Violation of Art. 6-1;Violation of P7-4;Remainder inadmissible;Non-pecuniary damage - Award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON .

On DATE the Pazin Police lodged a request for minor - offences proceedings to be instituted against the applicant in ORG ( Prekršajni sud u GPE ) . In a decision of DATE ORG found that at TIME on DATE at the PERSON coach terminal , the applicant had , while under the influence of alcohol , verbally insulted CARDINAL D.R. , punched him in the head several times and proceeded to kick and punch him about the body . The applicant was found guilty of particularly offensive behaviour in a public place in that he had insulted another and caused a breach of the peace . This constituted a minor offence under section CARDINAL of ORG for which he was sentenced to CARDINAL days’ imprisonment . That decision became final on DATE . The relevant part of the decision reads :

“ Defendant : PERSON ...

is guilty

in that at TIME on DATE at the coach terminal in PERSON , while under the influence of alcohol , he ... firstly insulted PERSON ... and then pushed him with both hands and , when he fought back , started to hit him with his fists many times to the head before continuing to punch and kick him about his entire body .

On DATE the NORP State Attorney ’s Office ( Općinsko državno odvjetništvo PERSON ) lodged an indictment with ORG ( PERSON ) accusing the applicant of causing grievous bodily injury to CARDINAL

The applicant was represented in the proceedings by counsel . On DATE his counsel submitted a written request for all correspondence to go through him and enclosed a signed authority by the applicant ’s mother . At the time the applicant was serving a prison sentence in FAC .

On DATE the NORP State Attorney ’s ORG lodged an indictment with ORG accusing the applicant of causing grievous bodily injury to D.R. It relied in the indictment on a police report on the events of DATE .

On DATE ORG joined CARDINAL separate sets of criminal proceedings against the applicant , including the proceedings in respect of the alleged assaults on DATE On DATE it ordered the applicant ’s detention on the grounds that he had been indicted in several sets of proceedings , had a number of previous convictions and would be liable to reoffend if left at large .

On DATE ORG found the applicant guilty on CARDINAL counts of assault causing grievous bodily injury and CARDINAL count of making death threats . In respect of the incident at the PERSON coach terminal on DATE , it found that the applicant had approached PERSON and insulted him verbally before proceeding to punch and kick him about the body . He was sentenced to DATE imprisonment in respect of all the offences of which he was convicted . The time he had already served in connection with his conviction in the summary proceedings before ORG was to be deducted from his sentence . He was ordered to undergo compulsory treatment for alcohol addiction during his imprisonment . The relevant part of the judgment reads :

“ Defendant PERSON ...

is guilty

because

CARDINAL ) at TIME on DATE . at the coach terminal in PERSON , while under the influence of alcohol , he ... approached PERSON ... and firstly insulted him verbally , ... and then proceeded to push him with both hands before hitting him on the head with his fists breaking his dental prosthesis ; when he [ D.R. ] attempted to leave , the defendant caught him , pushed him to the ground and kicked him about his entire body thereby causing him a number of injuries ... ”

In an appeal of DATE the applicant alleged , inter alia , that in respect of the offences against TIME and GPE he had already been convicted by ORG and that the non bis in idem rule had been violated . On DATE the ORG ( Županijski sud u GPE ) allowed the applicant ’s appeal in respect of the offence against TIME , on grounds other than the alleged violation of the non bis in idem rule , and upheld his convictions of the other CARDINAL offences , while reducing the overall sentence to CARDINAL months’ imprisonment .

The appellate judgment was served on the applicant ’s mother on DATE and on his counsel on DATE . On DATE the applicant ’s counsel lodged a request with ORG for extraordinary review of the final judgment . He argued , inter alia , that the applicant had acted in self defence and repeated the submission he had made on appeal that , as the applicant had already been convicted by ORG , the non bis in idem rule had been violated .

In a decision of DATE , ORG declared the request inadmissible as it had been lodged outside the DATE time limit . On an appeal against that decision , the applicant argued that the impugned judgment had not been properly served since his mother suffered from schizophrenia and was not capable of clear judgment and so could not be regarded as an adult member of the same household within the meaning of Article CARDINAL , paragraph CARDINAL , of LAW . He supported that assertion with a medical certificate . He further argued that his request for extraordinary review of the final judgment had been lodged within DATE after it was served on his counsel and so had complied with the prescribed time - limit .

On DATE ORG dismissed the appeal after finding that the applicant ’s mother had signed an authority for the applicant ’s legal representation in the criminal proceedings , so that it could not be said that she had been incapable of clear judgment .

In a subsequent constitutional complaint lodged on DATE the applicant argued , inter alia , that the judgment of ORG of DATE had not been properly served on him and that his right to a remedy had thus been violated . On CARDINAL DATE ORG declared the complaint inadmissible on the ground that it did not concern the merits of the case .

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) read as follows :

“ Correspondence for which this LAW does not specifically prescribe personal service shall also be served personally . Where , however , the intended recipient is not found on the premises ... , it may be served on an adult member of the same household who shall be bound to accept service ... ”

“ An infringement of LAW arises if :

there exist circumstances which exclude criminal prosecution , in particular , where ... the matter has already been finally adjudicated ,

“ ( CARDINAL ) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this LAW .

( CARDINAL ) A request for the extraordinary review of a final judgment shall be lodged within DATE after the final judgment has been served on the defendant .

“ ORG shall decide requests for the extraordinary review of a final judgment . ”

“ A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :

an infringement of LAW to the detriment of the convicted person under LAW ...

an infringement of the defence rights at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . ”

The relevant parts of LAW ( PERSON , ORG no . CARDINAL/CARDINAL ) read as follows :

“ Whoever inflicts bodily injury on another or impairs another ’s health shall be sentenced to imprisonment for a term of DATE and not exceeding DATE . ”

The relevant part of ORG ( Zakon o prekršajima protiv javnog reda i mira , ORG nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL ) reads :

“ Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding DATE . ”


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

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

On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a non - commissioned officer , was a member of ORG . He established contacts with Captain R.Y who was discharged from the army . He adopted extreme religious ideology . He refused to participate in social meetings because he believed that men and women should gather in separate rooms . He had an antisocial character and his wife carried an NORP scarf .

His superiors considered the applicant as an insubordinate and undisciplined soldier . He was sentenced to DATE confinement for being absent when called out , DATE confinement for negligence and DATE confinement for disobedience .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned officers ' cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1

Mr PERSON , a NORP national born in DATE , resides at GPE , in the ORG department ; he is a farmer .

On DATE police officers ( gendarmes ) arrested him and seized at his home various articles and documents , in particular arms and ammunition . They were acting in connection with an inquiry into a bomb attack carried out in TIME CARDINAL DATE against ORG police station ( gendarmerie ) , responsibility for which was subsequently claimed by Iparretarrak , a clandestine NORP separatist movement .

The following day a GPE investigating judge remanded the applicant in custody after having charged him under the following CARDINAL heads : first , unauthorised possession of a category I weapon and category I ammunition , transport without a lawful reason of such a weapon and ammunition and of a category VI weapon , possession without a lawful reason of incendiary devices and criminal conspiracy ; second , using explosives to cause criminal damage to another person ’s immoveable property , in connection with an earlier attack against another police station - then under construction - , that of ORG , in TIME to DATE .

The CARDINAL sets of proceedings were conducted in parallel both as regards review of the detention on remand and for the investigation and trial .

On DATE the ORG investigating judge dismissed an application for release which Mr PERSON had submitted to him .

On an appeal by the applicant , ORG ( chambre d’accusation ) of ORG upheld the investigating judge ’s order , on DATE , on the following grounds :

... PERSON said that he was a member of Iparretarrak , admitted ownership of the arms , ammunition and unlawful or suspect articles found in the cars and at his home , stated that the electrical mechanisms were to be used by the organisation for the detonation of explosives at targets of which he was unaware and acknowledged having even participated as driver in the expedition of CARDINAL - CARDINAL DATE , the objective of which had been the police barracks under construction at ORG , which were partly destroyed that night by explosives .

PERSON was therefore properly charged and remanded in custody , when brought before the GPE public prosecutor ’s office on DATE , in respect of CARDINAL investigations :

- the first concerns a charge of using explosives to cause criminal damage to another person ’s immoveable property ( in connection with the destruction of the NORP police station ) ;

- the second , which is the subject of the prosecution report before us , concerns charges of unauthorised possession of a category I weapon and category I ammunition , transport without a lawful reason of such a weapon and ammunition and of a category VI weapon , possession without a lawful reason of incendiary devices and criminal conspiracy .

