions put by PERSON . ”

On DATE ORG , noting that the jury had answered in the negative with regard to ORG criminal guilt and in the affirmative with regard to that of the other defendants , acquitted C and convicted the other defendants . It sentenced the second applicant and NORP to DATE imprisonment and the first applicant to CARDINAL years’ imprisonment . ORG judgment contained no summary of the assessment of the facts in relation to the jury ’s verdict , only a description of the facts in so far as relevant for sentencing , which was decided by the judges .

Both applicants appealed against the High Court proceedings to ORG ( the first applicant had also sought to appeal against the sentence but was refused leave to do so ) , which on DATE rejected their appeal , finding no incompatibility with the requirements of LAW and CARDINAL ( d ) of the LAW .

In his reasoning , approved in the main by the other CARDINAL justices sitting in the case , the first voting judge , Mr ORG , observed , inter alia , that CARDINAL difficulty for ORG in reviewing the appeal was that ORG , contrary to ORG case - law , had proceeded from the assumption that , as a co - accused , D had not been a “ witness ” for the purposes of LAW ( d ) of the LAW . ORG had therefore failed to carry out an assessment of the evidence according to the relevant criteria , notably the importance of ORG depositions in relation to other evidence in the case , although this would have been difficult to do at such an early stage of the proceedings .

ORG noted that extensive evidence had been adduced before ORG . The hearing had lasted for DATE during which CARDINAL witnesses had been heard . GPE evidence and statements related to the use of a number of mobile telephones connected to the case had been of central importance . It was difficult to say whether the statements by D , the only accused who had confessed to the offences , were an element of minor importance compared with the evidence seen as a whole . In his statements , D had implicated the second applicant and , probably indirectly , also the first applicant . However , his statements had not given any clear negative picture of the latter .

It would be inconsistent with the purposes of proceedings involving full examination at CARDINAL judicial levels if the evaluation of evidence carried out by ORG were to carry significant weight in the assessment of the evidence before ORG . In this regard ORG pointed to the fact that C had been acquitted by ORG and that the ORG judges had based their findings regarding certain points , in particular with respect to the transportation of the drugs from the GPE to GPE , on facts different from those relied upon by ORG .

ORG continued :

“ The prosecutor has pointed out that in her directions to the jury the President of ORG had stated that , in her opinion , there was no question of ‘ entirely dominant or crucial evidence against any of the accused’ . I find it difficult to place particular weight on this factor . In addition , she had also said in her direction to the jury that in her view the depositions would be ‘ CARDINAL of several elements in a consideration of whether the accused are guilty’ ... As I see the case , I do not find it defensible to draw any particular conclusion as regards the police ORG significance in the overall evidentiary picture presented to ORG . In view of the state of the evidence at hand , it may indeed appear probable that D ’s confession was a more important element with respect to the other GPE convictions than was his deposition about their role . But the doubt that here obtains means that , despite the other important evidence in the case , I must regard it as ‘ a real GPE that the reading - out of D ’s police depositions had ‘ decisive significance for the overall assessment of the evidence’ ( see PERSON . DATE ) .

In those instances where there is a real possibility that the police statements would have a decisive influence on the assessment of the evidence , the reading - out of these would as a rule have to be refused unless the accused has had an opportunity to put questions to the witness ( see ORG . DATE - CARDINAL ) . ”

ORG observed that in this case none of the defendants had had an opportunity to put questions to D either during the trial before ORG or at any time prior to the High Court proceedings . At ORG hearing D had availed himself of his right to silence . After his depositions had been read out , the President of ORG had , on a request by counsel for the second applicant , asked D again whether he wished to give oral evidence in full or in part . Thus the arrangement was that counsel for the other defendants should have an opportunity to put questions to D , but his unwillingness to give evidence had made a real examination impossible . Under NORP case - law , the requirements of LAW and CARDINAL ( d ) of the Convention would be met if the accused or his counsel were given a formal opportunity to put questions , even if the witness refused to reply , provided that the proceedings considered as a whole were fair . In this connection reference was made to PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , § § DATE , ORG DATE ; and LOC v. GPE ( no . CARDINAL ) , no . CARDINAL , § DATE , CARDINAL DATE .

ORG was satisfied that Article QUANTITY CARDINAL ( d ) had been complied with as the defence had had an opportunity to put questions to D during the trial , even though the latter had opted to refuse to answer those questions . When the cases had been joined , there had been no reason to believe that D would not reply to questions at the trial . A complicating factor had been the divergence of views among the defendants during the trial as to whether the reading - out of D ’s depositions should be permitted . To separate the proceedings regarding D and to postpone the trial concerning the other defendants until the case regarding D had been finalised ( and he could be required to answer questions as an ordinary witness ) would have entailed unreasonable consequences , both from the point of view of elucidating the case and of ensuring effective administration of justice , and would have enabled the defendants to obstruct and protract the trial unduly .

NORP The relevant provisions on the reading - out at a trial hearing of depositions made to the police may be found in LAW and CARDINAL of LAW , which deal respectively with depositions made by an accused and by a witness .

