The applicant, Memduh Aksoy, is a Turkish national, who was born in 1971 and lives in Ankara. He was represented before the Court by Mr Tevfik Demirel, a lawyer practising in Ankara.

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

On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926.

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

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

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

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

The relevant provisions of the Constitution are as follows:

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

“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...

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

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

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

Article 129 §§ 2, 3 and 4 of the Turkish Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.

Section 22 (c) of the Military Legal Service Act provides:

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

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

Section 50 (c) of the Military Personnel Act provides:

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

Section 94 (b) of the Military Personnel Act provides:

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

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

Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:

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

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


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

Mr Jean-Pierre Sainte-Marie, a French national born in 1963, resides at Lantabat, in the Pyrénées-Atlantiques department; he is a farmer.

On 30 January 1985 police officers (gendarmes) arrested him and seized at his home various articles and documents, in particular arms and ammunition. They were acting in connection with an inquiry into a bomb attack carried out in the night of 19-20 January against the Mauléon-Licharre police station (gendarmerie), responsibility for which was subsequently claimed by Iparretarrak, a clandestine Basque separatist movement.

The following day a Bayonne investigating judge remanded the applicant in custody after having charged him under the following two heads: first, unauthorised possession of a category I weapon and category I ammunition, transport without a lawful reason of such a weapon and ammunition and of a category VI weapon, possession without a lawful reason of incendiary devices and criminal conspiracy; second, using explosives to cause criminal damage to another person’s immoveable property, in connection with an earlier attack against another police station - then under construction -, that of Lecumberry, in the night of 24 to 25 November 1984.

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

On 8 March 1985 the Bayonne investigating judge dismissed an application for release which Mr Sainte-Marie had submitted to him.

On an appeal by the applicant, the Indictment Division (chambre d’accusation) of the Pau Court of Appeal upheld the investigating judge’s order, on 5 April 1985, on the following grounds:

... Jean-Pierre Sainte-Marie said that he was a member of Iparretarrak, admitted ownership of the arms, ammunition and unlawful or suspect articles found in the cars and at his home, stated that the electrical mechanisms were to be used by the organisation for the detonation of explosives at targets of which he was unaware and acknowledged having even participated as driver in the expedition of 24-25 November 1984, the objective of which had been the police barracks under construction at Lecumberry, which were partly destroyed that night by explosives.

Jean-Pierre Sainte-Marie was therefore properly charged and remanded in custody, when brought before the Bayonne public prosecutor’s office on 31 January 1985, in respect of two investigations:

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

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

When he was interviewed as to the substance of the charges on 6 February 1985, Jean-Pierre Sainte-Marie, who had admitted the offences when he first appeared, refused to make any further statements.

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

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

The Indictment Division was composed of Mr Svahn, President, Mrs Plantavit de la Pauze and Mr Benhamou, judges, appointed on 22 March 1983 by the general assembly of the Court of Appeal (Article 191, fourth sub-paragraph, of the Code of Criminal Procedure).

On 4 July 1985 the Bayonne Criminal Court declared void the flagrante delicto investigation concerning Mr Sainte-Marie, as well as all the subsequent proceedings. It found as follows:

The flagrante delicto procedure confers on police officers by way of exception some of the widest powers of the investigating judge, including those which seriously encroach on individual freedoms such as the inviolability of a person’s home. That is why a strict interpretation is called for of the criteria authorising what are ‘veritable investigative powers’ (Stéfani and Levasseur, Droit pénal général et procédure pénale, 1966 edition, volume II, no. 259).

Admittedly Article 55 of the Code of Criminal Procedure, which defines the conditions for an investigation under the flagrante delicto procedure, does not indicate any time-limit for such an investigation, with the result that the surprisingly long duration - ten days - of that carried out following the criminal bomb attack at Mauléon is not sufficient to entail its nullity, but this extension beyond the usual period in such circumstances exposed the police officers to the risk of losing sight of the conditions laid down in the relevant provision. Thus the measures taken by them against Sainte-Marie are open to the following criticisms:

In the first place, for the period from 27 January 5 p.m. to 28 January 5.50 p.m. no measure is mentioned in the recapitulatory report and no official record appears in the file of the proceedings. This interruption of over twenty- four hours removed any justification for the very prolonged continuation of the inquiry under the flagrante delicto procedure.

Secondly, the attention of the police officers was finally drawn to Sainte-Marie not only because he was known to be sympathetic to the Basque separatist movements, but also by the information received on 30 January that this new suspect sometimes drove a Renault 14 of the same colour as a Simca ‘Horizon’ which had been noticed in a street of Mauléon on the night of the attack. Yet it is ‘within a very short time after the offence’ (Article 53 of the C.C.P. [Code of Criminal Procedure]) that the persons suspected must manifest ‘marks or clues’ and this temporal condition cannot be regarded as satisfied where the clue which led the investigators to Sainte-Marie’s home was only discovered by them ten days after the offences had been committed.

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

On 14 August 1985 the Criminal Appeals Division of the Pau Court of Appeal ruled on the prosecuting authority’s appeal against the decision of the court below:

Contrary to the claims of the defence, which were accepted without verification by the first-instance court, the inquiry was continued without interruption, day and night, until 30 January (see in particular the official record of 28 January whose existence has been ignored by the defence, who have no excuse for this because it is referred to in the recapitulatory report of the single inquiry covering the attack on the police station and the possession of weapons, the latter offence being the subject of the present proceedings) up to the discovery of the car which had been seen in the locality of the attack and the searches carried out at the home of the persons who use this vehicle, which led to the discovery of weapons and incendiary devices in the possession of Jean-Pierre Sainte-Marie, who, when questioned, denied having taken part in the attack on the Mauléon police station, but admitted to being a member of the ‘Abertzale’ movement and having participated in the attack carried out a few weeks previously on the Lecumberry police station;

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

Under Article 520 of the Code of Criminal Procedure, where the decision of a court which has ruled solely on a procedural objection without examining the charges, thus relinquishing jurisdiction for the continuation of the proceedings, is declared void, the Court of Appeal must try the case on its merits;

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

FOR THESE REASONS:

[The Court of Appeal]

Sitting in open court and in adversarial proceedings;

Holds that the appeal is admissible and well-founded;

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

Setting aside the relevant decision,

Quashes the decision appealed and, pursuant to Article 520 of the Code of Criminal Procedure, decides to try the case itself;

Sets down the case for hearing on 22 October 1985 to examine the charges;

Reserves the costs."

The Criminal Appeals Division was composed of Mr Svahn, President, and Mr Bataille and Mr Biecher, judges, all three of whom were appointed on 20 May 1985 by the First President of the Court of Appeal (Article 510 of the Code of Criminal Procedure).

By a second decision, of 29 October 1985, the Criminal Appeals Division sentenced the applicant to a term of four years’ imprisonment, on the following grounds:

"The case falls to be heard on its merits by the Court of Appeal in accordance with the decision of this court dated 14 August 1985.

The unlawful possession of an automatic pistol, a category I weapon and ammunition for that weapon, and two molotov cocktails, which are incendiary devices, and the transport in a vehicle of such material and of a flick-knife are facts established by the findings of the police investigators in the course of the searches carried out and are moreover admitted by the accused himself; they indeed constitute the offences of unauthorised possession of category I weapons and ammunition and transport without a lawful reason of category I and category VI weapons and category I ammunition and the offence of possession without a lawful reason of incendiary devices, provided for and punished by Articles 28 and 32 of the Act of 18 April 1939 and Article 3 of the Act of 19 June 1971.