When he was interviewed as to the substance of the charges on DATE , ORG , who had admitted the offences when he first appeared , refused to make any further statements .

Expert examinations were carried out on the firearm and the ammunition seized , which were of the same type as those normally used by the NORP revolutionary group , Iparretarrak .

The alleged offences are therefore manifestly serious ones and in the light of the available evidence the accused ’s continued detention on remand is fully justified in order to prevent him from absconding since he could go into hiding like other members of the organisation . Detention is also the only means of ensuring that he does not re - offend . "

ORG was composed of Mr Svahn , President , PERSON and PERSON , judges , appointed on DATE by the general assembly of ORG ( Article CARDINAL , fourth sub - paragraph , of LAW ) .

On DATE ORG declared void the flagrante delicto investigation concerning PERSON , as well as all the subsequent proceedings . It found as follows :

The flagrante delicto procedure confers on police officers by way of exception some of the widest powers of the investigating judge , including those which seriously encroach on individual freedoms such as the inviolability of a person ’s home . That is why a strict interpretation is called for of the criteria authorising what are ‘ veritable investigative powers’ ( PERSON and PERSON , ORG pénal général et procédure pénale , DATE edition , volume II , no . CARDINAL ) .

Admittedly LAW , which defines the conditions for an investigation under the flagrante delicto procedure , does not indicate any time - limit for such an investigation , with the result that the surprisingly long duration - QUANTITY days - of that carried out following the criminal bomb attack at GPE is not sufficient to entail its nullity , but this extension beyond the usual period in such circumstances exposed the police officers to the risk of losing sight of the conditions laid down in the relevant provision . Thus the measures taken by them against PERSON are open to the following criticisms :

In the first place , for the period from DATE QUANTITY January TIME no measure is mentioned in the recapitulatory report and no official record appears in the file of the proceedings . This interruption of over twenty- TIME removed any justification for the very prolonged continuation of the inquiry under the flagrante delicto procedure .

Secondly , the attention of the police officers was finally drawn to PERSON not only because he was known to be sympathetic to the NORP separatist movements , but also by the information received on DATE that this new suspect sometimes drove a ORG CARDINAL of the same colour as a ORG which had been noticed in a street of GPE on TIME of the attack . Yet it is ‘ within a very short time after DATE ( LAW ORG [ Code of Criminal Procedure ] ) that the persons suspected must manifest ‘ marks or ORG and this temporal condition can not be regarded as satisfied where the clue which led the investigators to ORG home was only discovered by them DATE after the offences had been committed .

Finally , there can be no doubt that the procedural irregularity justifiably complained of has caused prejudice to the accused . The defence is therefore well - founded in claiming that the search which led to the discovery of various articles for the possession of which ORG is charged and which led to the confessions relied on by the prosecution was void . "

On DATE ORG of ORG ruled on the prosecuting authority ’s appeal against the decision of the court below :

Contrary to the claims of the defence , which were accepted without verification by the first - instance court , the inquiry was continued without interruption , DATE and TIME , until DATE ( see in particular the official record of DATE whose existence has been ignored by the defence , who have no excuse for this because it is referred to in the recapitulatory report of the single inquiry covering the attack on the police station and the possession of weapons , the latter offence being the subject of the present proceedings ) up to the discovery of the car which had been seen in the locality of the attack and the searches carried out at the home of the persons who use this vehicle , which led to the discovery of weapons and incendiary devices in the possession of ORG , who , when questioned , denied having taken part in the attack on the GPE police station , but admitted to being a member of the ‘ Abertzale’ movement and having participated in the attack carried out DATE previously on the LOC police station ;

It follows that the CARDINAL grounds of nullity invoked by the defence , grounds which were accepted by the court below , do not stand up to examination and the complaints must be dismissed ;

Under LAW , where the decision of a court which has ruled solely on a procedural objection without examining the charges , thus relinquishing jurisdiction for the continuation of the proceedings , is declared void , ORG must try the case on its merits ;

Consequently the case must be set down for hearing at a future date for the examination of whether the charges against ORG are well - founded ;

FOR THESE REASONS :

[ ORG ]

Sitting in open court and in adversarial proceedings ;

Holds that the appeal is admissible and well - founded ;

Holds that the examination of the investigation carried out under the flagrante delicto procedure by the Mauléon - Licharre police force concerning PERSON does not disclose a ground of nullity ;

Setting aside the relevant decision ,

Quashes the decision appealed and , pursuant to LAW , decides to try the case itself ;

Sets down the case for hearing on DATE to examine the charges ;

Reserves the costs . "

ORG was composed of Mr Svahn , President , and PERSON and PERSON , judges , all CARDINAL of whom were appointed on DATE by the First President of ORG ( Article CARDINAL of LAW ) .

By a second decision , of CARDINAL DATE , ORG sentenced the applicant to a term of DATE imprisonment , on the following grounds :

" The case falls to be heard on its merits by ORG in accordance with the decision of this court dated DATE .

The unlawful possession of an automatic pistol , a category I weapon and ammunition for that weapon , and CARDINAL molotov cocktails , which are incendiary devices , and the transport in a vehicle of such material and of a flick - knife are facts established by the findings of the police investigators in the course of the searches carried out and are moreover admitted by the accused himself ; they indeed constitute the offences of unauthorised possession of category I weapons and ammunition and transport without a lawful reason of category I and category VI weapons and category I ammunition and the offence of possession without a lawful reason of incendiary devices , provided for and punished by Articles CARDINAL and CARDINAL of the LAW of DATE and LAW of DATE .

The accused admitted and even asserted his membership of the Iparretarrak movement ; this movement was formed with a view to attaining political objectives aimed at securing the independence and unification of the northern and southern NORP provinces ; in pursuit of that aim it adopted various methods , in particular armed struggle , which make it an association or a conspiracy established with a view to the preparation and commission of offences against persons or property within the meaning of LAW .

The weapons , ammunition and electrical components for devices for the detonation of explosives found in ORG possession and his own statements concerning his membership of the Iparretarrak movement and on the use to which he intended to put the weapons and the materials discovered leave no doubt as to the accused ’s intention of supporting that movement , the criminal aims of which are well known to him .

ORG was composed of Mr Lasalle- ORG , judge , replacing the President , the latter being unable to sit , and designated for this purpose by the First President on DATE , as well as PERSON and PERSON , judges .

Mr PERSON filed CARDINAL appeals on points of law against the decisions of DATE and DATE . They were dismissed by ORG in a single judgment of DATE .

In his memorial the applicant had made CARDINAL submissions .

CARDINAL of them related to the decision of CARDINAL DATE , which is not in issue here ( see paragraph CARDINAL below ) .

The first concerned the composition of ORG when it quashed the decision of DATE ( see paragraphs CARDINAL above ) . ORG of ORG dismissed this complaint in the following terms :

" As regards the first ground of appeal , based on the violation of Articles DATE and CARDINAL of the Code of Criminal Procedure and of Article CARDINAL ( article CARDINAL ) of LAW ... [ , whereby the appellant alleges as follows ] :

‘ In so far as it appears from the interlocutory decision of DATE that ORG was composed of PERSON , sitting as President , and PERSON and PERSON , judges ;

in the first place , these judges had sat in the same case as members of the indictment division which , in CARDINAL decisions dated DATE and CARDINAL DATE , had confirmed orders refusing the applicant ’s release ; having thus been involved in the case at the stage of the investigation , they were precluded by virtue of the provisions of LAW from subsequently participating in the trial and ruling on whether the offence had been committed and on the accused ’s guilt ;

secondly , LAW provides that ‘ everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law ... ’ . ORG has already held that impartiality must be assessed according to an objective test making it possible to affirm that a court affords sufficient guarantees to rule out any legitimate doubts in this respect ; that was not the case in this instance , since , having given on QUANTITY occasions , as members of an indictment division , decisions confirming orders refusing the applicant ’s release , these judges had necessarily carried out a preliminary examination of the merits and adopted a position on the value of the evidence and clues against the accused , so that they were precluded from subsequently participating in the trial and ruling on whether the offence had been committed and the accused ’s ORG ;

The fact that judges of ORG which gave the contested decisions had , in the same case , as members of ORG , previously ruled on the accused ’s detention on remand is not a ground for quashing a judgment , since no statutory provision prohibits on pain of nullity the members of the indictment division which has given such a ruling from subsequently sitting in ORG before which the case comes and , furthermore , such participation is not contrary to the requirement of impartiality laid down in DATE ( article CARDINAL ) of LAW ... ;

Accordingly , ORG is satisfied that the court was lawfully composed ;

The submission must therefore fail . "

The second submission concerned the lack of a statement of reasons , the failure to reply to final submissions , the lack of a legal basis and the violation of the rights of the defence ( Articles CARDINAL , DATE , DATE , DATE and CARDINAL of LAW CARDINAL ( article CARDINAL ) of the Convention ) .