“ Any reproduction in the court record or a police report of any statement that the person indicted has previously made in the case may only be read out if his statements are contradictory or relate to points on which he refuses to speak or declares that he does not remember , or if he does not attend the hearing . The same applies to any written statement that he has previously made in relation to the case . ”

“ Witnesses who can give evidence that is deemed to be of significance in the case should be examined orally during the main hearing unless special circumstances prevent this .

At such examination any reproduction in the court record or a police report of any statement that the witness has previously made in the case may only be read out if the witness ’s statements are contradictory or relate to points on which he refuses to speak or declares that he does not remember . The same applies to any written statement that the witness has previously made in relation to the case . ”

The above provisions are subject to limitations , which are not contained in LAW but follow from interpretations by ORG ( see , in particular , a decision of DATE , ORG . DATE ) in the light of the LAW case - law , which may be summarised as follows .

( a ) As a general rule , witnesses must be examined “ at a public hearing in the presence of the accused ” .

( b ) ORG may be made in special circumstances if , taken as a whole , the proceedings are “ proper and fair ” .

( c ) The reading - out of depositions may take place if the accused or his defence is given an “ adequate and proper opportunity to challenge and question a witness against him , either when he was making his statements or at a later stage of the proceedings ” . Particular care should be exercised if a conviction is secured “ solely or to a decisive extent ” on the deposition .

( d ) It is not a condition that the witness answer the questions asked by the accused or his defence . A deposition may , as a rule , be read out in court even if the witness invokes his right to remain silent , or indeed chooses not to speak for other reasons .

For items ( c ) and ( d ) above , ORG referred to PERSON v. GPE , DATE , § § DATE , Series A no . CARDINAL ; PERSON , cited above , § CARDINAL ; and LOC , cited above , § § DATE ; and , for item ( d ) , it also referred to PERSON , cited above .


The applicant is a NORP national born in DATE and residing in PERSON , the region of Vratsa .

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

A.

Background

On an unspecified date in DATE , prior to the events in the present case , criminal proceedings were opened against the applicant and CARDINAL other persons on charges that they had robbed PERSON in her presence , taking away CARDINAL fur coats and some other objects . The applicant was detained on remand between DATE and CARDINAL DATE when he was released on bail . As of DATE the case was pending for trial , a hearing having been fixed for DATE .

On DATE in the area of the village PERSON CARDINAL persons were shot and killed in their car in what was seen as an internal war between local criminal groups . According to the indictment the applicant and a Mr G. were in a car which was chased by the victims . At some point the CARDINAL cars stopped , and the applicant , who had bought an automatic gun DATE before the events , went out and fired the gun to kill all the victims , one after another . At his trial the applicant stated that he was present during the killings but that it had been PERSON who had shot the victims .

The preliminary investigation

The applicant did not return home after the above events . On DATE he voluntarily appeared at the police in GPE where he was arrested and transferred to Vratsa .

On DATE or DATE an investigator ( следовател ) officially charged the applicant on CARDINAL counts of murder and ordered his detention on remand . On DATE or DATE this decision was confirmed by a prosecutor .

DATE the investigator in the applicant ’s case heard CARDINAL witnesses and CARDINAL medical , ballistic and other experts . Some of the witnesses were examined upon the request of the applicant ’s lawyer of CARDINAL DATE . The investigator also made site visits and conducted an experiment , reconstructing the events of DATE . The investigator heard the applicant on CARDINAL occasions during this period of time . He also collected other documentary evidence .

On DATE the investigator requested the competent prosecutor to authorise the continuation of the investigation for DATE . By decision of DATE ORG ( окръжна прокуратура ) granted the request .

On DATE the investigator appointed a psychiatric expert to examine the applicant . An expert in physics and chemistry was appointed on DATE to analyse traces of gunpowder .

The investigator examined the applicant again on DATE . The applicant requested the collection of additional evidence . On CARDINAL DATE the investigator appointed an expert in graphology . On DATE ORG ( главна прокуратура ) authorised the continuation of the preliminary investigation . On DATE the investigator dealt with the applicant ’s requests in relation to the collection of evidence in his case .

On DATE the investigator completed his work on the case and sent it to ORG . On DATE ORG returned the case for further investigation with instructions to charge the applicant also with unlawful possession of arms .

On DATE the investigator wrote a letter to ORG in Vratsa explaining that the applicant insisted on the presence of his lawyer during the investigation and that the lawyer , who was from GPE , had declined to come to PERSON on several proposed dates . Finally the lawyer had agreed to come on CARDINAL or CARDINAL February CARDINAL .

The additional preliminary investigation was concluded on DATE . On DATE ORG submitted an indictment to ORG in Vratsa .

By decision of DATE ORG fixed a hearing for DATE . At the hearing on CARDINAL DATE the applicant claimed that there had been breaches of procedure and requested that the case be referred for further preliminary investigation . The ORG found that there had been procedural violations which necessitated the referral of the case back to the prosecutor . On DATE the prosecutor returned the case to the investigator .

