Violation of Art. 5-3;Just satisfaction reserved

The object of the ORG ’s request and of the Government ’s Application is to have the PERSON case referred to the ORG so that the latter may decide whether the facts of the case reveal any violation by GPE of its obligations under LAW , paragraph ( CARDINAL ) ( article CARDINAL ) , of the Convention .

The facts of the case as stated in ORG , the Government ’s memorial , the other documentary evidence produced and the oral statements by the representatives of ORG and of the Government may be summarised s follows :

Mr. PERSON , an NORP citizen , was born in GPE on DATE . In DATE , ORG was employed as an inspector for the " Heimat " Insurance Company in GPE . While thus engaged , he began , both on his own account and for the company , to negotiate loans to the company ’s clients and he finally became a full - time independent financial agent .

On DATE , he founded with CARDINAL other persons , PERSON and PERSON , the private limited company of ORG This company , whose registered office was in PERSON , had an initial capital of QUANTITY . Its activities consisted of transactions relating to real property , including negotiating and advancing loans secured on real property or otherwise , the management of property for reward , the negotiation of settlements in and out of court , as well as an estate agency and commission business . The company also carried on the business of wholesale and retail trading goods of all kinds , including in particular import and export . All CARDINAL members were directors . The company ’s business could be transacted by any CARDINAL of them , but in practice PERSON , who owned MONEY of the capital stock , managed the business alone .

For the transaction of contracts for loans , ORG advertised in the newspapers and sent circulars to solicitors and notaries . In his advertisements , he promised loans on particularly favourable terms which , however , he did not as a general rule observe . Moreover , he had CARDINAL of his assistants follow the list of court notices in order to ascertain the identity of property - owners threatened with foreclosure , to whom he then offered credit . Although LAW ( LOC CARDINAL.CARDINAL.CARDINAL gegen die ORG ) only allows in such cases a rate of commission equal to or PERCENT CARDINAL per cent , ORG usually obtained commission from MONEY to MONEY and sometimes even at MONEY .

Furthermore , CARDINAL of the CARDINAL members of the company , namely PERSON , held the business licence required by the law in these matters .

In connection with a civil action brought by ORG , the judge felt obliged , in view of the disclosure of certain of these business practices of the Applicant , to bring the facts of the case to the attention of ORG . The consequent investigations resulted in LAW at GPE charging the Applicant with aggravated fraud on CARDINAL counts under ORG , CARDINAL , CARDINAL ( d ) , CARDINAL and CARDINAL of LAW .

On DATE , these prosecutions were transferred , at ORG ’s request , to ORG ( PERSON für PERSON ) of GPE which acquitted him on DATE ( CARDINAL Vr CARDINAL/CARDINAL ) . In its decision of DATE on a plea of nullity ( PERSON ) lodged by LAW , ORG ( Oberster Gerichtshof ) upheld ORG judgment on CARDINAL of the counts and referred the case back to the court for retrial on the other CARDINAL . On CARDINAL DATE , the court sentenced the PERSON to five months’ imprisonment for perjury committed before ORG on DATE in connection with a charge of aggravated fraud ( Articles CARDINAL and CARDINAL sub - paragraph ( a ) of LAW ) . PERSON was acquitted on the other charges . By decision of CARDINAL DATE , ORG reduced that sentence to DATE , as a result of an appeal entered by PERSON .

However , the latter ’s Application is not directed against those proceedings .

Suspected of having committed offences against LAW ( Wuchergesetz ) , PERSON was arrested on DATE pursuant to a decision of ORG . On DATE , that court remanded him in custody ( Verwahrungshaft ) under LAW , paragraph CARDINAL , sub - paragraphs CARDINAL ( danger of absconding ) and CARDINAL ( danger of suppression of evidence - GPE ) of LAW . When he was brought before ORG at GPE on DATE , the PERSON stated that he had been informed of that decision against which he did not propose to appeal ( beschwerdelos ) , but asked that the file be transmitted to the Investigating Judge at PERSON .

This transmission took place and , on DATE , a preliminary investigation ( Voruntersuchung ) was opened by ORG against the Applicant who was suspected of having committed the crime of usury within the meaning of LAW , sub - section CARDINAL , of LAW and of LAW . At the same time , the court ordered the remand of the Applicant in custody ( ORG ) under LAW , paragraph CARDINAL , sub - paragraph CARDINAL ( danger of suppression of evidence - GPE ) and CARDINAL of the Code of Criminal Procedure . When he appeared before the Investigating Judge of ORG on DATE , PERSON stated that he had been notified of the CARDINAL above - mentioned decisions of the ORG , that he did not propose to appeal against them ( beschwerdelos ) and that he withdrew an application for his release which he had made earlier . He protested his innocence and noted that he would be interrogated in detail on the facts as soon as the charges were made against him .

At the request of the Applicant ( DATE ) the case was transferred to ORG of PERSON .

On DATE , PERSON was released provisionally on parole : he gave a solemn undertaking ( NORP ) , as provided for in LAW , but was not required to provide any security . His detention while on remand has thus lasted , without interruption , for DATE and DATE . According to TIME of that hearing , the PERSON made the following declaration :

" I have been advised of the decision to release me on parole in pursuance of LAW and I hereby give the prescribed solemn undertaking in full knowledge of the consequences of breaking that undertaking . I acknowledge that I must henceforth inform the ORG immediately of any change of address . On my release I shall go to No . CARDINAL GPE , GPE XIII . "

In DATE , further information were laid with ORG in GPE , alleging fraud , misappropriation of funds and profiteering by the PERSON and also by a solicitor , Dr. PERSON was suspected , in particular , of having , from DATE onwards , made a practice of demanding exorbitant security for loans from a large number of persons who were apparently in difficult financial circumstances and , further , of having , alone or together with other persons , obtained money from numerous other persons by fraudulent practices and of having misappropriated capital entrusted to him .

The Investigating Judge at ORG of PERSON had just begun extensive enquiries ( ORG ) when the PERSON submitted a request , on DATE , for the case to be transferred to ORG . Since the persons charged with him agreed to this , the case was duly transferred . The file was numbered CARDINAL d Vr CARDINAL/CARDINAL .

In accordance with the provisions of NORP law ( ständige PERSON ) , the conduct of the preliminary investigation was assigned automatically , on CARDINAL DATE , to Investigating Judge PERSON , who was already dealing with other cases to which was added , on CARDINAL DATE , the case of PERSON , PERSON and others ( see the judgment of ORG in the PERSON case , ORG , DATE , Series A , p. CARDINAL ) .

On DATE , ORG of GPE decided :

- to continue the preliminary investigation in a series of charges relating to CARDINAL cases of aggravated fraudulent conversion ( Veruntreuung - Article CARDINAL of LAW ) , CARDINAL cases of aggravated fraud ( ORG , CARDINAL and CARDINAL of LAW ) , CARDINAL other case of fraud ( ORG , CARDINAL sub - paragraph ( d ) and CARDINAL of LAW ) and CARDINAL cases of the crime of usury ( Sections CARDINAL and CARDINAL , sub - section CARDINAL , of LAW ) ;

- to extend the preliminary investigation to CARDINAL charges relating to cases of aggravated fraudulent conversion ( Article CARDINAL of LAW ) , fraud ( Articles CARDINAL et seqq . of LAW ) and embezzlement ( LAW ( c ) of LAW ) ;

- to suspend , in accordance with LAW , the preliminary investigation in respect of CARDINAL or CARDINAL charges .

Under LAW , embezzlement is punishable by DATE severe imprisonment ( schwerer PERSON ) if the amount involved exceeds MONEY . Fraud and fraudulent conversion become crimes if the amount of the loss caused or so intended exceeds MONEY ( Articles CARDINAL and CARDINAL ( c ) of LAW ) . The penalty incurred is " severe imprisonment " from DATE where such amount exceeds QUANTITY , or , in cases of fraud , where the criminal has displayed " exceptional audacity or cunning " or where he is an habitual swindler ( Articles CARDINAL and CARDINAL ( c ) of LAW ) . The amounts mentioned above have been altered since : they are fixed at present at QUANTITY respectively . LAW lays down a sentence of from CARDINAL months’ to one year ’s strict detention ( strenger Arrest ) ; a criminal who has practised usury professionally is punished by CARDINAL to CARDINAL years’ imprisonment where several persons have suffered serious financial loss ( Section CARDINAL , sub - section CARDINAL , of LAW ) .

On DATE , the Applicant , who was then at liberty , was notified of the facts which were being held against him ; he stated that he did not propose to appeal against the prosecution and the extension of the preliminary investigation . The Investigating Judge then examined him in respect of an instance of aggravated fraud against PERSON .

On his release in DATE , PERSON had continued to manage his business . When the competent authorities refused to transfer the licence from PERSON to the company ORG , the CARDINAL other members left the company and ORG became the sole shareholder and director in DATE . He then transferred the seat of the company to GPE .

Having decided to change his occupation , he began to take flying lessons in DATE ; after having produced the documents required by law , he obtained his amateur pilot ’s licence on DATE and a restricted radio - telephonic certificate on DATE . In order to become a professional pilot , he made , by DATE , CARDINAL flights over a total distance of QUANTITY with landings on CARDINAL different airports including GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , PERSON , GPE , GPE , GPE , ORG , GPE , GPE , GPE , GPE , GPE , GPE , GPE ( GPE ) , GPE , NORP , GPE , GPE , GPE ( GPE ) , PERSON , GPE and GPE . In DATE , he piloted on CARDINAL occasions a plane carrying tourists between GPE , GPE , GPE , GPE and GPE .

On DATE , the Applicant sold his company and his name was removed from the commercial register .