The remaining submissions were founded on the lack of a record of the oath of the CARDINAL witnesses who testified at the appeal hearing on DATE ( Articles CARDINAL , CARDINAL and CARDINAL of LAW ) as well as the failure to state reasons and the lack of a legal basis for the judgment of CARDINAL DATE ( ORG CARDINAL of the Criminal Code and CARDINAL of LAW ) , and not the lawfulness of the composition of ORG in these proceedings ( see paragraph CARDINAL above ) .

On the basis of the decision of DATE ( see paragraph CARDINAL above ) and contending that the proceedings in question were void , Mr PERSON applied for his release .

On DATE the investigating judge dismissed his application .

On DATE ORG of ORG dismissed PERSON appeal from the investigating judge ’s order . Its decision was based on the following reasons :

" The facts have already been examined in an earlier decision of ORG dated DATE [ see paragraph CARDINAL above ] ; express reference is made thereto .

In support of his application and his appeal , PERSON argues essentially that these proceedings , in respect of which he is detained , are void because ORG has declared void other proceedings , the initial investigation for which had provided the legal basis for the present case . According to his lawyer , PERSON confessions were obtained following his arrest , held to be unlawful by the criminal court on account of the flagrante delicto procedure used . He could not therefore , it was contended , be kept in detention on that basis .

However , the decision of ORG was immediately appealed by the public prosecutor and is shortly to be examined by ORG .

As the decision of the lower court has been challenged by an appeal to the second - instance court for a new ruling on the facts and the law , the argument of the accused , who claims to be detained by virtue of proceedings which have been declared void , can not be accepted , beyond the [ question of ] fact already adjudicated upon ; it does not fall to ORG to give a ruling , at this stage , on this matter .

The proceedings in question must therefore be regarded as perfectly lawful until such time as a final decision to the contrary has been given ;

PERSON should be kept in detention , at the disposal of the judicial authorities . The other arguments put forward by the accused in his memorial are not sufficient to outweigh the fact that he has already shown that he represents a danger to public order and to the institutions of the ORG and that it may be thought that he would not hesitate to rejoin his comrades or accomplices in hiding if he were to be released . "

ORG was composed of PERSON , President , and PERSON and PERSON , judges , appointed on DATE by the general assembly of ORG ( Article CARDINAL , fourth sub - paragraph , of LAW ) .

On DATE ORG sentenced PERSON to DATE imprisonment . Its judgment was upheld on DATE by ORG . The applicant filed an appeal on points of law , which ORG dismissed on CARDINAL DATE .

These various decisions are not at issue in the present proceedings .


CESKOMORAVSKA MYSLIVECKA JEDNOTA v. THE CZECH REPUBLIC

The applicant is an association of hunters and gamekeepers , registered in GPE . It is represented before the ORG by PERSON , a lawyer practising in GPE .

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

A.

In DATE a privately owned house and plot situated in GPE CARDINAL was nationalised by the ORG pursuant to ORG . No compensation was awarded to its owner .

In DATE the property was sold to the applicant association for CARDINAL crowns . The monetary reform of DATE devalued the crown at the rate of CARDINAL .

On DATE the successors to the former owner of the property entitled to restitution under LAW the Extra - Judicial Rehabilitation Act ( ORG o mimosoudních rehabilitacích ) ( “ the LAW ” ) , made a request to the applicant association for an agreement on restitution under LAW . As the applicant association refused to conclude the agreement , they brought an action against the applicant association in the GPE CARDINAL ORG ( obvodní soud ) .

On DATE ORG ordered the applicant association to conclude an agreement on the restitution of the property stating , inter alia , that the nationalisation of the property had been unlawful . As to the current value of the property , the court held that the parties could solve this issue in a separate agreement .

The applicant association appealed against this judgment claiming that the unlawfulness of the nationalisation had not been established . It also argued that it could not be a “ mandated person ” under LAW because it had acquired the property by a lawful purchase in DATE .

On DATE ORG ( městský soud ) rejected the applicant association ’s appeal finding , in particular , that LAW applied in the present case as the former owner had not received any compensation and that the applicant association was not excluded from the scope of LAW . The court further stated that the applicant association claimed compensation for the revaluation of the property but did not specify the amount of the compensation and the claimants denied the revaluation of the property within the meaning of LAW ) of LAW . Moreover , the applicant association did not lodge a reciprocal action under LAW of LAW . The documents from DATE , DATE and DATE submitted by it , concerned the property in question , but were given to the court without any selection . The court found that it was for the applicant association to specify its claims of revaluation of the property and submit them in a separate action .

On DATE the applicant association lodged an appeal on points of law ( dovolání ) claiming , inter alia , that it could not be required to return the property because it was not a legal entity which had acquired the property from the ORG free of charge .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal stating in particular :

“ … if the property which was nationalised without compensation is not in the possession or ownership of such legal entities as mentioned in LAW ORG ’s property to Other Persons Act as amended ( i.e. state enterprise , state bank , state insurance company and other state organisation … ) , the redress for the violation of the property rights will be governed by the [ Restitution ] Act in accordance with ORG ) of ORG to Other Persons Act ( as amended ) . … ”

As to the valuation of the property , ORG found :

“ According to Section CARDINAL(CARDINAL ) of the [ Restitution ] Act , the mandated person shall conclude an agreement with the entitled person about the surrender of the property without any obligatory settlement of mutual claims … Nor does Section CARDINAL(CARDINAL ) of the [ Restitution ] Act , according to which the entitled person shall compensate the mandated person for the difference between the original price and the actual price , specify the manner of that compensation . … This situation is governed by general provisions of LAW concerning the obligations . However , LAW concerning reciprocal obligations can not be applied in the agreement on the surrender the property under the [ LAW . ”

On DATE the applicant association lodged a constitutional appeal claiming , in particular , that the national courts had violated its right to safeguard its property rights under LAW and LAW No . CARDINAL to the Convention . It challenged the findings of the courts concerning its position as a person obliged to surrender the property , the question of compensation for revaluation of the property , the relation between LAW and ORG property to LAW ( as amended ) ( PERSON o převodu majetku státu na jiné osoby ) ( “ LAW ” ) and the relation of these two Acts to the general civil law concerning obligations .

On DATE ORG ( GPE soud ) rejected the applicant association ’s appeal as manifestly ill - founded referring to the findings of ORG .

On DATE an expert report determined the real value of the applicant association ’s property at CARDINAL crowns .

On DATE the purchase price of CARDINAL crowns fixed in pursuance of Section CARDINAL(CARDINAL ) of ORG of GPE , was paid to the applicant association by ORG as provided for in LAW of LAW .

B. Relevant domestic law

LAW No . CARDINAL/CARDINAL [ “ the LAW ” ]

In the preamble to LAW of DATE , ORG of the NORP and GPE affirmed its will to prevent violations of the kind committed in the past .

Section CARDINAL(CARDINAL ) sets out the aim of the LAW , providing that it is designed to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the LAW of ORG and LAW .

According to LAW ) and ( CARDINAL ) , such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms , that is , an act in contradiction with the principles referred to in LAW ) of the LAW . When an entitled person was deprived of his or her property rights without appropriate compensation under nationalisation laws adopted DATE , the entitled person has a claim under this LAW , which he or she can raise under LAW ( as amended ) .

Section CARDINAL(CARDINAL ) provides that , in order to be entitled to restitution of his or her property , a claimant must be a physical person and a citizen of the NORP and GPE whose property was ceded to the ORG in the circumstances listed in LAW . According to LAW ) , if the person whose property has been transferred to the ORG in cases specified in LAW dies before the expiry of the time period specified in LAW ) , the entitled persons , provided they are citizens of the NORP and GPE , shall be his or her siblings or in the case of decease of any of them , his or her children .

