CASE OF BOCVARSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

According to an official note of ORG of DATE , the applicant and Mr PERSON registered PERSON STD ( самостоен трговски дукан , “ the undertaking ” , as opposed to companies incorporated under company law ) through which they pursued business activities . On CARDINAL DATE they ceased trading through the undertaking . On DATE the undertaking was re - registered in the name of the applicant . The undertaking operated until DATE , when its activities were voluntarily terminated .

On DATE the ORG ( ORG суд ) upheld the undertaking 's claim and ordered LAW ( “ the debtor ” ) to pay a debt amounting to CARDINAL old NORP denars ( ORG interest . The court found that the debtor and the undertaking had concluded a framework agreement under which the latter would produce paper products for the debtor . As the debtor had failed to pay for the products made , the court upheld the undertaking 's claim .

On DATE the Macedonia - Skopje Commercial Court ( PERSON суд на GPE ) , sitting as an appellate court , dismissed an appeal by the debtor and upheld the lower court 's decision . On DATE ORG dismissed an appeal on points of law ( ревизија ) by the debtor and upheld the lower courts ' decisions .

On DATE the undertaking requested enforcement of the judgment debt , proposing the following means of enforcement : transfer of the money due from the debtor 's account and an inventory , evaluation and public auction of the debtor 's movable and immovable property . On DATE the ORG granted the undertaking 's request and ordered the debtor to pay the debt . On DATE it dismissed an objection by the debtor .

On DATE ORG dismissed a request by the debtor for postponement of enforcement . On DATE ORG dismissed an appeal by the debtor and upheld its decision .

On DATE ORG upheld an objection by the debtor and discontinued the enforcement proceedings in so far as they concerned interest .

On DATE ORG ordered ORG to require the bank in which the debtor had had its foreign currency account to transfer the balance due to the undertaking 's account . It also ordered the bank not to make any payments from the debtor 's account to other parties until the undertaking 's claim had been completely honoured . The court established that the undertaking had received part of the judgment debt . It further noted that , as there were no other funds available in the debtor 's account , on DATE the undertaking had requested the court to satisfy its claim from other accounts belonging to the debtor .

On DATE the undertaking , represented by PERSON , and the debtor reached a court settlement ( “ the DATE settlement ” ) concerning the means of securing payment of the remaining balance , which amounted to ORG ( MONEY ) . The undertaking agreed to receive the balance in CARDINAL equal instalments within DATE .

As the debtor did not pay the debt as agreed , on DATE ORG ordered an inventory and public auction of the debtor 's vehicles . On DATE ORG dismissed an appeal by the debtor and upheld the lower court 's decision .

On DATE ORG partly allowed a request by the debtor for postponement of the enforcement in respect of some heavy goods vehicles and a bus . On DATE the court ordered the confiscated vehicles to be returned to the debtor as they were necessary for its work . On CARDINAL DATE ORG суд ) upheld those decisions .

On DATE ORG ( ORG суд ) dismissed a request by the debtor to postpone enforcement of the DATE settlement .

On DATE ORG upheld an objection by the debtor , who had argued that the undertaking had no legal capacity as a creditor in the proceedings as it had ceased to exist . It also stayed the enforcement proceedings and ordered ORG to lift the charging orders on the debtor 's accounts . It dismissed the applicant 's arguments that she was a successor to the undertaking and that there had been a continuity of the undertaking 's claims . On DATE ORG dismissed an appeal by the undertaking as inadmissible .

Pending the proceedings described above , on DATE ORG granted the undertaking 's request of DATE and issued a charging order on CARDINAL of the debtor 's shops ( “ the shop ” ) . On DATE ORG Instance dismissed an objection by the debtor . On DATE the ORG quashed the lower court 's decision and ordered a re - examination of the case . On DATE ORG suspended the charging order , as the shop had been exempted from enforcement since it was necessary for the debtor 's work . On DATE ORG quashed that decision and ordered a re - examination of the case . On DATE ORG Instance dismissed an objection by the debtor .

On DATE the undertaking requested the court to enforce the claim as established by the DATE settlement . On DATE ORG granted the undertaking 's request for the sale of the debtor 's shop in respect of the principal debt , which had amounted to DM CARDINAL,CARDINAL , together with interest between DATE until settlement , plus trial costs . On DATE ORG partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest .

On DATE ORG allowed an appeal by the debtor and quashed the decision of DATE . It found that the lower court had failed to determine the debtor 's objection as to whether other enforcement proceedings had already been pending between the same parties on the same subject .

On DATE ORG partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest . The order for the sale of the shop remained unaffected .

On DATE the public prosecutor lodged with ORG a request for the protection of legality ( барање за заштита на законитоста ) ( “ legality review request ” ) challenging the legality of the lower courts ' decisions of DATE and DATE . It argued that the DATE settlement could not be regarded as an enforcement order ( извршна исправа ) as it had been concluded while the enforcement proceedings were already pending and it had merely concerned the means of enforcing payment of the outstanding debt . The public prosecutor 's office further contested , inter alia , the legal capacity of the undertaking in the enforcement proceedings as it had ceased to exist before it had lodged its application for enforcement on DATE . On DATE the undertaking made submissions in reply .

On DATE ORG upheld the public prosecutor 's legality review request and quashed the impugned decisions . It found that the lower courts had wrongly considered the DATE settlement to be an enforcement order that could validly be enforced . It instructed them , inter alia , to reconsider the undertaking 's legal capacity as a creditor in the enforcement proceedings .

On DATE ORG upheld the debtor 's objection concerning the undertaking 's capacity to take part in the proceedings as a creditor . It dismissed the undertaking 's application for enforcement and ordered the proceedings to be resumed in the name of the applicant as a creditor . It held that the applicant had been the last person who had pursued business activities through the undertaking before it had ceased to exist . As the undertaking did not have the capacity of a legal entity , all its rights and obligations , including its claim against the debtor , had to be considered to have been transferred to the applicant , as the physical person who had run it .

On DATE ORG upheld the lower court 's decision , finding no grounds to depart from the reasons given .

On DATE the public prosecutor submitted a fresh legality review request to ORG , challenging the legality of those decisions and claiming that the applicant lacked the legal capacity to replace the undertaking and take over the enforcement proceedings as a creditor . It further disputed that the DATE settlement could not be regarded as an enforcement order , as the enforcement proceedings had already been pending at the time when it had been concluded . On or CARDINAL DATE , the applicant , who was legally represented , made submissions in reply to the public prosecutor 's legality review request .

On DATE ORG upheld the public prosecutor 's request and quashed the lower courts ' decisions . It found that they had failed to establish whether the enforcement proceedings had been pending before the DATE settlement was concluded . It further held it to be irrelevant that the undertaking had ceased to operate , as the undertaking 's founders bore its rights and obligations and it had been their responsibility to establish their status before the courts .

On DATE ORG ordered the enforcement of the DATE settlement by sale of the shop in favour of the applicant . It held that the enforcement proceedings , which had been instituted before the DATE settlement , had ended with the first - instance court 's decision of DATE . It further recognised the applicant 's capacity to take over the undertaking 's claim and to be given the status of a creditor .

On CARDINAL DATE ORG upheld the lower court 's decision and dismissed an appeal by the debtor , which had submitted , inter alia , that the applicant had failed to establish that she had taken over the undertaking 's claim .

On DATE the public prosecutor lodged a third legality review request with ORG . The public prosecutor 's office reiterated its earlier allegations that the DATE settlement could not be regarded as an enforcement order and that the applicant could not automatically be considered to have taken over the undertaking 's claim .

On DATE ORG quashed the lower courts ' decisions . It found that they had erroneously established that the applicant had taken over the undertaking 's claims ipso jure as she had been the last proprietor of the undertaking . It further instructed them to verify whether there had been a valid certificate by which the undertaking 's claim had been transferred to the applicant .

On DATE ORG requested the applicant to provide , in accordance with LAW ( see paragraph CARDINAL below ) , written evidence that the undertaking 's claim had been transferred to her . On DATE the applicant submitted documents to the court , including a balance sheet ( биланс на приходи и расходи ) , bank account details , a receipt ( признаница ) and a certificate issued by a bank .