The accused admitted and even asserted his membership of the Iparretarrak movement; this movement was formed with a view to attaining political objectives aimed at securing the independence and unification of the northern and southern Basque provinces; in pursuit of that aim it adopted various methods, in particular armed struggle, which make it an association or a conspiracy established with a view to the preparation and commission of offences against persons or property within the meaning of Article 265 of the Criminal Code.

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

The Criminal Appeals Division was composed of Mr Lasalle- Laplace, judge, replacing the President, the latter being unable to sit, and designated for this purpose by the First President on 10 December 1984, as well as Mr Bataille and Mr Biecher, judges.

Mr Sainte-Marie filed two appeals on points of law against the decisions of 14 August and 29 October 1985. They were dismissed by the Criminal Division of the Court of Cassation in a single judgment of 6 November 1986.

In his memorial the applicant had made four submissions.

Two of them related to the decision of 14 August 1985, which is not in issue here (see paragraph 24 below).

The first concerned the composition of the Criminal Appeals Division when it quashed the decision of 4 July 1985 (see paragraphs 14-15 above). The Criminal Division of the Court of Cassation dismissed this complaint in the following terms:

"As regards the first ground of appeal, based on the violation of Articles 49 and 591 of the Code of Criminal Procedure and of Article 6 (art. 6) of the European Convention ...[, whereby the appellant alleges as follows]:

‘In so far as it appears from the interlocutory decision of 14 August 1985 that the Pau Court of Appeal was composed of Mr Svahn, sitting as President, and Mr Bataille and Mr Biecher, judges;

in the first place, these judges had sat in the same case as members of the indictment division which, in two decisions dated 5 April and 8 August 1985, had confirmed orders refusing the applicant’s release; having thus been involved in the case at the stage of the investigation, they were precluded by virtue of the provisions of Article 49 of the Code of Criminal Procedure from subsequently participating in the trial and ruling on whether the offence had been committed and on the accused’s guilt;

secondly, Article 6 (art. 6) of the European Convention provides that ‘everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law ...’. The European Court has already held that impartiality must be assessed according to an objective test making it possible to affirm that a court affords sufficient guarantees to rule out any legitimate doubts in this respect; that was not the case in this instance, since, having given on two occasions, as members of an indictment division, decisions confirming orders refusing the applicant’s release, these judges had necessarily carried out a preliminary examination of the merits and adopted a position on the value of the evidence and clues against the accused, so that they were precluded from subsequently participating in the trial and ruling on whether the offence had been committed and the accused’s guilt’;

The fact that judges of the Criminal Appeals Division which gave the contested decisions had, in the same case, as members of the Indictment Division, previously ruled on the accused’s detention on remand is not a ground for quashing a judgment, since no statutory provision prohibits on pain of nullity the members of the indictment division which has given such a ruling from subsequently sitting in the Criminal Appeals Division before which the case comes and, furthermore, such participation is not contrary to the requirement of impartiality laid down in Article 6 (art. 6) of the European Convention ...;

Accordingly, the Court of Cassation is satisfied that the court was lawfully composed;

The submission must therefore fail."

The second submission concerned the lack of a statement of reasons, the failure to reply to final submissions, the lack of a legal basis and the violation of the rights of the defence (Articles 53, 56, 57, 76 and 593 of the Code of Criminal Procedure and Article 6 (art. 6) of the Convention).

The remaining submissions were founded on the lack of a record of the oath of the three witnesses who testified at the appeal hearing on 22 October 1985 (Articles 437, 446 and 454 of the Code of Criminal Procedure) as well as the failure to state reasons and the lack of a legal basis for the judgment of 29 October 1985 (Articles 265 of the Criminal Code and 593 of the Code of Criminal Procedure), and not the lawfulness of the composition of the Pau Court of Appeal in these proceedings (see paragraph 17 above).

On the basis of the decision of 4 July 1985 (see paragraph 14 above) and contending that the proceedings in question were void, Mr Sainte-Marie applied for his release.

On 8 July the investigating judge dismissed his application.

On 8 August 1985 the Indictment Division of the Pau Court of Appeal dismissed Mr Sainte-Marie’s appeal from the investigating judge’s order. Its decision was based on the following reasons:

"The facts have already been examined in an earlier decision of this Indictment Division dated 5 April 1985 [see paragraph 12 above]; express reference is made thereto.

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

However, the decision of the Bayonne Criminal Court was immediately appealed by the public prosecutor and is shortly to be examined by the Court of Appeal.

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

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

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

The Indictment Division was composed of Mr Svahn, President, and Mr Bataille and Mr Biecher, judges, appointed on 20 May 1985 by the general assembly of the Court of Appeal (Article 191, fourth sub-paragraph, of the Code of Criminal Procedure).

On 10 April 1986 the Bayonne Criminal Court sentenced Mr Sainte-Marie to five years’ imprisonment. Its judgment was upheld on 8 July 1986 by the Pau Court of Appeal. The applicant filed an appeal on points of law, which the Court of Cassation dismissed on 26 May 1987.

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


CESKOMORAVSKA MYSLIVECKA JEDNOTA v. THE CZECH REPUBLIC

The applicant is an association of hunters and gamekeepers, registered in Prague. It is represented before the Court by Mr P. Pilecký, a lawyer practising in Prague.

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

A.

In December 1948 a privately owned house and plot situated in Prague 1 was nationalised by the State pursuant to the Nationalisation of Wholesale Enterprises Act. No compensation was awarded to its owner.

In April 1949 the property was sold to the applicant association for 3,250,000 crowns. The monetary reform of 1 June 1993 devalued the crown at the rate of 5:1.

On 20 June 1991 the successors to the former owner of the property entitled to restitution under Section 3(2)(e) of the Extra-Judicial Rehabilitation Act (Zákon o mimosoudních rehabilitacích) (“the Restitution Act”), made a request to the applicant association for an agreement on restitution under Section 5 of this Act. As the applicant association refused to conclude the agreement, they brought an action against the applicant association in the Prague 1 District Court (obvodní soud).

On 3 December 1992 the District Court ordered the applicant association to conclude an agreement on the restitution of the property stating, inter alia, that the nationalisation of the property had been unlawful. As to the current value of the property, the court held that the parties could solve this issue in a separate agreement.

The applicant association appealed against this judgment claiming that the unlawfulness of the nationalisation had not been established. It also argued that it could not be a “mandated person” under Section 4 of the Restitution Act because it had acquired the property by a lawful purchase in April 1949.

On 30 September 1993 the Municipal Court (městský soud) rejected the applicant association’s appeal finding, in particular, that the Restitution Act applied in the present case as the former owner had not received any compensation and that the applicant association was not excluded from the scope of this Act. The court further stated that the applicant association claimed compensation for the revaluation of the property but did not specify the amount of the compensation and the claimants denied the revaluation of the property within the meaning of Section 7(4) of the Restitution Act. Moreover, the applicant association did not lodge a reciprocal action under Section 97 of the Code of Civil Procedure. The documents from 1988, 1987 and 1986 submitted by it, concerned the property in question, but were given to the court without any selection. The court found that it was for the applicant association to specify its claims of revaluation of the property and submit them in a separate action.

On 20 December 1993 the applicant association lodged an appeal on points of law (dovolání) claiming, inter alia, that it could not be required to return the property because it was not a legal entity which had acquired the property from the State free of charge.

On 30 December 1994 the High Court (Vrchní soud) dismissed the applicant’s appeal stating in particular:

“… if the property which was nationalised without compensation is not in the possession or ownership of such legal entities as mentioned in Section 1 of the Transfer of the State’s property to Other Persons Act as amended (i.e. state enterprise, state bank, state insurance company and other state organisation …), the redress for the violation of the property rights will be governed by the [Restitution] Act in accordance with Section 47(a) of the Transfer of the State’s Property to Other Persons Act (as amended). …”

As to the valuation of the property, the High Court found:

“According to Section 5(3) of the [Restitution] Act, the mandated person shall conclude an agreement with the entitled person about the surrender of the property without any obligatory settlement of mutual claims … Nor does Section 7(4) of the [Restitution] Act, according to which the entitled person shall compensate the mandated person for the difference between the original price and the actual price, specify the manner of that compensation. … This situation is governed by general provisions of the Civil Code concerning the obligations. However, Section 560 of the Civil Code concerning reciprocal obligations cannot be applied in the agreement on the surrender the property under the [Restitution] Act.”

On 10 April 1995 the applicant association lodged a constitutional appeal claiming, in particular, that the national courts had violated its right to safeguard its property rights under Article 11 § 1 of the Charter and Article 1 of Protocol No. 1 to the Convention. It challenged the findings of the courts concerning its position as a person obliged to surrender the property, the question of compensation for revaluation of the property, the relation between the Restitution Act and the Transfer of the State’s property to Other Persons Act (as amended) (Zákon o převodu majetku státu na jiné osoby) (“the Privatisation Act”) and the relation of these two Acts to the general civil law concerning obligations.

On 1 March 1996 the Constitutional Court (Ústavní soud) rejected the applicant association’s appeal as manifestly ill-founded referring to the findings of the High Court.

On 19 March 1996 an expert report determined the real value of the applicant association’s property at 32,894,140 crowns.

On 14 October 1996 the purchase price of 650,000 crowns fixed in pursuance of Section 16(3) of the Competence of Authorities of the Czech Republic on Extra-Judicial Rehabilitations Act, was paid to the applicant association by the Ministry of Finance as provided for in Section 11 of the Restitution Act.

B. Relevant domestic law

Extra-Judicial Rehabilitations Act No. 87/1991 [“the Restitution Act”]

In the preamble to the Restitution Act of 23 March 1991, the Federal Assembly of the Czech and Slovak Federal Republic affirmed its will to prevent violations of the kind committed in the past.

Section 1(1) sets out the aim of the Act, providing that it is designed to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights.

According to Section 2(1)(c) and (3), such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms, that is, an act in contradiction with the principles referred to in Section 1(1) of the Act. When an entitled person was deprived of his or her property rights without appropriate compensation under nationalisation laws adopted between 1945 and 1949, the entitled person has a claim under this Act, which he or she can raise under the Privatisation Act (as amended).

Section 3(1) provides that, in order to be entitled to restitution of his or her property, a claimant must be a physical person and a citizen of the Czech and Slovak Federal Republic whose property was ceded to the State in the circumstances listed in Section 6 of the Act. According to Section 3(2)(e), if the person whose property has been transferred to the State in cases specified in Section 6 dies before the expiry of the time period specified in Section 5(2), the entitled persons, provided they are citizens of the Czech and Slovak Federal Republic, shall be his or her siblings or in the case of decease of any of them, his or her children.

According to Section 4(1), those obliged to make restitution (“mandated persons”) are the State or the legal entities in possession of the property on the day on which this Act has entered into force with certain exceptions.

According to Section 7(4), if the value of the property has so increased that its price assessed on the day of the submission of the written request by the entitled person exceeds substantially the price of the initial property, it is left at the discretion of the entitled person, whether he or she will request financial compensation under Section 13 or whether he or she will request the surrender of real property. If he or she insists on the surrender of the property, the entitled person shall compensate the mandated person for the difference between the two prices specified in the preceding clause. Both prices shall be assessed in conformity with the price regulations in force on the day of entry into force of the Restitution Act.

Section 11 entitles physical persons who are under an obligation to restore property to recover the price they had paid when acquiring such property from the State.

Transfer of the State’s Property to Other Persons Act No. 92/1991 [“Privatisation Act”]

According to Section 1(1), this Act lays down the conditions for the transfer of State property, the right to manage which is vested in State enterprises, State financial institutions and other State organisations or State property used by organisations founded by municipalities or administered by the Land Fund (pozemkový fond) of the Czech Republic.

Section 47(1) provides that in the case of a dispossession of the whole or part of any privatised property that occurred in a manner specified in Section 2(3) of the Restitution Act, the persons entitled under the Restitution Act in relation to that property may make a claim in respect of which the remedy provided for is a privatisation decision concerning that property.

According to Section 47(a), if property seized in a manner specified in Section 2(3) of the Restitution Act is not used or owned by any of the legal entities referred to in Section 1 of the present Act, any redress for the violation of rights over that property shall be settled under the Restitution Act.

Competence of Authorities of the Czech Republic under the Extra-Judicial Rehabilitations Act No. 231/1991

Section 16(3) provides that any purchase price fixed before 1 June 1953 shall be deemed to have been recalculated at the rate of 5:1.

Code of Civil Procedure

According to Section 97(1), the defendant can submit his or her claims against the claimant by way of a reciprocal action.

Charter of Fundamental Rights and Freedoms

Article 11 § 1 provides inter alia that everybody has the right to own property. The property rights of every owner are equal in the eyes of the law and benefit from the same legal protection.


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

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

The applicant was born in 1966 and lives in Costeşti.

On 25 February 2008 at approximately 9 p.m. the applicant was visited at his home by two police officers, who invited him to the police station. The applicant refused in the beginning, but after being threatened with criminal prosecution for refusing to comply with legitimate police orders, he conceded.

Instead of being taken to the police station, the applicant was taken by the two police officers to the psychiatric hospital in Bălţi, where he was hospitalised against his will for a period of forty-one days.

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

Throughout his stay in the psychiatric hospital the applicant was administered injections which provoked in him a state similar to paralysis and as a result of which he lost consciousness. He was also forced to take a large amount of tablets on a daily basis. He attempted to refuse to take medication; however, he changed his mind after being threatened with a straitjacket and with being tied to his bed. According to the medical records from the hospital, the applicant received treatment against paranoid depression. The records do not contain any information concerning any risks for the applicant or for other persons posed by the applicant’s condition. The records contain a consent form filled in with the applicant’s name and allegedly signed by him. The applicant denied having signed such a form and submitted that it was a forgery which first appeared in his medical file after the criminal investigation had been initiated (see paragraph 13 below).

After being released from hospital, the applicant made official inquiries with the Rascani District Court to find out whether it had authorised his forced hospitalisation. In two letters dated 27 July and 26 December 2008, the Rascani District Court denied having ever received any official request for the applicant’s involuntary confinement in a psychiatric hospital.