According to Section CARDINAL(CARDINAL ) , those obliged to make restitution ( “ mandated persons ” ) are the ORG or the legal entities in possession of the property on DATE on which this LAW has entered into force with certain exceptions .

According to Section CARDINAL(CARDINAL ) , if the value of the property has so increased that its price assessed on DATE of the submission of the written request by the entitled person exceeds substantially the price of the initial property , it is left at the discretion of the entitled person , whether he or she will request financial compensation under LAW or whether he or she will request the surrender of real property . If he or she insists on the surrender of the property , the entitled person shall compensate the mandated person for the difference between the CARDINAL prices specified in the preceding clause . Both prices shall be assessed in conformity with the price regulations in force on DATE of entry into force of LAW .

Section CARDINAL entitles physical persons who are under an obligation to restore property to recover the price they had paid when acquiring such property from the ORG .

Transfer of the ORG ’s Property to Other Persons Act No . CARDINAL/CARDINAL [ “ LAW ” ]

According to LAW ) , this LAW lays down the conditions for the transfer of ORG property , the right to manage which is vested in ORG enterprises , ORG financial institutions and other ORG organisations or ORG property used by organisations founded by municipalities or administered by ORG ( pozemkový fond ) of GPE .

Section CARDINAL(CARDINAL ) provides that in the case of a dispossession of the whole or part of any privatised property that occurred in a manner specified in Section CARDINAL(CARDINAL ) of LAW , the persons entitled under LAW in relation to that property may make a claim in respect of which the remedy provided for is a privatisation decision concerning that property .

According to Section CARDINAL(a ) , if property seized in a manner specified in Section CARDINAL(CARDINAL ) of LAW is not used or owned by any of the legal entities referred to in LAW of the present LAW , any redress for the violation of rights over that property shall be settled under LAW .

ORG under LAW No . CARDINAL/CARDINAL

Section CARDINAL(CARDINAL ) provides that any purchase price fixed before DATE shall be deemed to have been recalculated at the rate of CARDINAL .

Code of Civil Procedure

According to Section CARDINAL(CARDINAL ) , the defendant can submit his or her claims against the claimant by way of a reciprocal action .

Charter of Fundamental Rights and Freedoms

LAW provides inter alia that everybody has the right to own property . The property rights of every owner are equal in the eyes of the law and benefit from the same legal protection .


Violation of Art. 5-1;Violation of Art. 3 (substantive aspect);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in ORG .

On DATE at TIME the applicant was visited at his home by QUANTITY police officers , who invited him to the police station . The applicant refused in the beginning , but after being threatened with criminal prosecution for refusing to comply with legitimate police orders , he conceded .

Instead of being taken to the police station , the applicant was taken by the QUANTITY police officers to the psychiatric hospital in GPE , where he was hospitalised against his will for a period of DATE .

During DATE the applicant was kept in a room with persons suffering from serious mental disorders , some of whom could not attend to their basic needs and who intimidated him on a regular basis . He requested on several occasions that he be allowed to contact a lawyer or his family , but to no avail . Later he was transferred to a ward with patients with less serious conditions .

NORP Throughout his stay in the psychiatric hospital the applicant was administered injections which provoked in him a state similar to paralysis and as a result of which he lost consciousness . He was also forced to take a large amount of tablets on a DATE basis . He attempted to refuse to take medication ; however , he changed his mind after being threatened with a straitjacket and with being tied to his bed . According to the medical records from the hospital , the applicant received treatment against paranoid depression . The records do not contain any information concerning any risks for the applicant or for other persons posed by the applicant ’s condition . The records contain a consent form filled in with the applicant ’s name and allegedly signed by him . The applicant denied having signed such a form and submitted that it was a forgery which first appeared in his medical file after the criminal investigation had been initiated ( see paragraph CARDINAL below ) .

After being released from hospital , the applicant made official inquiries with ORG to find out whether it had authorised his forced hospitalisation . In CARDINAL letters dated DATE and DATE , ORG denied having ever received any official request for the applicant ’s involuntary confinement in a psychiatric hospital .

On DATE the applicant obtained from the PERSON hospital CARDINAL medical reports confirming that he had not been addicted to alcohol or drugs , and that he had not suffered from any psychiatric disorders . The report concerning the applicant ’s mental health was issued following his examination by a commission of CARDINAL doctors and was signed , inter alia , by a psychiatrist , ORG

NORP The applicant also requested and obtained from his local hospital a document stating that he had not been registered as a person suffering from mental disorders before DATE .

On DATE the applicant lodged a criminal complaint with ORG , asking it to investigate his case and to prosecute the persons responsible for his illegal forced hospitalisation in a psychiatric hospital and for subjecting him to medical treatment against his will . He described in detail the conditions of his hospitalisation and the medical treatment which he had received , and argued that it amounted to inhuman and degrading treatment . He submitted that his hospitalisation had been possible owing to an official document referring him for compulsory treatment issued by Doctor PERSON from the PERSON hospital . Doctor PERSON had issued that document without ever having seen the applicant in person . The document was not dated , contained the wrong social security number as regards the applicant , and stated that he was in possession of medical insurance , which was not true because he was not in fact medically insured .

In the course of the investigation , ORG heard the applicant ’s family doctor , who stated that before the events of DATE she had been told by the applicant ’s sister and mother that they had often had disputes with him and that he had threatened them with violence and even with death , and in general displayed very strange behaviour . The family doctor told the applicant ’s mother to see the psychiatrist ORG from the PERSON hospital . In DATE the applicant ’s mother told the family doctor that she had an official document from ORG referring the applicant for psychiatric treatment . The family doctor told the applicant ’s mother that that document was sufficient to compulsorily confine the applicant in a psychiatric hospital .

The applicant ’s mother told the prosecutors that starting in DATE , when the applicant had returned from a long stay in GPE where he had been employed , he began to have drinking problems and to behave inappropriately . It was the applicant ’s sister who went to the PERSON hospital and obtained from ORG an official document referring the applicant for psychiatric treatment .

The applicant ’s sister told the prosecutors that the applicant had drinking problems and exhibited very bad behaviour . She saw ORG from the PERSON hospital and asked him for an official document referring the applicant for psychiatric treatment . ORG refused to issue such a document without first seeing the applicant . Then she started crying and ORG conceded . He provided her with the document and told her to contact the family doctor in order to organise the hospitalisation .

The QUANTITY police officers who transported the applicant to the NORP psychiatric hospital stated that on DATE they had been contacted by the applicant ’s family doctor , who presented them with an official document referring the applicant for treatment . They took the applicant directly to the NORP psychiatric hospital and left him there .

The Prosecutor ’s Office also heard psychiatrist PERSON , who declared that at DATE he had been visited by a woman complaining about the aggressive behaviour of her brother , the applicant . Later the applicant was brought in for consultation by a police officer ( CARDINAL of the police officers who had arrested the applicant ) and , after a brief conversation , the doctor determined that the applicant was suffering from a delusional belief that his relatives were intending to sell his house . The doctor considered that the applicant represented a risk to his relatives and ordered his hospitalisation . The police officer took the applicant to the NORP psychiatric hospital . ORG was asked why he had issued the applicant with a document in DATE stating that he was mentally healthy . ORG answered that he had issued the applicant with such a document because the applicant had told him that he was healthy and had never received psychiatric treatment .

During the investigation , ORG requested the applicant to undergo psychiatric evaluation , in order to determine whether he was actually suffering from the mental disorder which had led to his hospitalisation . The applicant agreed in the beginning ; however , he changed his mind after learning that he had to commit himself for a DATE long in - patient examination in a psychiatric hospital .

On DATE ORG dismissed the applicant ’s criminal complaint on the ground that his hospitalisation had been duly ordered by Doctor PERSON , and that as a result of the applicant ’s refusal to undergo a medical examination , it was impossible to determine whether the diagnosis as established by Doctor PERSON had been correct or not . In so far as the consent form allegedly signed by the applicant is concerned , it appears that it was disregarded and that no one during the proceedings questioned the fact that the applicant had been hospitalised against his will .