On DATE the ORG refused the applicant ’s request for the replacement of the investigator .

On DATE the investigator examined CARDINAL witness . On DATE the investigator allowed CARDINAL civil plaintiffs to consult the case - file .

On DATE the applicant was examined by the investigator . On DATE the investigator completed his work on the case and sent it to ORG . On DATE a new indictment was submitted to ORG .

During the preliminary investigation stage of the proceedings the applicant , who was legally represented , submitted to the investigator and to the prosecution authorities numerous complaints and requests . He complained of the behaviour of the investigator , about the visit arrangements in prison , about the delays in the examination of his case , requested his release and raised other matters .

The trial

By decision of DATE the ORG fixed a hearing for CARDINAL , DATE and DATE DATE . On DATE the ORG inquired with the competent administrative authorities about the address of a witness .

On DATE and DATE , at the hearing , the ORG admitted for joint examination CARDINAL civil claims submitted by relatives of the victims , heard the applicant and CARDINAL witnesses . Some of the witnesses refused to answer certain questions . Counsel for the applicant requested the collection of additional evidence .

The hearing was adjourned until DATE when the court heard CARDINAL witnesses and CARDINAL experts . The ORG again adjourned the hearing because of the failure of certain witnesses to appear and also in view of the request supported by the applicant ’s lawyer for the appointment ballistic experts . This was apparently related to the divergence in the testimonies given by the applicant and PERSON The applicant claimed inter alia that PERSON had shot one of the victims during the chase , at a moment when the cars had still been in motion , whereas PERSON claimed that the applicant had shot all the victims from a static position .

The hearing resumed on DATE when the ORG heard the applicant , the experts and CARDINAL witnesses . The ORG adjourned the hearing as CARDINAL witnesses had not appeared . A warrant for the arrest of CARDINAL of them had been issued , but his whereabouts had remained unknown .

On DATE , acting in camera , the ORG ordered the admission in evidence of several objects .

The hearing resumed on DATE . At that hearing PERSON partially altered his testimony . The ORG adjourned the hearing until DATE .

By letter of DATE the applicant requested the examination of CARDINAL additional witnesses . On DATE he requested to be examined with the use of a “ lie - detector ” . This request was refused .

On DATE , at the resumed hearing , the ORG heard a police officer who participated at the applicant ’s questioning during DATE after his detention and a shepherd , who was an eye - witness of the events . The applicant also gave additional testimony . CARDINAL other witnesses did not appear , the efforts to locate CARDINAL of them having been fruitless .

ORG decided that the questioning of CARDINAL of the witnesses which had not appeared was essential and listed the case for a hearing on DATE . The ORG also accepted the request of the prosecution for the questioning of an anonymous witness .

On DATE the hearing was adjourned until CARDINAL and CARDINAL DATE as the prosecutor had fallen ill and also because he had been unable to secure the attendance of the anonymous witness requested by him .

In DATE Mr G , the witness who had been with the applicant during the shooting on DATE , was murdered . According to the applicant , in whose submission PERSON was the person who had shot the CARDINAL victims on DATE , PERSON found his death when he visited another witness with the intention to threaten him . The Government have not commented .

On DATE the ORG heard one anonymous witness and another witness . The anonymous witness stated , inter alia , that he feared for his life and declined to name certain persons in his testimony . The applicant submits he has discovered the identity of the anonymous witness .

The other witness who testified on DATE altered his testimony given at the preliminary investigation , explaining that his previous version of the facts had been dictated to him by PERSON who had threatened him and beaten him on two occasions in DATE .

At the close of the hearing the applicant ’s lawyer and the civil plaintiffs requested the examination of additional witnesses . The ORG granted these requests and adjourned the hearing until DATE and DATE , when it was again adjourned . The parties have not substantiated whether the ORG examined any evidence at the hearing on CARDINAL and DATE .

The hearing resumed on DATE . On that date the trial re - commenced as one of the lay judges had passed away and no reserve lay judge had been appointed . On CARDINAL and CARDINAL DATE the new composition of ORG examined several witnesses and adjourned the hearing .

Decisions on the continuation of the applicant ’s detention

Following the applicant ’s detention on remand on DATE and until the first indictment his detention was confirmed by ORG and by ORG by decisions dated DATE , DATE , DATE and DATE . The decisions of CARDINAL DATE and DATE stated that there was a danger of absconding , obstructing justice and re - offending . The decision of DATE stated that there were no grounds justifying release . The parties have not substantiated the reasoning of the remaining decisions .

On DATE a judge at ORG confirmed the applicant ’s detention . Following the referral of the case back to the prosecution authorities , the detention was confirmed by their decisions of DATE , DATE and DATE . The decision of CARDINAL DATE did not contain any reasoning . The decision of DATE stated that the applicant ’s request to be released for lack of sufficient proof against him was unfounded as his detention was in conformity with LAW . The reasoning of the decisions of DATE and DATE has not been substantiated .

During the applicant ’s trial his detention on remand was confirmed by ORG on DATE , DATE , DATE , DATE , CARDINAL DATE , and DATE . The decision of CARDINAL DATE was in the form of a letter which informed the applicant that his detention was lawful as he was detained by decision of ORG , which had been subject to appeal . The decision of DATE stated that the applicant could not be released in view of the charges against him . The decision of CARDINAL DATE stated that the new legislation referred to by the applicant concerned only time - limits on pre - trial detention and was therefore inapplicable . ORG further stated that in the case before it the accusation concerned a serious wilful crime and that therefore there were no grounds for release on bail . The reasoning of the remaining decisions confirming the applicant ’s detention has not been substantiated .

Some of the above decisions were taken ex officio whereas others were in response to the applicant ’s requests for release . During the preliminary - investigation stage of the proceedings he applied for release at least in DATE , and in DATE , DATE and DATE . Following the commencement of the trial in DATE the applicant requested his release in DATE , in DATE , DATE , DATE and DATE and in DATE . The parties have not substantiated the decisions taken on the latter CARDINAL requests .

The minutes of the hearing of DATE record the following words of the applicant ’s lawyer :

“ In this respect I would request that ... PERSON ... be summoned as a witness . I would ask for his summoning through the district police . I would ask for leave to submit later the exact address of this witness . I make all these requests after consultation with my client . With a view to avoid any suspicion about manipulation on his part , he wishes to underline that he does not insist on [ release ] and for that reason asks that the witnesses be summoned [ by the court ] . ”

B. Relevant domestic law and practice

Provisions of the Code of Criminal Procedure ( Наказателно процесуален кодекс ) , as in force at the relevant time :

Section CARDINAL § § CARDINAL and CARDINAL , as in force until DATE , provided as follows :

" ( CARDINAL ) Detention on remand shall be imposed [ in cases where the charges concern ] crimes punishable by CARDINAL or more years’ imprisonment or capital punishment .

( CARDINAL ) In the cases under the preceding paragraph [ detention on remand ] shall not be imposed if there is no danger of the accused evading justice or of committing another crime ... "

Section CARDINAL § § CARDINAL and CARDINAL , as in force after DATE , provide as follows :

" ( CARDINAL ) Detention on remand shall be imposed [ in cases where the charges concern ] a serious wilful crime .

( CARDINAL ) In the cases referred to in paragraph CARDINAL [ detention on remand ] may not be imposed if there is no danger of the accused evading justice , obstructing the investigation , or committing another crime . ”

According to LAW of LAW ( NORP кодекс ) " serious " is a crime punishable by PERCENT DATE imprisonment .

The relevant part of LAW and DATE , as in force between CARDINAL DATE and DATE , provided as follows :

“ ( CARDINAL ) LAW shall not apply where other criminal proceedings for [ a publicly prosecuted ] crime are pending against the accused person , or where [ the accused is a recidivist ] ...

( CARDINAL ) The detained person shall immediately be provided with the opportunity to file an appeal to the competent court against his [ detention on remand ] ... "

In DATE the text of paragraph CARDINAL of LAW was replaced by a provision limiting the length of pre - trial detention . These limits do not apply in respect of detention after the commencement of the trial .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE the NORP transport prosecutor ’s office instituted criminal proceedings against several police officers of the GPE transport police department where the applicant , in the rank of police major at that time , held the position of senior operational officer . The investigation established that the applicant had colluded with other police officers to detain individuals who had just arrived in GPE on the pretext of an identity check and to misappropriate their money .

On DATE the applicant was detained on remand .

On DATE the applicant was charged with criminal offences under Articles CARDINAL § CARDINAL ( concerted theft ) , CARDINAL § CARDINAL ( concerted large - scale robbery ) , CARDINAL § CARDINAL ( large - scale extortion ) and CARDINAL § CARDINAL ( abuse of power or office ) of FAC , committed on several occasions DATE , in collusion with CARDINAL other police officers .

On DATE the case was referred to ORG of GPE for trial .

On DATE ORG found that the bill of indictment was incomplete and remitted the case to the prosecutor ’s office for additional investigation .

On DATE GPE quashed the decision of DATE and remitted the case to ORG for examination on the merits .

On DATE , DATE and DATE ORG dismissed the applicant ’s requests for release from custody , each time referring generically to the gravity of the charges against him and to his personal characteristics .

According to the Government , on DATE the applicant refused to go to the court and the hearing was adjourned until DATE . The applicant refuted the allegation . He contended that as a detainee he had had no choice whether to be escorted to the court house or not .

The parties agreed that subsequent hearings had been held on DATE and DATE , DATE and DATE .

On DATE ORG granted the applicant ’s request for additional time to read the case file and transcripts of the court hearings . The Government alleged that at that hearing the applicant had prevented the court from examining witnesses and victims , falsely accusing them of criminal offences and perjury . The applicant contested this allegation as not supported by any documents . The next hearing was fixed for DATE .

On DATE the applicant challenged the presiding judge , alleging that he had had an intimate relationship with her . The challenge was dismissed as unsubstantiated . The hearing was then adjourned until DATE because the applicant fell ill .

NORP Subsequent hearings in ORG took place on CARDINAL , DATE and DATE .

On DATE ( DATE , according to the Government ) ORG suspended the proceedings and ordered a forensic psychiatric examination of the applicant .

On CARDINAL DATE the LAW entered into force in respect of GPE .

On DATE the experts found the applicant to be of sound mind at the time of examination and at the time when the incriminated acts had been committed . On DATE the proceedings were resumed .

On DATE ORG refused the applicant ’s request for release from custody , finding that his placement in custody had been “ imposed in accordance with the law ” and that “ at this stage of the proceedings ( the court investigation is about to be finished ) ... a change of the preventive measure is not opportune ( нецелесообразно ) ” .

On DATE ORG delivered a judgment in the applicant ’s case . It found him guilty on most counts and sentenced him to DATE imprisonment , including the time already served , and also ordered confiscation of his property .

The applicant appealed against the judgment to GPE .

On DATE ORG advised the applicant that the appeal hearing would take place on DATE . However , on CARDINAL DATE ( DATE , according to ORG ) GPE returned the case - file to ORG because the applicant had not had adequate time and facilities to study it after the judgment had been given .

The Government submitted that DATE ORG had “ taken measures ” to examine the applicant ’s requests . They did not provide any details about the nature of these measures . The applicant disagreed . He contended that during that period ORG had not taken any steps to grant him access to the file and that it had not decided on his requests . He indicated that he had been first granted access to the requested materials on DATE , after DATE of procrastination on the part of the court , and then he had only had access to the file for CARDINAL non - consecutive days until DATE .

On DATE the applicant filed an addendum to his points of appeal . The appeal hearing was listed for CARDINAL DATE , but later adjourned until DATE .

On DATE GPE quashed the judgment of CARDINAL DATE on procedural grounds and remitted the case for a new examination . The court ruled that the applicant was to remain in custody pending trial , without giving any reasons for the continued detention .

On DATE ORG issued a “ special finding ” ( частное определение ) acknowledging that the length of the trial had been excessive and ordered the President of ORG to pay special attention to this fact and to take measures to remedy the situation .

On DATE ORG examined the prosecutor ’s application to return the case for additional investigation to the LOC transport prosecutor ’s office in order to remedy certain procedural defects . The applicant and his counsel agreed with the prosecutor ’s application and filed a request for the applicant ’s release , arguing that there were no grounds justifying his continued detention .

The court granted the application and remitted the case for additional investigation , but refused the request for release on the following grounds : the applicant ’s detention had been extended in accordance with the law , he was charged with a serious criminal offence and he could obstruct the additional investigation and trial or flee from justice , including by leaving GPE .

On DATE and CARDINAL DATE the applicant and his lawyer lodged appeals against the decision of ORG .

According to the ORG , GPE had originally fixed the hearing date for DATE . However , the applicant ’s lawyer failed to appear and the hearing was adjourned until DATE . On DATE the applicant informed the court that his lawyer was on leave and requested an adjournment of the hearing . His request was granted and the new date was fixed for DATE . It appears that on DATE the hearing before GPE took place . According to the Government , the court established that it needed the materials in the case file that was at that time in the NORP transport prosecutor ’s office pending completion of the additional investigation . The proceedings were suspended until such time as the case file was made available to the court .

On DATE the NORP transport prosecutor ’s office accepted the case for an additional investigation . On DATE the acting NORP transport prosecutor set a time - limit for the additional investigation and extended the applicant ’s detention for DATE , i.e. until DATE .

On DATE ORG informed the applicant that his case - file was with the LOC transport prosecutor ’s office for an additional investigation .

On DATE the applicant complained to the prosecutor ’s office that the re - opening of investigation had been unlawful because his appeal against the decision of DATE was still pending .

On DATE the NORP transport prosecutor ’s office reversed the decision of DATE on the ground that the court decision of CARDINAL DATE had not yet become final and the appeal was pending . On DATE the case - file was forwarded to ORG to be joined with the appeal and sent to GPE .

On DATE GPE upheld the decision of DATE , finding as follows :

“ The [ city court ] does not see any substantial violations of the requirements of LAW [ “ CCrP ” ] during the examination , by the [ district ] court , of the issues related to the preventive measure imposed on [ the applicant ] , adjournment of hearings , examination of applications for release and appointment of an expert study ...

Judging from the case materials , the [ district ] court had no grounds to revoke or amend the preventive measure ... The norms of the CCrP ... do not provide for any time - limits for detention on remand pending trial ; they regulate the time - limits for fixing the first hearing and beginning of the trial , yet non - compliance with these time - limits is not an unconditional ground for revoking the preventive measure ...

The [ city court ] comes to the conclusion that during the preliminary investigation and trial , there were no violations of the rules of criminal procedure as regards the examination of issues related to the preventive measure . When remitting the case for additional investigation and deciding on the preventive measure , [ the district court ] correctly referred to the absence of any grounds for revoking the preventive measure , taking into account that , once released , [ the applicant ] could abscond or interfere with the additional investigation or judicial examination ; [ the district court ] correctly had regard to [ the applicant ’s ] personality and to the nature of the charges against him . ”

On DATE the NORP transport prosecutor ’s office accepted the case for investigation and requested an extension of the applicant ’s detention . The request was granted by the acting NORP transport prosecutor on DATE , for DATE , i.e. until DATE .

The applicant appealed against the extension order . He argued , in particular , that it had been the second time that his detention in connection with the additional investigation had been extended for DATE .

On DATE ORG of GPE upheld the order of CARDINAL DATE , finding as follows :

“ LAW of the ORG provides that persons charged with serious criminal offences may be detained on remand on the sole ground of the dangerousness of the offence . Furthermore , for an extension of [ the applicant ’s ] detention on remand , there are of relevance such grounds as the defendant ’s potential to free from investigation or trial and to interfere with the establishment of the truth ” .

On DATE the bill of indictment was served on the applicant and his lawyer and they were given TIME to study the materials of the additional investigation . On DATE a prosecutor of the NORP transport prosecutor ’s office refused the applicant ’s requests for release pending trial and for additional time to study the case - file .

On DATE the case was referred to ORG for trial .

On DATE ORG again remitted the case to the prosecutor ’s office for additional investigation because the prosecutor had failed to respect the applicant ’s right to study all of the case materials and not just new ones . The court confirmed that the applicant was to remain in custody . The court grounded the applicant ’s detention as before : the applicant was charged with a serious criminal offence and , in view of his personal circumstances , he could obstruct the investigation or flee from justice , including by leaving GPE . The applicant appealed against this decision .

On DATE the GPE Court quashed the decision of DATE and ordered the applicant ’s release from custody against his undertaking not to leave the city . The court noted that the applicant had already spent DATE in custody while procedural delays in the examination of the case could not be attributed to his conduct . The court noted that the applicant had a permanent residence and family , that he had received positive references at his former place of work , that he had no criminal record and that there were no indications that the applicant would abscond or interfere with the establishment of the truth . On DATE the court also quashed the decision of ORG of DATE and remitted the matter for a new examination because of a procedural defect in the trial record .

On or CARDINAL DATE the applicant was released from custody .

It appears that on DATE the NORP transport prosecutor ’s office accepted the case for an additional investigation ordered by ORG on DATE . The investigation was completed on DATE and the case was referred to the trial court .

On DATE a prosecutor with the LOC transport prosecutor ’s office granted the applicant permission to pay a visit to his parents in GPE , GPE , from DATE .

On DATE ORG examined the applicant ’s complaint concerning the lawfulness of his detention after DATE . The applicant supplemented his initial complaint with a request to declare inadmissible all evidence obtained by the investigation DATE and DATE and DATE and DATE . The court held that the order of the prosecutor ’s office of DATE , by which the order of CARDINAL DATE had been reversed , amounted to an admission of the fact that the investigation DATE and DATE had been unlawful . As to the admissibility of evidence obtained during that period , the court referred this issue to the trial court .

On DATE the NORP transport prosecutor ’s office gave the applicant a new permit to visit his parents in GPE , GPE , provided that he returned by DATE .

On DATE ORG , at the applicant ’s request , ordered the case to be remitted for an additional investigation . The court established that the applicant had not been given adequate time to have access to the case file and that the investigator had failed to decide on his requests . The court referred the remainder of the applicant ’s complaints concerning admissibility of evidence to the trial court . Following the appeal of the LOC transport prosecutor against the decision , on DATE it was upheld by GPE .

It appears that at that time the NORP transport prosecutor ’s office was undergoing reorganisation and its staff were transferred to the GPE city prosecutor ’s office . On DATE the applicant was advised about a transfer of his case to the GPE city prosecutor ’s office . On DATE a senior investigator with the anti - corruption and economic crimes unit of ORG for especially important cases of the GPE prosecutor ’s office accepted the case for the additional investigation .

On DATE a deputy prosecutor of GPE authorised an extension of the investigation for DATE .

On DATE a deputy Prosecutor General authorised a further extension until DATE , i.e. for a total of DATE and DATE .

On DATE the first deputy Prosecutor General extended the investigation until DATE , i.e. for a total of DATE and DATE .

On DATE the first deputy ORG authorised an extension until DATE , i.e. for a total of DATE and DATE .

The applicant ’s lawyer challenged the orders extending the investigation , in court . He complained about the excessive length of the proceedings and contested the lawfulness of the extensions , alleging that the case was of average complexity and that there were no exceptional circumstances of the kind required by the domestic law to justify such a lengthy investigation . He also requested the court to find a violation of LAW in that the applicant had been denied a fair trial within a reasonable time .

On DATE ORG rejected the complaint . On DATE GPE , on the applicant ’s appeal , quashed and remitted that decision for a new examination . The court found that the first instance court had failed to take into account certain periods of the pre - trial investigation .

On DATE ORG examined the matter de novo and dismissed the complaint again . As regards the authorities’ compliance with the “ reasonable time ” requirement , the court pronounced as follows :

“ ... Having regard to the fact that the court has not established any violations of the rules of criminal procedure in the extensions of the time - limit for the preliminary investigation to DATE and DATE , DATE , and DATE and DATE , and taking into account that the contested extension orders were justified , the court considers that the extensions of the said time - limits were lawful and justified . In this connection , the court also considers that the additional investigation was completed within a reasonable time because the additional investigation was needed and it did not violate the defendant ’s right under LAW ORG ... This conclusion of the court is also grounded on the fact that the overall duration of the preliminary investigation was DATE and DATE , of which DATE were used for an additional investigation by the GPE prosecutor ’s office . The latter time period , as established in the court hearing , was required to carry out many investigative actions in the light of the substantial size of the criminal case , the remoteness [ in time ] of the criminal offences and the extent of the charges , and it was reasonable and necessary for the establishment of the truth and , in particular , for the protection of the GPE rights . ”

On DATE ORG , on the applicant ’s appeal , upheld the decision of DATE .

On DATE the applicant was charged with repeated and concerted bribery , fraud , theft , robbery , abuse of power , and document forgery . In particular , the applicant was accused of illegal detention of persons whom he had stopped for identity checks at the railway station , taking or stealing their money and valuables and using forged documents to obtain social benefits . On DATE the bill of indictment , with some textual amendments , was served again on the applicant .

Subsequently the applicant was given access to the case file . It appears the applicant and his lawyer had access to the case file for the first time on DATE .

On DATE an investigator with the GPE city prosecutor ’s office established that the applicant had intentionally procrastinated in reading the file and ordered that the reading should be completed by DATE . On DATE the investigator refused the applicant ’s request for additional time for access to the file .

On DATE the case file comprising CARDINAL volumes was forwarded to GPE for trial .

In DATE the judge to whom the case had been assigned went on DATE leave .

DATE . On DATE the judge fixed the first preliminary hearing for DATE .

On DATE the court discontinued the criminal proceedings in the part concerning the charges in respect of which the prosecution had become time - barred and declared some evidence inadmissible . The applicant was afforded DATE to study the case - file . The next hearing was fixed for DATE .

On DATE the hearing was adjourned to CARDINAL DATE because victims and witnesses did not appear . DATE and CARDINAL DATE further hearings were scheduled and adjourned for various reasons , such as the counsel ’s medical treatment and DATE leave , and absence of witnesses . From DATE to CARDINAL DATE the applicant was on DATE leave in GPE and GPE .

On DATE the proceedings were stayed pending the applicant ’s in - patient treatment . Following his convalescence , a hearing was fixed for DATE . On DATE it was adjourned until DATE at the requests by the prosecutor and the applicant ’s lawyer .

On DATE the court discontinued the proceedings in respect of certain other charges which had meanwhile become time - barred . DATE further hearings were held .

On DATE GPE made a decision to close the criminal case against the applicant ( постановление о прекращении уголовного дела ) . Several charges against him were dropped by the prosecution and , as to the remainder , the court established that the prosecution was time - barred . The decision was not appealed against and on DATE it became final .

The Code of Criminal Procedure of the NORP Federalist Socialist Republic ( “ the old Code ” ) of CARDINAL DATE ( effective until DATE ) listed as “ preventive measures ” , inter alia , an undertaking not to leave a specified place and placement in custody ( LAW ) .

A decision to order detention on remand could only be taken by a prosecutor or a court ( ORG CARDINAL , CARDINAL and DATE ) . In making this decision the relevant authority was to consider whether there were “ sufficient grounds to believe ” that the accused would flee from investigation or trial or obstruct the establishment of the truth or re - offend ( LAW ) , as well as to take into account the gravity of the charge , information on the personality of the accused , his ( her ) profession , age , state of health , family status and other circumstances ( LAW ) .

DATE . Until DATE , detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the Code was amended to provide for placement in custody if the charge carried a sentence of CARDINAL years’ imprisonment or if the defendant had previously defaulted or if he had no permanent residence in GPE or if his identity could not be ascertained . The amendments of DATE also repealed the provision that permitted the defendant ’s placement in custody on the sole ground of dangerousness of the criminal offence imputed to him .

A prosecutor ’s order , or a court decision , ordering detention on remand was to be reasoned and justified ( Article CARDINAL ) . The accused was to be informed of the detention order and to have explained the procedure for lodging an appeal against it ( Article CARDINAL ) .

The Code distinguished CARDINAL types of detention on remand : CARDINAL was “ pending the investigation ” , i.e. when an authorised agency – the police or a prosecutor ’s office – undertook investigative measures , and the other was “ before the court ” ( or “ pending the trial ” ) , i.e. when a trial court examined the case . Although there was no difference in practice between them ( the detainee was normally held in the same detention facility ) , the calculation of the time - limits was different .

After arrest the person was placed in custody “ pending the investigation ” . The maximum permitted period of the detention “ pending the investigation ” was DATE but it could be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels , up to ORG . No extensions beyond DATE were permitted ( LAW ) .

NORP The time - limit of detention “ pending the investigation ” was calculated until DATE when the investigation was considered completed and the defendant was given access to the case file ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL ) . The access was to be granted DATE before the authorised detention period expired ( Article CARDINAL ) . If the defendant needed additional time to study the case - file , a judge acting on a request by a prosecutor could grant an extension of the defendant ’s detention on remand until such time as the reading of the file was completed , but for no longer than DATE .

The case could also be remitted for “ additional investigation ” by the trial court if it established procedural defects that could not be remedied during the trial . In such case the person ’s detention was again “ pending the investigation ” and the running of the time - limits “ pending the investigation ” resumed . If , however , the case was remitted for additional investigation , but the investigators had already used up all the time authorised for the detention “ pending the investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE starting from DATE he received the case . Any subsequent extension could only be granted if the detention “ pending the investigation ” had not exceeded DATE .

Once the investigation was considered to be complete and the defendant had received the bill of indictment and finished reading the case file , the file was transferred to a trial court . From DATE the defendant ’s detention was “ before the court ” ( or “ pending the trial ” ) . Until DATE the Code set no time - limit for detention “ pending the trial ” .

The detainee or his ( her ) counsel or representative could challenge the detention order , and any subsequent extension order , in court ( Article CARDINAL ) . The judge was required to review the lawfulness and justification of a detention or extension order DATE after receipt of the relevant materials . The review was to be conducted in camera in the presence of a prosecutor and the detainee ’s counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances when the detainee waived his right to be present of his own initiative . The judge could either dismiss the challenge or revoke the detention on remand and order the detainee ’s release . A judge ’s decision was to be reasoned ( Article CARDINAL ) .

After a judge received the case - file and before the trial began , the judge had to decide , in particular , whether the defendant was to stay in custody or to be released pending trial ( LAW ) and to rule on the defendant ’s application for release , if submitted ( LAW ) . If the application was refused , it could be re - introduced after the beginning of the trial ( LAW ) .

At any moment during the trial the court could order , amend or revoke any preventive measure , including detention on remand ( LAW ) . Such decision was to be delivered in the form of a procedural order signed by all judges on the bench ( LAW ) .

Pursuant to the ruling of ORG , all procedural orders made during the trial and having the effect of extending the applicant ’s detention on remand could be appealed against to a higher court , separately from the judgment on the merits .

The time - limits for examination of the appeal against the procedural order rejecting the application for release were the same as those established for appeals against the judgment ( see LAW below ) ( Article CARDINAL in fine ) .

The case examination was required to start DATE after the judge issued a procedural order fixing a hearing date ( Articles DATE and CARDINAL ) . The duration of the trial was not limited in time .

The appeal court was required to examine an appeal against the first - instance judgment within DATE upon its receipt . In exceptional circumstances or in complex cases or in proceedings before ORG of GPE this time - limit could be longer , DATE ( Article CARDINAL ) . No possibility of further extensions was provided for .


WILKINSON and KNOTT v. the UNITED KINGDOM

The applicants , PERSON and PERSON , are GPE nationals . They were born in DATE and DATE and are from GPE and GPE , respectively . They were represented before the ORG by Mr G. Blades , a lawyer practising in ORG .

The facts of the case , as submitted by the parties , may be summarised as follows . Both applicants were convicted and sentenced by courts - martial convened following the entry into force of LAW .

In DATE Mr PERSON was convicted by an air - force district court - martial of conduct to the prejudice of good order and air force discipline . He was fined of MONEY ( “ GBP ” ) . ORG confirmed the verdict but reduced his fine to ORG . In DATE ORG dismissed his application for leave to appeal against conviction and sentence and his renewed application was rejected in DATE .

In DATE PERSON was convicted by an army district court - martial of disobeying a lawful command . He was sentenced to a severe reprimand and to a fine of LAW . ORG confirmed the verdict and sentence . In DATE ORG dismissed his application for leave to appeal against conviction and sentence and his renewed application was rejected in DATE .

The provisions of the Army Act DATE and of LAW DATE , which regulated army and air - force courts - martial prior to DATE , are set out in GPE v. GPE ( of DATE , Reports of Judgments and Decisions CARDINAL-I , § § DATE ) and PERSON ORG ( judgment of DATE , Reports CARDINAL , § § DATE ) .

Following the adoption of the ORG 's report in the PERSON case ( no . DATE , Commission 's report of CARDINAL DATE ) , ORG came into force on DATE and significantly amended both DATE Acts . The relevant domestic law and practice applicable to air - force courts - martial following the entry into force of LAW is set out in the case of PERSON GPE ( [ ORG ] , no . MONEY , § § DATE , ECHR CARDINALXII ) . The relevant regulatory framework governing post-CARDINAL Act army courts - martial is the same in all material respects ( the ORG judgment , at § MONEY ) .