On 13 June 2008 the applicant obtained from the Rascani hospital two medical reports confirming that he had not been addicted to alcohol or drugs, and that he had not suffered from any psychiatric disorders. The report concerning the applicant’s mental health was issued following his examination by a commission of eight doctors and was signed, inter alia, by a psychiatrist, A.G.

The applicant also requested and obtained from his local hospital a document stating that he had not been registered as a person suffering from mental disorders before 25 February 2008.

On 29 August 2008 the applicant lodged a criminal complaint with the Prosecutor’s Office, asking it to investigate his case and to prosecute the persons responsible for his illegal forced hospitalisation in a psychiatric hospital and for subjecting him to medical treatment against his will. He described in detail the conditions of his hospitalisation and the medical treatment which he had received, and argued that it amounted to inhuman and degrading treatment. He submitted that his hospitalisation had been possible owing to an official document referring him for compulsory treatment issued by Doctor A.G. from the Rascani hospital. Doctor A.G. had issued that document without ever having seen the applicant in person. The document was not dated, contained the wrong social security number as regards the applicant, and stated that he was in possession of medical insurance, which was not true because he was not in fact medically insured.

In the course of the investigation, the Prosecutor’s Office heard the applicant’s family doctor, who stated that before the events of 25 February 2008 she had been told by the applicant’s sister and mother that they had often had disputes with him and that he had threatened them with violence and even with death, and in general displayed very strange behaviour. The family doctor told the applicant’s mother to see the psychiatrist A.G. from the Rascani hospital. In February 2008 the applicant’s mother told the family doctor that she had an official document from A.G. referring the applicant for psychiatric treatment. The family doctor told the applicant’s mother that that document was sufficient to compulsorily confine the applicant in a psychiatric hospital.

The applicant’s mother told the prosecutors that starting in December 2007, when the applicant had returned from a long stay in the Russian Federation where he had been employed, he began to have drinking problems and to behave inappropriately. It was the applicant’s sister who went to the Rascani hospital and obtained from A.G. an official document referring the applicant for psychiatric treatment.

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

The two police officers who transported the applicant to the Bălţi psychiatric hospital stated that on 25 February 2008 they had been contacted by the applicant’s family doctor, who presented them with an official document referring the applicant for treatment. They took the applicant directly to the Bălţi psychiatric hospital and left him there.

The Prosecutor’s Office also heard psychiatrist A.G., who declared that at the beginning of February 2008 he had been visited by a woman complaining about the aggressive behaviour of her brother, the applicant. Later the applicant was brought in for consultation by a police officer (one of the police officers who had arrested the applicant) and, after a brief conversation, the doctor determined that the applicant was suffering from a delusional belief that his relatives were intending to sell his house. The doctor considered that the applicant represented a risk to his relatives and ordered his hospitalisation. The police officer took the applicant to the Bălţi psychiatric hospital. A.G. was asked why he had issued the applicant with a document in June 2008 stating that he was mentally healthy. A.G. answered that he had issued the applicant with such a document because the applicant had told him that he was healthy and had never received psychiatric treatment.

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

On 12 June 2009 the Prosecutor’s Office dismissed the applicant’s criminal complaint on the ground that his hospitalisation had been duly ordered by Doctor A.G., and that as a result of the applicant’s refusal to undergo a medical examination, it was impossible to determine whether the diagnosis as established by Doctor A.G. had been correct or not. In so far as the consent form allegedly signed by the applicant is concerned, it appears that it was disregarded and that no one during the proceedings questioned the fact that the applicant had been hospitalised against his will.

The applicant appealed against the above decision to the hierarchically superior Prosecutor’s Office; however, his appeal was dismissed on 13 July 2009.

On 23 July 2009 the applicant appealed to the Rascani District Court. He argued, inter alia, that the same psychiatrist, A.G., had issued him in June 2008 with a medical report stating that he did not suffer from any mental disorders and that he had not been registered as a mentally ill patient with his local hospital before 25 February 2008. He also submitted that there had been no court orders committing him to a psychiatric hospital against his will, and that his hospitalisation had therefore been unlawful and arbitrary.

On 23 November 2009 the Rascani District Court dismissed the applicant’s appeal on the ground that he had refused to be hospitalised for an in-patient examination.

After the communication of the present case to the Government, new criminal proceedings were opened by the General Prosecutor’s Office on 23 April 2010 concerning the alleged unlawful actions of the Bălţi psychiatric hospital’s medical personnel in respect of the applicant. That investigation is still pending. It does not appear from the material submitted by the Government that the investigation had progressed in any way between April 2010 and June 2011, when the Government submitted their final observations in the case.

Section 11 of the Law on Psychiatric Assistance (“the Law”) provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of the Criminal Code or in accordance with the provisions of section 28 of that Law. In both cases, except for reasons of urgency, the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists.

Section 28 of the Law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will. It provides that a person suffering from a mental disorder can be hospitalised against his or her will, before a court judgment for that purpose has been issued, when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others; when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone; or if left untreated, the mental disorder could cause serious harm to the health of the individual concerned.

Pursuant to section 32 of the Law, compulsory hospitalisation for treatment of a person in accordance with section 28 must be decided by a court. The hospital must apply to the court for permission, indicating in the application the reasons for which hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists. Pursuant to section 33, the court examining the application must take a decision within three days from the date on which the application was lodged, and the person concerned has the right to participate in the hearing. If the person’s condition is serious and he or she cannot come to the court, the judge is obliged to hold the hearing at the hospital. The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation.

Section 39 of the Law provides, inter alia, that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request. On the other hand, a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment.


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

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

The applicants, Mr Zoran Trpeski (“the first applicant”), Mr Blagoja Nikolovski (“the second applicant”), Mr Dragan Trpevski (“the third applicant”) and Mr Miroljub Trpevski (“the fourth applicant”), are Macedonian nationals who were born in 1955, 1951, 1963 and 1951 respectively, and live in Skopje. They were represented before the Court by Mr Z. Gavriloski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

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

On 29 July 1992 the National Bank issued an operating licence to Ljubljanska Banka - Makedonska Banka a.d. Skopje. Under the latter's Act of Incorporation (Договор за основање и работење), its shareholders were Ljubljanska Banka d.d. Ljubljana, a bank incorporated in Slovenia (“the majority shareholder”), possessing 51% of the share capital (главница), and eighty-one companies from the former Yugoslav Republic of Macedonia.

The case originated at the domestic level in events dating back to 1992 and 1994, which took place before the entry into force of the Convention in respect of the respondent State on 10 April 1997.

On 30 September 1994 a general meeting of shareholders of Ljubljanska Banka - Makedonska Banka a.d. Skopje, which was attended by a representative of the National Bank, adopted the following changes to its Statute (“the Statute”) (Статут): it changed the name to “Makedonska Banka a.d. Skopje” (“the Bank”); it specified that the first class of shares could be bearer shares (акции на доносител) and registered shares (акции на име); it decided that shareholders could ask the Bank to convert registered shares into bearer shares; and it agreed that bearer shares could be transferred merely by a handover (предавање). The National Bank had already approved these amendments on 27 September 1994. According to a stamp affixed to it, this latter decision was received by the Bank on 3 October 1994.

On 30 September 1994 the majority shareholder asked the Bank, under its amended Statute, to convert its shares into bearer shares and to register them as such in the shareholders' register (акционерска книга) (“the register”).

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

The buyers concluded further agreements of the same type (“the first set of agreements”, договор за пренос на акција и права од акција (полн индосамент)), valid from 30 September 1994, transferring to the first applicant the title to the shares obtained from the majority shareholder. The second, third and fourth applicants stated that the first applicant had paid for the bearer shares on their behalf.

Finally, the first applicant transferred a part of these shares under other agreements for full endorsement (“the second set of agreements”, договор за пренос на акција и права од акција (полн индосамент)) to the remaining applicants and Mr D.G. This became valid on 30 September 1994.

On 27 October 1994 the Bank received the bearer shares in hard copy from the then authorised printing company.

On the same day, the first applicant collected the printed shares from the Bank. He did so under the authorisation described above.

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

On 28 October 1994 the buyers handed over the bearer shares to the applicants and Mr D.G. That fact was supported by statements from the buyers' managers. After these transactions, the applicants' individual share in the Bank's capital was in the following proportion: the first applicant had 10%; the second applicant 5.5%; the third applicant 10%; and the fourth applicant 10%.

The applicants did not seek registration of their shares. According to extracts from the register dated 31 December 1994, 31 October 1995 and 31 December 1996 respectively, the structure of the Bank's shareholders remained unchanged during that period, namely the majority shareholder possessed 51% of the Bank's capital.

On 23 and 26 September 1997 respectively, the National Bank carried out a supervisory control of the Bank in order to determine its shareholder structure. The supervisory report stated, inter alia, that:

“ ... According to the Bank's register of shareholders, the largest shareholder remains Ljubljanska Banka d.d. Ljubljana possessing 51% of the Bank's share capital. Under Article 8 of the Bank's [Statute] adopted on 30 September 1994, Ljubljanska Banka d.d. Ljubljana asked for its shares to be issued as bearer shares ... In October 1994 the shares were printed. Ljubljanska Banka d.d. Ljubljana authorised Mr Zoran Trpeski, the Bank's Chief Executive, to collect its shares (once printed) ...It can therefore be concluded that 51% of the (Bank's) share capital consists of bearer shares which makes it impossible to precisely determine the Bank's share capital ... It is like this because bearer shares can be owned by anyone who physically possesses them. The owner of such shares is, for all practical purposes, unknown ... “

Relying on the above control, on 10 December 1997 the Governor of the National Bank concluded that the majority of the Bank's shares were bearer shares and that consequently, the Bank's shareholder structure could not be determined. He therefore asked the Bank to comply with the then Act on Banks and Savings Institutions of 1996 (see “Relevant domestic law” below) and to convert its bearer shares into registered shares. The Bank was asked to comply within two years of the date that the above Act came into force, that is by 30 April 1998.

At the applicants' request, on 15 April 1998, the Bank converted their bearer shares into registered shares and registered them as shareholders. According to the entry in the register, the applicants had obtained possession of the shares on 30 September 1994 on the basis of a (sales) transaction of the same date. It also provided them with registered share certificates (потврда за обична акција на име).

The National Bank noted the change of title to 51% of the Bank's capital made under the sales agreements of 30 September 1994 described above. It stated that the Bank had not sought approval for that change, as required under the then Act on Banks and Savings Institutions (see “Relevant domestic law” below). The Bank also failed to notify it about the sales agreements although the senior management had been aware of them. The report also stated that the majority shareholder's request of 30 September 1994 for conversion of its registered shares had been received by the Bank on 3 October 1994. In such circumstances, the majority shareholder had no right to seek conversion given that it had already transferred the title to its registered shares to the buyers, under the sales agreements of 30 September 1994.

On 19 July 1999 the Solicitor General (Јавен правобранител) brought a civil action against the applicants, the buyers and Mr D.G. (“the defendants”) asking the Skopje Court of First Instance (“the first-instance court”) to declare null and void the first and second sets of agreements. He also asked the court to issue an interim measure (времена мерка) preventing the applicants and Mr D.G. from disposing of the shares. The Solicitor General claimed that the first applicant, under the first set of agreements, had unlawfully obtained possession of 41% of the Bank's capital without having sought the approval of the National Bank, as required under the then Act on Banks and Savings Institutions; that the amended version of the Statute, under which the shares had been transferred, was unlawful since the National Bank's approval had been received by the Bank on 3 October 1994; and that the first applicant could not have disposed of the shares under the second set of agreements. On an unspecified date, several companies, the Bank's shareholders, (“the other shareholders”) joined the Solicitor General's claim.

On 28 July 1999 the first-instance court issued an interim order preventing the applicants and Mr D.G. from disposing of the shares. This decision was upheld by a decision of the Skopje Court of Appeal dated 8 October 1999.

On 27 January 2000 the first-instance court declared the first and second sets of agreements null and void (ништoвни). It also granted a pre-emptive right (право на првенствено купување) to the other shareholders, claimants in these proceedings, to purchase the shares under the price set in the agreements. It decided not to grant such right to the State.

The first-instance court established that on 30 September 1994, the majority shareholder had transferred to the buyers, under three separate agreements, part of its shares amounting to 41% of the Bank's capital. On the same date, the buyers and the first applicant concluded the first set of agreements, transferring these shares to him. Under the second set of agreements, the first applicant transferred part of these shares to the remaining applicants and Mr D.G. The court ruled that, given the absence of a notification or approval by the National Bank, as required under the then banking rules, the first applicant, under the first set of agreements, had unlawfully obtained possession of 41% of the Bank's capital.

It further held that these transactions had been carried out under the amended Statute, which could not be regarded as having been in force at the relevant time, since the Governor's approval of 27 September 1994 had been received by the Bank on 3 October 1994. The National Bank had not been provided with the decision amending the Statute, but only with a consolidated version (пречистен текст).

On 11 July 2000 the Skopje Court of Appeal upheld the first-instance court's decision in respect of the first and second sets of agreements. It dismissed the other shareholders' claim for a pre-emptive right to purchase shares. It also dismissed the applicants' arguments that bearer shares were to be regarded as having been transferred by a mere handover and that a written agreement had not been required. It reiterated the first-instance court's finding that the first applicant, under the first set of agreements, had unlawfully obtained 41% of the Bank's capital.

On 12 June 2002 the Supreme Court dismissed appeals by the applicants on points of law (ревизија). It reiterated the facts established by the lower courts: that the sales transactions described above had been carried out under the amended Statute which, due to the late receipt of the Governor's approval, had not been in force at the relevant time; that the first applicant, under the first set of agreements, had obtained title to 41% of the Bank's capital; and that the National Bank had not been notified by the Bank or first applicant nor, as required under the then banking rules, sought approval for that fact.

This decision was served on the applicants on 11 September 2002.

On 11 December 2000 the Bank announced a public call to its shareholders requiring them to convert share certificates into ordinary shares with a different nominal value.

On 28 and 29 December 2000 respectively, the applicants asked for their shares to be converted in accordance with the public announcement described above. On 9 January 2001 the Bank refused their requests, relying on the following: i) the Appeal Court's decision of 11 July 2000, ii) the National Bank's approval of 24 October 2000 to one of the buyers to obtain possession of 15% of the Bank's capital and iii) submissions by the Stock Exchange Commission (Комисија за хартии од вредност) dated 30 November 2000 according to which the Bank, under the court decision of 11 July 2000, should register the buyers as shareholders.

On 23 April 2001 the applicants brought a civil action against the Bank asking for recognition of title to the shares as noted in the share certificates of 15 April 1998. They claimed that the first and second sets of agreements had not been a legal ground for obtaining title to the bearer shares, as the first class of shares issued by the Bank. They argued that the bearer shares had been transferred to them by a mere handover, as specified under the then applicable rules, after 27 October 1994, the date of their production. The bearer shares therefore had not existed at the time when the agreements had been concluded. On 15 April 1998, the date when they had been provided with the share certificates, none of the applicants' individual share in the Bank's capital had exceeded the statutory threshold which would have required approval by the National Bank. They also asked the court to issue an interim measure preventing the Bank from disqualifying them as shareholders.

On 12 June 2001 the first-instance court inspected the Bank's register. According to the record, the buyers and not the applicants were registered in the register as the Bank's shareholders. Under the Court of Appeal's decision of 11 July 2000, the dates of entry in the register were indicated as 24 October and 6 December 2000 respectively.

On 5 July 2001, after it had established the facts concerning the agreements of 30 September 1994, the first-instance court dismissed the applicants' claim arguing that shares were to be regarded as movable assets (подвижна телесна ствар) and that there was a close link between shares and corresponding rights attached thereto. It held that the substantive property law (стварно право) applied to the acquisition, possession and transfer of shares and that contract and tort law (облигационо право) applied to the corresponding rights and obligations. It ruled, accordingly, that the lawfulness of possession of a share depended on the existence of a valid legal ground and the subjective conviction of the holder.

The court held that the applicants did not have lawful possession of the bearer shares because the first and second sets of agreements had been declared null and void. They had not acted in good faith when obtaining possession of those shares because the first applicant had collected them from the Bank on 27 October 1994 on behalf of the majority shareholder after they had been printed. Finally, in the absence of a valid legal ground, the applicants could not have obtained possession of the shares by a mere handover.

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

On 14 March 2002 the Skopje Court of Appeal dismissed the applicants' appeal, finding no grounds to depart from the established facts and the reasons given by the first-instance court. It reaffirmed that on 30 September 1994 the applicants did not have actual possession of the bearer shares. The court concluded that the applicants had obtained title to the shares under the agreements which had been declared null and void.

On 14 May 2003 the Supreme Court dismissed the applicants' appeal on points of law of 15 May 2002, stating that, given the absence of a valid legal ground for their transfer, they did not have lawful possession of the shares. In this connection, it referred to the first and second sets of agreements being declared null and void. This decision was served on the applicants on 2 September 2003.

In June 1998 the Governor of the National Bank revoked the first applicant's licence as a bank manager. That decision was subject to review and was finally superseded by a decision of the Supreme Court of 6 February 2002 limiting the prohibition to exercise his profession at the Bank.

On 28 February 2001 the Constitutional Court declared section 28 § 1 of the then valid Act on Political Parties (Закон за политичките партии), under which political parties could earn income from their own assets (приходи, од сопствен имот), unconstitutional. The court found that that provision was imprecise and contrary to the rule of law and worked against the market and entrepreneurship and the functions and objectives of political parties. That decision was given in response to a request by a political party (U.br.45/2000 and 61/2000, published in the Official Gazette no. 23/2001).

Section 236 of this Act, as valid at that time, provided that securities (хартии од вредност) could be issued, inter alia, as registered or bearer.

Section 237 of this Act provided that an obligation attached to securities was to be regarded as transferred with the transfer of the securities.

In accordance with section 239 § § 1, 2 and 4, the rights attached to securities could be obtained by their lawful holder. Any holder of a bearer share was to be regarded as lawful. A diligent holder of a bearer share would lawfully possess it even if the company or its former holder had yielded procession of it unwillingly.

Under section 241 the right of a bearer share is transferred by a mere handover.

Section 250 § 1 provided that the company, in response to a request and at the holder's expense, can convert the bearer share into a registered share.

This act was valid until 2001 when the new Obligations Act came into force.

In accordance with section 2 of this Act, as valid at that time, registered or bearer written certificates would be regarded as securities.

Section 5 § 2 of this Act provided that corresponding rights and obligations could be obtained by transferring the securities from the company to the buyer or his or her representative.

Section 6 § § 1 and 2 provided that a registered share was regarded as having been transferred by a full endorsement (полн индосамент) unless it was explicitly stated that it could not be transferred. A bearer share was regarded as having been transferred by a mere handover.

This Act was replaced by the Securities Trading Act of 1997 (see below).

In accordance with section 4 of the then valid Securities Trading Act, securities could be registered or bearer.

Under section 5 § 2, bearer securities were transferred by a mere handover.

In accordance with section 12 § § 2 and 3, there were only registered shares. Bearer shares were null.

This Act was replaced by the then Securities Act of 2000 and the current Securities Act of 2005.

Section 18 of this Act required that the Governor of the National Bank must approve any acquisition of an individual share of more than 25% of a bank's capital.

Pursuant to section 19, a bank was required to notify the National Bank if an individual share exceeded 20%.

In case of non-compliance, the bank may be fined (section 126).

Under section 4 § 2 of this Act, banks could only issue registered shares.

In accordance with section 131-b, banks were required to adjust their operation within two years of the Act entering into force.

Section 83 provided that that Act would enter into force eight days after being published in the Official Gazette.

Section 289 § § 1 and 2 of this Act provided that registered shares were to be recorded in the register of shareholders. Every person registered in the register of shareholders was to be regarded as a shareholder.


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

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

The applicant was born in 1965 and lives in Grafengehaig.

On 26 February 2003 at 3.03 p.m. the car of which the applicant is the registered keeper was recorded by police officers using a radar speed detector travelling at a speed of 181 k.p.h., thus exceeding the speed limit of 130 k.p.h.

On 26 March 2003 the Graz-Umgebung District Authority (Bezirkshauptmannschaft) ordered the applicant to disclose within two weeks the full name and address of the person who had been driving his car at the material time. The order referred to section 103(2) of the Motor Vehicles Act (Kraftfahrzeuggesetz) as its legal basis. The applicant did not reply.

On 14 April 2003 the Graz-Umgebung District Authority issued a provisional penal order (Strafverfügung). Relying on sections 20(2) and 99(3)(a) of the Road Traffic Act, it sentenced the applicant to pay a fine of 181 euros (EUR) with three days' imprisonment in default for speeding. In addition, relying on sections 103(2) and 134(1) of the Motor Vehicles Act, it sentenced the applicant to pay a fine of EUR 181 with three days' imprisonment in default for failure to comply with the order of 26 March 2003 to disclose the driver's identity.

The applicant lodged an objection against this decision. On 19 May 2003 he filed submissions stating that he had not been driving his car but that he refused to disclose the driver's identity as he considered this obligation to be at variance with Article 6 of the Convention.

Subsequently, the Graz-Umgebung District Authority heard evidence from the police officer who had initiated the proceedings for speeding. On 15 July 2003 the statement of the police officer, who had confirmed that the radar detector, which had been duly calibrated, had measured a speed of 181 k.p.h. and that he had recorded the number of the car, was communicated to the applicant and he was requested to submit his defence in respect of the speeding offence. At the same time he was informed that the proceedings for failure to disclose the identity of the driver had been discontinued.

By letter of 31 July 2003 the applicant, represented by counsel, maintained his defence.

On 15 October 2003 the Graz-Umgebung District Authority dismissed the applicant's objection and issued a penal order (Strafverfügung) in which it convicted him of speeding and imposed a fine of EUR 180 with three days' imprisonment in default. It also ordered him to pay procedural costs in the amount of EUR 18.

The authority noted that the applicant had refused to disclose who had driven his car on 26 February 2003 when it had been recorded exceeding the speed limit. The authority therefore concluded that he had himself been the driver. It observed that this presumption was based on the case-law of the Administrative Court, which had considered that in a case in which the registered keeper of a car did not disclose the driver's identity and did not submit any exculpating evidence in his defence, the authority could reasonably conclude that the keeper himself had been the driver.

The applicant appealed to the Styria Independent Administrative Panel (Unabhängiger Verwaltungssenat). He maintained that the obligation to disclose the identity of the driver pursuant to section 103(2) was incompatible with Article 6 of the Convention, as was the drawing of inferences from the mere fact that he had refused to disclose the driver's identity. In this connection the applicant referred to John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996I). In addition, he reiterated that he had not been driving his car on 26 February 2003 and had not even been in Austria at the relevant time. He further asserted that his car had been used regularly by a number of persons but that he had not kept any records and was therefore not in a position to provide the required information.

On 18 November 2003 the Styria Independent Administrative Panel dismissed the appeal. It dispensed with a hearing by virtue of section 51e(3) of the Administrative Offences Act (Verwaltungsstrafgesetz).

The Independent Administrative Panel's reasoning reads as follows:

“In accordance with the principle of establishment of the facts of the authorities' own motion for the purposes of section 37 of the General Administrative Procedure Act (AVG), the material truth must be ascertained; in this regard the authorities are not bound by the facts submitted by the parties, but must establish the true facts by taking the necessary evidence. Under section 45(2) of the AVG the authorities must assess freely, giving careful consideration to the results of the investigation, whether or not a given fact is to be accepted as proven. On the basis of the principle that the court controls the conduct of the proceedings, articulated in section 39 of the AVG, the obligation to establish the facts lies with the authorities; this does not, however, dispense the party from the obligation to contribute to the establishment of the relevant facts. The obligation on the accused in criminal proceedings to cooperate means that he is not merely responsible for contesting the specific evidence against him, without submitting equally specific statements in reply and adducing the relevant evidence ... Nor can the appellant in the present case be released from this obligation by relying on Article 6 of the European Convention on Human Rights. On the contrary, the fact of refusing to name the driver of the vehicle amounts to an infringement of the obligation to cooperate as set forth above. Hence, merely asserting that he was not driving the vehicle registered in his name at the scene of the offence and at the material time runs counter to the appellant's obligation to contribute to the establishment of the relevant facts.

In accordance with section 45(2) of the AVG the authorities therefore presume that the appellant himself was the driver. His statements are to be regarded as an attempt to justify his conduct. It has not been established during the proceedings, nor has the applicant seriously asserted in substance, that he could not have contributed to the establishment of the facts without incriminating himself and could not have been expected to do so.

The offence with which the appellant was charged is therefore to be regarded as subjectively and objectively proven and imputable to him. His appeal submissions concerning Article 6 of the European Convention on Human Rights are unfounded in relation to the offence with which he was charged.”

Turning to the fixing of the sentence, the Independent Administrative Panel noted that the applicant had been charged with exceeding the speed limit substantially, by 45 k.p.h. As excessive speed on motorways was often the reason for serious or very serious traffic accidents, the imposition of a fine of EUR 180 had been appropriate.

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

On 9 June 2004 the Constitutional Court declined to examine the applicant's complaint for lack of prospects of success.

On 19 October 2004 the Administrative Court declined to examine the applicant's complaint by virtue of section 33a of the Administrative Court Act, since the amount of the penalty did not exceed EUR 750 and no important legal issue was at stake.

Section 51e of the Administrative Offences Act (Verwaltungsstraf-gesetz) reads as follows:

“(1) The Independent Administrative Panel shall hold a hearing in public.

(3) The Independent Administrative Panel may dispense with an appeal hearing if

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

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

the decision being appealed against imposed a financial penalty not exceeding 500 euros

the appeal is directed against a procedural decision

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


Violation of Art. 3 (substantive aspect)

The applicant was born in 1967 and lived until his arrest in St. Petersburg. He is now serving a prison sentence in the Leningrad Region.

On 18 November 1998 the applicant was arrested by police officers, taken to a police station and allegedly beaten up. He was released on the same day. The applicant says that he complained to a prosecutor about the beatings on 7 December 1998.

On 14 January 1999 the applicant was arrested on suspicion of robbery and taken to police station no. 43 in St. Petersburg, where he alleges he was seriously assaulted by police officers.

From 14 to 21 January 1999 the applicant was detained in a cell in police station no. 43. On 21 January 1999 he was transferred to detention facility no. IZ-47/1 in St. Petersburg, known as “Kresty”.

In June 2001 the applicant asked the St. Petersburg City Court to grant him an amnesty and discontinue the criminal proceedings. On 4 July 2001 the City Court refused his request, holding that it was for the trial court to examine whether the applicant qualified for an amnesty.

On 4 June 2001 the St. Petersburg City Court appointed the applicant's mother to represent him. Following her appointment, she had several meetings with the applicant in the detention facility. Prison warders were always present at the meetings.

At the trial the applicant was represented by his mother and Ms S., of counsel. They submitted evidence and made a successful application to the St. Petersburg City Court to call additional witnesses and exclude certain items of evidence presented by the prosecution.

On 20 September 2001 the St. Petersburg City Court found the applicant guilty of several counts of robbery, establishing a criminal enterprise and the aggravated offence of selling criminally acquired property and sentenced him to sixteen years' imprisonment. It based its judgment on the applicant's partial confession in open court, the oral evidence of the co-defendants, victims and witnesses at the trial, expert opinions and real evidence. In determining the sentence, the City Court took into consideration the assistance the applicant had given to the investigating authorities in solving the case and identifying other participants in the criminal enterprise.

The applicant appealed against the judgment of 20 September 2001, complaining, in particular, that the City Court had not applied an amnesty law.

On 9 December 2002 the Supreme Court of the Russian Federation upheld the judgment of 20 September 2001, endorsing the reasons given by the City Court. It also held that the St. Petersburg City Court had lawfully refused to apply the amnesty law of 28 June 2002 to the applicant because of the especially serious nature of his offences.

From 21 January 1999 to 16 February 2003 the applicant was held in detention facility no. IZ-47/1 in St. Petersburg.

According to a certificate issued on 11 November 2005 by the facility governor, and produced by the Government, the applicant was held in eleven different cells during the reference period. Each cell measured 8 square metres and had 6 bunks. According to the Government, no information on the number of inmates in the cells was available as the documents had been destroyed. They further submitted that the applicant had at all times had eight hours' sleep.