NORP The applicant appealed against the above decision to the hierarchically superior ORG ; however , his appeal was dismissed on DATE .

On DATE the applicant appealed to ORG . He argued , inter alia , that the same psychiatrist , ORG , had issued him in DATE with a medical report stating that he did not suffer from any mental disorders and that he had not been registered as a mentally ill patient with his local hospital before DATE . He also submitted that there had been no court orders committing him to a psychiatric hospital against his will , and that his hospitalisation had therefore been unlawful and arbitrary .

On DATE ORG dismissed the applicant ’s appeal on the ground that he had refused to be hospitalised for an in - patient examination .

After the communication of the present case to the Government , new criminal proceedings were opened by ORG on DATE concerning the alleged unlawful actions of the NORP psychiatric hospital ’s medical personnel in respect of the applicant . That investigation is still pending . It does not appear from the material submitted by the Government that the investigation had progressed in any way DATE and DATE , when the Government submitted their final observations in the case .

Section CARDINAL of the Law on Psychiatric Assistance ( “ the LAW ” ) provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of LAW or in accordance with the provisions of LAW of that PERSON . In both cases , except for reasons of urgency , the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists .

Section CARDINAL of the PERSON sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will . It provides that a person suffering from a mental disorder can be hospitalised against his or her will , before a court judgment for that purpose has been issued , when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others ; when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone ; or if left untreated , the mental disorder could cause serious harm to the health of the individual concerned .

Pursuant to section CARDINAL of the PERSON , compulsory hospitalisation for treatment of a person in accordance with LAW must be decided by a court . The hospital must apply to the court for permission , indicating in the application the reasons for which hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists . Pursuant to section CARDINAL , the court examining the application must take a decision within DATE from the date on which the application was lodged , and the person concerned has the right to participate in the hearing . If the person ’s condition is serious and he or she can not come to the court , the judge is obliged to hold the hearing at the hospital . The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation .

Section CARDINAL of the PERSON provides , inter alia , that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request . On the other hand , a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment .


TRPESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

The applicants , Mr PERSON ( “ the first applicant ” ) , PERSON ( “ the second applicant ” ) , Mr PERSON ( “ the third applicant ” ) and Mr Miroljub PERSON ( “ the fourth applicant ” ) , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively , and live in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE ORG issued an operating licence to GPE a.d . GPE . Under the latter 's Act of Incorporation ( Договор за основање и работење ) , its shareholders were PERSON . GPE , a bank incorporated in GPE ( “ the majority shareholder ” ) , possessing PERCENT of the share capital ( главница ) , and CARDINAL companies from the former GPE .

The case originated at the domestic level in events dating back to DATE and DATE , which took place before the entry into force of the Convention in respect of the respondent ORG on DATE .

On DATE a general meeting of shareholders of Ljubljanska Banka - Makedonska Banka a.d . GPE , which was attended by a representative of ORG , adopted the following changes to its LAW ( “ LAW ) ( PERSON ) : it changed the name to “ FAC a.d . GPE ” ( “ the Bank ” ) ; it specified that the first class of shares could be bearer shares ( акции на доносител ) and registered shares ( акции на име ) ; it decided that shareholders could ask the ORG to convert registered shares into bearer shares ; and it agreed that bearer shares could be transferred merely by a handover ( предавање ) . ORG had already approved these amendments on DATE . According to a stamp affixed to it , this latter decision was received by ORG .

On DATE the majority shareholder asked the ORG , under its amended Statute , to convert its shares into bearer shares and to register them as such in the shareholders ' register ( акционерска книга ) ( “ the register ” ) .

On DATE , the majority shareholder concluded CARDINAL separate agreements ( “ agreements transferring shares and the corresponding rights ( a full endorsement ” ) договор за пренос на акција и права од акција ( полн индосамент ) ) transferring its shares in the ORG to CARDINAL companies incorporated in the former GPE ( “ the buyers ” ) . Under the agreements , the majority shareholder undertook to transfer title to the shares , as well as the corresponding rights and obligations , to the buyers in exchange for payment . The majority shareholder also authorised the first applicant , who had meanwhile become Chief Executive of the ORG , to collect its bearer shares on its behalf and to execute the transfer in accordance with the above agreements .

The buyers concluded further agreements of the same type ( “ the first set of agreements ” , договор за пренос на акција и права од акција ( полн индосамент ) ) , valid from DATE , transferring to the first applicant the title to the shares obtained from the majority shareholder . The second , third and fourth applicants stated that the first applicant had paid for the bearer shares on their behalf .

Finally , the first applicant transferred a part of these shares under other agreements for full endorsement ( “ the second set of agreements ” , договор за пренос на акција и права од акција ( полн индосамент ) ) to the remaining applicants and Mr GPE This became valid on DATE .

On DATE the ORG received the bearer shares in hard copy from the then authorised printing company .

On DATE , the first applicant collected the printed shares from the ORG . He did so under the authorisation described above .

He handed over the printed shares to the buyers . The statements of the buyers ' managers attested to that fact .

On DATE the buyers handed over the bearer shares to the applicants and Mr D.G. That fact was supported by statements from the buyers ' managers . After these transactions , the applicants ' individual share in the ORG 's capital was in the following proportion : the first applicant had PERCENT ; the second applicant PERCENT ; the third applicant PERCENT ; and the fourth applicant PERCENT .

The applicants did not seek registration of their shares . According to extracts from the register dated DATE , DATE and CARDINAL DATE respectively , the structure of the ORG 's shareholders remained unchanged during that period , namely the majority shareholder possessed PERCENT of the ORG 's capital .

On CARDINAL and DATE respectively , ORG carried out a supervisory control of the ORG in order to determine its shareholder structure . The supervisory report stated , inter alia , that :

“ ... According to the ORG 's register of shareholders , the largest shareholder remains PERSON . GPE possessing PERCENT of the ORG 's share capital . Under LAW [ Statute ] adopted on DATE , PERSON . PERSON asked for its shares to be issued as bearer shares ... In DATE the shares were printed . PERSON . PERSON authorised Mr PERSON , the ORG 's Chief Executive , to collect its shares ( once printed ) ... It can therefore be concluded that PERCENT of the ( ORG 's ) share capital consists of bearer shares which makes it impossible to precisely determine the ORG 's share capital ... It is like this because bearer shares can be owned by anyone who physically possesses them . The owner of such shares is , for all practical purposes , unknown ... “

Relying on the above control , on DATE the Governor of ORG concluded that the majority of the ORG 's shares were bearer shares and that consequently , the ORG 's shareholder structure could not be determined . He therefore asked the ORG to comply with the then Act on Banks and Savings Institutions of DATE ( see “ Relevant domestic law ” below ) and to convert its bearer shares into registered shares . The ORG was asked to comply within DATE of the date that the above Act came into force , that is by DATE .

At the applicants ' request , on DATE , the ORG converted their bearer shares into registered shares and registered them as shareholders . According to the entry in the register , the applicants had obtained possession of the shares on DATE on the basis of a ( sales ) transaction of the same date . It also provided them with registered share certificates ( потврда за обична акција на име ) .

ORG noted the change of title to PERCENT of the ORG 's capital made under the sales agreements of DATE described above . It stated that the ORG had not sought approval for that change , as required under LAW ( see “ Relevant domestic law ” below ) . The ORG also failed to notify it about the sales agreements although the senior management had been aware of them . The report also stated that the majority shareholder 's request of DATE for conversion of its registered shares had been received by ORG DATE . In such circumstances , the majority shareholder had no right to seek conversion given that it had already transferred the title to its registered shares to the buyers , under the sales agreements of DATE .

On DATE the Solicitor General ( NORP правобранител ) brought a civil action against the applicants , the buyers and Mr PERSON ( “ the defendants ” ) asking ORG ( “ the first - instance court ” ) to declare null and void the first and second sets of agreements . He also asked the court to issue an interim measure ( времена мерка ) preventing the applicants and Mr PERSON from disposing of the shares . ORG claimed that the first applicant , under the first set of agreements , had unlawfully obtained possession of PERCENT of the ORG 's capital without having sought the approval of ORG , as required under LAW ; that the amended version of the LAW , under which the shares had been transferred , was unlawful since ORG approval had been received by ORG DATE ; and that the first applicant could not have disposed of the shares under the second set of agreements . On an unspecified date , several companies , the ORG 's shareholders , ( “ the other shareholders ” ) joined ORG claim .

