Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE . She is serving a prison sentence in the region of GPE ( GPE ) .

In CARDINAL sets of criminal proceedings before FAC , the applicant was sentenced as follows :

- In judgment CARDINAL of DATE : for being a member of a terrorist organisation , to CARDINAL years’ imprisonment ; for illegal possession of weapons , to DATE imprisonment ; for possession of explosives , to CARDINAL years’ imprisonment ; for forgery , to CARDINAL years’ imprisonment ; for using forged identity documents , to CARDINAL months’ imprisonment .

- In judgment CARDINAL/CARDINAL of DATE : for damage to property , in conjunction with CARDINAL counts of grievous bodily harm , CARDINAL of causing bodily harm and CARDINAL of causing minor injuries , to CARDINAL years’ imprisonment .

- In judgment CARDINAL of DATE : as a key accomplice in a fatal attack and for murder , to PERCENT imprisonment .

- In judgment CARDINAL of DATE , as a key accomplice in a fatal attack , to DATE imprisonment ; for QUANTITY murders , to DATE for each murder ; for CARDINAL attempted murders , to DATE on each count ; for damage to property , to CARDINAL years’ imprisonment . The court ordered that in application of LAW of LAW of DATE the maximum duration of the sentence to be served ( condena ) should be DATE .

- In judgment CARDINAL of DATE : as a key accomplice in a fatal attack and in CARDINAL murders , to CARDINAL years’ imprisonment in respect of each charge . In keeping with LAW of DATE , the court ordered that the maximum duration of the sentence to be served ( condena ) should be DATE .

- In judgment CARDINAL of DATE : for a fatal attack , to DATE imprisonment ; for CARDINAL murders , to DATE imprisonment on each count ; for CARDINAL attempted murders , to twenty years’ imprisonment on each count ; on the charge of terrorism , to CARDINAL years’ imprisonment . The judgment indicated that in respect of the custodial sentences the maximum sentence provided for in LAW of DATE should be taken into account .

- In judgment CARDINAL of DATE : for a fatal attack , to PERCENT imprisonment ; for murder , to QUANTITY years’ imprisonment . The court again referred to the maximum term of imprisonment provided for in LAW .

- In judgment CARDINAL of CARDINAL DATE : for an attack combined with attempted murder , to DATE imprisonment ; for murder , to QUANTITY years’ imprisonment ; for CARDINAL attempted murders , to CARDINAL years’ imprisonment on each count ; and for damage to property , to CARDINAL years’ imprisonment . The judgment noted that the sentence served should not exceed the maximum term provided for in LAW of DATE . In order to determine which criminal law was applicable ( LAW of DATE , which was applicable at the material time , or LAW ) , the Audiencia Nacional considered that the more lenient law was the DATE LAW , because of the maximum term of sentence provided for in its LAW , in conjunction with its LAW ( reduction of sentence for work done ) .

NORP In all , the terms of imprisonment to which the applicant was sentenced amounted to over DATE .

The applicant was held in preventive detention from DATE to CARDINAL DATE . On DATE she began to serve her sentence after conviction .

By a decision of CARDINAL November CARDINAL the Audiencia Nacional notified the applicant that the legal and chronological links between the crimes of which she had been convicted made it possible to group them together as provided for in LAW in conjunction with LAW , which had been in force when the offences were committed . The Audiencia Nacional combined all the applicant ’s prison sentences together and fixed the total term of imprisonment to be served at DATE .

By a decision of DATE , the Audiencia Nacional fixed the date on which the applicant would have fully discharged her sentence ( liquidación de condena ) at DATE .

On DATE the authorities at the prison where the applicant was serving her sentence decided that , taking into account the CARDINAL ORG remission to which she was entitled for the work she had done since DATE , she should be released on DATE .

On DATE the Audiencia Nacional asked the prison authorities to review the date of the applicant ’s release in the light of new precedent set by ORG in its judgment CARDINAL of CARDINAL DATE , of which the Audiencia Nacional cited the relevant parts ( see Relevant domestic law and practice , below ) , which stated , inter alia :

“ Thus , the execution of the total sentence to be served [ condena ] shall proceed as follows : it shall begin with the heaviest sentences pronounced . The relevant benefits and remissions shall be applied to each of the sentences being served . When the first sentence has been served , the second sentence shall begin and so on , until the limits provided for in LAW of DATE have been reached . At such time , all of the sentences comprised in the total sentence to be served [ condena ] shall have been extinguished . ”

The Audiencia Nacional explained that this new case - law applied only to those people convicted under LAW of DATE to whom LAW had been applied . As that was the applicant ’s case , the date of her release would be changed accordingly .

The applicant lodged an appeal ( súplica ) . She argued , inter alia , that the application of ORG judgment was in breach of the principle of non - retroactivity of criminal law provisions less favourable to the accused . In her case the reduction of sentence for work done would now be calculated for each individual sentence and not for the total sentence to be served DATE and up to the maximum limit of DATE . This new method of calculation would in effect increase the term of imprisonment actually served by the applicant by DATE .

By an order of DATE the Audiencia Nacional set the date for the applicant ’s release at DATE .

The applicant appealed against that decision .

By a decision of DATE the Audiencia Nacional rejected the appeal and noted that it was not a matter of limits on prison sentences , but rather of how to apply reductions of sentence in order to determine the date of the prisoner ’s release . Such reductions were to be calculated in relation to each sentence individually . Concerning the principle of non - retroactivity , the Audiencia Nacional considered that it had not been breached because the criminal law applied in this case had been in force at the time of its application .

Relying on Articles DATE ( prohibition of discrimination ) , CARDINAL ( right to liberty ) , CARDINAL ( right to effective legal protection ) and CARDINAL ( principle of legality ) of the LAW , the applicant lodged an amparo appeal with ORG . By a decision of CARDINAL DATE , ORG declared the appeal inadmissible on the grounds that the applicant had not demonstrated the constitutional relevance of her complaints .

The relevant provisions of the LAW read as follows :

“ All NORP are equal before the law and may not in any way be discriminated against on account of birth , race , sex , religion , opinion or any other personal or social condition or circumstance . ”

“ CARDINAL . Every person has the right to liberty and security . No one may be deprived of his or her freedom except in accordance with the provisions of this LAW and in the cases and in the manner prescribed by law .

“ CARDINAL . All persons have the right to obtain the effective protection of the judges and the courts in the exercise of their rights and legitimate interests , and in no case may there be a lack of defence .

Likewise , all persons have the right of access to the ordinary judge predetermined by law ; to the defence and assistance of a lawyer ; to be informed of the charges brought against them ; to a public trial without undue delays and with full guarantees ; to the use of evidence appropriate to their defence ; not to make self - incriminating statements ; not to declare themselves guilty ; and to be presumed innocent . ... ”

“ CARDINAL . No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a criminal offence , misdemeanour or administrative offence under the law in force at that time .

The relevant provisions of LAW of DATE , as in force at the material time , read as follows :

“ When all or some of the sentences imposed ... can not be served simultaneously by a convict , the following rules shall apply :

In imposing the term to be served , the order followed shall be that of the severity of the respective sentences , which the convict shall serve consecutively if possible , going on to the next sentence when the previous one has been served or extinguished by pardon ...

Notwithstanding the previous rule , the maximum term to be served ( condena ) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred , the others being declared extinguished once those already imposed cover that maximum , which may not exceed DATE .

The above limitation shall be applied even where the penalties have been imposed in different proceedings , if the facts , because they are connected , could have been tried as a single case . ”

“ Once his judgment or conviction has become final , any person serving a custodial or prison sentence may be granted a remission of sentence in exchange for work done . In serving the sentence imposed ... the detainee is entitled to DATE remission for DATE worked , and the time thus deducted is taken into account when granting release on licence .

The following persons shall not be entitled to remission for work done :

Detainees who escape or attempt to escape , even if they do not succeed .

Detainees who repeatedly misbehave while serving their sentence .

NORP The relevant provision of LAW in force at the material time reads a follows :

“ ... When a person found guilty of several criminal offences is convicted , in different sets of proceedings , of offences that could have been tried in a single case , in accordance with LAW , the judge or court which pronounced the last judgment of conviction shall , of its own motion or at the request of the public prosecutor or the convicted person , fix the maximum term to be served in respect of the sentences pronounced , in keeping with LAW ... ”

The relevant section of the DATE LAW ( no . DATE ) explained as follows how to calculate the term of imprisonment ( DATE of the sentence pronounced ) to be served in order for the detainee to be eligible for release on licence :

“ In calculating DATE of the sentence , the following rules shall apply :

( a ) The part of the sentence to be served ( condena ) which is subject to pardon for the purposes of release on licence shall be deducted from the total penalty pronounced , as if that penalty has been replaced by a lesser one .

( b ) The same rule shall apply to prison benefits entailing a reduction of the sentence to be served ( condena ) .

( c ) When a person is sentenced to CARDINAL or more custodial sentences , the sum of those sentences , for the purposes of release on licence , shall be considered as a single sentence to be served ( condena ) . ... ”

The new Criminal Code of DATE did away with the reduction of sentences in consideration of the work done in prison . However , those prisoners whose conviction was pronounced on the basis of LAW of DATE even after the entry into force of LAW continued to be eligible for reductions of sentence for work done . As to the maximum length of prison sentences and the application of reductions to the time served , LAW of DATE was amended by institutional law CARDINAL/CARDINAL on measures for the full and effective execution of sentences . The relevant parts of LAW thus amended read as follows :

“ When some or all of the penalties for the different offences can not be served concurrently , they shall be served consecutively , in descending order of severity , as far as possible . ”

“ CARDINAL . Notwithstanding what is set forth in DATE , the maximum duration of the sentence to be served ( condena ) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred , the others being declared extinguished once those already imposed cover that maximum , which may not exceed DATE . GPE , the maximum limit shall be :

( a ) DATE when an individual has been found guilty of CARDINAL or more crimes and CARDINAL of them is punishable by law with a prison sentence of DATE ;

( b ) DATE when a convict has been found guilty of CARDINAL or more crimes and CARDINAL of them is punishable by law with a prison sentence exceeding DATE ;

( c ) DATE when a convict has been found guilty of CARDINAL or more crimes and CARDINAL of them are punishable by law with a prison sentence exceeding DATE ;

( d ) DATE when a convict has been found guilty of CARDINAL or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding DATE .

The above limitation shall be applied even where the penalties have been imposed in different proceedings , if the facts , because they are connected or because of when they were committed , could have been tried as a single case . ”

“ CARDINAL . If , as a result of the limitations established in DATE , the sentence to be served is CARDINAL the aggregate of all the sentences imposed , the sentencing judge or court may order that prison benefits , day - release permits , pre - release classification and the calculation of the time remaining to be served prior to release on licence be determined with reference to all of the sentences pronounced .

Such a decision shall be mandatory in the cases referred to in paragraphs ( a ) , ( b ) , ( c ) and ( d ) of section CARDINAL of Article CARDINAL of this Code , provided that the sentence to be served is CARDINAL the aggregate of all the sentences imposed . ... ”

NORP In an order of CARDINAL DATE , ORG considered that the combining of sentences in application of LAW of LAW of DATE and LAW concerned not the “ execution ” but the fixing of the sentence , and that its application was accordingly a matter for the convicting judge , not the judge responsible for the execution of sentences ( PERSON ) .

In a judgment of CARDINAL DATE ( CARDINAL ) ORG affirmed that the maximum term of imprisonment ( DATE ) provided for in LAW of DATE was just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law , such as release on licence and remission of sentence , applied ” ( point CARDINAL of the reasoning ) . ORG referred to LAW of DATE , according to which the combining of CARDINAL custodial sentences into CARDINAL was considered as a new sentence for the purposes of the application of release on licence .

That approach continued to be adopted after the entry into force of LAW of DATE as regards the legal maximum term to be served under LAW thereof ( see paragraph CARDINAL above ) . In its judgment DATE , of DATE , ORG affirmed that “ this limit is just like a new sentence – resulting from but independent of the others – to which prison benefits provided by law , such as release on licence , day release and pre - release classification apply ” ( point CARDINAL of the reasoning ) . A similar approach was followed in the judgment of DATE ( DATE ) , in which ORG , in the same terms , reiterated that the maximum term of imprisonment to be served “ is just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law , such as release on licence must be applied , subject to the exceptions provided for in Article CARDINAL of LAW of DATE ” ( point CARDINAL of the reasoning ) .

ORG departed from this case - law , however , in judgment DATE , of DATE , in which it established what is known as the “ Parot doctrine ” . ORG held that reductions of ORG sentences should be applied to each sentence individually , not to the maximum sentence of DATE imprisonment provided for in LAW of DATE . The relevant parts of ORG reasoning read as follows :

“ ... a joint interpretation of rules CARDINAL and CARDINAL of Article CARDINAL of LAW of DATE leads us to consider that the DATE maximum term does not become a new sentence , distinct from those successively imposed on the convict , or another sentence resulting from all the previous ones , but is the maximum term of imprisonment a prisoner should serve . The reasons that lead us to this interpretation are : ( a ) first , from a purely literal point of view , LAW by no means considers the maximum term of DATE as a new sentence to which any reductions to which the prisoner is entitled should apply , quite simply because it says no such thing ; ( b ) on the contrary , the penalty ( pena ) and the resulting term of imprisonment to be served ( condena ) are CARDINAL different things ; the wording used in the Criminal Code refers to the resulting limit as the “ maximum term to be served ” ( condena ) , establishing the different lengths of that “ maximum term to be served ” ( condena ) in relation to each of the respective “ sentences ” imposed , and calculated in CARDINAL different ways , by taking the different sentences in order of gravity , in accordance with the first rule , until CARDINAL of the CARDINAL maximum limits provided for is attained ( CARDINAL times the length of the heaviest sentence pronounced or , in any event , DATE ) ; ( c ) this interpretation is also suggested by the wording of the LAW , since after completing the successive sentences as mentioned , the prisoner will stop ‘ discharging [ that is , serving ] the remaining ones [ in the prescribed order ] as soon as the sentences already served reach the requisite maximum length , which may on no account exceed DATE ... ( e ) and from a teleological point of view , it would not be logical , simply because of the aggregation of sentences , for a copious criminal record to be reduced to a single new sentence of DATE , with the effect that an individual who has committed a single offence is treated , without justification , in the same way as someone convicted of multiple offences , as is the case here . Indeed , there is no logic in applying this rule in such a way that committing CARDINAL murder is punished in the same way as committing CARDINAL murders ; ( f ) were application for a pardon to be made , it could not apply to the resulting total term to be served ( condena ) , but rather to CARDINAL , several or all of the different sentences imposed ; in such a case it is for the court that pronounced the sentence to decide , and not the judicial body responsible for applying the limit ( DATE ) , which shows that the sentences are different ; and in any event , the first rule of Article CARDINAL of LAW of DATE states how , in such a case , to verify the successive completion of the sentences “ when the previous ones have been extinguished by pardon ” ; ( g ) and to conclude this reasoning , from a procedural point of view LAW clearly states that it is a matter of fixing the maximum limit of the sentences pronounced ( in the plural , in keeping with the wording of the law ) , “ in order to determine the maximum length of these sentences ” ( the wording is very clear ) .

Which is why the term “ aggregate of the sentences to be served [ condenas ] ” is very misleading and inappropriate . The sentences are not merged into CARDINAL , but the serving of multiple sentences is limited by law to a certain maximum term . Consequently , the prisoner serves the different sentences , with their respective specificities and with all the benefits to which he is entitled . That being so , for the extinction of the sentences successively served , the reduction of sentences for work done may be applied in conformity with LAW .

Thus , the method for the discharge of the total term to be served [ condena ] is as follows : it begins with the heaviest sentences imposed . The relevant benefits and remissions are applied to each of the sentences the prisoner is serving . When the first [ sentence ] has been served , the prisoner begins to serve the next one and so on , until the limits provided for in LAW of DATE have been reached . At this stage , all of the sentences comprised in the total term to be served [ condena ] will have been extinguished .

For example , in the case of an individual given CARDINAL prison sentences , DATE , DATE and DATE . The second rule of Article CARDINAL of LAW of DATE ... limits the actual term to be served to CARDINAL times the most serious sentence or a maximum of DATE imprisonment . In this case , it would be the maximum term of DATE . The successive serving of the sentences ( the total term to be served ) begins with the first sentence , which is the longest one ( DATE in this case ) . If [ the prisoner ] were granted a DATE remission for whatever reason , he would have served that sentence after DATE imprisonment , and the sentence would be extinguished ; next , [ the prisoner ] would start to serve the next longest sentence ( DATE ) , and with a remission of DATE that sentence will have been served after DATE . MONEY = CARDINAL . [ The prisoner ] would not have to serve any other sentence , any remaining sentences being extinguished , as provided for in the applicable Criminal Code , once those already imposed cover that maximum , which may not exceed DATE . ”

In that judgment ORG considered that there was no well - established case - law on the specific question of the interpretation of LAW in relation to LAW . It referred to a single precedent , its judgment of DATE in which it considered that the maximum duration provided for in LAW of DATE was “ just like a new , independent sentence ” ( see paragraph CARDINAL above ) . However , ORG departed from that interpretation , pointing out that that decision , which it considered an isolated one , could not be relied on as a precedent in so far as it had never been applied in a constant manner as required under LAW of LAW . Even assuming that that decision could have been considered as a precedent , the court reiterated that the principle of equality before the law ( LAW ) did not preclude departures from the case - law , provided that sufficient reasons were given . Furthermore , the principle that the law should not be applied retroactively ( LAW ) was not meant to apply to case - law .

A dissenting opinion was appended to judgment DATE by CARDINAL judges . They considered that the sentences imposed successively were transformed or combined into another sentence of the same kind , but different in so far as it combined the various sentences into one . They called it “ the sentence to be served ” , that is to say the CARDINAL resulting from the application of the limit fixed in LAW of DATE , which effectively extinguished the sentences that went beyond that limit . This new “ unit of punishment ” was the term the prisoner had to serve , to which remission for work done should be applied . Remissions should therefore be applied to the sentences imposed , but only once they had been processed in conformity with the rules on the consecutive serving of sentences . The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of LAW of DATE , all NORP courts , including ORG ( agreements adopted at the Plenary sessions on DATE and CARDINAL DATE ) , had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of LAW of LAW of DATE ( the DATE limit ) . In application of that criterion no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done although they had each been given prison sentences of DATE .

The dissenting judges considered that the method applied by the majority was not provided for in LAW of DATE and therefore amounted to retroactive implicit application of the new LAW as modified by institutional law CARDINAL/CARDINAL on measures for the full and effective execution of sentences ( see paragraph CARDINAL above ) . This new interpretation was also contra reo , constituted a policy of full execution of sentences alien to LAW of DATE , could be a source of inequalities and was contrary to the case - law of ORG ( judgments of DATE , CARDINAL DATE and DATE , see paragraphs CARDINAL above ) . Lastly , the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality , even in the case of an unrepentant terrorist murderer .

In a series of judgments of CARDINAL DATE ORG ruled on several amparo appeals lodged by convicts to whom the “ GPE doctrine ” had been applied . In CARDINAL cases ( DATE , DATE ) it allowed the appeals for violation of the right to effective judicial protection ( Article CARDINAL § CARDINAL of the LAW ) and the right to liberty ( LAW ) . ORG considered that the new method of calculating remission following ORG departure in DATE from its earlier case - law was in contradiction with the earlier final judicial decisions in the NORP cases . In those earlier firm and final decisions , in order to determine which was the most lenient criminal law applicable ( LAW of DATE or that of DATE ) , the courts had based themselves on the principle that the reductions of sentence for work done provided for in LAW of DATE should be applied to the DATE maximum sentence , not to each sentence individually . In so doing they had reached the conclusion that the regime of LAW of DATE , with its reductions of sentence for work done , was more favourable to the appellants than LAW . In a third case ( appeal no . DATE ) , ORG found in the appellant ’s favour for violation of the right to effective judicial protection ( LAW ) , considering that the Audiencia Nacional had changed the date of the prisoner ’s final release , thereby disregarding its own firm and final judicial decision given DATE . In these CARDINAL cases ORG pointed out that the right to effective judicial protection included the right not to have final judicial decisions overruled ( the “ intangibility ” of final judicial decisions ) .

In CARDINAL other cases ORG dismissed the amparo appeals on the merits , finding that the decisions by which the ordinary courts had set the appellants’ final dates of release in application of the departure from precedent in DATE had not contravened any final judicial decision concerning them .

Both in the judgments in the appellants’ favour ( paragraph CARDINAL ) and in those against them ( paragraph CARDINAL ) ORG dismissed the complaints under LAW ( principle of legality ) , considering that the question of the calculation of remission for work done concerned the execution of the sentence and on no account the application of a harsher sentence than that provided for in the applicable criminal law , or a sentence exceeding the limit allowed by law . It cited the case - law of ORG according to which a distinction was to be made , for the purposes of LAW , between measures constituting a “ penalty ” and measures relating to the “ execution ” of a penalty ( PERSON GPE , no . ORG , § DATE , DATE , and PERSON v. GPE , no . CARDINAL , § DATE , DATE ) .

Several judges appended separate concurring or dissenting opinions to the judgments of ORG .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

NORP The applicant , Mr PERSON , is a national of GPE and GPE , who was born in DATE . He is currently detained in a prison in GPE . He is represented before the ORG by Dr. PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG . The Government of GPE were given notice of the application , and they informed ORG on DATE that they would not exercise their right to intervene in the present case .

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

NORP In DATE the applicant opened a bank account with an NORP bank , bank PERSON The account was registered under his name and all movements on the account were able to be followed . By DATE the applicant ’s account had a positive balance of MONEY ( ORG ) .

NORP In DATE the applicant was indicted in GPE on various drug and money laundering charges relating to drug trafficking on a particularly large scale , which he was involved in from DATE until his arrest in DATE . The applicant entered into a Plea and Cooperation Agreement with the prosecution on CARDINAL DATE . Under that agreement , the applicant voluntarily forfeited to GPE PERCENT United States dollars ( ORG ) in assets . He was also obliged to identify all his assets . However , the applicant did not disclose his account with bank PERSON

While in prison the applicant was induced by CARDINAL of the other fellow inmates , who was cooperating with the ORG , to bribe a judge . The inmate also arranged a meeting between the applicant and PERSON , an undercover lawenforcement officer , who presented himself as being able to assist the applicant . Subsequently , PERSON arranged several money transfers for the applicant from bank PERSON in GPE .

Thereupon , on DATE , ORG requested the NORP authorities under letters rogatory to freeze the applicant ’s assets as a preliminary step to forfeiture under GPE law , subject to the operation of NORP law . It stated that the applicant ’s funds deposited with bank PERSON were the proceeds of money laundering and drug offences to which the applicant had pleaded guilty in DATE . It further held that these funds had also been used in additional money laundering offences for which the applicant would be indicted later .

This request was based on the treaty regulating judicial assistance between GPE and GPE , namely LAW ( “ the ORG ” ) , which entered into force on DATE .

On DATE ORG for LOC of GPE issued a Final Order of Forfeiture including the applicant ’s assets at bank PERSON ( “ the first forfeiture order ” ) . Apparently , the applicant ’s appeal against this decision was to no avail .

In a second set of criminal proceedings in GPE , the applicant was indicted for conspiracy to bribe a federal judge , conspiracy to tamper with a witness , conspiracy to money laundering and for money laundering .

On DATE ORG for LOC of GPE acquitted the applicant of bribery , but convicted him of all other charges . The court also ordered the forfeiture of his assets ( “ the second forfeiture order ” ) .

On DATE ORG for ORG partly granted the applicant ’s appeal against the decision of DATE and acquitted him with respect to money laundering . His conviction for conspiracy to tamper with a witness was affirmed . The court also reversed the second forfeiture order .

Based on the United States’ letters rogatory of CARDINAL DATE , ORG ( PERSON für PERSON ) issued an interim measure on DATE enjoining the applicant from disposing of all assets deposited with bank PERSON It also held that the interim measure would be suspended on deposit of USD MONEY . The applicant did not pay that deposit and did not appeal against the court ’s decision . This interim measure was twice altered to reflect the increased value of the assets subject to it .

DATE Additional criminal proceedings were instituted against the applicant on suspicion of money laundering on DATE .

On DATE ORG of the Interior ( ORG für ORG ) issued a report listing all credits and debits on the applicant ’s account that had been carried out via bank transfer or by means of crossed cheques ( PERSON ) .

On DATE ORG dismissed the applicant ’s request for the suspension of the criminal proceedings and for the lifting of the interim measure . It held that only ORG could suspend the proceedings at this stage and that the interim measure was still justified .

On DATE ORG ( Oberlandesgericht ) rejected the applicant ’s request that it hold a hearing and dismissed his complaint against ORG decision of DATE . It held that according to the findings of GPE authorities the applicant could reasonably be suspected of having committed the crime of receiving stolen property ( Hehlerei ) and , after the entry into force of the relevant amendment to LAW , the crime of money laundering .

Subsequently , the applicant applied to have the interim measure lifted CARDINAL additional times DATE and DATE . All of his requests were to no avail .

Following the judgment of ORG for ORG of DATE and the applicant ’s acquittal of the charges of money laundering , the applicant applied again to have the interim measure lifted .

On DATE ORG dismissed this request and upheld the interim measure . It held that a distinction had to be made between the CARDINAL different proceedings in GPE . The first forfeiture order was still in force and consequently the interim measure in GPE could not be quashed . Even if the second forfeiture order had been lifted , the corresponding judgment of ORG for ORG had stated that at least some of the money in the applicant ’s account with bank PERSON had “ doubtlessly derived from drug related money ” . The interim measure was therefore still justified .

NORP This decision was upheld by ORG on DATE and served on the applicant ’s counsel on DATE .

On DATE ORG asked ORG to enforce the first forfeiture order . Furthermore , it discontinued the criminal proceedings against the applicant on DATE . It renewed the request on DATE .

Upon the request of ORG of DATE , ORG submitted a certified written version of the judgment issued against the applicant . However , it did not do so until DATE .

On DATE ORG dismissed ORG request for the execution of the first forfeiture order for formal reasons .

On DATE ORG allowed ORG appeal and remitted the case back to ORG .

On DATE ORG asked the GPE authorities to inform the applicant of the request of ORG for enforcement of the first forfeiture order and to give him the opportunity to comment on it .

On DATE the applicant and his former wife , both represented by counsel , requested in their comments that the first forfeiture order not be executed in GPE .

On DATE ORG , without holding a hearing , decided to take over the enforcement of the first forfeiture order and ordered the forfeiture of the applicant ’s NORP assets . The applicant appealed against this decision on DATE .

On DATE ORG dismissed the applicant ’s subsequent appeal . That decision was served on the applicant ’s counsel on DATE .

Section CARDINAL of the Extradition and Legal Assistance Act ( ORG no . CARDINAL ) stipulates that the LAW applies where international or bilateral agreements do not provide otherwise .

Section CARDINAL carries the heading “ reciprocity ” and , so far as relevant , provides as follows :

“ ( CARDINAL ) ORG requests may be granted only if it is ensured that the requesting State would also grant an equivalent NORP request .

( CARDINAL ) If there are doubts regarding compliance with reciprocity , information shall be obtained from the Federal Minister of ORG . ”

“ ( CARDINAL ) Enforcement or further enforcement of a decision by a foreign court which was pronounced with final and legal effect , in the form of a money fine or prison sentence , a preventive measure or a pecuniary measure ( vermögensrechtliche Anordnung ) , is admissible at the request of another ORG if :

NORP the decision of the foreign court was taken in the course of proceedings in compliance with the principles of LAW . CARDINAL/CARDINAL ) ;

NORP the decision was taken for an act that is sanctioned by a court sentence under NORP law ;

NORP the decision was not taken for one of the offences listed in LAW ;

no time lapse has occurred under NORP law regarding enforceability ;

NORP the person concerned by the decision of the foreign court – regarding this offence – is not prosecuted in GPE , was finally and effectively convicted or adjudicated in this matter or otherwise released from prosecution .

( CARDINAL ) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under NORP law for a money fine , a withdrawal of enrichment or forfeiture apply , and that no corresponding NORP measure has yet been taken .

( CARDINAL ) Fines , forfeited assets or enrichment withdrawn shall fall to GPE . ”

The LAW was signed on DATE and , following ratification , entered into force on CARDINAL DATE ( ORG III , no . DATE ) .

“ ( CARDINAL ) The Contracting Parties shall provide mutual assistance , in accordance with the provisions of LAW , in connection with the investigation and prosecution of offences , the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of ORG , and in related forfeiture proceedings .

( CARDINAL ) ORG shall include :

( h ) assisting in proceedings related to forfeiture and restitution ; ... ”

“ ( CARDINAL ) If ORG of one ORG becomes aware of fruits or instrumentalities of offences which are located in the territory of the other ORG and may be forfeitable of otherwise subject to seizure under the laws of that ORG , it may so inform ORG of the other ORG . If the other ORG has jurisdiction in this regard , it may present this information to its authorities for a determination as to whether any action is appropriate . These authorities shall issue their decision and shall , through their ORG , report to the other ORG on the action taken .

( CARDINAL ) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences , restitution to the victims of crime , and the collection of fines imposed as sentences in criminal prosecutions .

( CARDINAL ) A Requested ORG in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law . To the extent permitted by its laws and upon such terms as it deems appropriate , either ORG may transfer forfeited assets or the proceeds of their sale to the other ORG . ”

“ ( CARDINAL ) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of LAW . ”


Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lived until his arrest in the town of NORP in GPE .

On DATE criminal proceedings were instituted against the applicant on suspicion of several counts of aggravated robbery . On DATE he was arrested . DATE , however , his release was authorised on condition that he did not leave his town of residence .

On DATE the head of the investigative unit of ORG of GPE authorised the applicant ’s arrest in a decision which , in so far as relevant , read :

“ On TIME DATE , at TIME , [ the applicant ] , who is unemployed , acting with mercenary intent for the purpose of stealing another ’s property , in collusion with Mr O. and unidentified persons , arrived by car ... at the village of PERSON ... [ and ] , having unlawfully entered a house and used weapons , attacked PERSON . and Mr NORP After beating the victims Mr Kh . and Mr NORP and having tied their hands , [ the applicant ] , Mr O. and unidentified individuals , issuing threats of murder , killed CARDINAL [ cows ] , placed their bodies in the cars and stole property , thus causing the victims Mr O. , Mr Or . and Mr D. pecuniary damage in the amount of MONEY , and fled the crime scene .

Having regard to the threat which the committed criminal offence poses to society and taking into account that [ the applicant ] , if at liberty , may obstruct the establishment of the truth in the criminal case and may also abscond from the investigation and the court ...

[ I ] ORDER :

That a measure of restraint in the form of arrest should be applied to [ the applicant ] , who is to be informed of this , against his signature on a copy of the present decision ... ”

The decision bore the applicant ’s signature under the last printed paragraph , confirming that the decision had been served on him on CARDINAL DATE .

On DATE the head of the investigative unit placed the applicant on the wanted persons list . The relevant part of the decision read :

“ On DATE a decision charging [ the applicant ] with having committed a crime proscribed by LAW ( b ) of LAW and a warrant for his arrest were issued , given the particular gravity and dangerous nature of the crime committed by him . On DATE [ police officers ] were authorised to bring [ the applicant ] to the pre - trial investigating authorities for the reading out of the charges and his questioning as an accused . However , the accused , [ the applicant ] , was not found at his place of residence ... [ It ] was established that he left for LOC in GPE . His exact location was not discovered . ”

On DATE the applicant was arrested . On the following day ORG authorised his detention on remand .

On DATE the acting Prosecutor of GPE , by the same decision , extended the applicant ’s and his co - defendant ’s detention until DATE , relying on the particular gravity of the charges against them and the likelihood that they would pervert the course of justice and abscond if released .

NORP The applicant ’s and his co - defendants’ detention was further extended on DATE , CARDINAL and DATE until DATE and DATE and DATE respectively , with reference to the same grounds as in the decision of DATE .

On DATE the applicant was committed for trial before ORG of GPE . According to the Government , the applicant ’s detention from DATE was not covered by any legal order as the domestic authorities were not required to issue CARDINAL under the legislation governing criminal procedure .

On DATE ORG of GPE adjourned the examination of the criminal case because CARDINAL of the applicant ’s co - defendants had violated the conditions of his release on bail and had absconded . The case file was sent to ORG . ORG also noted that the prosecution authorities were to “ determine the issue of the application of a measure of restraint [ in respect of the applicant and his co - defendants ] ” .

ORG of GPE resumed proceedings on DATE and fixed a hearing for DATE . That hearing was adjourned because the victims and a lawyer failed to appear .

On DATE ORG of GPE returned the case file to the prosecution authorities with an order to correct certain serious procedural defects , noting that the defence rights had been violated . In the same decision ORG held that the measure of restraint applied to the co - defendants , including the applicant , should “ remain unchanged ” due to the gravity of the charges against them .

On DATE ORG of GPE , acting on appeals from the applicant ’s co - defendants , upheld the decision of DATE , endorsing the reasons given by the lower court .

On DATE the acting Prosecutor of the Tyva Republic , relying on the gravity of the charges and the GPE liability to abscond , pervert the course of justice and re - offend , in a single decision , extended the applicant ’s and his co - defendants’ detention until DATE . A further extension until DATE was ordered by a deputy Prosecutor General of GPE , with reference to the same grounds .

On DATE the prosecution authorities returned the case file to ORG of GPE , which on DATE remitted the case again for additional investigation , noting serious violations of the defence rights , which had not been remedied during the previous referral of the case file to the prosecution authorities . ORG also noted that the defendants should remain in custody , given the gravity of the charges against them .

Having received the case file , on DATE the first deputy prosecutor of GPE extended the applicant ’s and co - defendants’ detention until DATE , relying on the previously used grounds , namely the gravity of the charges and the defendants’ liability to abscond , reoffend and pervert the course of justice .

On DATE the additional investigation ended and ORG of GPE received the case file . It fixed the first hearing for DATE . As follows from copies of court TIME presented by the Government , the hearing of DATE , and the following hearings scheduled for DATE and DATE , were adjourned because the presiding judge was involved in other unrelated proceedings .

In the meantime , the composition of the bench changed : a new presiding judge and lay assessor were assigned to the case . DATE and DATE ORG of GPE fixed CARDINAL hearings , of which CARDINAL were adjourned because the co - defendants’ lawyers failed to appear , CARDINAL hearing was rescheduled because the victims did not attend and CARDINAL hearing was adjourned because it was necessary to serve a co - defendant with a copy of the indictment bill in a language he understood .

On DATE ORG of GPE , having found that the prosecution authorities had committed serious procedural violations at the indictment stage , referred the case back for additional investigation with an order to respect the rights of the defendants , including their right to the services of an interpreter , etc . ORG also stressed that the defendants should remain in detention .

On DATE ORG of GPE quashed the decision of DATE in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by ORG of GPE . At the same time ORG of GPE held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody .

After having received the case file on DATE , ORG of GPE fixed the first hearing for DATE . That hearing was adjourned because the co - defendants’ counsel failed to appear . The subsequent CARDINAL hearings , listed for DATE , were postponed for the same reason .

On DATE ORG of GPE authorised an extension of the GPE detention for DATE , until DATE , holding as follows :

“ Taking into account the prosecutor ’s arguments that [ the defendants ] are charged with a criminal offence which belongs to the category of particularly serious [ offences ] , punishable by a maximum of DATE imprisonment , [ and ] having regard to the particular complexity of the criminal case and [ the fact ] that the release from custody of the defendants , who pose an increased danger to society , may impede considerably a

Of the CARDINAL hearings scheduled DATE and DATE by ORG of GPE , CARDINAL were adjourned because the co - defendants’ lawyers and the victims failed to appear and CARDINAL hearing was postponed to provide counsel with additional time to study the materials of the case file .

On DATE ORG of GPE , using identical wording as that in the decision of DATE , extended the GPE detention until DATE .

DATE and DATE ORG of GPE fixed CARDINAL hearings , of which CARDINAL were adjourned because the defence counsel failed to appear or were on DATE leave , one hearing was postponed because a co - defendant was ill and one was rescheduled due to a victim ’s failure to attend .

On DATE ORG of GPE once again extended the GPE detention for DATE , until DATE , invoking the same grounds as in the previous CARDINAL detention orders of DATE and DATE .

The applicant ’s lawyer appealed against the detention order of CARDINAL DATE , arguing that the applicant ’s detention from CARDINAL to DATE had not been covered by any legal order , in violation of the requirements of LAW and that the detention in general was excessively long .

On DATE ORG of GPE upheld the detention order of DATE , noting that the applicant ’s and his co - defendants’ detention had been regularly extended in compliance with the requirements of the NORP legislation on criminal procedure . It further stressed that in extending the GPE detention ORG of GPE had correctly relied on the gravity of the charges . As regards the detention from DATE , ORG of GPE held that the detention had been lawful , since the prosecution authorities had submitted the application for the extension before DATE and ORG of GPE had merely scheduled the hearing for DATE .

In the meantime , ORG of GPE listed QUANTITY hearings DATE and DATE . Of those hearings , CARDINAL were adjourned because the victims failed to appear , CARDINAL hearings were rescheduled because the co - defendants’ counsel were either involved in other proceedings or failed to appear , CARDINAL hearing was postponed because the presiding judge was ill , one was postponed on the applicant ’s lawyer ’s request and CARDINAL were cancelled because it was necessary to determine the issue of the defendants’ representation .

On DATE ORG of GPE , relying on the same grounds as in the detention orders issued in DATE , issued a collective decision in respect of all the defendants , extending their detention until DATE . Subsequent identically - worded detention orders were issued by ORG of GPE on DATE and DATE , extending the GPE detention until DATE and DATE respectively . The detention orders of DATE , DATE and DATE were amenable to appeal . Neither the applicant nor his lawyer made use of the appeal procedure .

Of the QUANTITY hearings scheduled DATE , QUANTITY hearings were adjourned because either witnesses or co - defendants’ and GPE counsel failed to appear , CARDINAL were postponed because the applicant ’s lawyer did not attend , CARDINAL were rescheduled because the co - defendants’ counsel were involved in other proceedings and CARDINAL was cancelled following a co - defendant ’s request to consult a lawyer .

On DATE ORG of GPE found the applicant guilty of aggravated robbery and aggravated theft of weapons and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant decided not to lodge an appeal .

Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

“ Preventive measures ” or “ measures of restraint ” include an undertaking not to leave a town or region , a personal guarantee , bail and remand in custody ( LAW CCrP , LAW ) .

LAW of DATE provides that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor , supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .

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

Before DATE , remand in custody 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 old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment , if they had previously defaulted , had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

The Codes make a distinction CARDINAL types of remand in custody : the first being “ during investigation ” , that is , while a competent agency – the police or a prosecutor ’s office – is investigating the case , and the second being “ before the court ” ( or “ during judicial proceedings ” ) , at the judicial stage . Although there is no difference in practice between them ( the detainee is held in the same detention facility ) , the calculation of the time - limits is different .

After arrest the suspect is placed in custody “ during investigation ” . The maximum permitted period of detention “ during investigation ” is DATE but this can be extended for DATE in “ exceptional circumstances ” . Under the old ORG , extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions , taken by courts of ascending levels ( under the new CCrP ) . No extension of detention “ during investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .

The period of detention “ during investigation ” is calculated up to the date on which the prosecutor sends the case to the trial court ( Article CARDINAL of the old CCrP , Article CARDINAL § CARDINAL of the new CCrP ) .

Access to the materials in the file is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , on a request by a prosecutor , may grant an extension of the detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .

Under the old ORG , the trial court was entitled to refer the case back for “ additional investigation ” if it found procedural defects that could not be remedied at the trial . In such cases the defendant ’s detention was again classified as “ during investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “ during investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE , starting from the date on which he or she received the case . Subsequent extensions could only be granted if the detention “ during investigation ” had not exceeded DATE ( Article CARDINAL ) .

From the date the prosecutor refers the case to the trial court , the defendant ’s detention is classified as “ before the court ” ( or “ during judicial proceedings ” ) .

Before DATE the old ORG set no time - limit for detention “ during judicial proceedings ” . On DATE a new Article , CARDINAL - CARDINAL , entered into force which established that the period of detention “ during judicial proceedings ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant ’s release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences .

The new ORG provides that the term of detention “ during judicial proceedings ” is calculated from the date the court received the file up to the date on which judgment is given . The period of detention “ during judicial proceedings ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .

Under the old ORG , the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . 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 , if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee ’s release ( LAW ) . An appeal to a higher court lay against the judge ’s decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( see paragraph CARDINAL below ) ( Article CARDINAL in fine ) .

Under the new ORG , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention . The appeal court must rule on the appeal within DATE of its receipt ( LAW ) .

Upon receipt of the case file , the judge must determine , in particular , whether the defendant should be held in custody or released pending the trial hearings ( LAW and LAW CCrP , LAW ) and LAW ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) .

At any time during the judicial proceedings the court may order , vary or revoke any preventive measure , including remand in custody ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberation room and signed by all the judges on the bench ( LAW ORG , LAW ) .

An appeal against such a decision lies to a higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP – see paragraph CARDINAL below ) .

Under the old ORG , within DATE after receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to refer the case back for further investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court having jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ; or ( CARDINAL ) to fix a trial date ( Article CARDINAL ) . In the latter case , the trial proceedings must begin no later than DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .

NORP The duration of the entire trial proceedings is not limited in time .

Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE after it was lodged . In exceptional circumstances or in complex cases or in proceedings before ORG this period could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .

The new ORG provides that the appeal court must start the examination of the appeal DATE after it is lodged ( Article CARDINAL ) .


Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr PERSON , the first applicant , who was born in DATE and died on DATE ( see paragraph CARDINAL above ) , was formerly an administrator and later a director of several companies – including ORG – and lived in GPE . From DATE to DATE he was Minister for ORG in the Government of Marshal Pétain and , from DATE to DATE , a member of ORG . He was the President of ORG .

The second applicant , Mr Isorni , who was born in DATE and died on CARDINAL DATE ( see paragraph CARDINAL above ) , was formerly a lawyer practising in GPE . As First Secretary of ORG , he was officially appointed to assist the President of ORG in defending Marshal Pétain at his trial before ORG . On DATE ORG sentenced PERSON to death and forfeiture of his civic rights for collusion with GPE with a view to furthering the designs of the enemy .

On DATE the DATE newspaper ORG published a CARDINAL - page advertisement bearing the title “ People of GPE , you have short memories ” in large print , beneath which appeared in small italics , “ PERSON Pétain , DATE ” . The text ended with an invitation to readers to write to ORG and ORG .

The text , which was divided into several sections each beginning with the words “ People of GPE , you have short memories if you have forgotten … ” in large capitals , recapitulated , in a series of assertions , the main stages of PERSON life as a public figure from DATE to CARDINAL , presenting his actions , first as a soldier and later as NORP Head of State , in a positive light .

In respect of the CARDINAL–CARDINAL period , the text contained the following passage :

“ PEOPLE OF GPE , YOU HAVE SHORT MEMORIES

– IF YOU HAVE FORGOTTEN ...

– That in DATE the civil and military authorities had led GPE to disaster . Those responsible begged him to come to its assistance . By his call to the nation of CARDINAL DATE he secured an armistice and prevented the enemy from camping on the shores of the LOC , thereby saving the ORG . Power was then legally conferred on him by ORG , in which ORG had a majority . The grateful NORP people rightly saw him as their saviour . There were ‘ forty million Pétainists’ ( PERSON ) .

How many no longer remember this and how many have disavowed it ?

– That in the thick of difficulties which no NORP Head of State had ever known , NORP atrocities and persecutions , he protected them against NORP omnipotence and barbarism , thus ensuring that CARDINAL prisoners of war were saved .

– That he provided DATE bread , re - established social justice , defended private schools and protected a pillaged economy .

– That , through his supremely skilful policy , he managed to send a personal representative to GPE on DATE that he went to PERSON , thereby allowing GPE , in defeat , to maintain its position between the contradictory demands of the NORP and the ORG and , through his secret agreements with GPE , to prepare and contribute to its liberation , for which he had formed the army of LOC .

– That he preserved for GPE virtually every part of what people then still dared to call the NORP GPE .

– That he was threatened by PERSON and PERSON for resisting their will , and that on DATE NORP troops carried him off to GPE .

PEOPLE OF GPE , YOU HAVE SHORT MEMORIES

– IF YOU HAVE FORGOTTEN ...

– That , while he was a prisoner of the enemy , PERSON was prosecuted on the orders of PERSON for betraying his country , whereas he had done all he could to save it .

– IF YOU HAVE FORGOTTEN ...

– That , having escaped from GPE , he returned to GPE , however great the personal risk to himself , to defend himself against that monstrous accusation and to try to protect , by his presence , those who had obeyed his orders .

PEOPLE OF GPE , YOU HAVE SHORT MEMORIES

– IF YOU HAVE FORGOTTEN ...

– That the prosecution , with the collusion of persons in the highest authority , used a forgery , as in the PERSON case , to secure his conviction and that at DATE of age he was condemned , in haste , to death ... ”

On DATE ORG Members of the Resistance filed a criminal complaint , together with an application to join the proceedings as a civil party , against a Mr L. , the publication manager of ORG , for publicly defending the crimes of collaboration with the enemy , and against Mr PERSON as President of ORG , Mr Isorni as the author of the text complained of and PERSON , as President of ORG , for aiding and abetting a public defence of the crimes of collaboration with the enemy .

The civil party argued that the text was an apologia which contravened the criminal law since it tended to justify the policy of PERSON , who had been found guilty by ORG on DATE ( see paragraph CARDINAL above ) .

The applicants denied that their advertisement constituted a public defence of the crimes of collaboration with the enemy , but acknowledged that the spirit of the text was consistent with their aim of having the judgment of ORG overturned and rehabilitating Marshal Pétain .

On CARDINAL DATE the public prosecutor filed his final submissions recommending that the charges be dropped on the ground that the offence had not been made out .

He considered that “ the political and historical light ” in which the applicants had portrayed PERSON policy during DATE was “ radically different from the approach adopted by ORG of Justice ” : “ far from glorifying the policy of collaboration , the defendants ... [ gave ] credit to Marshal Pétain – the fact that their historical perception [ might ] appear incorrect , misguided or partisan being of little consequence – for his endeavours and actions to protect GPE and its people and his contribution to the country ’s liberation ... ” . He added that , although their aim had been to enhance PERSON image and praise his conduct during the Second World War , this positive assessment could be construed as a public defence of his actions “ only by arbitrarily separating the image thus embellished from its supporting text and its link with the purely extrinsic information which , for the most part , was contained in the documents on ORG file ” . He concluded that “ it might appear strange to commit for trial before ORG the authors and producers of a text which glorifies an individual , not for the crimes of which he was convicted , but for the beneficial actions which he is deemed to have performed for the good of GPE , its people and , secretly , the Allies ” .

The investigating judge did not follow the public prosecutor ’s submissions . In an order of CARDINAL DATE , he committed PERSON , the applicants and PERSON for trial before ORG on charges , against the first defendant as principal and the others as accomplices , of making a public defence of the crimes of collaboration with the enemy , defined in section CARDINAL ) of the Freedom of the Press Act of DATE .

The investigating judge observed : “ a public defence means a speech or text which tends to defend or vindicate a doctrine or an action ” . He noted that the applicants had presented Marshal Pétain ’s policy during DATE in a favourable light , crediting him with endeavours and actions to protect GPE and its people , whereas the same events had been the subject of lengthy , detailed reasoning in the judgment of ORG convicting PERSON . He therefore considered that the part of the published text referring to the GPE period incorporated , developed and glorified the grounds of defence submitted by PERSON at his trial before ORG and therefore amounted to a “ justification of the actions and policies of PERSON , convicted under ORG DATE of the LAW ” then in force .

On DATE ORG , the proceedings before which had been joined by ORG and ORG and Interned Members of ORG , as civil parties , acquitted the defendants and ruled that it lacked jurisdiction to deal with the civil parties’ application .

The court stated that its task was “ not to take sides in the historical controversy which , for DATE , has pitted the Resistance associations against PERSON supporters ” , but to determine whether the offence had been made out in the instant case . In that connection , the court specified that , “ according to the civil parties’ and the public prosecutor ’s own submissions , the defendants [ were ] being prosecuted for their opinions ... ” and that “ no restrictions [ could ] be imposed on freedom of expression other than those derived from statute , strictly interpreted ... ” .

The court held that only the part of the text referring to the PERSON period could be construed as a public defence of the crimes of collaboration with the enemy . It noted that this part of the text was clearly a eulogy of PERSON , an appeal in his defence designed to create a shift in public opinion favourable to the reopening of his case . It considered , however , that the offence had not been made out , for the following reasons : the text contained “ no attempt to justify collaboration with NORP GPE ” , but stated that PERSON aim had been to “ facilitate the Allies’ victory ” ; PERSON collaboration with NORP GPE was neither acknowledged nor presented in a favourable light ; the fact that the judgment of ORG constituted res judicata did not in any way prevent the defenders of PERSON memory from criticising it ; the text was part of a campaign in which the second applicant had been engaged DATE to have the judgment of ORG overturned , an objective which was “ perfectly legal ” .

The court emphasised , “ for the avoidance of any doubt ” , that its judgment “ should not be deemed to favour one of the arguments put forward in the historical controversy ” .

ORG Members of the Resistance and the Resistance Action Committee appealed .

In a judgment of CARDINAL DATE ORG held , firstly , that the combined effect of LAW of LAW and LAW of DATE was that the civil parties did not have standing to trigger a public prosecution and , secondly , that the prosecutor ’s submissions on their complaint did not satisfy the formal requirements laid down on pain of nullity in the same LAW . The court therefore declared the prosecution and subsequent proceedings null and void .

ORG Members of the Resistance and the Resistance Action Committee appealed on points of law against the above judgment .

In a judgment of DATE ORG ) held that ORG had erred in law . Accordingly , it quashed the judgment of CARDINAL DATE in its entirety and remitted the case to ORG with a differently constituted bench .

On DATE ORG declared the CARDINAL civil party applications admissible , set aside the acquittals and awarded the civil parties damages of MONEY . It also ordered the publication of excerpts from the judgment in ORG .

In its judgment it held that the CARDINAL constituent elements of the offence of making a public defence of the crimes of collaboration had been made out .

It found , firstly , that the public element had been made out owing to the fact that the text in question had been published in ORG .

It went on to say that the text contained an “ apologia ” for the crimes of collaboration , and that the mental element had been made out , for the following reasons :

“ The glorification of PERSON by the authors of this manifesto is conveyed by the celebration of what they seek to portray as great deeds ; thus , equal prominence is given , for example , to the victory at GPE and the defeat at FAC , attributed to PERSON like the securing of the armistice in DATE and ‘ his policy’ , described as ‘ supremely ORG : ‘ He managed to send a personal representative to GPE on DATE that he went to PERSON , thereby allowing GPE , in defeat , to maintain its position between the contradictory demands of the NORP and the ORG and , through his secret agreements with GPE , to prepare and contribute to its liberation , for which he had formed the army of ORG . Praise of the PERSON policy is thus magnified by reference to its supposed results . This is indeed an unreserved eulogy of a policy which is none other than that of collaboration . The significance of the meeting between PERSON and PERSON at PERSON on DATE to which the authors of the advertisement refer were specified as follows in a radio broadcast by Pétain of DATE :

‘ It is in honour and in order to maintain NORP unity , a DATE unity , within the framework of constructive action for a new NORP order that I DATE embark upon the path of PERSON

The order referred to here was none other than the NORP order based on racism defined in PERSON , to which PERSON had just officially subscribed in advance by signing , on DATE , the so - called LAW relating to aliens of NORP race , who were later to be interned in camps set up in GPE for that purpose , in order to facilitate their conveyance to the NORP concentration camps which were their intended destination .

Through the absence from the text of any criticism of these artfully concealed facts or even any attempt to distance its authors from them , this manifesto does indeed , therefore , implicitly but necessarily , contain an apologia for the crimes of collaboration committed , sometimes with the active participation and sometimes with the tacit consent of ORG , that is of PERSON and his zealots , in the very ‘ atrocities’ and ‘ NORP persecutions’ to which the text refers .

The court is forced to the above conclusion without taking sides in the historical controversy between those who think that PERSON was really playing a double game supposedly beneficial to the NORP and those who place reliance only on PERSON ’s avowed policies and publicly announced official decisions , regardless of the excuses that he was able to put forward or that his supporters now seek to cloak him in . Accordingly , this court finds that the advertisement in issue did contain the apologetic element of the offence charged .

In addition , for the offence to be made out , the mental element must be established .

The accused , headed by GPE , the author of the manifesto , are seeking revision of the judgment given by ORG on DATE , which sentenced PERSON to death , forfeiture of his civic rights and confiscation of his possessions for collusion with GPE , a power at war with GPE , with a view to furthering the enemy ’s designs , this conduct constituting offences defined by and punishable under LAW and CARDINAL of LAW .

The accused , with the exception of [ Mr L. ] , all claim responsibility for the text in issue and maintain that their object in publishing it was to create a shift in public opinion which , in their view , would increase support for a decision to reopen the case .

This goal , pursued unremittingly by PERSON in particular , PERSON ’s former defence counsel before ORG , who seeks to have a new judicial decision substituted for ORG judgment , is considered by that lawyer to be a sacred duty of the defence . However legitimate on his part and the part of those who expressed their support for his action their intention to have the case reopened may have been , it did not justify the use of unlawful means to further that aim , since they knew that by putting forward an unqualified and unrestricted eulogy of the policy of collaboration they were ipso facto justifying the crimes committed in furtherance of that policy , and therefore can not have acted in good faith . ”

The applicants , PERSON and PERSON appealed on points of law against the above judgment . In their statement of the grounds of appeal they relied on LAW and complained that they had been convicted for their opinions . Their aim had been to defend what they considered to be just in the action of a convicted person , without glorifying war crimes or the crimes of collaboration of which he had been convicted in the judgment which they were seeking to have overturned . They asserted that ORG had found them guilty of making an “ implicit apologia ” , constituted more by what they had not said than by the content of the text itself , holding that the manifesto in issue “ implicitly but necessarily ” contained an apologia for the crimes of collaboration and convicting them for what they had not written and the criticisms they had not made , despite the fact that they had referred in their text to NORP atrocities and barbarism .

On DATE ORG dismissed the appeals on the following grounds :

“ Having regard [ to the ] findings [ of ORG ] ORG , whose task is to determine whether the text prosecuted under section CARDINAL ) of the Act of DATE constitutes a public defence of the crimes contemplated in that LAW , is satisfied from its examination of the article in question that the passage referred to by ORG falls within the contemplation of the aforementioned LAW . In presenting as praiseworthy a person convicted of collusion with the enemy , the text glorified his crime and , in so doing , publicly defended it . The mental element of the offence can be inferred from the deliberate nature of the acts on account of which the defendants were charged .

In delivering that judgment , ORG did not exceed its powers . Nor did it infringe the right to freedom of expression protected by LAW , paragraph CARDINAL , of LAW , since the exercise of that right may , under paragraph CARDINAL of that Article , be subject to certain restrictions prescribed by law , where these are necessary , as in the instant case , in the interests of national security , territorial integrity or public safety . ”

In DATE section CARDINAL of the Freedom of LAW of DATE read as follows :

“ Where a crime or major offence is committed , anyone who , by uttering speeches , cries or threats in a public place or assembly , or by means of a written or printed text , drawing , engraving , painting , emblem , image , or any other written , spoken or pictorial item sold or distributed , offered for sale or exhibited in a public place or assembly , or by means of a placard or notice exhibited in a place where it can be seen by the public , has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto . ”

At the same time , section CARDINAL provided that “ anyone who , by CARDINAL of the means set out in section CARDINAL , has made a public defence of ... the crimes of collaboration with the enemy ” was to be liable to CARDINAL to CARDINAL years’ imprisonment and a fine of from CARDINAL .

The NORP courts have gradually clarified the conditions for the application of the provisions making public defence of a crime a criminal offence .

ORG has ruled that public defence of the crimes defined in section CARDINAL(CARDINAL ) of the LAW of DATE is a separate offence from unsuccessful incitement to commit CARDINAL of the crimes listed in sub - sections CARDINAL and CARDINAL of the same section and that the constituent elements of each of those offences must not be confused ( Crim . DATE , ORG . crim . no . CARDINAL ) .

As early as DATE ORG held that public defence of a criminal amounted to public defence of his crime ( Crim . DATE , ORG . crim . no . DATE ) . That case - law was upheld by a decision to the effect that the glorification of a person on the basis of facts constituting one of the crimes or major offences listed in section CARDINAL(CARDINAL ) of LAW constituted the crime of public defence defined in and punishable under LAW ( Crim . DATE , ORG . crim . no . CARDINAL ) .

ORG of a text which is likely to incite any reader to judge favourably ORG leaders convicted of war crimes by ORG and constitutes an attempt to justify their crimes in part is a public defence of war crimes ( Crim . DATE , ORG . crim . no . CARDINAL ) .

A public defence of the crime of theft is made out where an article is published which , far from merely relating a criminal theft , presents it as a praiseworthy exploit and expresses the hope that the perpetrator will escape all punishment ( Crim . DATE , ORG . crim . no . CARDINAL ) .

The offence is made out where an apologia is presented in indirect form ( GPE , DATE , D. DATE . CARDINAL ) .

Lastly , it is ORG task to determine whether a text prosecuted under section CARDINAL(CARDINAL ) of the LAW of DATE partakes of the nature of a public defence of crime as defined therein ( Crim . DATE , ORG . crim . no . CARDINAL ) .

Law no . CARDINAL of DATE ( “ the loi Gayssot ” ) added to ORG a section CARDINAL bis making liable to DATE imprisonment and a fine of MONEY , or CARDINAL of those penalties only , those who “ deny the existence of CARDINAL or more crimes against humanity as defined in LAW annexed to the GPE agreement of CARDINAL DATE which have been committed either by the members of an organisation declared criminal pursuant to LAW or by a person found guilty of such crimes by a NORP or international court ” .

Section DATE of the Freedom of LAW , also inserted by the loi PERSON , provides : “ Any association which has been lawfully registered for DATE at the relevant time , and whose objects , according to its articles of association , include the defence of the moral interests and honour of the French Resistance or deportees , may exercise the rights conferred on civil parties in connection with public defence of war crimes , crimes against humanity or the crimes of collaboration with the enemy and in connection with the offence defined in section CARDINAL bis . ”

Articles DATE and CARDINAL of LAW , applied by ORG in its judgment of DATE convicting PERSON , provided at that time :

“ Any NORP citizen who colludes with a foreign power with a view to inciting it to engage in hostilities against GPE , or provides it with the necessary means , either by facilitating the penetration of foreign forces into NORP territory , or by undermining the loyalty of the army , navy or air force , or in any other manner , shall be guilty of treason and sentenced to death . ”

“ Any attempt to overthrow or change the government ... , or to incite citizens or inhabitants to take up arms against the imperial authority shall be punishable by deportation to a military fortress . ”


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

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

On DATE ORG opened preliminary proceedings against GPE on suspicion of tax evasion .

On DATE ORG ( PERSON ) extended these proceedings to CARDINAL other suspects including the applicant . He was suspected of having , in DATE , as the representative of football player PERSON , incited GPE who was then the president of ORG to declare ORG salary at a relatively low level and to pay him MONEY ( ORG ) without declaring them , thus , avoiding salary tax to be paid . The applicant was represented by counsel in these and the subsequent proceedings .

Also on DATE , ORG requested ORG ) to investigate the case .

On DATE ORG , after having questioned the applicant as a suspect , submitted the TIME . Subsequently , after having carried out tax assessment proceedings concerning ORG , it submitted an interim report on its investigations .

On DATE , ORG submitted its final investigation report .

On DATE the investigating judge summoned the applicant as a suspect to appear on DATE for questioning . Upon the applicant ’s request the hearing was postponed to CARDINAL DATE . The applicant did not appear and the questioning took place DATE , on DATE .

Meanwhile , the investigating judge had requested ORG to question CARDINAL witnesses by way of judicial assistance .

On DATE ORG returned the file to ORG , which submitted it to ORG on DATE .

On DATE ORG requested ORG to submit further information , which it did on DATE .

On DATE the preliminary investigations against GPE were extended to include a further charge . GPE unsuccessfully appealed against this decision .

On DATE the indictment against the applicant and CARDINAL coaccused was preferred . The applicant was charged with aiding and abetting salary tax evasion contrary to sections CARDINAL and CARDINAL § CARDINAL ( b ) of LAW ( Finanzstrafgesetz ) .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s objection ( PERSON ) against the indictment .

On DATE the presiding judge fixed CARDINAL May as date for the trial .

On DATE the applicant and CARDINAL of his co - accused requested that the proceedings be transferred to ORG . Thereupon , the trial scheduled for DATE was cancelled .

On DATE ORG ( Oberster Gerichtshof ) dismissed the request for transfer .

On DATE ORG held the trial against the applicant and his co - accused . The applicant pleaded not guilty . ORG submitted an expert opinion concerning questions of tax law and a number of witnesses were heard . Further , the applicant submitted an expert opinion on questions of tax law . At the close of the hearing the court convicted the applicant of aiding and abetting salary tax evasion contrary to sections CARDINAL and CARDINAL § CARDINAL ( b ) of LAW and imposed a fine of ORG CARDINAL,CARDINAL on him , part of which was suspended on probation .

On DATE the applicant filed a request for rectification of the trial TIME .

On DATE ORG partly granted the applicant ’s request and made a number of additions to the minutes .

On DATE the written version of ORG judgment of DATE was served on the applicant .

On DATE the applicant filed a second request for rectification of the minutes , which remained unsuccessful .

On DATE the applicant filed a plea of nullity and an appeal .

On DATE the applicant , represented by a second counsel , supplemented his plea of nullity .

On DATE ORG held a hearing and dismissed the applicant ’s and his co - accused ’s pleas of nullity and their appeals .

ORG noted at the outset that CARDINAL of the applicant ’s coaccused had complained that section CARDINAL § CARDINAL ( b ) of LAW referred to provisions of LAW DATE and was , thus , no longer applicable at the time of the offences , as meanwhile LAW DATE had entered into force . It observed that if this assertion was correct it would affect the convictions of all CARDINAL co - accused . However , ORG found that section CARDINAL § CARDINAL ( b ) of LAW contained a so - called dynamic reference , i.e. at any given time it referred to LAW in the version in force at that time . Moreover , it had to be read in conjunction with section CARDINAL of LAW DATE according to which the provisions of that Act replaced the corresponding provisions of LAW DATE referred to in any other law . Thus , the legal basis for all co - accused ’s conviction was sufficiently clear .

ORG decision was served on the applicant on DATE .


Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant , PERSON , is an NORP national , who was born in DATE and lives in GPE am See .

ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

On DATE the applicant , a practising lawyer , was served with a decision dated DATE by the PERSON am ORG ( PERSON am See als PERSON ) informing him that proceedings had been initiated against him on suspicion of evasion of both income and turnover tax , through his submission of incorrect declarations of earnings in both DATE and DATE .

NORP The panel at ORG ( ORG beim PERSON ) held CARDINAL hearings , namely on DATE and DATE , DATE , DATE and DATE , of which only the first CARDINAL were attended by the applicant . The applicant was aware that his former employee , witness X , would be required to testify in the proceedings ; however QUANTITY hearings were postponed when witness X failed to appear . When PERSON finally appeared at the hearing of DATE it transpired that the applicant had relied on X ’s duty of confidentiality on account of his previous employment contract with the applicant , and X could not then testify .

The applicant did not receive a transcript of the hearing . The applicant had not lodged a request to receive the transcript until the hearing was under way .

On DATE the ORG panel found the applicant guilty of having evaded tax in the amount of CARDINAL euros ( ORG ) and ordered him to pay a fine of LAW , which would be replaced , in the event of default , by a prison term of DATE . The applicant was , however , acquitted of having evaded turnover tax in DATE . In fixing the amount of the fine , the panel considered the following to be mitigating factors : the applicant ’s lack of any prior convictions , his partial payment of the money owed , his confession in respect of part of the charges and the long period of time that had elapsed since the offences had been committed . It did not find any aggravating factors . The written decision of DATE was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON ) , which delivered its decision orally after a hearing on DATE . ORG reduced the amount of the fine to LAW , with CARDINAL days’ imprisonment in the event of default . Among the reasons given by ORG for the reduction of the fine was the applicant ’s low income , and it cited the long duration of the proceedings as a further mitigating factor in addition to those already put forward by the ORG panel . On the other hand , it considered that the fact that the applicant was a practising lawyer constituted an aggravating factor . The written decision was served on the applicant on DATE .

The applicant lodged a complaint with ORG ) on DATE against the decision of ORG . In a decision dated DATE ORG declined to consider the case for its lack of prospects of success and sent it to ORG ( Verwaltungsgerichtshof ) . The decision of ORG was served on the applicant on DATE .

The applicant filed additional observations in support of his complaint to ORG as requested . On DATE ORG dismissed the applicant ’s complaint as ill - founded . It held that ORG had acted appropriately in taking the unreasonably lengthy duration of the proceedings and the applicant ’s poor financial situation into consideration and had set the fine accordingly and in line with the domestic courts’ jurisprudence . It also held that the applicant should have applied to receive a transcript of the hearing by the time it had started , as was provided for by law .

The decision was served on the applicant ’s counsel on CARDINAL DATE .

The jurisdiction of the tax authorities as regards proceedings relating to tax offences and the conduct of such proceedings are regulated in LAW ( Finanzstrafgesetz ) .

In accordance with section CARDINAL of the above - mentioned Act , in force at the relevant time , oral hearings are to be recorded by the court reporter . Its subsection CARDINAL provides that the transcript of the hearing is to be signed by the presiding member of the panel and the court reporter and then handed over to the defendant if he or she has lodged a prior request for it which has to be submitted , at the latest , just after the opening of the oral hearing .

Section CARDINAL § CARDINAL of LAW provides , as a maximum penalty for the offence of tax evasion , for the imposition of a monetary fine of double the amount of tax evaded . It also provides for the imposition of a sentence of imprisonment for DATE .