The applicant did not dispute the cell measurements or the number of bunks. However, he alleged that he had usually shared the cells with 12 to 14 detainees. Given the lack of beds, inmates slept in shifts.

The Government, relying on further certificates issued on 11 November 2005 by the facility governor, submitted that all cells were equipped with a lavatory pan and sink. The pan was separated from the living area by a curtain. According to the Government, the pan was “in a satisfactory sanitary condition”. The cells were disinfected once a week. Inmates were allowed to take a shower once a week. They were provided with bedding at the same interval. The cells were naturally ventilated through the windows which were not covered with metal shutters. Each cell also had a ventilating shaft. The Government further stated that the temperature in the cells was “normal”. Additional window-frames with glass were inserted in winter. Central heating devices were installed in the cells, which were also equipped with lamps which functioned day and night.

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

The applicant also contested the Government's description of the toilet facilities. According to him, inmates had to make curtains to separate the lavatory pan from the rest of the cell. The curtains were frequently removed by warders. Inmates were allowed to take a shower once a week but no toiletries were distributed. The entire cell was afforded six minutes to shower, although there was only six shower heads. The applicant added that he had been provided with bedding when he had entered the facility on 21 January 1999, but it had not been changed since. The applicant's mother had provided him with replacement bedding when it had worn out.

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

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

The Government submitted that the applicant had at least a one-hour walk daily.

The applicant did not comment on this.

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

The parties disputed the treatment that the applicant had received in the facility. According to a certificate of 11 November 2005 issued by the facility governor and submitted by the Government, the applicant was examined by a doctor at ten-day intervals and had chest X-rays every three months. The Government gave a detailed description of the treatment the applicant had been provided with, including the type of medicine, dose and frequency. They also furnished a copy of the applicant's medical record and medical certificates. The medical certificates indicate that the applicant is now considered to have clinically recovered from the tuberculosis.

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

On 19 June 2001 the applicant complained to the Constitutional Court of the Russian Federation about the inadequate conditions of his detention, his poor state of health and the authorities' failure to grant him an amnesty. The Constitutional Court sent the applicant's complaint to the Ministry of Justice.

On 22 April 2002 the Main Department of the Ministry of Justice for Execution of Sentences sent a letter to the applicant informing him that his complaints had been examined and found to be unsubstantiated.

On 22 May 2002 the applicant complained to the St. Petersburg Department of the Ministry of Justice that he was being held in appalling conditions. The outcome of those proceedings is unclear.

Article 161 § 1 of the Russian Criminal Code establishes the offence of robbery. Article 161 § 3 makes it an aggravating factor for the robbery to be committed by a criminal enterprise or a person who has already been convicted of theft or extortion. Robbery under Article 161 § 3 is punishable by a maximum sentence of twelve years' imprisonment and confiscation of property. Article 162 § 1 establishes criminal liability for the use of actual or threatened force against another in order to commit a theft. Under Article 162 § 3 such an offence committed by a criminal enterprise or a person who has been convicted of extortion or theft is punishable by a maximum sentence of fifteen years' imprisonment. Under Article 175 § 2 the unlawful sale of criminally acquired property by a group of individuals or a person who has been convicted of a theft, extortion or the sale of criminally acquired property is punishable by up to five years' imprisonment. Establishing a criminal enterprise is punishable under Article 209 § 1 by a maximum of fifteen years' imprisonment.

Under Article 69 § 1 of the Russian Criminal Code consecutive sentences are imposed upon a defendant who is convicted at the same time of several distinct offences (cumulative offences). Article 69 § 3 provides that the final sentence for cumulative offences, should not exceed twenty-five years' imprisonment.

Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than 4 square metres of personal space in his or her cell.

Under Article 17 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) detainees are entitled to lodge, inter alia, with a court, petitions and complaints concerning violations of their rights. Article 21 provides that such complaints addressed to various State and municipal bodies and NGOs must be sent through the detention facility authorities. Complaints addressed to a prosecutor, a court or any other State body supervising the detention facility are not subjected to censorship and are sent to the addressee in a closed envelope.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows:

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

When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.

The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).

As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”.

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


No violation of Art. 5-3;Remainder inadmissible

The applicant was born in 1959 and lives in Hamburg, Germany.

On 25 July 2001 the applicant was arrested by the police. On 26 July 2001 the Katowice District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of the reasonable suspicion that, acting in an organised gang, he had been involved in the traffic of human beings and narcotics, had committed robberies and had derived profits from prostitution. The court considered that, given the fact that the applicant had been living in Germany, there was a real risk that he might go into hiding. In addition, it found that the case was complex as it concerned an organised criminal group and that, once released, the applicant might tamper with evidence or otherwise obstruct the proceedings.

The applicant appealed against the detention order. However, on 22 August 2001 the Katowice Regional Court (Sąd Okręgowy) dismissed the appeal.

On 18 October 2001 and 16 January 2002 the Bielsko-Biała Regional Court prolonged the applicant’s detention. The court repeated grounds given previously: the reasonable suspicion that he had committed the offences, the severity of the anticipated sentence, the complexity of the case and the risk that the applicant might go into hiding as he had no permanent residence in Poland. His appeals against both decisions were dismissed.

On 18 February 2002 the applicant and his accomplices were indicted before the Bielsko-Biała Regional Court.

On 16 April 2002, the Bielsko-Biała Regional Court again prolonged the applicant’s detention until 31 October 2002. It reiterated the grounds that had been stated in the previous decisions.

On 3 and 24 June 2002 the Bielsko-Biała Regional Court dismissed his applications for release reiterating the previously given grounds for detention.

On 29 August 2002 the Bielsko-Biała Regional Court held the first hearing. Subsequently, several hearings were held, and the court fined the witnesses who failed to appear. The applicant and his lawyer were present at those hearings.

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

On 18 June 2003 the Katowice Court of Appeal (Sąd Apelacyjny), on the application of the Bielsko-Biała Regional Court, further prolonged the applicant’s detention. The court repeated the grounds originally given and stressed the fact that the case concerned an organised criminal gang.

On 1 August 2003 the Bielsko-Biała Regional Court gave judgment with respect to the applicant and twelve co-accused. The applicant was convicted as charged and sentenced to four years’ imprisonment. The applicant requested a reasoned judgment to be prepared to enable him to lodge an appeal.

On 30 January 2004 the applicant was released from detention.

On 16 December 2004 the Katowice Court of Appeal partly allowed his appeal. The applicant was acquitted of the charges of being a member of an organised criminal group. The appellate court further quashed and remitted the part of the Regional Court’s judgment which concerned his conviction for helping in the illegal crossing of the Polish borders and in the trading in human beings. The court upheld the remaining part of the impugned judgment, which concerned the running by the applicant of a night club and possession of cannabis, and sentenced the applicant to one year and two months’ imprisonment.

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

The remaining part of the proceedings, which was remitted by the Katowice Court of Appeal, is pending.

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

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

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

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

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

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 at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 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 257 reads, in so far as relevant:

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

Article 259, in its relevant part, reads:

“1. 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:

(1) seriously jeopardise his life or health; or

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

The 1997 Code not only sets out maximum statutory timelimits for detention on remand but also, in Article 252 § 2, 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 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.

Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.