On DATE the first - instance court issued an interim order preventing the applicants and Mr PERSON from disposing of the shares . This decision was upheld by a decision of ORG dated DATE .

On DATE the first - instance court declared the first and second sets of agreements null and void ( ништoвни ) . It also granted a pre - emptive right ( право на првенствено купување ) to the other shareholders , claimants in these proceedings , to purchase the shares under the price set in the agreements . It decided not to grant such right to the ORG .

The first - instance court established that on DATE , the majority shareholder had transferred to the buyers , under CARDINAL separate agreements , part of its shares amounting to PERCENT of the ORG 's capital . On DATE , the buyers and the first applicant concluded the first set of agreements , transferring these shares to him . Under the second set of agreements , the first applicant transferred part of these shares to the remaining applicants and Mr GPE The court ruled that , given the absence of a notification or approval by ORG , as required under the then banking rules , the first applicant , under the first set of agreements , had unlawfully obtained possession of PERCENT of the ORG 's capital .

It further held that these transactions had been carried out under the amended Statute , which could not be regarded as having been in force at the relevant time , since the Governor 's approval of DATE had been received by ORG DATE . ORG had not been provided with the decision amending the Statute , but only with a consolidated version ( пречистен текст ) .

On DATE ORG upheld the first - instance court 's decision in respect of the first and second sets of agreements . It dismissed the other shareholders ' claim for a pre - emptive right to purchase shares . It also dismissed the applicants ' arguments that bearer shares were to be regarded as having been transferred by a mere handover and that a written agreement had not been required . It reiterated the first - instance court 's finding that the first applicant , under the first set of agreements , had unlawfully obtained PERCENT of the ORG 's capital .

On DATE ORG dismissed appeals by the applicants on points of law ( ревизија ) . It reiterated the facts established by the lower courts : that the sales transactions described above had been carried out under the amended Statute which , due to the late receipt of the Governor 's approval , had not been in force at the relevant time ; that the first applicant , under the first set of agreements , had obtained title to PERCENT of the ORG 's capital ; and that ORG had not been notified by the ORG or first applicant nor , as required under the then banking rules , sought approval for that fact .

On DATE the ORG announced a public call to its shareholders requiring them to convert share certificates into ordinary shares with a different nominal value .

On CARDINAL and DATE respectively , the applicants asked for their shares to be converted in accordance with the public announcement described above . On DATE the ORG refused their requests , relying on the following : i ) ORG decision of DATE , ii ) ORG approval of DATE to CARDINAL of the buyers to obtain possession of PERCENT of the ORG 's capital and iii ) submissions by ORG ( GPE за хартии од вредност ) dated DATE according to which the ORG , under the court decision of DATE , should register the buyers as shareholders .

On DATE the applicants brought a civil action against the ORG asking for recognition of title to the shares as noted in the share certificates of DATE . They claimed that the first and second sets of agreements had not been a legal ground for obtaining title to the bearer shares , as the first class of shares issued by the ORG . They argued that the bearer shares had been transferred to them by a mere handover , as specified under the then applicable rules , after DATE , the date of their production . The bearer shares therefore had not existed at the time when the agreements had been concluded . On DATE , the date when they had been provided with the share certificates , none of the applicants ' individual share in the ORG 's capital had exceeded the statutory threshold which would have required approval by ORG . They also asked the court to issue an interim measure preventing the ORG from disqualifying them as shareholders .

On DATE the first - instance court inspected the ORG 's register . According to the record , the buyers and not the applicants were registered in the register as the ORG 's shareholders . Under ORG decision of DATE , the dates of entry in the register were indicated as CARDINAL October and DATE respectively .

On DATE , after it had established the facts concerning the agreements of CARDINAL DATE , the first - instance court dismissed the applicants ' claim arguing that shares were to be regarded as movable assets ( подвижна телесна ствар ) and that there was a close link between shares and corresponding rights attached thereto . It held that the substantive property law ( стварно право ) applied to the acquisition , possession and transfer of shares and that contract and tort law ( облигационо право ) applied to the corresponding rights and obligations . It ruled , accordingly , that the lawfulness of possession of a share depended on the existence of a valid legal ground and the subjective conviction of the holder .

The court held that the applicants did not have lawful possession of the bearer shares because the first and second sets of agreements had been declared null and void . They had not acted in good faith when obtaining possession of those shares because the first applicant had collected them from the ORG on DATE on behalf of the majority shareholder after they had been printed . Finally , in the absence of a valid legal ground , the applicants could not have obtained possession of the shares by a mere handover .

The court rejected the applicants ' request for an interim measure , deeming it to have been withdrawn . It further advised the applicants to seek reopening of the proceedings if they were successful in the first proceedings .

On DATE ORG dismissed the applicants ' appeal , finding no grounds to depart from the established facts and the reasons given by the first - instance court . It reaffirmed that on DATE the applicants did not have actual possession of the bearer shares . The court concluded that the applicants had obtained title to the shares under the agreements which had been declared null and void .

On DATE ORG dismissed the applicants ' appeal on points of law of DATE , stating that , given the absence of a valid legal ground for their transfer , they did not have lawful possession of the shares . In this connection , it referred to the first and second sets of agreements being declared null and void . This decision was served on the applicants on DATE .

In DATE the Governor of ORG revoked the first applicant 's licence as a bank manager . That decision was subject to review and was finally superseded by a decision of ORG of DATE limiting the prohibition to exercise his profession at the ORG .

On DATE ORG declared section CARDINAL § CARDINAL of the then valid LAW ( ORG за политичките партии ) , under which political parties could earn income from their own assets ( приходи , од сопствен имот ) , unconstitutional . The court found that that provision was imprecise and contrary to the rule of law and worked against the market and entrepreneurship and the functions and objectives of political parties . That decision was given in response to a request by a political party ( U.br.CARDINAL/CARDINAL and CARDINAL , published in ORG no . CARDINAL/CARDINAL ) .

Section CARDINAL of this LAW , as valid at that time , provided that securities ( хартии од вредност ) could be issued , inter alia , as registered or bearer .

Section CARDINAL of this Act provided that an obligation attached to securities was to be regarded as transferred with the transfer of the securities .

In accordance with section QUANTITY , CARDINAL and DATE , the rights attached to securities could be obtained by their lawful holder . Any holder of a bearer share was to be regarded as lawful . A diligent holder of a bearer share would lawfully possess it even if the company or its former holder had yielded procession of it unwillingly .

Under section CARDINAL the right of a bearer share is transferred by a mere handover .

Section CARDINAL § CARDINAL provided that the company , in response to a request and at the holder 's expense , can convert the bearer share into a registered share .

This act was valid until DATE when the new LAW came into force .

In accordance with section CARDINAL of this Act , as valid at that time , registered or bearer written certificates would be regarded as securities .

Section CARDINAL § CARDINAL of this Act provided that corresponding rights and obligations could be obtained by transferring the securities from the company to the buyer or his or her representative .

Section CARDINAL § § CARDINAL and CARDINAL provided that a registered share was regarded as having been transferred by a full endorsement ( полн индосамент ) unless it was explicitly stated that it could not be transferred . A bearer share was regarded as having been transferred by a mere handover .

This Act was replaced by LAW of DATE ( see below ) .

In accordance with section CARDINAL of the then valid LAW , securities could be registered or bearer .

Under section CARDINAL § CARDINAL , bearer securities were transferred by a mere handover .

In accordance with section QUANTITY , there were only registered shares . Bearer shares were null .

This Act was replaced by LAW and LAW DATE .

Section CARDINAL of this Act required that the Governor of ORG must approve any acquisition of an individual share of PERCENT of a bank 's capital .

Pursuant to section DATE , a bank was required to notify ORG if an individual share exceeded PERCENT .

In case of non - compliance , the bank may be fined ( section CARDINAL ) .

Under section CARDINAL § CARDINAL of this Act , banks could only issue registered shares .

In accordance with section CARDINAL-b , banks were required to adjust their operation within DATE of the LAW entering into force .

Section CARDINAL provided that that Act would enter into force DATE after being published in ORG .

Section CARDINAL § § CARDINAL and CARDINAL of this Act provided that registered shares were to be recorded in the register of shareholders . Every person registered in the register of shareholders was to be regarded as a shareholder .


Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON .

On DATE at TIME the car of which the applicant is the registered keeper was recorded by police officers using a radar speed detector travelling at a speed of CARDINAL k.p.h . , thus exceeding the speed limit of CARDINAL k.p.h .

On DATE the Graz - Umgebung District Authority ( Bezirkshauptmannschaft ) ordered the applicant to disclose within DATE the full name and address of the person who had been driving his car at the material time . The order referred to section CARDINAL(CARDINAL ) of the Motor Vehicles Act ( GPE ) as its legal basis . The applicant did not reply .

On DATE the Graz - Umgebung District Authority issued a provisional penal order ( Strafverfügung ) . Relying on sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(a ) of FAC , it sentenced the applicant to pay a fine of CARDINAL euros ( ORG ) with DATE imprisonment in default for speeding . In addition , relying on sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW , it sentenced the applicant to pay a fine of LAW with DATE imprisonment in default for failure to comply with the order of DATE to disclose the driver 's identity .

The applicant lodged an objection against this decision . On DATE he filed submissions stating that he had not been driving his car but that he refused to disclose the driver 's identity as he considered this obligation to be at variance with LAW .

Subsequently , the Graz - Umgebung District Authority heard evidence from the police officer who had initiated the proceedings for speeding . On DATE the statement of the police officer , who had confirmed that the radar detector , which had been duly calibrated , had measured a speed of CARDINAL k.p.h . and that he had recorded the number of the car , was communicated to the applicant and he was requested to submit his defence in respect of the speeding offence . At the same time he was informed that the proceedings for failure to disclose the identity of the driver had been discontinued .

NORP By letter of DATE the applicant , represented by counsel , maintained his defence .

On DATE the Graz - Umgebung District Authority dismissed the applicant 's objection and issued a penal order ( Strafverfügung ) in which it convicted him of speeding and imposed a fine of ORG CARDINAL with DATE imprisonment in default . It also ordered him to pay procedural costs in the amount of LAW .

The authority noted that the applicant had refused to disclose who had driven his car on DATE when it had been recorded exceeding the speed limit . The authority therefore concluded that he had himself been the driver . It observed that this presumption was based on the case - law of ORG , which had considered that in a case in which the registered keeper of a car did not disclose the driver 's identity and did not submit any exculpating evidence in his defence , the authority could reasonably conclude that the keeper himself had been the driver .

The applicant appealed to ORG ( Unabhängiger Verwaltungssenat ) . He maintained that the obligation to disclose the identity of the driver pursuant to section CARDINAL(CARDINAL ) was incompatible with LAW , as was the drawing of inferences from the mere fact that he had refused to disclose the driver 's identity . In this connection the applicant referred to PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) . In addition , he reiterated that he had not been driving his car on CARDINAL DATE and had not even been in GPE at the relevant time . He further asserted that his car had been used regularly by a number of persons but that he had not kept any records and was therefore not in a position to provide the required information .

On DATE ORG dismissed the appeal . It dispensed with a hearing by virtue of section CARDINALe(CARDINAL ) of LAW ( GPE ) .

ORG reasoning reads as follows :

“ In accordance with the principle of establishment of the facts of the authorities ' own motion for the purposes of LAW ( ORG ) , the material truth must be ascertained ; in this regard the authorities are not bound by the facts submitted by the parties , but must establish the true facts by taking the necessary evidence . Under section CARDINAL(CARDINAL ) of the ORG the authorities must assess freely , giving careful consideration to the results of the investigation , whether or not a given fact is to be accepted as proven . On the basis of the principle that the court controls the conduct of the proceedings , articulated in section CARDINAL of the ORG , the obligation to establish the facts lies with the authorities ; this does not , however , dispense the party from the obligation to contribute to the establishment of the relevant facts . The obligation on the accused in criminal proceedings to cooperate means that he is not merely responsible for contesting the specific evidence against him , without submitting equally specific statements in reply and adducing the relevant evidence ... Nor can the appellant in the present case be released from this obligation by relying on LAW . On the contrary , the fact of refusing to name the driver of the vehicle amounts to an infringement of the obligation to cooperate as set forth above . Hence , merely asserting that he was not driving the vehicle registered in his name at the scene of the offence and at the material time runs counter to the appellant 's obligation to contribute to the establishment of the relevant facts .

In accordance with section CARDINAL(CARDINAL ) of the ORG the authorities therefore presume that the appellant himself was the driver . His statements are to be regarded as an attempt to justify his conduct . It has not been established during the proceedings , nor has the applicant seriously asserted in substance , that he could not have contributed to the establishment of the facts without incriminating himself and could not have been expected to do so .

The offence with which the appellant was charged is therefore to be regarded as subjectively and objectively proven and imputable to him . His appeal submissions concerning LAW are unfounded in relation to the offence with which he was charged . ”

Turning to the fixing of the sentence , ORG noted that the applicant had been charged with exceeding the speed limit substantially , by CARDINAL k.p.h . As excessive speed on motorways was often the reason for serious or very serious traffic accidents , the imposition of a fine of ORG CARDINAL had been appropriate .

The applicant lodged a complaint with ORG ) . Referring to PERSON ( cited above ) , he asserted that he had been convicted solely on account of the fact that he had made use of his right to remain silent . ORG had not been in possession of any evidence to indicate that he was the driver . Moreover , it had disregarded his defence that he had not been in GPE at the material time and was unable to provide the name of the driver as he had not kept any records . These procedural deficiencies were aggravated by the fact that ORG had failed to hold a hearing .

On DATE the ORG declined to examine the applicant 's complaint for lack of prospects of success .

On DATE ORG declined to examine the applicant 's complaint by virtue of section CARDINALa of LAW , since the amount of the penalty did not exceed LAW and no important legal issue was at stake .

Section CARDINALe of LAW ( ORG - gesetz ) reads as follows :

“ ( CARDINAL ) ORG shall hold a hearing in public .

( CARDINAL ) ORG may dispense with an appeal hearing if

NORP the appeal is based solely on an incorrect legal assessment , or

NORP the appeal is directed solely against the amount of the penalty , or

NORP the decision being appealed against imposed a financial penalty not exceeding QUANTITY

NORP the appeal is directed against a procedural decision

and no party has requested that a hearing be held . Any request by the appellant for a hearing to be held must be made in the appeal itself ... ”


Violation of Art. 3 (substantive aspect)

The applicant was born in DATE and lived until his arrest in GPE . He is now serving a prison sentence in GPE .

On DATE the applicant was arrested by police officers , taken to a police station and allegedly beaten up . He was released on DATE . The applicant says that he complained to a prosecutor about the beatings on DATE .

On DATE the applicant was arrested on suspicion of robbery and taken to police station no . CARDINAL in GPE , where he alleges he was seriously assaulted by police officers .

From DATE the applicant was detained in a cell in police station no . CARDINAL . On DATE he was transferred to detention facility no . IZ-CARDINAL/CARDINAL in GPE , known as “ GPE ” .

In DATE the applicant asked GPE to grant him an amnesty and discontinue the criminal proceedings . On DATE ORG refused his request , holding that it was for the trial court to examine whether the applicant qualified for an amnesty .

On DATE GPE appointed the applicant 's mother to represent him . Following her appointment , she had several meetings with the applicant in the detention facility . Prison warders were always present at the meetings .

At the trial the applicant was represented by his mother and PERSON , of counsel . They submitted evidence and made a successful application to GPE to call additional witnesses and exclude certain items of evidence presented by the prosecution .

On DATE GPE found the applicant guilty of several counts of robbery , establishing a criminal enterprise and the aggravated offence of selling criminally acquired property and sentenced him to DATE imprisonment . It based its judgment on the applicant 's partial confession in open court , the oral evidence of the co - defendants , victims and witnesses at the trial , expert opinions and real evidence . In determining the sentence , ORG took into consideration the assistance the applicant had given to the investigating authorities in solving the case and identifying other participants in the criminal enterprise .

The applicant appealed against the judgment of DATE , complaining , in particular , that ORG had not applied an amnesty law .

On DATE ORG of GPE upheld the judgment of DATE , endorsing the reasons given by ORG . It also held that GPE had lawfully refused to apply the amnesty law of DATE to the applicant because of the especially serious nature of his offences .

From DATE to CARDINAL DATE the applicant was held in detention facility no . IZ-CARDINAL/CARDINAL in GPE .