On DATE ORG Instance dismissed the applicant 's application for enforcement of the claim as established by the DATE settlement . Following ORG instructions , it held that there had been no valid certificate by which the undertaking 's claim had been transferred to the applicant . It therefore concluded that the latter could not claim to have the status of a creditor .

On DATE ORG quashed the decision as the lower court had failed to establish whether the applicant had owned and run the undertaking as a sole proprietor .

On DATE ORG Instance dismissed the applicant 's request as ill - founded . It found that the documents submitted to the court on DATE could not be regarded as a valid certificate by which the undertaking 's claim had been transferred to the applicant . It concluded that the applicant could not ipso jure have taken over the undertaking 's claim .

On DATE ORG overturned the decision and partly allowed the applicant 's application for enforcement of the principal debt indicated in the DATE settlement . It dismissed the applicant 's request for payment of the interest . It found , inter alia :

“ ... it is irrefutable that the creditor , PERSON , owned the undertaking ... , which had no legal capacity ... The fact that PERSON carried out transactions on the market through the undertaking at the time when the latter still operated implied that she was responsible for all the rights and obligations arising from it ... the lack of legal capacity of the undertaking ... , whose proprietor was the creditor [ the applicant ] , means that it was not a separate legal entity , but that its capacity , regarded as a pool of rights and obligations , is vested solely in the creditor , PERSON ... there is no transfer of the undertaking 's claims to PERSON , as the former does not have legal capacity , but the creditor [ the applicant ] was ... liable for the undertaking 's obligations ... ”

On or DATE the public prosecutor lodged a fourth legality review request with ORG in respect of ORG decision .

DATE . At the public prosecutor 's request , on DATE ORG postponed the enforcement of the order until ORG had determined the legality review request .

On DATE , the applicant made submissions to ORG in reply to the public prosecutor 's request .

On CARDINAL DATE ORG upheld the public prosecutor 's request , overturned ORG decision and upheld the first - instance court 's decision of DATE . It found , inter alia , that the lower courts had established the following facts :

“ ... the enforcement proceedings were pending before ORG between the [ undertaking ] and [ the debtor ] . On DATE they concluded a court settlement on the basis of which the enforcement proceedings were instituted ... on DATE ORG Instance stayed the proceedings ... on DATE ORG rejected the [ undertaking 's ] appeal as inadmissible [ these decisions concern the enforcement proceedings instituted before the DATE settlement was concluded ] ... on DATE the [ undertaking ] was registered in the name of PERSON .... On DATE [ the undertaking ] ... ceased to exist . PERSON was the last sole proprietor of the [ undertaking ] , which had been set up by her funds and her labour force . ”

The court went on to conclude that ORG had wrongly applied the substantive law for the following reasons :

“ In the present case , the requirements of the provision cited above [ referring to section CARDINAL of LAW ] , for the granting of enforcement at the request of a person not indicated as a creditor in the enforcement order , were not satisfied . There is no written certificate attesting that the claim was transferred from [ the undertaking ] to PERSON , as a creditor . The termination of the undertaking 's operations does not ipso jure entail the transfer of its claims to the last proprietor who ran it . Indeed , FAC did not contain a provision providing for ipso jure transfer of the undertaking 's claims to the last proprietor who ran it ... Moreover , the court settlement of DATE can not be regarded as an enforcement order as it resulted from the enforcement proceedings already pending between the same creditor [ meaning the undertaking ] and the debtor ... the subject of this settlement was the means of enforcing the outstanding debt ... ”

The decision was served on the applicant on DATE .

LAW provides that ORG is the highest court and that it ensures the uniform application of the laws by the courts .

LAW ( CARDINAL and CARDINAL ) of LAW provided that an entrepreneur could set up an undertaking ( дуќан ) , in order to pursue business activities . The undertaking could have a legal personality .

LAW provided that an entrepreneur could set up an undertaking by submitting an application to the relevant municipal administrative body .

In accordance with section CARDINAL § CARDINAL ( CARDINAL ) of that LAW , an undertaking would cease to exist if the above application had been withdrawn .

Section CARDINAL ( CARDINAL ) of LAW ( “ the LAW ” ) , as applicable at that time , provided that a decision given on an appeal was regarded as final .

DATE . Under section CARDINAL of the Act , an appeal on points of law and a request for reopening of the proceedings could not be lodged in respect of a final decision given in the enforcement proceedings .

LAW provided that the provisions of LAW applied , mutatis mutandis , to enforcement and security proceedings , unless otherwise provided for by law .

Under section CARDINAL ( CARDINAL ) , an enforceable court decision and a court settlement were regarded as an enforcement order .

DATE . LAW ( CARDINAL ) of the LAW provided that enforcement might be granted at the request of a person not indicated as a creditor in an enforcement order only if that person proved , by a public or otherwise legally certified order , that the claim had been transferred to him or her . Should that be impossible , the transfer of the claim was to be proved by a final decision given in civil proceedings .

LAW of LAW ( “ the DATE LAW ) , which was in force at the material time , provided that a decision became final when an appeal could no longer be lodged against it .

DATE . In accordance with section CARDINAL ( CARDINAL ) of LAW , in case of substantial procedural flaws , ORG quashed the first- and the second - instance decision or the second - instance decision only and referred the case back for reconsideration .

Section CARDINAL of the DATE Act provided that where the substantive law had been applied incorrectly , ORG upheld the appeal on points of law and overturned the impugned decision . In cases where the facts were erroneously established because of the incorrect application of the substantive law and where there were no grounds for overturning the impugned decision , ORG upheld the appeal on points of law and referred the case back for fresh consideration .

In accordance with section CARDINAL of the CARDINAL Act , the public prosecutor could submit , within DATE , a request for the protection of legality in respect of a final decision . When the request was lodged in respect of a second - instance decision , this term started to run from the date on which the last party was served with the decision . Where the parties concerned had lodged an appeal on points of law against the second - instance decision , the public prosecutor could submit a request for the protection of legality in respect of that decision within DATE of the date of service of the appeal on points of law .

In accordance with section CARDINAL , a legality review request could be lodged either in respect of a substantial procedural flaw or an incorrect application of the substantive law . It could not be lodged where the impugned decision went beyond the scope of the claim or where the facts had been erroneously or incompletely established .

ORG ) of the LAW provided , inter alia , that sections CARDINAL , CARDINAL to CARDINAL and CARDINAL to CARDINAL applied , mutatis mutandis , to proceedings concerning a legality review request .

The Act , which repealed LAW , does not contain any provisions concerning the legality review proceedings .


The applicants , PERSON , PERSON , PERSON and Mr PERSON , are NORP nationals , who were born in DATE , DATE , DATE and DATE respectively and live in GPE , GPE . They are the widow and the CARDINAL children of the late Mr Rune Sved .

They are represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .

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

On DATE Mr PERSON , who was a farmer , applied for a subsidy to give up greenhouse farming . On DATE ORG ( maatalousyrittäjien eläkelaitos , lantbruksföretagarnas pensionsanstalt ) decided to grant PERSON a subsidy of ORG ( MONEY ) on condition that the greenhouses were demolished or otherwise permanently taken out of production and the relevant area adjusted to the surrounding landscape . Written information when these measures had been carried out was requested as a condition of payment .

Mr PERSON died on DATE without knowing about the decision .

On DATE PERSON widow requested that the subsidy be paid to his estate . On DATE ORG refused to pay the subsidy as the greenhouses had not been demolished before the death of Mr Rune Sved . The applicants appealed to ORG ( eläkelautakunta , pensionsnämnden ) , requesting payment of the subsidy . ORG decided , on DATE , that the subsidy could not be paid to PERSON estate since he had not demolished the greenhouses himself during his DATE .

On DATE , the applicants appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) , contending that the ORG ’s decision was unreasonable as Mr PERSON had not been able to demolish the greenhouses as he had not even known about the decision before he died . They noted that they had no other choice than to continue the greenhouse production or to let the greenhouses to another farmer if the court ’s decision was not favourable to them . It appears from the statement of appeal that the greenhouses had not been demolished by DATE .

On DATE ORG upheld the ORG ’s decision .

According to LAW , subsections CARDINAL and CARDINAL , of the Act on Subsidy for ORG and ORG ( laki kasvihuonetuotannon ja omenanviljelyn lopettamistuesta , lag om stöd för nedläggning av växthusproduktion och äppelodling ) , a subsidy shall be paid to an applicant on condition that his greenhouses are permanently demolished or otherwise taken out of greenhouse production and the relevant areas adjusted to the landscape .

According to LAW above - mentioned LAW , the subsidy can only be granted if the applicant has been farming for a minimum period of DATE immediately before giving up this activity , and on condition that commercial greenhouse farming has been carried out in an area exceeding QUANTITY and the greenhouse farmer has been insured for this activity as a private entrepreneur within the meaning of the Act on Pensions for ORG ( yrittäjien eläkelaki , lag om pension för företagare ) or as a farmer within the meaning of LAW ( maatalousyrittäjien eläkelaki , lag om pension för lantbruksföretagare ) .

According to LAW of the above - mentioned LAW , the subsidy is paid after the greenhouse production or apple farming has ceased .


Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 6-2;Pecuniary damage - request rejected;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was the Minister of Defence and a Member of the Seimas ( ORG ) from DATE .

On DATE the applicant was apprehended in a hotel lobby by the security intelligence and the prosecuting authorities while accepting an envelope containing MONEY ( ORG ) from ORG . The latter , a senior executive of a troubled oil company ( hereinafter referred to as “ the company ” ) , had previously informed the intelligence authorities that the applicant had requested CARDINAL ORG for his assistance in obtaining the discontinuance of criminal proceedings concerning the company ’s vast debts . For slightly TIME the applicant was questioned in the hotel lobby . His explanations were recorded and he was allowed to leave the hotel .

On DATE the Prosecutor General requested the Seimas to permit the institution of criminal proceedings against the applicant . On DATE the ORG agreed . On DATE criminal proceedings were instituted . On DATE the applicant was charged with attempting to cheat ( obtaining property by deception ) .

On DATE the Prosecutor General applied to the Seimas for permission to detain the applicant on remand . On DATE permission was given . On DATE a prosecutor requested ORG to order the applicant ’s detention on remand . Also DATE the applicant was brought before a judge of the FAC who issued a warrant for the applicant ’s arrest on the grounds that he might obstruct the establishment of the truth in the case , inter alia , by exploiting the media and influencing witnesses . The applicant was duly detained .

On DATE the judge extended the term of the applicant ’s detention on remand until DATE in the presence of the parties for the same reasons as before . On CARDINAL , DATE and DATE the applicant appealed against his detention on remand . He requested a hearing . On DATE a judge of ORG dismissed the applicant ’s appeal without hearing the parties .

From DATE to CARDINAL DATE the applicant and his counsel had access to the case - file . On DATE the applicant requested the prosecutor to discontinue the proceedings . On a number of occasions he also requested the prosecutor to vary the remand . These requests were rejected .

On DATE a judge of the Vilnius City Second District Court extended the term of the applicant ’s detention on remand until DATE . On DATE the applicant appealed . On DATE ORG informed him that no appeal lay against that decision .

On DATE the Prosecutor General confirmed the bill of indictment , which was transmitted to ORG .

DATE the applicant submitted numerous applications to courts , the prison administration , the ORG and the LAW , alleging that his detention had been unlawful . On DATE the ORG concluded that from DATE the applicant had been held in detention unlawfully .

On DATE ORG committed the applicant for trial . The court also decided that the applicant ’s detention on remand “ shall remain unchanged ” . No term for that detention was specified .

On DATE ORG adjourned the case and ordered the prosecuting authorities to submit new evidence . In the same decision the court also decided that the applicant ’s detention on remand “ shall remain unchanged ” . No term or grounds for this were specified . The applicant ’s counsel was present at the hearing . On DATE the applicant appealed against the decision . On CARDINAL DATE the applicant submitted a further appeal against the decision of DATE .

On DATE ORG dismissed this appeal in so far as it concerned the decision to require the prosecution to submit new evidence . ORG held that no appeal lay against the decision of DATE in so far as it concerned the applicant ’s detention . The applicant and his counsel were present at the appellate hearing .

On DATE the trial before ORG was resumed . On DATE ORG extended the term of the applicant ’s detention until DATE . On DATE the detention was extended until DATE . The court referred to the strength of the evidence in the case - file and the likelihood of the applicant influencing witnesses , warranting his further remand in custody . Defence counsel was present at the hearings . The applicant ’s appeals against the decisions of CARDINAL and DATE were dismissed by ORG on DATE and CARDINAL DATE respectively . The applicant ’s counsel had been present at the appellate hearings .

On DATE and DATE , DATE , DATE and DATE , ORG rejected the applicant ’s requests to lift the remand in custody . His defence counsel was present at the hearings .

On DATE ORG found the applicant guilty of attempting to obtain property by deception . The court rejected the applicant ’s defence that he had been incited to commit an offence as a result of the conspiracy between PERSON and the security intelligence authorities . The court found that the applicant had himself requested PERSON to contact him , and that the applicant had demanded money in return for him using his authority over certain prosecutors with a view to discontinuing the criminal case involving ORG ’s indebted company . ORG found that the applicant had thereby intended to cheat . The applicant was sentenced to DATE and CARDINAL months’ imprisonment and fined CARDINAL NORP litai ( LTL ) . CARDINAL of his property was confiscated . The applicant and his counsel were present before the first instance court .

The applicant appealed . On DATE ORG rejected the appeal , finding no procedural irregularities regarding the investigation and trial . The applicant and his counsel were present at the appellate hearing .

The applicant lodged a cassation appeal . On CARDINAL DATE ORG rejected it , finding that the lower courts had properly decided the case . The court mentioned inter alia that it had no competence to examine the applicant ’s allegations about the unlawfulness of his detention on remand . The applicant and his counsel were present before ORG .

On an unspecified date , an impeachment procedure was initiated against the applicant in the Seimas . On DATE the ORG refused to impeach the applicant or annul his mandate as a Member of ORG ( “ MP ” ) .

On DATE the Vilnius City Third ORG ordered the applicant ’s release on licence . He was released on DATE .

< Translations are given >

On DATE an article entitled “ MP ’s whitewash looks hogwash , says prosecutor ” was published in the biggest national DATE “ Lietuvos Rytas ” :

“ The Prosecutor General confirmed that [ he had ] enough sound evidence of the guilt of PERSON . ”

On DATE an article entitled “ The Chairman of the Seimas does not doubt PERSON guilt ” was published in “ GPE ” :

“ When asked whether or not he doubts that PERSON accepted a bribe , the Chairman of the Seimas said : ‘ on the basis of the material in my possession I entertain no doubt.’ ”

The Prosecutor General was quoted in an article entitled “ A. Butkevičius prepares for battle and prison ” of CARDINAL DATE in the DATE “ LOC :

“ I qualify the offence as an attempt to cheat ... . ”

The Chairman of the ORG , quoted in an article entitled “ A. Butkevičius will be prosecuted ” of CARDINAL DATE in “ LANGUAGE Rytas ” :

“ CARDINAL or CARDINAL facts were and are convincing . [ The applicant ] took the money while promising criminal services . ”

The Chairman of the Seimas , in an article entitled “ A. Butkevičius ’s lawyers tag the bribery case as political ” of DATE in “ GPE ” , was quoted as saying that “ FAC [ parties ] co - ordinate the defence of the bribetaker ” and that these parties try to protract the proceedings and artificially “ victimise ” the applicant .

The Code of Criminal Procedure ( ORG proceso kodeksas ) :

“ No one shall be arrested or detained save by virtue of a decision of a court or judge . ”

LAW and LAW CARDINAL of the Code provide that the accused and their counsel have the right to submit requests and appeal against acts and decisions of an interrogator , investigator , prosecutor or court .

“ Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged . ... .

The grounds for detention on remand shall be the reasoned suspicion that the accused will :

( CARDINAL ) abscond from the investigation and trial ;

( CARDINAL ) NORP obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;

( CARDINAL ) NORP commit new offences ... whilst suspected of having committed crimes provided in GPE ... [ CARDINAL , cheating ] of LAW ... . ”

“ ... the arrested person shall be brought before a judge within not more than CARDINAL hours ... . The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the specific term of detention , or vary or revoke the remand ... .

After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . ”

The amended LAW in force since DATE ) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person , unless the judge decides otherwise . The amended provision also provides that the court should extend the detention on remand before its expiry .

“ For the purpose of extending the term of detention on remand , a judge ... must convene a hearing to which defence counsel and a prosecutor and , if necessary , the detainee shall be called . The judge decides whether or not to extend the term of detention on remand . ... . ”

The LAW in force since DATE makes obligatory the attendance of the detainee at the remand hearings .

“ An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the arrest . ... . With a view to examining the appeal , there may be convened a hearing to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by the judge at appellate instance is final and can not be the subject of a cassation appeal .

A further appeal shall be determined when examining the extension of the term of the detention on remand . ”

The present LAW in force since DATE ) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre - trial investigation and trial , in the presence of the detainee and his counsel , or only his counsel .

“ The period when the accused and his counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . ”

Since DATE this period is no longer relevant for remand decisions .

“ A judge individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine : ...

CARDINAL ) NORP whether the remand has been selected appropriately ; ... . ”

“ After having decided that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine : ...

CARDINAL ) NORP the remand in respect of the accused ; ... . ”

“ The defendant has the right to : ... ;

CARDINAL ) NORP submit requests ; ...

CARDINAL ) NORP appeal against the judgment and decisions of a court . ”

“ In the course of the trial , a court may decide to order , vary or revoke a remand in respect of the defendant . ”

“ Decisions of courts ... ordering , varying or revoking a remand ... can not be the subject of appeal ... . ”

Pursuant to the general provision of LAW , a first instance decision was not effective pending the time - limit for an appeal against that decision or during the appeal proceedings . Only those decisions against which no appeal was possible , including remand decisions under the former Article CARDINAL § CARDINAL , became effective and were executed on the date when they were taken . The present LAW ( version in force from DATE ) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken , regardless of the fact that an appeal is possible against any such decision under the amended LAW since DATE , see above ) .

Article CARDINAL § CARDINAL of the LAW reads :

“ A person shall be considered innocent until proved guilty in accordance with the law by a final judgment of the court . ”

LAW provides :

“ No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with the law . ”


Preliminary objection rejected (estoppel);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national born in DATE . When lodging his application , he was detained in GPE , GPE . He is presently living in PERSON , GPE .

On DATE the applicant was arrested in PERSON . On DATE the ORG issued a warrant of arrest against the applicant on the ground that he was strongly suspected of having committed , with others , robbery connected with attempted murder .

On DATE ORG charged the applicant with attempted murder , aggravated robbery , grievous physical injury and unauthorised carrying of weapons .

On DATE ORG admitted the indictment without modifications and decided to open the trial against the applicant and CARDINAL other accused . The trial started on DATE and took place on DATE with an average duration of TIME . On CARDINAL DATE a lay assessor fell ill . As the additional lay assessor who was supposed to replace her had also fallen sick earlier on , the trial had to begin anew .

On DATE ORG upheld the arrest warrant against the applicant . It found that irrespective of the delay occasioned by the FAC illness , the applicant ’s continued detention was proportionate given the serious nature of the crimes he was accused of .

On DATE the trial reopened with CARDINAL additional lay assessors .

On DATE ORG rejected the applicant ’s appeal against ORG decision to uphold the arrest warrant .

On DATE ORG dismissed the applicant ’s renewed request to suspend the warrant of arrest of DATE on the ground that the applicant remained under strong suspicion of having committed the crimes that he was accused of . On DATE ORG , upon the applicant ’s appeal , reconsidered and confirmed its decision of DATE . It held that the delay in the trial had been caused by exceptional circumstances such as the difficulty in taking evidence , which required further investigations during the trial , and the illness of a lay assessor as well as the temporary illness of the presiding judge . The strong suspicion that the applicant had committed the serious crimes he was accused of had not been invalidated during the trial . As the applicant ’s partner and son lived in GPE , the applicant was also likely to abscond if released .

On DATE ORG confirmed the decision of the lower court , stating that although the applicant had at that point already been in custody for DATE , this did not justify his release .

On DATE ORG refused to entertain the applicant ’s constitutional complaint .

On DATE ORG dismissed the applicant ’s new request to suspend the warrant of arrest of DATE on the ground that the allegedly new evidence submitted by the applicant did not justify such a suspension . It found that if released , the applicant was very likely to abscond , given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged . ORG noted that the applicant was residing illegally in GPE and that an expulsion order had been issued against him . The length of the applicant ’s detention on remand did not compare to the risk mentioned above . ORG included a detailed account of the trial , explaining the continued conduct of the proceedings , which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify . Furthermore , the applicant and his co - accused had , often later than necessary , filed numerous motions for evidence to be taken . It observed that at the present time , it was not possible to disjoin the applicant ’s case from those of the other accused , as they were accused of committing the offences jointly .

On DATE , following the applicant ’s appeal , ORG confirmed its original decision . It pointed out that the prolonged investigations by way of letters rogatory in GPE and the summoning of witnesses from abroad , which were necessitated by the belated alibi produced by CARDINAL of the applicant ’s co - accused , did not warrant the applicant ’s release .

On DATE ORG confirmed this decision .

On DATE ORG dismissed the applicant ’s further request to suspend the arrest warrant on the grounds that contrary to his allegations , the suspicion persisted that he had committed the crimes he was accused of and was still likely to abscond if released , especially considering the high prison sentence he risked incurring if found guilty according to the indictment .

On DATE the ORG pronounced its judgment after having held an average of CARDINAL hearings per month with an average duration of CARDINAL and a half hours each . It convicted the applicant of attempted murder , aggravated robbery and grievous physical injury as well as of unauthorised carrying of weapons and sentenced him to DATE and CARDINAL months’ imprisonment . In fixing the length of the applicant ’s sentence , ORG took into consideration the inordinate length of his detention and of the criminal proceedings , in particular the delay occasioned by the sickness of the lay assessor and the ensuing suspension of proceedings .

On DATE , the applicant appealed against ORG judgment . In the negotiations that followed between the applicant ’s legal counsel and ORG , the latter eventually consented to the applicant ’s expulsion to his country of origin in lieu of serving his prison sentence in GPE . In exchange for this , and due to the increasing length of his detention on remand , which would have continued during the appeal proceedings , the applicant agreed to withdraw his appeal .

On DATE , the applicant withdrew his appeal . On DATE ORG made an order for costs following the applicant ’s withdrawal of the appeal . On DATE , ORG suspended the further execution of the applicant ’s prison sentence and agreed to his expulsion to GPE . A new arrest warrant was issued to the effect that , upon returning to GPE before DATE , the applicant would be arrested and imprisoned instantly in order to complete his prison sentence . On DATE , the applicant was expelled to GPE .


Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient

ORG Mr PERSON is a NORP national born in DATE and resident in CARDINAL Bornes , GPE .

ORG On DATE Mr Pelladoah was arrested at FAC after customs officials found QUANTITY of heroin , some of it mixed with methaqualone ( a synthetic psychotropic drug ) , in a suitcase which he was carrying .

He was charged primarily with bringing into the country , with or without criminal intent as the case might be , a quantity of a substance containing heroin . This amounts to an indictable offence ( misdrijf ) carrying a maximum penalty of CARDINAL years’ imprisonment ( gevangenisstraf ) and a fine of NLG CARDINAL if committed with criminal intent ( opzettelijk - section CARDINAL ( CARDINAL ) ( A ) and section CARDINAL ( CARDINAL ) of LAW ) but a summary offence ( overtreding ) carrying a maximum penalty of DATE months’ detention ( hechtenis ) and a fine of NLG CARDINAL if committed without such intent ( section CARDINAL ( CARDINAL ) ( A ) and section CARDINAL ( CARDINAL ) of LAW ) . In the alternative , he was charged with possession ( aanwezig hebben ) of such a substance , with or without criminal intent as the case might be , which is an indictable offence carrying a maximum penalty of DATE imprisonment and a fine of NLG CARDINAL if committed with criminal intent ( section CARDINAL ( CARDINAL ) ( C ) and section CARDINAL ( CARDINAL ) of LAW ) , but a summary offence carrying a maximum of CARDINAL months’ detention and a fine of NLG CARDINAL if criminal intent is absent ( section CARDINAL ( CARDINAL ) ( C ) and section CARDINAL ( CARDINAL ) of LAW ) .

ORG On DATE Mr Pelladoah was tried by ORG ( arrondissementsrechtbank ) ; he admitted having " taken a suitcase off the luggage conveyor ... [ which , when examined by customs , ] turned out to contain a large quantity of a substance subsequently found to be heroin " .

ORG gave judgment on CARDINAL DATE , acquitting Mr Pelladoah of bringing a quantity of heroin into the country with criminal intent , but finding him guilty of doing so without criminal intent ; it sentenced him to CARDINAL months’ detention . By the same judgment it ordered his immediate release as he had already spent that length of time in detention on remand .

CARDINAL ; ORG Both the prosecution and the defence appealed against ORG judgment to ORG . The applicant was expelled from the GPE pursuant to LAW ( Vreemdelingenwet ) before the appeals were heard .

ORG held a hearing in the case on DATE . The official record of the hearing states that PERSON was declared to be in default and contains the following passage :

" Mr PERSON [ counsel for Mr Pelladoah ] declares - in essence - : ... I request the court to allow me to conduct the defence , as my client , in view of his place of residence , is unable to appear at the hearing . "

ORG refused this request since " no compelling reason ( klemmende reden ) had become apparent " to allow it .

Witnesses were heard ; the prosecution was allowed to question them but PERSON lawyer was not .

ORG gave judgment on DATE . In view of information to the effect that an extensive investigation into the drugs trade was under way in GPE , in the course of which PERSON had made statements to the NORP authorities , ORG held that the case had not been fully examined and ordered the case to be reheard . A new summons was issued for PERSON to appear .

ORG The second hearing of ORG in the case was held on DATE . Since CARDINAL of the CARDINAL judges had not been present at the first hearing , the examination of the case was commenced anew .

This time PERSON lawyer asked to be allowed to represent his client pursuant to LAW paragraph CARDINAL below ) as regarded the alternative charge .

This request was refused because " it had not been stated , nor did it appear , that [ the lawyer ] had been specifically authorised by the accused to represent him ; moreover , the primary charge , for which representation was not allowed , fell to be examined first " .

CARDINAL of the witnesses who had been heard at the previous hearing was heard again ; the prosecution was granted the opportunity to question him and make observations as to his statements but again PERSON lawyer was not .

The prosecution asked that Mr Pelladoah be sentenced to DATE imprisonment .

ORG then suspended the hearing until DATE so as to enable the prosecution to have relevant parts of the report of the NORP authorities translated into NORP .

ORG The hearing was continued on DATE . The lawyer asked to be allowed to represent PERSON at the hearing and submitted a written declaration authorising him to do so .

ORG again refused to accede to the lawyer ’s request on the ground that " the primary charge , which carried a sentence of imprisonment and for which , consequently , representation [ was ] not allowed , fell to be examined first " .

ORG On DATE ORG delivered a default judgment . It found PERSON guilty on the primary charge , committed with criminal intent , and sentenced him to CARDINAL years’ imprisonment . According to its judgment , it based the sentence on " the seriousness of the act concerned and the circumstances in which it was committed , and the person of the accused " ; it drew attention to the quantity of the heroin - containing substance brought into the country and observed that PERSON had made unlawful use of his diplomatic passport .

ORG Through his lawyer , PERSON filed an appeal on points of law to ORG ( PERSON ) .

In his grounds of appeal ( cassatiemiddelen ) he complained essentially of the following : firstly , that at its first hearing on CARDINAL DATE ORG had erred in not considering the reason for the applicant ’s failure to appear - the trouble and expense of a journey from GPE to the GPE - to be sufficiently " compelling " ; secondly , that representation by the lawyer should have been allowed because even if criminal intent was proven the primary charge did not concern an indictable offence which carried a sentence of imprisonment .

ORG gave judgment on DATE .

As to the applicant ’s first complaint , it observed that on DATE , a different chamber of ORG had begun a completely new examination of the case and that the judgment of that court had therefore not been based on the hearing of CARDINAL DATE . It held that a complaint concerning the refusal of a request made at the latter hearing could therefore not entail the nullity of that judgment .

It also rejected the applicant ’s second complaint , citing the legal provision according to which the primary charge , in case of criminal intent , constituted an indictable offence carrying a term of imprisonment .

ORG In general , the accused - if he is not a juvenile ( section CARDINAL h of LAW ) - is not under an obligation to appear at the hearing .

The court must examine of its own motion the validity of the summons ( geldigheid der dagvaarding - section CARDINAL ORG ) . If , in spite of having been properly summoned , the accused does not appear at the hearing , the court will declare him to be in default ( verstek verlenen ) and proceed with the case in his absence . This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be deferred ( see , inter alia , the judgment of ORG of DATE , GPE ( PERSON , GPE Law Reports ) DATE , CARDINAL ) or submits his defence in writing ( see the judgment of ORG of DATE , GPE DATE , CARDINAL ) and even if the accused can not be blamed for his absence ( see , inter alia , the judgments of ORG of DATE , GPE DATE , CARDINAL , and DATE , GPE DATE , CARDINAL ) . The court has the power to order the accused to appear or to be produced before it by the police ( section CARDINAL ORG ) but it is rarely made use of unless the accused is a juvenile .

ORG An accused who has been convicted in his absence by the first - instance court may file an objection ( verzet - section CARDINAL ( CARDINAL ) ORG ) ; this is an ordinary legal remedy in GPE law . Such an objection entitles the accused to a full retrial by the same court ( section CARDINAL ORG ) .

An objection may not be filed by an accused who has , or has had , the opportunity to appeal to a higher court with jurisdiction as to both fact and law ( hoger beroep - section CARDINAL ( CARDINAL ) ORG ) . This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal , i.e. where the sentence is nothing more serious than a small fine or where a summary offence has been dealt with in first instance by ORG .

It follows from section CARDINAL ( CARDINAL ) ORG that no objection may be filed against a default judgment given on appeal .

ORG In certain cases the accused may be represented in his absence . In cases which are dealt with at first instance by ORG , this possibility exists if the act with which the accused is charged does not carry a prison sentence . However , the representative must be a lawyer who must state that he has been specifically empowered to act as such ( bepaaldelijk daartoe gevolmachtigd - section CARDINAL ORG ) .

At the hearing the procedural position of the representative is that of the accused himself , i.e. - even if the representative is a lawyer - not that of counsel ( see , inter alia , the judgment of ORG of DATE , GPE DATE , CARDINAL ) . This means that like the accused , he may be cross - examined by the court and the prosecution and his statements may be used as evidence ( see the judgment of ORG of DATE , GPE DATE , CARDINAL ) ; he may also be assisted by a lawyer - or another lawyer - as counsel .

If representation is allowed at first instance before ORG , it is also allowed on appeal before ORG ( section CARDINAL ORG ) .

ORG The question - which was in dispute among learned writers - whether the defendant , having been declared in default , is entitled to have his defence conducted for him by counsel was decided by ORG in its judgment of DATE ( GPE DATE , CARDINAL ) . Although the Procurator General ( procureur - generaal ) had suggested an answer in the affirmative , ORG came to the opposite conclusion . It reasoned that , were such an entitlement to be recognised , trial in absentia would take on an adversarial character incompatible with the basic idea of LAW that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence . ORG went on to hold that it was true that since the introduction of LAW the right to file an objection had been considerably curtailed , but pointed out that in so doing the legislature had not changed the character of trial in absentia . In conclusion , no section of LAW nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel .

ORG has accepted , however , that a trial court may , at its discretion , allow counsel to speak in defence of an accused who has been declared in default . This discretion is quite frequently made use of . ORG strictly maintains the rule that if in such cases a trial court allows counsel to speak at all , it must afford him all rights available to the defence . It may not impose any limitations as to what subjects he may address ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) ; it may not deny him the right to speak last ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) ; if there are witnesses , counsel must be permitted to cross - examine them ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) .

ORG In principle ORG has held to its rule ( see paragraph CARDINAL above ) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel , but since its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) it is its established case - law that there is CARDINAL exception : in that judgment , it ruled , on the basis of , inter alia , LAW , that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that " compelling reasons " prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case . ORG has accepted the corollary that counsel should in any case , if he so requests , be allowed the opportunity to argue that such reasons exist ( judgments of DATE , GPE DATE , CARDINAL , and DATE , GPE DATE , CARDINAL ) .

ORG , in its judgment of DATE ( GPE DATE , CARDINAL ) , has held that a " compelling reason " exists not only if it is impossible for the accused to appear , but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he can not reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until DATE when he will be able to attend or that his counsel will be allowed to conduct the defence .

In its judgment of DATE , DD ( ORG , Offence and Offender ) CARDINAL , PERSON . PERSON ( case - law supplement to the Nederlands GPE , ORG , DATE , no . CARDINAL , p. CARDINAL ) , ORG has recognised that the expulsion of the accused pursuant to LAW generally constitutes a " compelling reason " for his absence at the trial .

ORG If counsel wishes to act for the defence in the absence of his client , he should expressly ask for permission to do so . His presence alone is not sufficient ( see , inter alia , the judgments of ORG of DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , DD CARDINAL ) . Neither is a request made by counsel for the hearing to be deferred , as was held in , inter alia , ORG judgment of DATE , DD CARDINAL .


JENIK  v. AUSTRIA AND OTHER APPLICATIONS

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

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

NORP The applicant is unemployed and has been receiving welfare benefits for himself and his CARDINAL children for DATE . Under LAW ( PERSON ) , he is entitled to DATE payments and , in addition , to certain extra allowances and non - cash benefits as specified by law and upon specific request .

On DATE the applicant filed a request with ORG , seeking temporary pecuniary assistance ( GPE ) in addition to the benefits already received , without specifying an amount . By an oral decision of the same day ORG granted him MONEY ( ORG ) .

On DATE ORG , at the applicant ’s request , provided him with a written copy of the above oral decision . The applicant , who was not satisfied with the amount granted , appealed on DATE .

On DATE ORG dismissed the applicant ’s appeal and lowered the amount to ORG CARDINAL.CARDINAL .

On DATE the applicant filed a complaint against this decision with ORG and asked for an oral hearing . He argued that ORG decision had been unlawful , in that ORG had not been competent to take the impugned decision , its decision was not sufficiently reasoned and it had not applied the provisions of ORG correctly . The authorities should have granted him a rent allowance equivalent to the full amount of rent paid by him , because rents were high in GPE and they had not objected to the applicant moving to a bigger apartment with his children .

On DATE ORG dismissed the applicant ’s complaint . It found that ORG had been competent to take the impugned decision and had decided properly on the applicant’

In so far as the applicant had complained that he should have been entitled to full reimbursement of the rent paid by him , ORG found that , in accordance with the law , a rent allowance was linked to the specific size of an apartment , with a fixed maximum amount for certain sizes . Only in very special circumstances could a higher amount be granted . The applicant had , however , failed throughout the proceedings to give any specific reasons , corroborated by evidence , as to why he should receive a higher rent allowance . The mere indication that rents in GPE were high was not a sufficient argument within the meaning of LAW . With regard to the applicant ’s request for an oral hearing , ORG found that the present case concerned only questions of law which , in line with the ORG ’s case - law , did not necessitate a hearing , and accordingly dismissed the request .

On DATE the applicant filed a request with ORG , seeking an additional allowance from DATE , without specifying an amount .

On DATE ORG granted his request , awarding him EUR DATE . On DATE the applicant , who was not satisfied with the amount granted , appealed .

On DATE ORG granted the applicant ’s appeal and raised the amount to ORG .

On DATE the applicant filed a complaint with ORG against this decision and requested an oral hearing . He submitted the same arguments as in his complaint to ORG concerning his request of CARDINAL DATE .

On DATE ORG dismissed the applicant ’s complaint and his request for an oral hearing for the same reasons as in its decision of the same day relating to the applicant ’s request of CARDINAL DATE .

On DATE the applicant filed a request with ORG seeking an additional allowance from DATE , reimbursement of the costs incurred for the repair of his washing machine and the payment of several electricity , gas and rent bills ; this was granted by several decisions of ORG , including those of DATE , CARDINAL DATE and DATE .

On DATE ORG rejected the applicant ’s request to transfer jurisdiction to the superior authority , on the ground that ORG and ORG itself had already decided on the matter and had granted the requested benefits .

On DATE the applicant filed a complaint against this decision with ORG , together with an application alleging a breach of the administrative authorities’ duty to decide ; he also requested legal aid and asked the court to hold a public hearing .

On DATE ORG ordered the applicant to provide further information about his complaint . The applicant complied on DATE .

On DATE ORG dismissed the applicant ’s complaint ; this decision was served on his counsel on CARDINAL DATE . ORG listed in detail the decisions taken by ORG and ORG between DATE and CARDINAL DATE in response to the numerous requests lodged by the applicant during this period , from which ORG had concluded that the applicant ’s request of DATE had been decided upon . They had , therefore , taken proper decisions , satisfying all the statutory requirements . In such a situation the applicant could not merely claim that CARDINAL of his requests had not been decided upon , but had to substantiate his allegations by referring to details . Since he had not done so , ORG had acted correctly in dismissing his request for transfer of jurisdiction . With regard to the applicant ’s request for an oral hearing , ORG found that the present case only concerned questions of law which , in line with the ORG ’s case - law , did not necessitate the holding of a hearing and therefore dismissed the request .

On DATE the applicant filed a request for additional allowances for cultural and education matters .

On DATE ORG dismissed the applicant ’s request of DATE .

On DATE ORG dismissed his appeal against this decision .

On DATE the applicant filed a complaint with ORG against ORG decision and requested legal aid .

On DATE ORG remitted the complaint to the applicant in order for procedural defects to be remedied . At the same time it dismissed the request for legal aid , finding that , in view of its caselaw , the complaint had no prospect of success . In view of the refusal of legal aid the applicant did not pursue the proceedings .

On DATE the applicant filed a request with ORG , seeking an additional allowance , amounting to ORG DATE for heating and electricity .

On DATE ORG dismissed his request , and on DATE ORG dismissed his appeal .

Having been granted legal aid , the applicant filed a complaint with ORG against that decision on DATE .

On DATE the applicant filed a request for an additional allowance for heating and electricity , amounting to ORG CARDINAL.CARDINAL .

On DATE ORG dismissed his request , and , on DATE , ORG dismissed his appeal .

Having been granted legal aid , the applicant filed a complaint against this decision with ORG on DATE .

On DATE the applicant filed a request for an additional allowance for heating and electricity , amounting to ORG CARDINAL.CARDINAL per month .

On DATE ORG dismissed the applicant ’s request for legal aid , considering that , in view of its case - law , the complaint had no prospect of success .

On DATE , having been granted legal aid , the applicant filed a complaint with ORG against ORG decision .

On DATE ORG dismissed the complaint . That decision was served on the applicant ’s counsel on CARDINAL DATE .

On DATE the applicant filed a request with ORG , seeking an additional allowance for the period from DATE until DATE .

On DATE ORG granted the applicant ’s request of DATE to transfer jurisdiction to the superior authority on the ground of ORG failure to decide ; being competent to decide the matter itself , it dismissed the applicant ’s request by a decision of DATE .

On DATE , having been granted legal aid , the applicant filed a complaint with ORG against this decision and asked the court to hold a public hearing . He argued that the authority had incorrectly applied the law and had not properly reasoned its decision , and that the facts of the case needed to be supplemented , since the calculation of his resources had taken into account alimony payments for his son PERSON from his former wife which he had not actually received . This point therefore needed to be further developed .

On DATE ORG dismissed the applicant ’s complaint without having held a hearing . ORG found that the authority had properly reasoned its decision and had applied correctly the relevant provisions of ORG . With regard to the applicant ’s argument that the authority should not have taken account of alimony payments from his former wife for his son PERSON , ORG found that , even if it accepted the applicant ’s position , namely that he had not received payments to which he had been entitled and that they should not therefore be taken into account when assessing his income , that income was still above the statutory limit ( ORG ) , so that he was not entitled to an additional allowance . Lastly , referring to the ORG ’s case - law , ORG found that in the present case it had only to deal with questions of law which could adequately be resolved on the basis of the case file and the parties’ written observations , and therefore dismissed the request for a hearing .

On DATE the applicant filed a request with ORG , seeking an additional allowance for heating costs from DATE .

On DATE ORG granted the applicant ’s request of DATE to transfer jurisdiction to the superior authority on account of ORG failure to decide , and at the same time granted an additional allowance amounting to CARDINAL NORP shillings ( ORG ) .

On DATE , having been granted legal aid , the applicant filed a complaint with ORG against that decision .

On DATE ORG dismissed the applicant ’s complaint . That decision was served on the applicant ’s counsel on CARDINAL DATE .

On DATE and DATE the applicant filed requests for reimbursement of the expenses incurred in the purchase of a DATE tree ( EUR CARDINAL ) and an NORP wreath ( PERSON – EUR CARDINAL.CARDINAL ) .

On DATE ORG dismissed these requests , finding that as this kind of expense was already covered by the DATE payment received by the applicant , additional grants could not be made .

On DATE ORG dismissed the applicant ’s appeal against this decision , but corrected the first instance ’s decision to the effect that the applicant ’s requests were rejected . It did not hold a hearing .

On DATE ORG dismissed the applicant ’s request for legal aid of DATE , finding that , in view of its case - law on the matter , the complaint had no prospect of success .

DATE . On DATE ORG granted the applicant legal aid .

On DATE the applicant filed a complaint with ORG ; on DATE he filed a complaint with ORG .

On DATE ORG declined to deal with the complaint , as did ORG on DATE .


MORAVIA SHOP INVEST, S.R.O. v. THE CZECH REPUBLIC

Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicant , ORG , ORG . , is a private company incorporated under NORP law with its head office in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr V.A. Schorm , from ORG .

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

On DATE the applicant company instituted planning proceedings ( územní řízení ) , seeking the delivery of a planning decision on the location of a commercial building .

By a public notice ( veřejná vyhláška ) of DATE ORG announced the commencement of the planning proceedings , but suspended them by a public notice of DATE until it would be provided with a final judgment of ORG ( městský soud ) relating to the ownership title to some of the real estates involved in the planning proceedings . This public notice was put on the notice board on DATE .

On DATE the applicant company filed a complaint alleging inactivity on the part of ORG , pursuant to LAW no . CARDINAL/CARDINAL on ORG which provided for measures against inactivity of administrative authorities . On DATE ORG ( magistrát města ) dismissed the applicant company ’s complaint , sharing the opinion of ORG that the planning proceedings could be resumed after the judicial proceedings would be terminated upon a final judgment . This decision was notified to the applicant company ’s representative on DATE .

On DATE ORG rejected the applicant company ’s request for review of the decision of DATE pursuant to LAW no . ORG which provided for review of a decision outside the formal appeal procedure ( přezkoumání rozhodnutí mimo odvolací řízení ) .

On DATE the applicant company lodged a constitutional appeal ( ústavní stížnost ) in which it complained , under Articles CARDINAL and CARDINAL of LAW ( Listina základních práv a svobod ) and LAW , of the inactivity of the administrative authorities as well as ORG decision of DATE .

In a decision of DATE , served on the applicant company ’s lawyer on DATE , ORG dismissed the applicant ’s constitutional appeal as having been filed outside the DATE statutory time - limit provided for in section CARDINAL(CARDINAL ) of LAW finding that the company ’s request for review LAW no . ORG did not constitute a remedy for the purpose of section CARDINAL(CARDINAL ) . Accordingly , the time - limit laid down for introducing a constitutional appeal had started running on DATE , on the date of the notification of ORG decision of DATE to the applicant company ’s representative , and had expired on DATE .

ORG added that the constitutional appeal had been filed outside the time - limit also in respect of the applicant company ’s request to quash ORG decision of DATE .

On DATE ORG issued , in favour of a third private company , a planning decision on the location of a construction partly situated on the lands involved in the planning proceedings initiated by the applicant company in DATE . The latter appealed , but on DATE ORG upheld the planning decision .

On DATE , a private company incorporated under NORP law , instituted proceedings against the applicant company seeking to determine the title to the real estates involved in the planning proceedings instituted by the applicant company in DATE .

On DATE ORG found that PERSON was the owner of these real estates . ORG upheld this judgment on DATE .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


The applicant , PERSON , is a GPE national , who was born on DATE and lives in PERSON , GPE .

The applicant applied to ORG for a retirement pension , but was informed , by a letter dated DATE , that the ORG would not consider his claim until DATE before his CARDINAL birthday . At present , women in GPE become eligible for a State pension at DATE , whereas men are not eligible until CARDINAL .

In their ORG , the ORG submitted that the applicant received a total of GBP CARDINAL per week in ORG benefits , including income support , disability living allowance and invalid care allowance . They claimed that the applicant would be in an identical financial position if he were a woman , the only difference being that part of the money paid to him by the ORG would be paid in the form of retirement pension rather than income support .

The applicant has not denied the ORG ’s account of his income . He claims , however , that if he were in receipt of ORG pension he would in addition be entitled to other financial benefits , such as a bus pass and discounts in shops , restaurants and hairdressers .


The applicant was born in DATE and lives in the village of GPE in LOC of GPE .

On DATE the applicant was arrested and detained on suspicion of having committed theft of aluminium wire . He was placed in a cell intended for the detention of administrative offenders ( “ ORG ” ) at the GPE district police station in the village of GPE .

On DATE the applicant lodged a complaint with an investigator of the GPE ORG of LOC , seeking to have the lawfulness of his arrest and detention challenged before GPE ORG of the Oryol Region and requesting that he be released . The complaint was never sent to the court .

On DATE the applicant was charged with theft . On DATE an order for his pre - trial detention was issued by the investigator and confirmed by the prosecutor of LOC of LOC .

On DATE the applicant was transferred to detention facility no . CARDINAL ( Investigatory Isolation Ward no . CARDINAL ) in the town of ORG .

On DATE and CARDINAL DATE the applicant again complained about the unlawfulness of his arrest and detention , this time to ORG of ORG . The complaints reached the court on CARDINAL and QUANTITY respectively .

On DATE the ORG asked to be sent the case file for examination and scheduled a hearing for DATE . The hearing was not held , since the case file had not been communicated and the applicant had not been brought to court .

On DATE the applicant 's counsel wrote to the prosecutor of the Znamenskiy District of LOC , complaining about the investigator 's failure to transfer the applicant 's complaint of DATE , alleging unlawful detention , to a court . The prosecutor did not react .

On DATE ORG held a hearing . The court found that the applicant 's arrest and detention were unlawful and ordered that he be released directly from the courtroom .

On DATE ORG of LOC remitted the criminal case against the applicant on a charge of theft to the public prosecutor of LOC of LOC for further investigation .

By a decision of CARDINAL DATE the GPE ORG of the Oryol Region discontinued criminal proceedings in view of the fact that the prosecution service had dropped the charges against the applicant .

The applicant brought proceedings for non - pecuniary damage caused as a result of his detention .

On DATE the ORG of Oryol held :

“ ... the court has come to the conclusion that the plaintiff ORG was unlawfully held in custody during the preliminary investigation for a total of DATE ... , which caused him moral and physical suffering . Furthermore , with regard to compensation for non - pecuniary damage , the court takes into account that , while detained in the ORG of LOC of LOC from DATE to DATE inclusive , ORG was not given food since , according to the report for the period from DATE by the public catering enterprise “ Znamenskoye ” , which supplies meals for persons detained in the GPE district police department 's ORG , food was not delivered to the district police department from DATE ... In that connection , the court can not account of CARDINAL applications from the head of the district police department ... requesting CARDINAL meals for detainees , since one is undated and the other is dated DATE , in other words DATE after PERSON was detained , and they do not indicate for whom the meals were ordered ... Equally , it follows from the application by ... PERSON 's brother ... that food parcels ... [ for ORG ] were not accepted from him or other relatives [ by the GPE district police department 's ORG ] . Only water and tea were accepted ... ”

The court awarded the applicant MONEY ( RUR ) for nonpecuniary damage . The judgment came into force on DATE .

According to the Government , the sum awarded was paid to the applicant on DATE in execution of the judgment . This was not denied by the applicant .

According to the applicant , he was given no water or food during his detention in the GPE district police station 's ORG from DATE inclusive . His relatives were allowed to pass him only water and tea in CARDINAL QUANTITY on DATE . He was not taken out for exercise or permitted to go to a lavatory , which was located outside the building , as frequently as he needed .

Records of the applicant 's questioning on DATE contain a statement by him to the effect that he had not eaten anything since DATE and had not been given water . Similarly , records of his questioning on DATE contain statements that he had not been given anything to eat and drink , that he had been brought water by his brothers and that the investigator had offered to give him food in exchange for a guilty plea .

The applicant 's complaint of CARDINAL DATE about the conditions of his detention was dismissed on DATE as illfounded by the LOC prosecutor 's office . However , the prosecutor noted that there had been no courtyard suitable for detainees ' exercise on account of repair work .

In their observations of CARDINAL DATE the ORG submitted that DATE meals had been served to detainees at lunchtime by the only catering enterprise in the village . The detainees had been served only tea for breakfast and dinner . Food from relatives was accepted without restrictions . According to police officers from the GPE district police station , the applicant refused meals provided by the police . However he received DATE food parcels from his relatives , without restrictions . There were no limitations on drinking water . He did not complain about the shortage of water or food . Thus , when questioned by the district prosecutor on DATE he made no complaints about his detention conditions . He asked only that a doctor be called since he felt unwell , and that request was granted . The applicant was regularly taken out to a lavatory . He was not tortured and no degrading acts were performed against him .

The Code of Criminal Procedure of DATE , in force at the material time , provided as follows :

“ ... The accused may ... appeal to a court against the unlawfulness and groundlessness of detention ... ”

“ ... When a prison administration receives a detainee 's [ appeal to a court against pre - trial detention ] , it must pass the [ appeal ] to the relevant court immediately , and , at any rate , not TIME after its receipt , having informed a public prosecutor ...

If the appeal was lodged via the prison administration , the prosecutor must send [ the documents confirming the lawfulness and validity of the detention as a measure of restraint ] to the court within TIME of receipt of the prison administration 's notification that the person concerned has lodged an appeal ... ”

“ ... A judge must review the lawfulness of the detention ... within DATE of receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint ... ”


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE ( GPE ) .

GPE was the owner of a flat in GPE , which she had let to GPE

In a writ served on the tenant on DATE , the owner informed her of her intention to terminate the lease and summoned her to appear before the Rome Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

On DATE , a notice was served on the tenant requiring her to vacate the premises .

On DATE , a notice was served on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession , but they proved unsuccessful as the owner and then the applicant were not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant became the owner of the flat and pursued the enforcement proceedings

On DATE , he made a statutory declaration that he urgently required the premises as accommodation for himself .

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Violation of Art. 5-3;Non-pecuniary damage - financial award

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

On DATE the applicant was arrested . On DATE ORG remanded him in custody until DATE on suspicion of homicide and attempted burglary . It relied on the evidence given by the applicant ’s co - suspect . In addition , the court held that his detention was justified in order to secure the proper conduct of the proceedings and referred to the severity of the anticipated penalty . Furthermore , having regard to the fact that the applicant had not confessed , the court considered that there was a reasonable risk that he would attempt to induce witnesses to give false testimonies or otherwise interfere with the proceedings .

On DATE the ORG prolonged the applicant ’s detention until DATE . It referred to the reasonable suspicion of his having committed the offences in question and the severity of the anticipated penalty . The court further held that there was a reasonable risk that the applicant would unlawfully obstruct the proceedings , having regard to the fact that his co - suspect had not been detained at the time . Additionally , it relied on the need to obtain further expert evidence . Lastly , the court considered that other preventive measures would not secure the proper conduct of the proceedings .

On DATE ORG dismissed the prosecutor ’s request for prolongation of the applicant ’s detention and ordered his release . It found that there had been no other evidence of the applicant ’s alleged involvement in the offences in question than the statements of his co - suspect . In addition , the statements of that co - suspect had not been consistent as at the earlier stage of the investigation he had excluded a possibility of the applicant ’s involvement in the offences . The applicant was released on DATE .

On DATE ORG ordered the applicant to undergo a DATE psychiatric examination in order to determine whether he could be held criminally responsible .

On DATE the prosecutor appealed against the decision refusing his request for prolongation of the applicant ’s detention . On DATE the ORG quashed the contested decision for failure to assess all the evidence in favour and against holding the applicant in custody and remitted the case .

DATE and CARDINAL September CARDINAL the applicant underwent examination in a psychiatric hospital .

On DATE ORG again refused the prosecutor ’s request for prolongation of the applicant ’s detention . The prosecutor ’s request was based on the evidence given by the applicant ’s co - suspect . ORG , however , found it to be unreliable . The prosecutor appealed against the decision of CARDINAL DATE . On DATE the ORG quashed the impugned decision on procedural grounds and remitted the case .

On DATE ORG ordered the applicant ’s detention for a period of DATE . It held that the period of the applicant ’s examination in a psychiatric hospital should count towards his detention on remand . ORG relied on the statements of the applicant ’s co - suspect , which it had found to be consistent . Further , it had regard to a report by the smell recognition expert ( opinia osmologiczna ) of DATE and medical evidence concerning the victim of the homicide . It also relied on the severity of the anticipated penalty . The applicant was re - detained on DATE .

On DATE the bill of indictment against the applicant and CARDINAL of his co - accused was submitted to ORG .

On DATE ORG extended the applicant ’s detention until DATE . In addition to the grounds invoked in its previous decision , the court considered that the applicant ’s continued detention was necessary in order to secure the proper conduct of the proceedings , given the serious nature of the offences with which the applicant had been charged .

The trial court held hearings on CARDINAL , DATE and DATE and DATE .

On DATE ORG convicted the applicant of aggravated homicide and attempted burglary and sentenced him to CARDINAL years’ imprisonment . The applicant appealed against that judgment .

On DATE the ORG quashed the judgment of ORG and remitted the case for retrial . It found that the trial court had exceeded its discretion as to the assessment of relevant evidence , in particular in respect of that given by the applicant ’s principal co - accused and the findings of the smell recognition expert .

On DATE ORG ordered that the applicant be kept in custody until DATE . It noted , having regard to the statements of the applicant ’s principal co - accused and the report by the smell recognition expert , that there was a strong likelihood that the applicant had committed the offences in question . Furthermore , it relied on the severity of the anticipated penalty .

The applicant ’s detention was subsequently prolonged by ORG on CARDINAL occasions : on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) and on DATE ( until DATE ) . In all those decisions , ORG reiterated the grounds given in ORG decision of DATE . In addition , it referred to the circumstances in which the offences in question had been committed and the need to obtain further expert evidence .

ORG held hearings on CARDINAL , DATE and DATE and CARDINAL February , DATE , DATE and DATE .

On DATE ORG convicted the applicant and his co - accused of aggravated homicide and attempted burglary and sentenced him to CARDINAL years’ imprisonment . The applicant appealed against that judgment . On DATE ORG prolonged the applicant ’s detention until DATE .

On DATE ORG quashed the first - instance court judgment in respect of the applicant on the same grounds as previously and remitted the case .

Subsequently , the applicant ’s detention was extended by ORG on CARDINAL occasions : on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) , on DATE ( until DATE ) and on DATE ( until DATE ) . ORG reiterated the grounds previously given for his detention . In addition , the court held that the applicant ’s continued detention was justified by the gravity of the offences with which he had been charged . In the court ’s view , the applicant ’s detention was the only measure which could secure the proper conduct of the proceedings . In the decision of CARDINAL DATE ORG noted that his continued detention was necessary in order to obtain another report of the smell recognition expert .

NORP The applicant ’s numerous appeals against the prolongation of his detention and requests to be released were to no avail .

ORG held hearings on CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE and DATE . In DATE and DATE respectively CARDINAL reports of the smell recognition experts were submitted to the trial court .

On DATE ORG gave judgment and acquitted the applicant . He was released on DATE . On DATE the ORG upheld the judgment of ORG . The prosecution filed a notice of cassation appeal , but subsequently withdrew it .

In DATE the applicant filed an application for compensation in respect of his manifestly unjustified detention with ORG . These proceedings are pending .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ 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 on leaving the country ( zakaz opuszczania kraju ) .

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

“ CARDINAL . 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 the 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 reasonable risk 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 time - limits 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 .

The whole period of detention on remand until DATE first conviction at first instance 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 , for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad or 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 in the court of appeal within whose jurisdiction the offence in question has been committed .