At the request of ORG , the preliminary investigation was extended , on DATE , in respect of facts concerning PERSON , to offences under ORG CARDINAL , CARDINAL and CARDINAL ( c ) of LAW .

By order dated DATE and served on DATE , the Investigating Judge summoned the Applicant for DATE for further examination . PERSON , however , did not appear : on DATE , he had arrived in GPE on board a plane which he said belong[ed ] to his father ; he did not return to GPE until DATE .

From GPE in GPE , ORG had , however , sent , on DATE , a postcard to his father in which he said he could be reached at Cavalla airport . He asked his father to send him a telegram in case of need and to telephone his lawyer , Mr. PERSON , to get him to have the examination adjourned ( " damit die PERSON klappt " ) .

According to the statements made to ORG by the PERSON ’s counsel , Mr. PERSON , on DATE - and these were not disputed by the Government - Mrs. PERSON , his wife and secretary , had , on DATE , applied for an adjournment of the examination , and the Investigating Judge had granted her application . When she appeared before ORG as a witness on DATE , Mrs. PERSON , although not questioned on this point despite the request made by Mr. PERSON , stated that the Investigating Judge had accepted the excuses she had made to him verbally in explanation of the PERSON ’s non - appearance .

On DATE , immediately on his return , PERSON – again according to the undisputed statements of Mr. PERSON – accompanied Mrs. PERSON to the chambers of the Investigating Judge who , however , refused to examine the Applicant , saying that he did not have time to hear him and would carry out the examination in DATE .

Again on DATE , ORG made an application dated DATE to the Investigating Judge to enlarge the scope of the preliminary investigation opened against PERSON , to issue a warrant for his arrest and to remand him in custody under Articles CARDINAL , paragraph CARDINAL , sub - paragraphs CARDINAL and DATE , and CARDINAL of the Code of Criminal Procedure . ORG alleged that there was a danger of absconding ( Fluchtgefahr - Article CARDINAL , paragraph CARDINAL , sub - paragraph CARDINAL ) and a danger of repetition of offences ( Wiederholungsgefahr - Article CARDINAL , paragraph CARDINAL , sub - paragraph CARDINAL ) , because the Applicant had , by his unauthorised journey to GPE , broken the solemn undertaking given on his release ( see paragraph CARDINAL above ) and had committed other offences in DATE .

On DATE , the Investigating Judge ordered ORG ’s arrest .

The warrant ( PERSON ) stated that the PERSON had travelled abroad without permission of the court which constituted a breach of his undertaking of DATE ( paragraph CARDINAL above ) , and that he had committed further offences in DATE and DATE at the expense of borrowers .

The warrant emphasised that a breach of undertaking entailed the remand in custody of the person charged ( LAW in fine of LAW ) and that the Applicant ’s conduct after his release also proved that there was a danger of repetition of offences .

On DATE , the preliminary investigation against PERSON was extended , in respect of the facts concerning PERSON , PERSON and PERSON and PERSON , to offences under Articles CARDINAL et seqq , CARDINAL ( c ) and CARDINAL of LAW .

The PERSON was arrested on DATE . On DATE he was examined about his personal situation by a judge of ORG and was remanded in custody ( ORG ) under LAW , paragraph CARDINAL , sub - paragraphs CARDINAL ( danger of absconding ) and CARDINAL ( danger of suppression of evidence ) of LAW .

On DATE , ORG was notified that the preliminary investigation had been extended by orders of ORG and DATE ( see paragraphs CARDINAL and CARDINAL above ) . On DATE he was notified of that court ’s decision to remand him in custody ( Untersuchungshaft ) for the reasons stated in the warrant of arrest .

On DATE , the Applicant lodged a first appeal against this decision . He maintained that , on his release , he had informed the Investigating Judge of ORG of PERSON that he was obliged to travel a great deal as his residence was in GPE but his office in GPE , and that he had asked whether the court had to be advised in advance of each of these journeys . According to the PERSON , the Investigating Judge replied that he need only leave his address at his office or with his parents . PERSON claimed that he had always complied with this condition in respect of his numerous journeys in GPE and abroad , and in particular after he had obtained his pilot ’s licence . He added that he also travelled abroad frequently as a member of the NORP national judo team . In DATE he is also said to have informed the Investigating Judge of ORG that he intended to change his occupation and become a pilot . The judge had raised no objection , although he might have been expected to deduce that the PERSON had made , and planned to make , many flights in GPE and abroad . As to his failure to appear before the Investigating Judge on DATE , Mrs. PERSON had explained the reasons to the judge and after PERSON ’s return ( CARDINAL DATE ) is said to have also asked the Investigating Judge to set a new date for the examination to which the judge replied that he was overwhelmed with work at the time but would summon the Applicant after DATE . From these various circumstances PERSON deduced that he had not committed any breach of the solemn undertaking he had made on DATE .

ORG also claimed that he had sold his business by notarial deed on DATE on the advice of the Investigating Judge himself and had begun to earn his living as a pilot . From that he drew the conclusion that there was no danger of repetition of offences .

On DATE , the Investigating Judge sent to ORG a copy of the appeal , asking for a detailed opinion on the statements of ORG relevant to the danger of repetition of offences . The Judge added :

" This on the lines of our conversation . The accused ’s contention - which is not yet proved - that he had given up the business of money - lender since DATE is irrelevant in this respect . "

In answer to this request , ORG replied on DATE that it was of opinion that the reasons for detention continued to exist . Recalling that the subject - matter of the preliminary investigation opened against the Applicant had been extended in DATE ( see paragraph CARDINAL above ) and that following the laying of substantiated information ( fundierte ORG ) a further extension had been ordered in DATE ( see paragraphs CARDINAL and CARDINAL above ) , ORG concluded that a danger of repetition of offences remained . As regards the danger of absconding , ORG pointed out , inter alia , that since his release the Applicant had broken his solemn undertaking made in DATE , had obtained his pilot ’s licence , had gone to GPE without the consent of the judge , on board a plane belonging to his father , had gone on frequent journeys abroad , and had to expect , in the light of the results of the preliminary investigation , a heavy sentence which might run , under the relevant legislation , from DATE severe imprisonment ( schwerer PERSON ) . Furthermore , ORG asked ORG to close the preliminary investigation as soon as possible .

By decision of DATE , ORG of ORG instructed ORG to obtain from Judge PERSON , of PERSON , who had released PERSON in DATE , information on the directions which he had given to the Applicant on that occasion .

On DATE , PERSON submitted to ORG of GPE a letter which Mr. PERSON , the lawyer who had represented him at the time he was first remanded in custody in DATE , had written to Mr. PERSON on DATE . In reply to Mr. PERSON ’s questions , Mr. PERSON explained in that letter that , when PERSON was released in DATE , it was understood from the beginning that he would go to GPE . This was the reason why the Applicant had not been obliged to report to the authorities ( Meldepflicht ) at PERSON . Another reason why such an obligation had not been imposed on the PERSON was that he had undertaken to leave his address at Mr. PERSON ’s office so that he could be contacted within DATE . These arrangements had in fact worked satisfactorily until the case had been transferred to GPE . In DATE , Miss PERSON , GPE ’s secretary , had always kept Mr. PERSON informed of the whereabouts of her employer .

In a written statement of DATE made to Judge PERSON ( see paragraph CARDINAL above ) , Mr. PERSON , formerly Investigating Judge at ORG , emphasised for his part that :

- if his memory were correct , there had been no mention in DATE , at the time of the release of PERSON , of anything except his address at GPE ;

- it was nonetheless possible that the Applicant had informed him that he would not be able to give immediate notice to the court of each of the many journeys he would have to make ;

- even if this were true , Mr. PERSON had certainly not replied to PERSON that it would be enough for him to leave his address at his office at PERSON or with his parents at GPE ; but more likely he had told him , as was usual in such cases , to ensure that summonses from the court reached him as soon as possible ; this reply did not mean that the court was under a duty to find out for itself the whereabouts of the Applicant if he were needed ;

- that Mr. PERSON had not insisted , however , on being informed of every departure or return of the person charged - which was , anyway , in his opinion , a practice unknown at ORG .

On DATE , Judge PERSON asked that Mr. PERSON - released beforehand by PERSON from the obligation to observe professional secrecy - be questioned on the following points :

( a ) what persons were present at the time of PERSON ’s release , when mention was made of his going to GPE ( see paragraph CARDINAL above ) ?

( b ) when it was decided to waive the obligation for ORG to notify the authorities of every journey , had it been specified that the waiver also covered journeys other than those between GPE and GPE and , for example , journeys abroad ?

On DATE , Mr. PERSON was heard as a witness by a judge of ORG of PERSON and stated that he had not attended , on DATE , at the release of PERSON , but PERSON had told him of his intention to go to GPE , saying that the Investigating Judge was aware of it . Mr. PERSON added that Judge PERSON had asked him , on DATE , to see to it that the Applicant would be present when he was needed ; furthermore , PERSON ’s secretary kept herself informed regularly through Mr. PERSON about the progress of the proceedings . On DATE and DATE , Judge PERSON had asked Mr. PERSON to have his client attend and PERSON did in fact appear within the prescribed times . At the request of the Applicant , Mr. PERSON notified , on DATE , ORG of GPE that PERSON intended to go to GPE : the court made no objection . Express permission to travel was never given .

On DATE , ORG ( Ratskammer ) of ORG of GPE refused the appeal of CARDINAL DATE ( see paragraph CARDINAL above ) . The Chamber held first that PERSON had gone to GPE without obtaining permission from the Investigating Judge . Basing its findings on the depositions made by PERSON and PERSON , it came to the conclusion that no general permission had been given by Mr. PERSON to the LAW to cover travel in GPE or abroad . There was no doubt that PERSON had always returned from his travels but the ORG considered that this fact was not relevant : in its view , it was clear from LAW that any breach of the solemn undertaking was liable to entail the remand in custody of the person concerned .

For reasons very close to those set out in the unfavourable opinion given by ORG on DATE ( paragraph CARDINAL above ) , the decision of DATE found , in addition , that there was a danger of absconding and a danger of repetition of offences . On this last point , ORG considered that it was of little importance to know whether PERSON had in fact sold his business on DATE .

The Applicant attacked this decision on DATE . He began by stressing the fact that neither he nor his lawyer had yet had an opportunity to consult the case - file ( PERSON ) and that they were therefore only able to give their views on the results of the enquiry and the preliminary investigation in the light of the elements contained in the decisions of the ORG .

ORG furthermore maintained that as far as he could recall the only ground for his first remand in custody had been a danger of suppression of evidence and that , on the occasion of his release , the Investigating Judge had reminded him in the first place that it was essential not to suppress any evidence and in particular not to attempt to interfere with the witnesses . Accordingly , he considered he had not broken his solemn undertaking of DATE . On this topic , he returned to the arguments put forward in his appeal of CARDINAL DATE ( see paragraph CARDINAL above ) . Emphasising that he was unaware of the contents of Judge PERSON ’s statement ( see paragraph CARDINAL above ) , he also alleged that that judge had said to Mrs. PERSON , in DATE , that in his view the Applicant had not broken his word . PERSON complained , moreover , that Mrs. PERSON had not been heard as a witness in her interviews of CARDINAL and CARDINAL DATE with Judge PERSON ( see paragraph CARDINAL above ) . He added that she had asked the judge , on DATE , not to fix the Applicant ’s examination in CARDINAL days’ time because PERSON wanted to go to ORG on DATE , and that Judge PERSON had made no objection .

In the same context , the Applicant specified that , from DATE , he had made CARDINAL journeys abroad to participate in international judo competitions - in which sport he had been several times NORP champion until DATE ; almost all the newspapers had reported at the time his successes and defeats . Again , certain civil actions brought against him by persons who claimed to be victims of his activities had obliged him , he said , to make journeys in his own country . He considered he was entitled to assume that the Investigating Judge would learn of these absences from the press and from official documents . On this point the Applicant referred to files CARDINAL Cg CARDINAL/CARDINAL ( ORG of GPE ) and CARDINAL C CARDINAL/CARDINAL ( ORG Hietzing ) as well as to the information laid by GPE , PERSON and PERSON . ORG concerned in the case would , for his part , have known of the above - mentioned journeys from the hearings which had taken place on DATE in the case reference CARDINAL Vr CARDINAL/CARDINAL , ( see paragraph CARDINAL above ) with which he was also dealing . PERSON submitted that all these facts established that he had never believed it necessary to have permission to travel from the judge to whom he had never ceased , in any event , to be available .

The Applicant further complained that ORG had found , in its decision of DATE , that there was a danger of absconding and yet the warrant of arrest was based solely on the breach of the undertaking and on the danger of repetition of offences . In his submission , this way of proceeding had prejudiced the right of defence because he had not had an opportunity , in his appeal of CARDINAL DATE , to put forward arguments to establish that there was no danger of his absconding . In his view , there was no such danger in this case . On this point , PERSON recalled that he had returned from each of his numerous journeys and , particularly , that he had appeared before ORG of GPE on DATE in the case CARDINAL Vr CARDINAL/CARDINAL ( see paragraph CARDINAL above ) although he had to expect , according to the indictment , a sentence of imprisonment from DATE . As to the new complaints made against him , he stressed that he had been informed of them DATE before his second arrest . He added that the sentence to be foreseen in the present case was the same as in DATE . The fact that he was preparing the professional pilot ’s examination was , he also maintained , a further guarantee : once he obtained the necessary licence he could pilot only NORP aeroplanes ; the cost of his professional training - which amounted to CARDINAL schillings and which his father intended to cover by the sale of his aeroplane - constituted a real security . The PERSON also emphasised that his amateur pilot ’s licence would expire on DATE and he could not renew it unless he recovered his liberty before that date .

On the question of the danger of repetition of offences , PERSON alleged , not without protesting his innocence that all the facts subsequent to his release were tied up with his activities as a financial agent , which activities he had ceased on DATE .

Finally , he pointed out that he had not yet been examined about a great many of the facts alleged against him and especially that he had not been heard on the merits of the case since his second arrest .

ORG , to which ORG had referred the appeal for opinion , replied on DATE :

- that the Prosecutor who had attended the hearing on DATE was not familiar , at that time , with the file in the present case which was dealt with by CARDINAL of his colleagues until DATE and therefore the Applicant ’s statements on this point were shown to be incorrect ;

- that ORG had committed his first offences even before he began to work in his company ;

- that detailed inquiries were to be made into the circumstances of the purchase of the aeroplane and the sale of the company ORG , as well as into the accused ’s debts and the expenses of the professional training which he had described .

The Applicant was in fact examined on these matters by the Investigating Judge on DATE .

On DATE , ORG ( Oberlandesgericht ) of GPE refused the appeal of DATE . The court did not find it necessary to go into the question whether or not PERSON had broken his solemn undertaking given on DATE : contrary to the view held by ORG , it considered that a breach of this nature could not constitute specific grounds for remand in custody and , on this point , referred to a decision by ORG of DATE . Consequently , ORG concentrated entirely on determining whether there was any danger of the Applicant absconding and any danger of repetition of offences . On the first of these matters , it decided that no danger existed for the reason that , during a period of CARDINAL and a half years , the Applicant had complied with every summons issued by ORG and had returned from all his many journeys although he held a pilot ’s licence , had an aeroplane at his disposal and was aware that the accusations against him had been aggravated . On the other hand , the court confirmed the decision of DATE as regards the danger of repetition of offences . It noted in effect that according to the well - substantiated information ( durchaus fundierte ORG ) laid by PERSON and PERSON , PERSON , PERSON and PERSON , PERSON had , DATE , either alone or in concert with PERSON and PERSON , committed further punishable acts in connection with the granting of loans , thereby causing a loss of MONEY to the persons concerned . The court therefore concluded that PERSON might , if released until the final result of the criminal proceedings in question ( " bis PERSON rechtskräftigen PERSON des vorliegenden PERSON " ) , commit further offences on the lines of those he had committed over DATE . Although the Applicant had theoretically withdrawn from business , the court held that the danger was merely increased thereby : deprived of his previous means of livelihood , PERSON might be tempted to have recourse to fraudulent practices in order to maintain his customary standard of living .

On DATE , ORG , in a letter to the President of ORG , described in detail his business career and , in particular , the preparations he had made to take up the occupation of professional pilot . He stressed , in particular , that he had sufficient means to enable him to complete his pilot ’s training because he had obtained MONEY as the proceeds of sale of his company and hoped to get QUANTITY for his father ’s aeroplane which he intended to sell . While offering to provide bail if he was set free , PERSON declared that he was ready to give a solemn promise not to engage any more in business activities . Finally , he complained that he had never had an opportunity to explain his case to Judge PERSON , and he asked the President to allow him to do this before a member of ORG .

A perusal of the file does not show whether the President of the ORG replied to this letter .

On DATE , the Applicant lodged a second application for provisional release . While he recognised that he had lost his livelihood by selling his business , he stressed that he hoped to obtain a professional pilot ’s licence and that his father had agreed to provide for his maintenance ; he claimed this proved that there was no danger of repetition of offences . He added that he would be unable to take up flying as a career if his detention were prolonged . He also offered to provide security in an amount commensurate with his assets and with those of his family .

This application was accompanied by a letter addressed to Mr. PERSON on DATE , by the PERSON ’s father , PERSON . The latter showed his readiness , if his son were released , to pay for his maintenance and for his professional training as a pilot .

On DATE , ORG supplemented his application by explaining in detail the prospects he saw for a pilot in GPE ; he referred in particular to a report in the " Express " newspaper on the need for GPE to recruit pilots for lack of NORP pilots . The PERSON renewed his offer not to engage any more in business activities and declared himself ready to produce to the court within a reasonable time a contract of employment as a pilot .

On DATE , ORG , consulted by ORG , expressed its opposition to the release of the Applicant on the grounds that , in this case , there was a danger of repetition of offences . The ORG referred on this point to the decision of ORG ( paragraph CARDINAL above ) and to the discovery made in DATE of other serious misdemeanours on the part of GPE since his release . Further , the ORG also observed that PERSON was in debt and had had to bring civil action , which was still pending , for the proceeds of the sale of his company .

The Investigating Judge refused the application on DATE . He pointed out , in substance , that the situation had not altered in the Applicant ’s favour since the decision of CARDINAL DATE ; that , on the contrary , the danger of repetition of offences had become more acute as it had been learned that in DATE PERSON had been instrumental in causing a certain PERSON to lose CARDINAL schillings ; that PERSON was in debt and had no means of his own .

The Investigating Judge did not express views on the offer to provide bail .

The Applicant appealed against this decision on DATE . Relying on the above - mentioned letter from his father ( paragraph CARDINAL above ) , he contended that the circumstances had indeed changed in his favour . He added that , according to case - law of ORG , only clear indications could be used to establish that a danger of repetition of offences existed . It seemed to him , then , that there were such indications in the present case because he had given up his activities as a financial agent and the PERSON case dated from DATE .

On being consulted once again , ORG gave an unfavourable opinion on DATE . The ORG considered , in effect , that the existence of a danger of repetition of offences resulted definitely from the numerous punishable acts committed by ORG since DATE . In this context , the ORG further recalled that the accused had negotiated loans on a large scale even before beginning to work in his company . The ORG finally suggested that further inquiries into the financial position of the Applicant and his father be commenced , and also into the circumstances surrounding the alleged sale of the aforesaid company .

The Judge ’s Chamber of ORG of GPE refused the appeal on DATE . Referring to the reasons given by ORG on DATE , and by the Investigating Judge on DATE , it added that there was strong reason to suspect that PERSON had continued his operations in DATE . According to information received by the court on DATE , the Applicant had persuaded PERSON and PERSON that they would make an excellent bargain if they purchased an aeroplane : as a result of this transaction , Mrs. PERSON had lost her entire fortune , consisting of a house valued at MONEY , while the father of ORG had acquired ownership of the plane . ORG noted that as the CARDINAL women claimed ownership of the aeroplane PERSON could not sell it if he wished to do so to support his son and pay for his professional training as a pilot . The ORG did not take any decision on the offer made by the Applicant to provide security .

It had been decided on DATE to open a preliminary investigation in the aeroplane case which was the subject of separate prosecutions ( CARDINAL d Vr CARDINAL/CARDINAL ) .

On DATE , and again on CARDINAL and DATE , PERSON appealed against the decision of DATE . Recalling that he had sold his company on DATE , he drew the conclusion that there was no danger of repetition of the offences . He also stated that he had CARDINAL schillings available of which CARDINAL came from the sale of the aeroplane and CARDINAL were in the form of a bill of exchange outstanding against the purchase of the company ; he deduced from this that his upkeep and his professional training were assured . He complained in particular that the Investigating Judge and the Judge ’s Chamber had not taken into account the aforementioned letter from his father ( paragraph CARDINAL above ) . After describing in detail the way in which he was preparing for the pilot ’s examination ( paragraph CARDINAL above ) , he stressed that he had almost finished his professional training and that due to the dearth of professional pilots in GPE , he would have no trouble in quickly finding employment in that profession . From this he reasoned that there was no danger of repetition of offences . In order to offer in this respect additional guarantees , he declared himself ready to undertake that , in the event of his release , he would carry on no business activities , he would report regularly to the court on his occupation and he would produce to the court his contract of employment .

ORG refused the appeal on DATE . It considered that neither the Applicant ’s proposed change of occupation nor the time he wished to devote to training as a pilot was likely to avert the danger of repetition of offences . It further stressed that DATE after the contested decision , a lawyer at PERSON , Mr. PERSON , had laid a charge against PERSON of having caused , by fraud , to his clients PERSON and PERSON of ORG , a loss of MONEY in connection with the granting of a loan .

On DATE , the Applicant lodged a disciplinary complaint ( PERSON ) against the conduct of the proceedings by ORG and supplemented it on DATE . On CARDINAL DATE , he lodged a second complaint on the grounds that the competent authorities had not yet acted on DATE .

On DATE - somewhat DATE after the ORG had been lodged with ORG ( DATE ) - Stögmüller lodged a further disciplinary complaint with the President of ORG . He complained that Judge PERSON was dragging out the investigation , had not given him a hearing during CARDINAL months’ detention , except on CARDINAL charges , treated him worse than other persons detained with him , had not bothered about the other persons implicated in his case , had taken reprisals against him and had been suborned by the accomplices of the Applicant in other criminal cases .

His application to the President of the ORG was not successful – no more than were his other disciplinary complaints - and , on DATE , PERSON applied to ORG which , on DATE , dismissed his complaints after detailed examination .

Meanwhile , and more specifically on DATE , the Applicant had sought , in addition to the joinder of the proceedings CARDINAL d Vr CARDINAL/CARDINAL and CARDINAL d Vr CARDINAL/CARDINAL ( paragraphs CARDINAL and DATE above ) , the withdrawal of the other judges under the jurisdiction of ORG of GPE and the transfer of the case to ORG of GPE . In effect , he accused the afore - mentioned judges of bias . On this point , he alleged that an official counsellor at ORG was implicated ( verwickelt ) in the case CARDINAL d Vr CARDINAL/CARDINAL and that CARDINAL of those who was charged with him was the son of a magistrate . He also emphasised that the prosecutions had already been going on for DATE and that he was in detention for DATE without having been heard by the Investigating Judge except on CARDINAL points of minor importance .

ORG refused the application for transfer and then , on DATE , dismissed the request for the withdrawal of the judges of ORG of GPE . The motion for the withdrawal of the other judges under the jurisdiction of ORG was dismissed by ORG on DATE . On DATE and CARDINAL DATE , these various decisions were transmitted to the Investigating Judge who , in accordance with the legislation in force , had suspended the preliminary investigation pending the result of the proceedings for the withdrawal of judges .

On DATE , ORG had made an appeal based on the LAW . Emphasising that the proceedings against him had already continued for DATE and that he had spent DATE in custody while on remand without having been heard by the Investigating Judge except on CARDINAL out of the CARDINAL transactions in issue , he claimed to be a victim of violations of Articles CARDINAL ( CARDINAL ) ( c ) and ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL - CARDINAL-c , article CARDINAL , article DATE ) of the Convention . He further complained that he had been prevented by ORG from voting at parliamentary elections .

On DATE , ORG ) declared that it had no jurisdiction in the matter for the reason that the appeal was directed against judicial bodies acting in the normal course of their duties .

On DATE , the Investigating Judge ordered the joinder of the proceedings CARDINAL d Vr CARDINAL/CARDINAL and CARDINAL d CARDINAL/CARDINAL ( paragraph CARDINAL above ) .

After consulting ORG through Dr. PERSON , the PERSON lodged , on DATE , a third application for provisional release . He claimed that , as a result of DATE in all - which he had spent in custody his business relations had been broken off and this gave greater credibility to his stated desire to give up his former occupation . He added that he would be in danger of losing his pilot ’s licence if he was not speedily released and that in any event he had served in advance a large part of any sentence which might be imposed on him . According to him , the career which he hoped to take up would not give him any opportunity of committing offences of the type with which he was now charged . PERSON agreed , however , that employment as a pilot might raise suspicions that he would abscond . On this point he claimed that he had no intention of evading the proceedings instituted against him , as this would be pointless for a number of reasons . As proof of his good faith he nevertheless offered a security of MONEY , including the personal security of CARDINAL relatives for a sum of QUANTITY each .

On being consulted by ORG , ORG agreed , on DATE , to the conditional release of the Applicant . The ORG stated its agreement with ORG ’s argument that there was no longer any danger of repetition of offences but there was a danger of his absconding . In this context , the ORG stressed that the investigation had shown that there were serious charges and that a heavy sentence might therefore be expected ; it also recalled that ORG intended to take up a career as a pilot . The ORG took the view therefore , that only release accompanied by the above - mentioned guarantee was acceptable .

On DATE , Mr. PERSON stated before ORG that this offer of security had been a purely formal one , made with ORG agreement ; its sole purpose was to enable the court to release the Applicant , whose family was in fact completely penniless .

However that may be , the Investigating Judge decided , on DATE , to release the Applicant on bail . He pointed out that , as the Applicant had broken off his business connections for DATE , the danger of repetition of the offences had clearly ceased to exist , but that there was thenceforth a danger of absconding ; he added that this last danger could be overcome by the making of a solemn undertaking and the deposit of security .

DATE , ORG of ORG of GPE fixed the amount of the security at QUANTITY . PERSON was released on CARDINAL DATE after giving the solemn undertaking provided for in LAW . His second period in detention therefore lasted , without interruption , for DATE and DATE . According to the minute prepared on the occasion of his release , the Applicant declared :

" I acknowledge that I have been released on parole under LAW . I have been informed of the consequences of a breach of my solemn undertaking ; I will reside at FAC , GPE . If I am absent from that place of residence for DATE - which may happen as I intend to work as a pilot - I will give prior notice to the ORG . "

On DATE , ORG acknowledged receipt of the required security .

When Mr. PERSON , the Investigating Judge , appeared before ORG as a witness on DATE , he stated in this connection :

" Once Stögmüller had decided to change his occupation from moneylender to aviator , the danger of new offences ceased to exist . If he ceases to be a moneylender , he can no longer commit offences of the type with which he is charged . On the other hand , his wish to become a pilot raises again the danger that he may abscond , for as a pilot CARDINAL often spends more time abroad than at home .... Because of the change of occupation , there was no further danger of repetition of offences and the provision of bail averted the danger of absconding ... " .

DATE . In DATE , Judge PERSON announced that the preliminary investigation had been completed and he sent to ORG the case record ( Articles CARDINAL and CARDINAL of LAW ) which ran to CARDINAL pages .

When they appeared before the ORG , the parties agreed that the facts which had to be examined by the organs responsible for the investigation were highly complex . The difficulty lay essentially in the number of the operations in issue .

The preliminary investigation was originally concerned with CARDINAL commercial transactions effected by the Applicant , of which CARDINAL involved loans , almost all of which had been granted to farmers threatened with foreclosure . Finally , CARDINAL transactions remained to be dealt with . The investigation concerned a series of offences of fraud ( ORG , CARDINAL ( d ) , CARDINAL , CARDINAL ( d ) and CARDINAL of LAW ) , fraudulent conversion ( Articles CARDINAL and CARDINAL of LAW ) , embezzlement ( LAW ( c ) ) of LAW ) usury ( Sections CARDINAL , sub - section CARDINAL , and CARDINAL , sub - section CARDINAL of the PERSON ) , and a number of minor offences and misdemeanours ( PERSON and LOC ) . The offences with which PERSON was charged had involved their victims in a loss of considerably QUANTITY .

These offences had been committed throughout GPE but particularly around GPE in GPE . As PERSON does not lie within the jurisdiction of ORG , ORG could not carry out all the necessary enquiries personally ; for CARDINAL facts and items of evidence letters rogatory had to be issued . In order to simplify the procedure , Mr. PERSON spent DATE in GPE in DATE and DATE ; with the agreement of the competent authorities , he there consulted the land registers and himself questioned CARDINAL witnesses at GPE , TIME at PERSON i m GPE and CARDINAL at Braunau .

A total of CARDINAL witnesses - CARDINAL of them during the period of GPE ’s second detention while on remand ( DATE to CARDINAL DATE ) - and QUANTITY persons charged were heard during the preliminary investigation .

According to information supplied to the ORG by the ORG on DATE , CARDINAL DATE and DATE were devoted to hearing the Applicant . However , CARDINAL interrogations were recorded in writing , namely , CARDINAL DATE and DATE , CARDINAL in DATE ( CARDINAL of these after PERSON was arrested for the second time ) , CARDINAL in DATE , CARDINAL in DATE ( up to DATE , the date of his release ) , CARDINAL in DATE and CARDINAL in DATE . TIME CARDINAL pages . According to the statement submitted to the Commission by the Government no record was kept of any interrogation of the Applicant DATE and DATE , nor between DATE and CARDINAL DATE nor DATE and DATE .

According to TIME of the interrogations which the Government submitted to ORG DATE , PERSON was , DATE and DATE , the date of his second release , heard on CARDINAL of the numerous allegations which he had to face . The minutes drawn up during this period total CARDINAL pages .

When the lady President of ORG asked him , on DATE , why the Applicant had not been interrogated more often in the course of his second remand in custody , Judge PERSON stated , in particular , as follows :

" ... I would say that ORG is the most intelligent person I have come across in DATE ( experience ) .

" ... At first I sat down with ORG in the prison ... and began to go over the facts with him . After DATE I realised that , because of his intelligence , this method was not getting me anywhere with him . It is , of course , usual for a judge ... to examine the person charged ... and then hear the witness ... That was not possible in GPE ’s case . I interrogated him ... PERSON insisted that the minutes should contain only his own words . He objected to any kind of summary . I had to accept everything he told me , without being able to raise the slightest objection as to whether this or that statement could be correct , for I had not the necessary testimony ... I came to see that by proceeding in this way with PERSON I was not making any progress in the case . In the last analysis , that is why I stopped interrogating him , I wanted first to collect the evidence ... " .

During his second period of detention , GPE brought CARDINAL applications and appeals , of which CARDINAL or CARDINAL were disciplinary complaints against the Investigating Judge and were all dismissed as ill - founded . The judge informed ORG that in his view this was a deliberate manoeuvre designed to thwart his efforts . In this connection , he mentioned a letter which the PERSON had sent to his counsel on DATE . ORG suggested in the letter that Mr. PERSON should employ the good offices of a colleague , Mr. PERSON , to negotiate an agreement with the Investigating Judge : while reserving the right to pursue his applications for release , he said that , if certain concessions were granted , he would undertake not to present any more applications and appeals despite the legitimacy of his complaints ; meanwhile , he added , he would continue to employ the tactics which he had agreed with his counsel .

With ORG permission , the Government produced this document on DATE . In its ORG of CARDINAL DATE , ORG noted that Judge PERSON , who was responsible for supervising the PERSON ’s correspondence , had read the letter in question and had had a photocopy of it made before transmitting it to Mr. PERSON ; in these circumstances , the ORG felt it could not take it into consideration .

It also appeared in fact that , in order to speed up proceedings and following an exchange of views between counsel for the defence and the Investigating Judge , ORG withdrew , on DATE , an appeal which he had lodged on DATE against a decision ordering the inclusion in the file of a letter he had written to his parents .

In DATE - CARDINAL , the PERSON ’s pilot ’s licence and his restricted radio - telephonic certificate were withdrawn by the competent authorities following his above - mentioned conviction of CARDINAL DATE ( paragraph CARDINAL above ) .

On DATE , that is a little less than DATE after the adoption of ORG ( DATE ) , ORG at GPE completed the preparation of the indictment ( PERSON , LAW ) .

CARDINAL pages long , this document was directed against CARDINAL persons , and PERSON was named first ; a fourth person charged had died in the meantime .

ORG , for his part was indicted for :

- aggravated usuary ( Sections CARDINAL , sub - sections CARDINAL and CARDINAL , and CARDINAL , sub - section CARDINAL , of LAW ) in CARDINAL instances ;

- the misdemeanour of usury ( LAW , sub - section CARDINAL , of LAW ) in CARDINAL instances ;

- aggravated fraud or complicity in aggravated fraud ( Articles CARDINAL , CARDINAL ( d ) , CARDINAL , CARDINAL ( d ) , CARDINAL and CARDINAL of LAW ) in CARDINAL instances ;

- the crime of fraudulent conversion ( ORG CARDINAL and CARDINAL of LAW ) in CARDINAL instances ;

- an offence against LAW , penultimate paragraph , of LAW .

The amount of loss alleged against ORG exceeded a MONEY .

According to the indictment , CARDINAL of the QUANTITY acts therein referred to dated from before the first release of the Applicant ( DATE ) . The CARDINAL others had occurred in DATE , DATE and DATE ; however , they only related to CARDINAL groups of persons out of a total of CARDINAL . It is clear , in effect , that the charges relating to certain facts were severed and then dropped ( LAW , CARDINAL and DATE , paragraph CARDINAL , of LAW ) . This was so , in particular , as regards the charges in relation to the Weiskopf case ( paragraph CARDINAL above ) .

ORG asked , in particular , for the opening of the trial before ORG of GPE sitting as a NORP - Judge court , the arraignment of the accused persons , CARDINAL witnesses to be summoned and the depositions of CARDINAL other witnesses to be read , the reading of the opinions of CARDINAL experts and of a series of other documents .

The trial opened on DATE . ORG of GPE heard DATE witnesses and read the depositions of QUANTITY others as well as the opinions of CARDINAL experts .

On DATE , the court sentenced PERSON to DATE severe imprisonment , with TIME of " sleeping - hard " ( hartes Lager ) and DATE fasting DATE , on CARDINAL counts of aggravated usury , CARDINAL count of usury , CARDINAL counts of aggravated fraud and CARDINAL counts of aggravated fraudulent conversion . In application of LAW , the court took into account the sentence imposed on the Applicant in DATE ( paragraph CARDINAL above ) . Furthermore , PERSON was ordered to pay to CARDINAL of his victims sums totalling CARDINAL schillings in damages and the rights of the civil plaintiffs were expressly reserved in all other respects .

The PERSON was acquitted on the remaining counts . Under DATE ( a ) of LAW , he was granted remission of sentence for the duration of the periods he had spent in provisional detention and in detention while on remand .

In fixing the amount of the remission , the court took the view that in this case there was , notwithstanding certain aggravating circumstances - the extent of the loss caused and the number of offences established - a conjunction of " very important and overriding " extenuating circumstances ( Article CARDINAL ( a ) of LAW ) . In this respect , the court noted first that a lot of time had elapsed between the commission of the offences and the date of judgment ; it acknowledged , in particular , that PERSON was only in part responsible for the fact that DATE had gone by since the opening of the preliminary investigation . The court also stressed that the PERSON , who had been DATE when he began his criminal activities , had committed no more offences since DATE , but on the contrary had , on his release chosen an " ordinary " career ( bürgerlich ) , had been of irreproachable conduct , had founded a family and had succeeded in reintegrating himself into society .

ORG did not bring an appeal ( GPE ) , nor move to have the judgment set aside ( PERSON ) .

Some time after his release , PERSON took up residence in GPE where he became a ORG instructor and had obtained the required certificate . However , he returned recently to his own country where he began to serve his sentence on DATE .

In his introductory ORG dated DATE ( No . CARDINAL ) , PERSON submitted :

- that his arrest and detention had been effected without " reasonable suspicion " of his having committed an offence and without its being " reasonably considered necessary " to prevent his committing an offence ( LAW ) of the Convention ) ( article CARDINAL - CARDINAL-c ) ;

- that he had not been brought to trial " within a reasonable time " or released pending trial ( LAW ) ( article CARDINAL ) ;

- that he had not been granted " a fair and public hearing within a reasonable time " ( LAW ) ;

- that the manner in which the preliminary investigation had been carried out did not conform with the presumption of innocence ( Art CARDINAL ( CARDINAL ) ) ( article CARDINAL - CARDINAL ) ;

- that he had not been informed promptly and in detail of the nature and cause of the accusation against him ( LAW ) ( a ) ) ( article CARDINAL - CARDINAL-a ) ;

- that he had not been permitted to examine or have examined witnesses against him ( LAW ( article CARDINAL - CARDINAL-d ) ;

The PERSON requested :

- that he be released , subject , if need be , to the sole condition that he should not exercise any other occupation than that of pilot ;

- that he should have an opportunity of examining the witnesses against him .

On DATE , the Applicant also claimed that the Investigating Judge had become biased against him ( Article CARDINAL ( CARDINAL ) ( article DATE ) of the Convention ) .

On DATE , the Commission declared inadmissible , as manifestly ill - founded , this last complaint and that grounded on LAW ) ( article CARDINAL - CARDINAL-c ) ; the Commission deferred its decision as to the admissibility of the remainder of the Application .

During an oral hearing held before the ORG on DATE , Mr. PERSON stated that he maintained only the claim in regard to the alleged violation of LAW ) ( article CARDINAL ) . On DATE , the Commission decided that the ORG was admissible in respect of that provision ; it decided not to avail itself of its competence to examine further , ex officio , the allegations which had been withdrawn by the PERSON ’s counsel ( LAW ( article DATE , article CARDINAL ) . On DATE , it deemed it was not required to resume the examination ex officio of the allegation relating to the duration of the criminal proceedings instituted against ORG ( article DATE ) : " reasonable time " ) . ORG did not , however , exclude the possibility that the period of DATE which had elapsed since its decision of CARDINAL DATE might be a factor such as would justify the lodging of a further ORG .

Following the decision that part of the ORG was admissible , the ORG established the facts of the case and sought in vain to reach a friendly settlement ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) .

Before the ORG and ORG , the PERSON stated exactly how he viewed the problem raised in this case in respect of LAW ) ( article CARDINAL ) . In his view , it was not enough to note that he had obtained his freedom on CARDINAL DATE ; the question was whether he had been given his freedom in good time or after an excessively long delay . His CARDINAL periods of detention while on remand - covering a total period of DATE and DATE - could not , in his submission , be considered " reasonable " within the meaning of the Convention . PERSON stated that under NORP law the penalty for the offences with which he was charged was not less than six months’ imprisonment and nor more than ten years’ penal servitude and in the event of his being found guilty he expected a sentence of DATE . He deduced from this that his detention constituted an anticipated sentence . According to him , the course of the preliminary investigation had been subject to abnormal delays which he attributes to CARDINAL reasons : Judge PERSON was dealing with another very complex case ( PERSON , PERSON and accomplices ) ; furthermore , the Judge had begun by summoning a large number of witnesses instead of first hearing the Applicant in accordance with normal practice . PERSON also claimed that during his second period of detention he had been questioned CARDINAL times and on CARDINAL of the CARDINAL or more operations in issue . He claimed that his detention had in fact been used as a means of pressure : that it was hoped by prolonging the detention to prevail on him to confess . The Investigating Judge was said to have had an illuminating conversation on this subject with Mr. PERSON in DATE . The PERSON conceded that his application for the withdrawal of judges had had the effect of suspending the preliminary investigation ( see paragraph CARDINAL above ) . He maintained , however , that he had been in custody for DATE before he had brought these applications and explained he had done so because he was exasperated by the slow progress of the proceedings ; he said that the competent courts could , in any case , have taken a decision on these applications within DATE .

Referring also to LAW ) ( article CARDINAL - CARDINAL-c ) of the LAW , the Applicant claimed that his detention had ceased to be " lawful " ( " régulière " ) on DATE , the date on which ORG of GPE had agreed that there was no danger of his absconding ( see paragraph CARDINAL above ) . As to the danger of repetition of offences , PERSON disputed its existence : he said that on DATE , that is , DATE before his second arrest , he had sold his business and given up all commercial activity such as might possibly justify fears of this danger . He pointed out finally that the reasons which had led the authorities to release him in DATE corresponded exactly to the arguments put forward by him DATE in his own applications and appeals . He therefore concluded that he ought to have been released in DATE .

DATE . After the failure of ORG attempt to reach a friendly settlement , the ORG drew up the ORG provided for in DATE ( article CARDINAL ) of the Convention . This document was adopted on DATE and transmitted to ORG DATE . The Commission states its opinion therein , by CARDINAL votes against CARDINAL , that LAW ) ( article CARDINAL ) of the LAW has been violated in the present case . The ORG contains CARDINAL concurring opinions and CARDINAL dissenting opinions .

Arguments of the ORG and the Government

In its ORG of CARDINAL DATE , the ORG followed the method known as that of the CARDINAL " criteria " or " factors " which it adopted in the PERSON and PERSON cases ( see e.g. Publications of the Court , Series A , PERSON case , judgment of DATE , pages CARDINAL - CARDINAL ) . After applying each of these criteria to the present case , the ORG considered them as a whole . The factors whose consideration , according to the ORG , led it to find " unreasonable " the nature of the length of the detention on remand in issue , i.e. criteria ORG . CARDINAL , CARDINAL and DATE , appeared to it to weigh more heavily than those telling in the opposite direction . By a majority of CARDINAL to CARDINAL , the Commission expressed the opinion that there had therefore been a violation of LAW ) ( article CARDINAL ) of the Convention .

At the hearings of CARDINAL and CARDINAL DATE , ORG Delegates based their arguments essentially on the judgments which the ORG had given in the meantime in the PERSON and PERSON cases , but also referred frequently to ORG and in particular to the majority opinion .

Referring to paragraph CARDINAL of the section " As to the Law " in the first of these judgments , ORG observed that in the opinion or the ORG and that of the Commission , the concept of " reasonable time " must be interpreted in the light of the concrete facts of each case . According to the ORG , it is in the nature of things that the same factors are not necessarily involved every time LAW ) ( LAW ) is invoked . However , the experience gained in the PERSON , PERSON , GPE and GPE cases showed that as a rule certain factors were considered by the Commission and the ORG in such cases .

In this connection , ORG referred particularly to paragraph CARDINAL of the section " As to the Law " of the PERSON judgment and summarised the arguments put forward by the Applicant in support of his CARDINAL applications for release on bail and the reasons why the competent NORP courts refused the first CARDINAL and granted the third .

They reminded ORG that the Commission had examined these facts to see whether the proceedings dealing with the Applicant ’s requests for release on bail had been unduly prolonged by the fault of the authorities concerned and that they had not found any such fault .

Other factors should also be taken into consideration ; in this respect the Delegates referred to the Applicant ’s conduct during the preliminary investigation and particularly his CARDINAL appeals , applications and other motions , CARDINAL of which could not be taken into consideration in the Report of DATE as the ORG had not drawn attention to them until its Memorial of DATE . The Delegates pointed out that in the opinion of ORG " went beyond a fair exercise of his right of petition " in challenging all the judges of ORG and that " this element points to the conclusion that the prolongation of his detention , which resulted from this challenge was not unreasonable " ( paragraph CARDINAL ( CARDINAL ) of the ORG ) . The Delegates nevertheless produced a letter dated DATE and addressed to the Commission in which the PERSON explained why he made that challenge .

Again , the complexity and difficulties of the preliminary investigation told in favour of the reasonableness of the length of detention in issue . Moreover , the ORG had taken account of a similar factor in its judgment of DATE , in the PERSON case ( paragraph CARDINAL of the section " As to the Law " ) .

Other factors told in the opposite direction , i.e. the length of the PERSON ’s detention - both in itself and , in particular , in relation to the sentence applicable in case of conviction - and the manner in which the preliminary investigation had been conducted . In paragraph CARDINAL of the reasons of the PERSON judgment , the ORG had implied that the actual duration of a period of detention could in certain circumstances be a determining factor in deciding whether it was reasonable . As to the manner in which the preliminary investigation was conducted , the ORG had taken account of this in the PERSON judgment ( paragraph CARDINAL of the reasons ) ; it was true that the ORG was dealing with LAW ( article DATE ) of the LAW but this aspect of the question was even more relevant from the point of view of LAW ) ( LAW ) . In the present case . Judge PERSON had to investigate several very difficult and complicated cases at the same time , including that of PERSON , PERSON and others ; the steps taken to relieve him of dealing with new cases , which were mentioned by ORG for the first time during the oral hearings , did not in any way refer to the cases already pending .

The Delegates then replied to the ORG ’s criticisms of the ORG ’s method of establishing the facts and setting them out in its ORG .

According to the ORG , the period of detention , the compatibility of which with LAW ) ( article CARDINAL ) had to be examined , ran from DATE to CARDINAL DATE . The Applicant ’s detention from DATE to CARDINAL DATE could not be taken into consideration because it occurred before the entry into force of the Convention with respect to GPE ( DATE ) .

In reply to an objection by the Government that the present case dealt exclusively with the period of detention prior to the lodging of the ORG ( DATE , see paragraph CARDINAL below ) , the Delegates replied by referring to paragraph CARDINAL of the PERSON judgment in which ORG had rejected a similar objection . They stated that the Commission had relied on this opinion of ORG in its recent decision on the admissibility of ORG . LOC , GPE against GPE ORG of the Commission , Volume CARDINAL , page CARDINAL ) .

At the ORG ’s request , the Delegates then replied to the ORG ’s argument based on LAW . They pointed out that the Applicant ’s detention terminated on DATE , i.e. before the ORG ’s decision on admissibility ( DATE ) . They added that it should be observed that this decision was taken after a hearing on DATE at which both parties were represented and in which the parties had made submissions on the admissibility of the complaint in question which related to the whole period of detention . The Government had not however , raised any objection to the ORG grounded on LAW ) ( article CARDINAL , article CARDINAL ) of ORG had not considered that it should be rejected under these provisions for failure to exhaust domestic remedies . Before the above - mentioned decision of DATE , the Applicant had on CARDINAL occasions applied to each of the authorities from whom a person detained while on remand in GPE may seek his release under Articles CARDINAL et seqq . of LAW ; he had thus exhausted the domestic remedies . However , NORP law does not limit the number and frequency of this type of application . The Delegates remarked that if the ORG ’s argument were to be accepted , it would lead to the conclusion that a person held in detention while on remand would have to make incessant applications in order to exhaust the domestic remedies with respect to the whole period of his detention : such a large number of applications would not only be likely to be considered as an obstruction of the normal course of criminal procedure but even as an abuse of the right of appeal .

Again , a person alleging the violation of LAW ) ( article CARDINAL ) with respect to the length of his detention while on remand complains of a continuing situation which should be considered as a whole and not divided up in the manner suggested by the Government . In the opinion of the Delegates , if the ORG ’s argument were accepted , the effect of LAW , paragraph ( CARDINAL ) ( article CARDINAL ) , of the Convention would be gravely impaired : it would dissuade detained persons from petitioning the Commission until they had endured a long period of detention while on remand . The Delegates also emphasised that it might in the result be less favourable for the respondent ORG in cases where a detained person was set at liberty by virtue of a request for release subsequent to the lodging of his ORG .

The Delegates submitted that once the ORG was declared admissible and LAW had been respected at the stage of examination of admissibility , the Commission and the ORG were competent to judge whether the length of the detention while on remand in issue was reasonable without this competence being in any way limited as to time .

Finally the Delegates replied to the ORG ’s arguments based on the fact that the PERSON had been convicted on CARDINAL DATE by ORG in the first criminal proceedings instituted against him ( file CARDINAL b Vr CARDINAL/CARDINAL , see paragraph CARDINAL below ) .

In their view , the proceedings before the Commission related exclusively to the second prosecution ( file CARDINAL d Vr CARDINAL/CARDINAL ) ; this appeared clearly from the ORG of CARDINAL DATE . It was clear , moreover , that the decisions taken DATE by ORG with respect to the PERSON ’s detention while on remand related to this latter prosecution .

The Delegates also observed that the judgment of ORG in the first criminal case was given in DATE , i.e. DATE before the arrest and detention of the Applicant in connection with the second prosecution . It would follow that the first prosecution was not relevant to the solution of the problem before ORG in the present case .

At the hearing of CARDINAL DATE , ORG requested the ORG :

" to decide whether the ORG has been violated or not by the detention of ORG from DATE to CARDINALth DATE . "

In its ORG of DATE , the ORG expressed the opinion that ORG was based on erroneous legal reasoning , an incorrect finding of the facts and an inaccurate assessment of the evidence .

These submissions were developed in detail in its memorial of DATE . The Government put forward arguments similar to those it had submitted in the PERSON case ( see pages CARDINAL , paragraphs CARDINAL of the judgment of CARDINAL DATE ) . In particular , the ORG raised objections of principle to the use of the criteria , to their application to the analysis of the facts and against criterion No . CARDINAL ; it also disputed the way in which the ORG had used criteria ORG . CARDINAL , CARDINAL and DATE in the present case .

At the oral hearings of CARDINAL and QUANTITY DATE , the ORG ’s representatives based their pleadings in part on the judgments which the ORG had given in the meantime in the PERSON and PERSON cases . In their opinion , the reasons which led to the rejection of the PERSON ’s first CARDINAL requests for release on bail were conclusive and convincing ; although the lack of danger of his absconding was acknowledged by ORG on DATE , the danger of a repetition of the offences continued throughout the period of detention in issue ; the decisions to this effect taken by the NORP courts were confirmed by the judgment of CARDINAL DATE convicting the PERSON which proved that offences had been committed after the first release . Even during his detention while on remand the Applicant had continued to recover debts due from his business activity , from which it might be concluded that he did not intend to abandon that activity . The danger of a repetition of the offences had , however , gradually lost its strength , particularly as a result of the progress of the preliminary investigation and the PERSON ’s change of occupation . On the other hand , the sale of the company had little significance in this respect : the PERSON , who had never obtained the licence necessary to act as an agent for credit transactions , could have resumed his business activity at any time . But while the danger of a repetition of the offences gradually became less , the danger of his absconding had revived in view of the severity of the sentence to be expected and the fact that the Applicant intended to take up the career of pilot in GPE , a ORG which had not made an extradition treaty with GPE . However , the authorities had averted this danger by accepting the security offered by the Applicant .

The Government considered that the method laid down by ORG in the CARDINAL judgments of DATE ( see , for example , paragraph CARDINAL of the section " As to the Law " of the judgment in the PERSON case ) results inevitably in having to submit to the ORG the merits of the final domestic decision on an Applicant ’s detention while on remand . But such a result is contrary to the LAW and to the case - law of the ORG and the ORG .

This method would involve the risk of blurring the clear distinction which , according to the Government , should be maintained between paragraph ( CARDINAL ) ( c ) and paragraph ( CARDINAL ) of LAW article CARDINAL - CARDINAL-c , article CARDINAL ) . It was only the length of detention that was in issue and not the detention as such . The question whether the conditions justifying detention while on remand were fulfilled did not in the present case merit the importance that had been given to it by ORG in the PERSON judgment . Referring to paragraph CARDINAL of the reasons of the PERSON judgment , the ORG ’s representatives expressed their agreement with the manner in which ORG had interpreted the concept of reasonableness . In their opinion , account must be taken of all circumstances which have had a bearing on the length of detention : the practical difficulties of the preliminary investigation particularly with regard to the principle of the determination of the true facts , the behaviour of the Applicant , etc . In short , the question was whether an authority of ORG had delayed the proceedings : if this was not so , the Government considered that there was no reason to accuse it of having failed to comply with the requirements of paragraph ( CARDINAL ) of LAW article CARDINAL ) .

In this connection , the Government insisted strongly on the exceptional difficulties encountered in the preliminary investigation and particularly the wide extent of the alleged dishonest dealings , the complexity of the facts , the skill of the PERSON and the number of witnesses . It also pointed out that the competent authorities , in their anxiety to speed up the course of the proceedings as far as possible , had ordered the severance of certain prosecutions and relieved Judge PERSON of dealing with new cases during a number of periods which extended from DATE to CARDINAL DATE and amounted in all to DATE . This last - mentioned information had not been given to the Commission but the ORG ’s representatives thought it right and necessary to give it to the ORG ; there was no rule forbidding the introduction of new material ( ORG ) before the ORG . It is true that Judge PERSON had had to deal at the same time with the PERSON case and the case concerning PERSON , PERSON and others ; however , he had stated before ORG that it was only the length of the preliminary investigation and not that of the Applicant ’s detention while on remand which had been prolonged as a result . Again , the ORG had not in its ORG found any fault on the part of the NORP judicial authorities ; it thus gave the impression that the present case - as indeed the PERSON case - was concerned less with the particular proceedings than with the NORP system of criminal investigation .

Unlike the authorities concerned , the Applicant had systematically sought to delay and complicate the preliminary investigation . His dilatory tactics consisted in particular of a mass of applications and appeals - including the challenges to judges and requests for transfer of the proceedings - and of accusations of perjury against the prosecution witnesses . This appeared clearly from the letter addressed by PERSON to his lawyer on CARDINAL DATE .

As matters stood , the fact that the proceedings did not terminate earlier had not prejudiced the Applicant : he had been granted remission of sentence for the time he had spent in detention while on remand ; furthermore , the ORG had exercised in his favour its " special right of mitigation " ( LAW ) which it did for the reason that a fairly considerable time had passed since the offences were committed .

In order to solve the problem raised by the present case the Government considers that it is necessary to take account of the first prosecution of the Applicant . Those proceedings , which ended with the judgment of ORG of CARDINAL DATE ( file CARDINAL b Vr CARDINAL/CARDINAL ) and the second prosecution ( file CARDINAL d Vr CARDINAL/CARDINAL ) together formed an indivisible whole . The CARDINAL proceedings related , in effect , to similar offences which were interconnected and were tried by the same court ; moreover , all the legal requirements ( LAW ) for a joinder of the CARDINAL proceedings were satisfied both at the time judgment was given and during the detention while on remand . According to the Government , the judgment of CARDINAL DATE must be considered as satisfying the Applicant ’s entitlement to be tried ( PERSON ) within the meaning of LAW ) ( article CARDINAL ) of the Convention . It could be regarded as a sort of partial or first judgment . As to the judgment of CARDINAL DATE , it was merely supplementary to that of CARDINAL DATE , to which it expressly referred ( cf . LAW ) . The Government added that it would cause serious difficulties if the ORG were to ignore the first judgment ; it observed that when a person is charged with a great number of offences the prosecution often begins , particularly in countries outside the NORP legal system , by separating some of the offences and putting them before the competent court ; this practice which is perfectly in accord with the ORG would therefore have to be abandoned if the ORG did not consider the judgment of CARDINAL DATE as being a real judicial decision within the meaning of LAW ) ( article CARDINAL ) .

In reply to the arguments of ORG , the ORG ’s representatives emphasised that although the first criminal proceedings had not led to an ORG by PERSON against GPE , they had nevertheless played a certain part in the proceedings before the Commission : they are mentioned in one of the annexes to ORG and a question concerning those proceedings was put to the parties by the President of ORG . It is true that judgment had been given in those proceedings on DATE but this judgment had been set aside by ORG on DATE : therefore , the only judgment to be considered was the judgment of CARDINAL DATE .

The Government therefore submitted that the length of detention in issue , which in its opinion should be reduced by DATE to make allowance for the delays caused by ORG ’s challenges to the judges , should be shortened by DATE .

In its FAC of DATE , the Government on the other hand , criticised the Commission for having taken into consideration the period which followed the lodging of the ORG ( DATE ) : in the Government ’s opinion , the ORG could only deal with facts which had been put before it in an ORG submitted under LAW article CARDINAL ) or PERCENT article CARDINAL ) and in all logic such an ORG could only relate to matters prior to the date on which it was lodged .

In a judgment of DATE the ORG rejected a similar argument put forward by the same Government in the PERSON case ( see pages CARDINAL and CARDINAL of the judgment ) . The Government nevertheless maintained its position on CARDINAL and CARDINAL DATE . In its view , the case before ORG dealt exclusively with the period DATE and DATE .

Apart from ORG and DATE ( article DATE , article CARDINAL ) , the ORG relied particularly on LAW . In this context it maintained that the ORG ’s decision on admissibility was not infallible and that the ORG was competent under Articles DATE and DATE ( article DATE , article CARDINAL ) of the Convention to examine the question whether proceedings had properly been brought against the respondent ORG and whether the ORG was admissible .

According to the Government , it would be contrary to LAW were to adopt the opinion that an ORG alleging a violation of LAW ) ( article CARDINAL ) related to a situation and not to an isolated act ( paragraph CARDINAL of the reasons of the PERSON judgment ) : it would be enough for the person concerned to have exhausted the domestic remedies immediately after the beginning of his detention while on remand in order to be entitled to question the legality of the whole period of detention by applying to the ORG ; the respondent ORG would thus be prevented from taking steps to remedy within the framework of its domestic legal system a supposed violation which might very well not have occurred until after the lodging of the ORG . In the ORG ’s opinion , such a result would be contrary to a rule of customary international law and LAW ) was purely and simply a reproduction of this rule .

Moreover , in the ORG ’s view , the starting point of the ORG ’s reasoning was not at all beyond discussion . For the ORG was not directed against the detention as such but against the length of a period of detention which in itself was compatible with the requirements of the LAW . Consequently , the time factor was of capital importance for the determination of the subject of the dispute , which was not so much a continuing situation but a definite fact , that is , the length of a detention which itself complied with the requirements of LAW ) ( article CARDINAL - CARDINAL-c ) .

Referring in particular to the decision of DATE on the admissibility of Application No . LOC ( Ringeisen against GPE ) , the Government expressed the concern it felt as to the manner in which the Commission interpreted LAW ) : this very free and informal interpretation did not accord with the intention of GPE .

Referring to its own conception , the Government did not consider that this would oblige a person desirous of protecting his rights to introduce a series of successive applications . In its opinion , an aggrieved person should apply to the Commission when he considered that he had been too long in detention : such an ORG would be successful if that was in fact the case ; otherwise it would be rejected on the grounds that the PERSON was complaining of a violation which had not yet occurred .

The Government concedes that it did perhaps fail to raise before the ORG the objection based on LAW ) . It nevertheless considers that it is entitled to raise the matter before the ORG : in its opinion , neither the rule forbidding the introduction of new matter ( ORG ) nor the obligation to raise certain matters at the beginning of proceedings ( Eventualmaxime ) appears to apply in the circumstances .

In the ORG ’s opinion , if the ORG was nonetheless to hold that there had been a violation of paragraph ( CARDINAL ) of LAW article CARDINAL ) , it ought to indicate the time when this violation commenced . Since it was not contested that ORG ’s original arrest was valid ( paragraph CARDINAL ( c ) of LAW ( article DATE ) this inference would , in the opinion of the Government , imply that the detention in issue was originally compatible with paragraph ( CARDINAL ) ( article CARDINAL ) . It was therefore a great significance to the Government to know - if this should be the case - for what length of time the detention in question had continued to be reasonable .

In its FAC of DATE , the ORG made the following submissions to the ORG which it confirmed at the hearing of CARDINAL DATE :

" DATE it please the ORG to declare that the length of detention pending trial , which is the subject of the ORG lodged by ORG against GPE and of the ORG drawn up by ORG DATE in accordance with LAW article CARDINAL ) of ORG , does not conflict with the obligations arising from the said Convention " .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award

On DATE the applicant , who was born in DATE and had been on early retirement since DATE , applied for disability benefits under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE Act ” ) . He claimed that he had extra costs following an operation on his intestines in DATE due to , inter alia , an increased consumption of fluids .

By a decision of DATE ORG ( försäkringskassan ; hereinafter “ the Office ” ) of GPE rejected the application , finding that the applicant ’s costs were not such as to make him eligible for benefits .

The applicant later made a new application , which was rejected by ORG DATE .

The applicant appealed to ORG ( länsrätten ) of GPE . On DATE the court rejected his appeal . The court did not hold an oral hearing nor did the applicant request CARDINAL .

Following the applicant ’s further appeal , ORG ( kammarrätten ) in GPE , by a decision of CARDINAL DATE , refused him leave to appeal .

On DATE the applicant made yet another application for disability benefits . On DATE the application was rejected by the ORG , which again found that the applicant ’s costs did not attain the required level . The ORG had at its disposal CARDINAL medical certificates issued by different physicians . They expressed differing opinions on the applicant ’s need of extra consumption of fluids , CARDINAL of them considering that there was no such need and the third one stating that the applicant was recommended , from a surgical point of view , an increased consumption of , for instance , mineral water .

The applicant appealed to ORG . In a decision of DATE the court noted that the issue in the case was whether the applicant ’s extra costs attained the level required for a disability allowance under LAW . Finding that the medical evidence in the case was inconclusive and did not provide the ORG with a sufficient basis for a decision , the court ordered ORG ( Riksförsäkringsverket ; hereinafter “ the Board ” ) to submit observations in the case . ORG answered by a letter of CARDINAL DATE , in which it contested the applicant ’s claims . The applicant made observations in reply .

On DATE ORG gave judgment in the applicant ’s favour . Having reiterated that the medical evidence was inconclusive , the court also noted that the calculations of the applicant ’s extra costs made by the ORG and the applicant himself were very close on either side of the level required for entitlement to a disability allowance . In these circumstances , it gave the applicant the benefit of the doubt and granted him an allowance . An oral hearing was not requested by the applicant , nor did the court hold one of its own motion .

The ORG appealed against the judgment to ORG and submitted a medical certificate from a further physician , who stated that an increased consumption of fluids was necessary due to the applicant ’s handicap but that there was no particular need for mineral water . On DATE the appellate court granted the ORG leave to appeal .

By a letter of DATE the applicant requested the appellate court to hold an oral hearing in the case . He did not state any reasons for his request . On DATE it was rejected by the court . After having restated section CARDINAL of ORG ( Förvaltningsprocess - lagen , ORG ; hereinafter “ the DATE LAW ; see further paragraph CARDINAL below ) , the court gave the following reasons :

“ Having regard to the subject - matter at issue and the information that has come to hand in the case , [ the court ] finds that an oral hearing is unnecessary and rejects the request to that effect . [ The applicant ] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within DATE after having been notified of this decision .

The case can be determined notwithstanding a failure to submit such written observations . ”

The applicant reiterated his request for an oral hearing on CARDINAL DATE . He now stated that he wished to be heard in person about his working conditions and the costs of his consumption of fluids . Further , representatives of ORG should be heard about the applicable levels for entitlement to and calculation of disability allowances .

On DATE ORG rejected the applicant ’s renewed request for an oral hearing and gave judgment in favour of ORG . Thus , it quashed ORG judgment and confirmed the ORG ’s decision of DATE . Without giving any further reasons , it considered that the information in the case did not show that the applicant met the conditions for a disability allowance .

The applicant appealed to ORG ( Regeringsrätten ) . He requested that the case be referred back to ORG for re - examination or , alternatively , that ORG confirm ORG judgment . He complained about the lack of an oral hearing in ORG and also requested ORG to hold an oral hearing .

By a letter of DATE ORG informed the applicant that it did not normally hold oral hearings and gave him the opportunity to complete his appeal in writing .

On DATE ORG refused the applicant leave to appeal .

According to chapter CARDINAL , section CARDINAL of LAW , a person who is ill or handicapped is entitled to disability benefits , provided that , before reaching DATE , he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses . The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation . It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses . According to the ORG ’s guidelines , the total cost of all extra needs due to the disability should come to PERCENT of a basic amount geared to the price index ( basbelopp ) in order to make the individual eligible for an allowance . In DATE , when the applicant made his second application to the ORG , this corresponded to MONEY ( SEK ) .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG .

The procedure in the administrative courts is governed by the provisions of LAW . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party ’s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert

The applicant , PERSON , was born in DATE and claims to be NORP . However , the NORP authorities found that she had not made it probable that she originates from GPE and therefore held that her case should be tried not only against GPE but also against the neighbouring countries GPE and GPE .

In DATE , the applicant had a relationship with a man who turned out to be a drug addict and dealer . After her parents banned her from seeing him , he started to harass her and threatened to kill her . Her brother also threatened to kill her due to that relationship .

On DATE ORG rejected her asylum application as it found the alleged incident to be an act of criminality which was for the domestic authorities to handle . The applicant had neither turned to those authorities for protection nor made it probable that they could not provide protection against the threats in question . ORG therefore held that , should the applicant be victim of further crimes upon return , she could seek protection from the authorities in GPE , GPE or GPE . On DATE ORG upheld the decision of ORG . As stated by herself in the present application , the applicant did not appeal against ORG judgment to ORG . With the rejection of the applicant ’s asylum application she has no right to remain in GPE and can be removed without further proceedings .

The provisions applicable in the present case are laid down in LAW ( Utlänningslagen , GPE ) . The LAW defines , inter alia , the conditions under which an alien can be deported or expelled from GPE as well as the procedures relating to the enforcement of such decisions .

The LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE ( LAW , section CARDINAL ) . The term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country ( LAW , section CARDINAL ) . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This is the case where new circumstances give reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or where there are medical or other special reasons why the order should not be enforced ( LAW , section CARDINAL ) . If a residence permit can not be granted under these rules , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so . Should the applicable conditions not be met , ORG shall decide not to grant a re - examination ( LAW , section CARDINAL ) .

Matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances : ORG , ORG and ORG . The applicants are entitled to be represented before these bodies by publicly - appointed counsel ( LAW , section CARDINAL , LAW , section CARDINAL , and LAW , section CARDINAL ) . The time - limit for appeals to the final instance is DATE from the date of the appealed judgment ( LAW , section CARDINAL ) . For a case to be considered by ORG , leave to appeal is required and will be granted if there are special reasons for hearing the appeal or if the determination of ORG may be of importance as a precedent . If leave to appeal is granted , ORG can decide the case on the merits ( LAW , section CARDINAL ) .