According to a certificate issued on DATE by the facility governor , and produced by the Government , the applicant was held in CARDINAL different cells during the reference period . Each cell measured QUANTITY and had QUANTITY . According to the Government , no information on the number of inmates in the cells was available as the documents had been destroyed . They further submitted that the applicant had at all times had TIME ' sleep .

The applicant did not dispute the cell measurements or the number of bunks . However , he alleged that he had usually shared the cells with CARDINAL to CARDINAL detainees . Given the lack of beds , inmates slept in shifts .

The Government , relying on further certificates issued on DATE by the facility governor , submitted that all cells were equipped with a lavatory pan and sink . The pan was separated from the living area by a curtain . According to the Government , the pan was “ in a satisfactory sanitary condition ” . The cells were disinfected once DATE . Inmates were allowed to take a shower once DATE . They were provided with bedding at the same interval . The cells were naturally ventilated through the windows which were not covered with metal shutters . Each cell also had a ventilating shaft . The Government further stated that the temperature in the cells was “ normal ” . Additional window - frames with glass were inserted in DATE . Central heating devices were installed in the cells , which were also equipped with lamps which functioned DATE and TIME .

The applicant disagreed with the ORG 's description and submitted that the sanitary conditions were unsatisfactory . Inmates had to dry their laundry indoors , creating excessive humidity in the cells . The cells were dimly lit . Relatives provided inmates with lamps . Windows were not glazed and were covered with thick metal bars that blocked access to natural light and fresh air . It was cold in DATE and in DATE it was hot , stuffy and excessively damp inside . The artificial ventilation system was blocked with stones and garbage and was never cleared up .

The applicant also contested the ORG 's description of the toilet facilities . According to him , inmates had to make curtains to separate the lavatory pan from the rest of the cell . The curtains were frequently removed by warders . ORG were allowed to take a shower once a week but no toiletries were distributed . The entire cell was afforded TIME to shower , although there was CARDINAL shower heads . The applicant added that he had been provided with bedding when he had entered the facility on DATE , but it had not been changed since . The applicant 's mother had provided him with replacement bedding when it had worn out .

The Government asserted that “ the applicant was fed in accordance with the established legal norms ” . Medical personnel at the facility checked the quality of the food CARDINAL times a day and made entries in registration logs .

The applicant submitted that the food was of an extremely low quality and in scarce supply . Meat and eggs were not provided despite the fact that they had been included in the detainees ' DATE diet under Government regulations .

The Government submitted that the applicant had CARDINAL TIME walk DATE .

NORP The applicant did not comment on this .

On his admission to the detention facility the applicant was given an X - ray examination . In the course of a check - up , tuberculosis changes in the right lung were detected . The applicant was placed in a special cell for further examinations and treatment and then , after being diagnosed with infiltrative tuberculosis of the upper lobe of the right lung , was transferred to the tuberculosis division .

The parties disputed the treatment that the applicant had received in the facility . According to a certificate of CARDINAL DATE issued by the facility governor and submitted by the ORG , the applicant was examined by a doctor at DATE intervals and had chest X - rays DATE . The Government gave a detailed description of the treatment the applicant had been provided with , including the type of medicine , dose and frequency . They also furnished a copy of the applicant 's medical record and medical certificates . The medical certificates indicate that the applicant is now considered to have clinically recovered from the tuberculosis .

The applicant argued that he was not adequately treated after he was discovered to be suffering from tuberculosis . His mother provided the necessary medicines because they had not been available in the facility . Following several complaints to various officials , the applicant started to receive treatment and his health improved .

On DATE the applicant complained to ORG of GPE about the inadequate conditions of his detention , his poor state of health and the authorities ' failure to grant him an amnesty . ORG sent the applicant 's complaint to ORG .

On DATE ORG of ORG sent a letter to the applicant informing him that his complaints had been examined and found to be unsubstantiated .

On DATE the applicant complained to ORG of ORG that he was being held in appalling conditions . The outcome of those proceedings is unclear .

Article CARDINAL § CARDINAL of the NORP LAW establishes the offence of robbery . LAW makes it an aggravating factor for the robbery to be committed by a criminal enterprise or a person who has already been convicted of theft or extortion . Robbery under LAW is punishable by a maximum sentence of DATE imprisonment and confiscation of property . Article CARDINAL § CARDINAL establishes criminal liability for the use of actual or threatened force against another in order to commit a theft . Under Article CARDINAL § CARDINAL such an offence committed by a criminal enterprise or a person who has been convicted of extortion or theft is punishable by a maximum sentence of DATE imprisonment . Under LAW the unlawful sale of criminally acquired property by a group of individuals or a person who has been convicted of a theft , extortion or the sale of criminally acquired property is punishable by DATE imprisonment . Establishing a criminal enterprise is punishable under LAW by a maximum of DATE imprisonment .

Under LAW of LAW Criminal Code consecutive sentences are imposed upon a defendant who is convicted at the same time of several distinct offences ( cumulative offences ) . LAW provides that the final sentence for cumulative offences , should not exceed DATE imprisonment .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

Under LAW ( Federal Law no . CARDINAL of DATE ) detainees are entitled to lodge , inter alia , with a court , petitions and complaints concerning violations of their rights . Article CARDINAL provides that such complaints addressed to various ORG and municipal bodies and NGOs must be sent through the detention facility authorities . ORG addressed to a prosecutor , a court or any other ORG body supervising the detention facility are not subjected to censorship and are sent to the addressee in a closed envelope .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows :

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG 's delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony 's administration ” .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


No violation of Art. 5-3;Remainder inadmissible

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant was arrested by the police . On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be remanded in custody in view of the reasonable suspicion that , acting in an organised gang , he had been involved in the traffic of human beings and narcotics , had committed robberies and had derived profits from prostitution . The court considered that , given the fact that the applicant had been living in GPE , there was a real risk that he might go into hiding . In addition , it found that the case was complex as it concerned an organised criminal group and that , once released , the applicant might tamper with evidence or otherwise obstruct the proceedings .

The applicant appealed against the detention order . However , on DATE ORG ( PERSON ) dismissed the appeal .

On DATE and DATE the ORG prolonged the applicant ’s detention . The court repeated grounds given previously : the reasonable suspicion that he had committed the offences , the severity of the anticipated sentence , the complexity of the case and the risk that the applicant might go into hiding as he had no permanent residence in GPE . His appeals against both decisions were dismissed .

On DATE the applicant and his accomplices were indicted before the ORG .

On DATE , the ORG again prolonged the applicant ’s detention until DATE . It reiterated the grounds that had been stated in the previous decisions .

On DATE the ORG dismissed his applications for release reiterating the previously given grounds for detention .

On DATE the ORG held the first hearing . Subsequently , several hearings were held , and the court fined the witnesses who failed to appear . The applicant and his lawyer were present at those hearings .

Subsequently , the applicant ’s detention on remand was prolonged and his applications for release dismissed .

On DATE ORG ( Sąd Apelacyjny ) , on the application of the ORG , further prolonged the applicant ’s detention . The court repeated the grounds originally given and stressed the fact that the case concerned an organised criminal gang .

On DATE the ORG gave judgment with respect to the applicant and CARDINAL co - accused . The applicant was convicted as charged and sentenced to DATE imprisonment . The applicant requested a reasoned judgment to be prepared to enable him to lodge an appeal .

On DATE the applicant was released from detention .

On DATE ORG partly allowed his appeal . The applicant was acquitted of the charges of being a member of an organised criminal group . The appellate court further quashed and remitted the part of ORG judgment which concerned his conviction for helping in the illegal crossing of the NORP borders and in the trading in human beings . The court upheld the remaining part of the impugned judgment , which concerned the running by the applicant of a night club and possession of cannabis , and sentenced the applicant to one year and CARDINAL months’ imprisonment .

The applicant submitted that due to a mistake of his lawyer , he did not lodge a cassation appeal against this judgment . The judgment is final .

The remaining part of the proceedings , which was remitted by ORG , is pending .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory timelimits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

NORP If , due to the particular circumstances of the case , an investigation can not be terminated within the term referred to in paragraph CARDINAL , the court of first instance competent to deal with the case may – if need be and on the application made by the [ relevant ] prosecutor – prolong detention for a period [ or periods ] which as a whole may not exceed DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed .