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[ "THIRD SECTION CASE OF STOICA v. ROMANIA (Application no. 42722/02) JUDGMENT STRASBOURG 4 March 2008 FINAL 04/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stoica v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President, Corneliu Bîrsan, Boštjan M. Zupančič, Alvina Gyulumyan, Egbert Myjer, Ineta Ziemele, Luis López Guerra, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 12 February 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "42722/02) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national of Roma origin, Mr Constantin Decebal Stoica (“the applicant”), on 19 November 2002. 2. The applicant was represented by his parents, Mrs Floarea Stoica and Mr Marin Dumitru Stoica, the European Roma Rights Center (“the ERRC”) in Budapest, Hungary and the Roma Center for Social Intervention and Studies (“the Romani CRISS”) in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr R.-H. Radu, from the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, under Article 3, that he had been ill-treated by police officers and that the ensuing investigation into the incidents had not been effective. He further alleged that the impugned events and the flaws in the investigation had been motivated by racial prejudice, in breach of Article 14 taken in conjunction with Article 3. Under Article 6 § 1 of the Convention, he also complained that he had no access to court to obtain redress for the alleged ill-treatment inflicted on him by the police officers. Lastly, the applicant alleged that no effective remedy was available to him to challenge the prosecutor’s decision in the case. 4.", "On 8 November 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1987 and lives in Gulia, a village with an 80% Roma population in the commune of Dolhasca, Suceava county.", "A. The ill-treatment inflicted on the applicant 6. On 3 April 2001 the deputy mayor, four police officers from the Dolhasca Police Force and their chief, six public guards from Dolhasca and a driver, left in three cars to enforce a by-law against owners whose cattle were grazing on public pasture. Three of the public guards were wearing black uniforms with hoods and carrying truncheons. At around 8 pm, on their way back to Dolhasca Police Station, they entered C.C.’s bar in Gulia to check the owner’s documents.", "A conflict arose between the authorities and the 20‑30 Roma gathered in front of the bar. The parties’ submissions differ as to the sequence of events. 1. Applicant’s version of the facts 7. F.L., a villager of Roma origin, was just leaving the bar as the police entered.", "Sergeant D.T. asked him whether he was a “Gypsy (ţigan) or Romanian”. When F.L. answered that he was a Gypsy, the deputy mayor asked the police officers and the public guards to teach him and the other Roma “a lesson”. The police and public guards started beating F.L.", "and other Roma who happened to be in the vicinity of the bar. 8. The applicant, who had just bought something from a nearby shop, ran away with other children, but was tripped up by D.T. who started beating, kicking and hitting him on the back of his head and pushed him into a ditch. The applicant told D.T.", "that he had just undergone head surgery and that the beating could endanger his life. D.T. continued beating him until the applicant lost consciousness. Several persons, including the applicant’s schoolmates witnessed the incident. The deputy mayor and police officers were heard shouting racist remarks.", "9. The officials left the premises, leaving the applicant unconscious on the ground. A.S., V.D. and I.C., witnesses to the incident, carried him to his parents’ home. 2.", "Government’s version of the facts 10. The deputy mayor entered C.C.’s bar with a police officer and complained about the insalubrious conditions in the premises and that C.C. allowed people to drink excessively. 11. C.C.", "asked his customers to leave the bar. During the discussions with the authorities, C.C. and his wife urged their customers, who were gathered in front of the bar, to antagonise the officials. The customers became aggressive. The police officers surrounded the deputy mayor in order to protect him.", "The officials returned quickly to their cars and left the premises immediately. The deputy mayor’s car, which was the last to leave, was attacked by the locals with bats. B. Applicant’s medical examination 12. On the evening of 3 April 2001 the applicant was taken by his parents to Sfânta Maria Hospital in Iaşi. 13.", "On 6 April 2001 he was examined by a doctor from the Iaşi Forensic Institute. The certificate issued recorded the following: “- On the exterior upper side of the left elbow: a discontinuous excoriation of 1,2x1 cm with red haematic crust. - The space between the scapula and the vertebras: purple transversal linear ecchymoses, ranging from 9x3,2 cm to 5,52x2,8 cm, two on the right side, one on the left side. - On the exterior side of the right arm: one red transversal linear ecchymosis of 5,5x2 cm. - The subject states that he is experiencing pain in the right parietal epicranius but there are no visible exterior post‑traumatic lesions...", "Conclusion Stoica Constantin presents with ecchymoses, thoracic concussion and excoriation, inflicted by a linear blunt instrument, which could date from 3 April 2001. He needs three to five days of medical care to recover.” 14. With regard to his medical history, the applicant was diagnosed with brain disease and was operated upon on 20 December 1999. On 12 April 2001, the Commission for the Protection of Handicapped Persons established that he had a first-degree disability which required permanent supervision and a personal assistant. C. Investigations into the incidents 15.", "On 4 April 2001, the 3 April incidents between the Roma and the authorities were discussed in the Mayor’s office with representatives of the Prefect’s Office, the Government and the Roma Party. Several persons gave evidence, including the applicant’s mother and eyewitnesses. On 5 April 2001 a report was sent to the Suceava Police Inspectorate (“the Suceava Police”). 16. On 9 April 2001 the Romani CRISS, acting on behalf of the applicant, asked the commander of the Suceava Police to open criminal investigations into the incidents.", "The same day, they expressed their concern to the Prefect about the racist motivation behind the incidents. 17. On 18 April 2001 the Prefect informed the Romani CRISS that the Mayor’s investigation of 4 April, in which his representative had also taken part, had excluded the possibility of any racist motivation being behind these incidents. 18. On 18 April 2001 the applicant’s father lodged, on behalf of his son, a criminal complaint with the Bacău Military Prosecutor, against D.T., the other police officers and the deputy mayor.", "19. On 5 June 2001 the Ombudsman, informed of the events by Romani CRISS, requested the opening of investigations by the Suceava Police, the Bacău Military Prosecutor, the Suceava Child Protection Agency and Suceava County Council and asked for compensation and aid for the applicant’s family. 20. On 20 August 2001 the Suceava Child Protection Agency informed the Ombudsman that conciliation proceedings had been started and that 2,000,000 old Romanian lei (ROL) had been awarded to the applicant’s family in aid for assistance in the psychological and medical recovery of the applicant. 21.", "On 29 May 2001 the Romani CRISS filed a criminal complaint with the Bacău Military Prosecutor against D.T. and the other persons allegedly responsible for the incidents, accusing them of abusive behaviour. 1. Investigations by the Suceava Police 22. The Suceava Police, hierarchically superior to Dolhasca Police Force, started the investigations into the case.", "23. On 7 May 2001 evidence was heard from villagers D.D. and F.L., eyewitnesses, F.S., the applicant’s mother and A.S., the father of another alleged victim. They stated that either police officers or public guards had tripped up and then beaten the applicant. 24.", "Two police officers and the deputy mayor gave evidence on 8 May 2001. They stated that C.C. criticised the deputy mayor, alleging that he had won Roma votes by making false promises which he had reneged upon when elected. These words had roused the Roma gathered in front of the bar to protest against the officials, to insult them in Romani and to attack their cars as they were leaving. They stated that no villager had been beaten by any of the police officers and public guards that night and that all the officials had left the premises in a hurry by car.", "25. Villager L.D. testified the same day that he had seen D.T. beating the applicant on his back and chest and that the officer had stopped when he had seen the witness approaching. 26.", "On 16 May 2001, the police heard evidence from the applicant. He reiterated that he had been tripped up and had fallen and that D.T. had punched him in the stomach, kicked him in the back and beaten him with a truncheon. 27. Giving evidence on the same day D.T.", "denied that he had beaten the applicant, declared that he had not even been carrying his truncheon that day and gave the same version of the facts as the other police and public guards. 28. Two police officers and four passers-by gave evidence that day, all stating that no violence had been used by the authorities. 29. On 1 June 2001 the Suceava Police sent its final report to the Bacău Military Prosecutor.", "It proposed not to press charges against the accused persons. 30. On 11 June 2001 the Suceava Police informed the Ombudsman and the Romani CRISS that the proceedings concerning the accusations of abusive behaviour against sergeant D.T. were pending, and that the final decision would be taken by the Military Prosecutor’s Office. On 11 July 2001 the Suceava Police informed the Ombudsman that the case had been sent to the Bacău Military Prosecutor with recommendation not to press charges.", "2. Investigations by the Military Prosecutor 31. On 20, 21 and 31 August, 3 and 13 September 2001 the prosecutor heard evidence from several persons: C.C., the owner of the pub, and E.C., his wife, the applicant, his father, D.S., and mother, D.F., four villagers who had witnessed the conflict, the deputy mayor (twice), the eleven police officers and guards, including D.T. and four passers-by. All of them maintained the version of events they had given to the Suceava Police.", "The Roma involved contended, mainly, that they had seen the police officers and public guards using violence against some of the Roma children present while the officials denied the allegations. The passers-by supported the authorities’ version. The school principal and the head of the Roma Party stated that the Roma refused to send their children to school after the incidents, for fear of reprisal. 32. C.C.", "stated the following: “20 to 30 Roma armed with bats, axes etc. gathered around the three cars. I yelled at the deputy mayor: ‘We voted for you in the elections and now you come to kill our people!’ As the situation became tenser ... I yelled at the Roma present not to come close to the three cars and then I sought to protect the deputy mayor and the other officials until they got into their cars and left for Dolhasca. The cars were not hit, but Roma were insulting the occupants of the cars until they left.", "I did not see any Roma getting beaten that evening by the police or public guards, but I heard later that D.S.’s son (the applicant) had been beaten by the police officers... While I was present, none of the police officers or public guards hit, insulted or threatened the Roma. It is not true that the conflict that evening was of a racial nature...” 33. His wife, E.C., confirmed his statements. 34.", "The applicant’s father stated in particular that: “Scared of what was happening in front of the pub ... my son came out [of the store] and started running home, but a public guard tripped him up and then Sergeant D.T. savagely beat him... My son ... ran home on the evening of 3 April 2001, out of fear, although he knew that he was not allowed to run [due to his medical condition].” 35. The applicant declared that: “Seeing what was happening, I got scared and started running home. After 4-5 steps, the police officer D.T. tripped me up, so I fell to the ground.", "After I fell I saw that officer D.T. wanted to hit my head with a truncheon, so I told him ‘don’t hit my head, I have had head surgery’. He did not listen and hit me several times with the truncheon and with his fists and kicked me all over my body, on my back and chest.” 36. On 23 August 2001 the Suceava Police informed the military prosecutor that the Dolhasca police officers had not filed a report in order to have criminal investigations started against the Roma for insulting behaviour, for the following reason: “[T]he way in which some of the Roma acted is pure Gypsy behaviour (pur ţigănesc) and does not constitute the crime of insulting behaviour.” 37. On 2 October 2001 the Bacău Military Prosecutor decided not to prosecute, as the evidence did not confirm the alleged violence against the applicant.", "The relevant parts of his decision state as follows: “At a certain point, bothered by the [deputy mayor’s] criticism, C.C. became verbally aggressive, complaining to the deputy mayor about certain aspects of his professional activity. C.C. came out of his bar and, speaking in Romani, incited the twenty-thirty Roma there present against the two officials [the deputy mayor and one of the police officers who accompanied him]. Considering that the situation was likely to degenerate, as the Roma were becoming extremely aggressive and violent, and as they were armed with blunt objects, the police officers surrounded the deputy mayor to protect him, then they got into their cars and left in a hurry towards the centre of Dolhasca.", "The Roma nationals (cetăţeni) attacked the last vehicle, where the deputy mayor was seated, with blunt objects, but no damage was caused since the vehicle was already leaving the area. C.C. declared that he had not seen any Roma being beaten by the police that evening. He also denied that the incidents amounted to racial conflict. His statement corroborates those of the police officers and public guards [who testified in the case].", "Eyewitness statements in support of the applicant shall be disregarded as unreliable in so far as the evidence in the file shows that these persons arrived at the scene of the incidents after the three cars had left. Moreover these witnesses’ statements are contradictory and do not corroborate the statements made by [the applicant and his father] who alleged that [the applicant] had been punched, kicked and beaten with the truncheon all over his body, including on his head... This conclusion tallies with the medical certificate in the file... The [applicant’s] witnesses’ statements show that when the incident started [the applicant] ran home, against the medical recommendations that had been made to him...” It also considered that C.C.’s statements, supported by those given by the police officers and public guards, confirmed that the conflict had not been racially motivated. 38.", "On 3 October the military prosecutor informed Romani CRISS of its decision, stating that “the evidence gathered showed that the applicant was not injured, insulted or threatened by the police officers”. 39. The applicant’s mother and Romani CRISS contested the conclusion reached in the investigations. 40. On 14 May 2002 the prosecutor’s decision was confirmed by the Military Prosecutor’s Office attached to the Supreme Court of Justice, on the ground that the case indicated that no violence had been inflicted on persons of Roma origin.", "3. Other complaints 41. On 19 February 2002 the applicant’s father asked Romani CRISS to file a complaint with the competent authorities about some incidents that had occurred during the investigations. He alleged that, on 3 September 2001 the military prosecutor who had dealt with the case had tried to intimidate witnesses and physically assaulted the Romani CRISS representative. Consequently, some witnesses had refused to testify.", "Moreover, he claimed that members of the police were trying to persuade them to give up their complaints by harassing the family. On 7 December 2001 a police patrol had come to the applicant’s house at around midnight but had left when told that the applicant’s father was not home. In February 2002 D.T. had allegedly threatened and punched the applicant’s grandfather. 42.", "On 19 February 2002 Romani CRISS forwarded the complaint to the Suceava Police, which dismissed it as unsubstantiated on 20 March 2002. II. RELEVANT DOMESTIC LAW 43. The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor Ruler are set out in Dumitru Popescu v. Romania ((no. 1), no.", "49234/99, §§ 43-46, 26 April 2007) and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004). 44. The relevant provisions of the Criminal and Civil Codes concerning the means of obtaining compensation for alleged ill-treatment are set out in Kalanyos and Others v. Romania ((dec.), no. 57884/00, 19 May 2005).", "45. In the same decision, as well as in paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 46. The applicant complained of the ill-treatment allegedly inflicted on him on 3 April 2001 by the police and considered that the ensuing criminal investigation had not been effective. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility 47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 48.", "The Government did not contest the applicant’s injuries but contended that, based on the conclusion of the domestic investigations, the alleged violence had not been committed by the officials, in so far as neither the identity of the perpetrators nor the exact date on which the violence had been committed could be established with certainty. 49. Citing Klaas v. Germany (judgment of 22 September 1993, Series A no. 269, p. 17, § 29 in fine); and Ribitsch v. Austria (judgment of 4 December 1995, Series A no. 336, p. 24, § 32), the Government argued that it was not normally within the province of the Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it was for those courts to assess the evidence before them.", "50. In the Government’s opinion the prosecutor had been right to disregard the statements of eyewitnesses in support of the applicant as they were evidently biased and less credible. They also pointed out the contradictions between the witnesses’ statements and those of the applicant. 51. Furthermore, the Government considered that the investigation carried out by the authorities had been adequate and effective.", "They pointed out that the prosecutors had heard testimony from the parties and witnesses, that the applicant had been examined by a doctor and that the facts had been carefully weighed. The Bacau Military Prosecutor’s decision had been re‑examined and confirmed by the Military Prosecutor attached to the Supreme Court of Justice. They based their argument on the case Velikova v. Bulgaria (no. 41488/98, § 80, ECHR 2000‑VI). 52.", "Moreover, the Government noted that there had been no hierarchical or institutional link between the accused police officers, all from the Dolhasca Police, and the investigators, all from the Suceava Police, and contended that the mere fact that both the prosecutor and the accused persons were part of the military forces could not in itself prove the lack of impartiality and independence of the investigators (see Bursuc v. Romania, no. 42066/98, §§ 103, 12 October 2004). 53. The applicant considered that the investigation files contained sufficient elements to conclude that the violence had been inflicted by the police. In his view, the decision to set aside the eyewitnesses’ statements was unfounded.", "In any case, the authorities had failed to provide a credible alternative explanation as to the origin of his injuries. In his opinion the following elements should be taken into account as aggravating factors in the assessment of the seriousness of the ill-treatment he had been subjected to: he was 14 years old at the time; he was severely ill; in his particular condition the attack had made him seriously fear for his life; and he was of Roma origin (in the context of the organised harassment of Roma by the Romanian authorities). He also pointed out that the authorities had acted late at night and that the use of force had been neither necessary nor proportionate in the circumstances. 54. In so far as the investigations carried out were concerned, the applicant submitted that they had failed to comply with the standards set out by the Court in the case of Assenov and Others, and that they had taken too long (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII).", "55. In his view, the Suceava Police could not have been impartial in their investigation as they were the hierarchical superior of the Dolhasca Police. Furthermore, he doubted the impartiality of the military prosecutor. 56. The applicant reiterated that in the decision of 2 October 2001 the Bacau Military Prosecutor had merely summarised the police officers’ statements, which were sometimes identical to the last word, and had disregarded, without plausible reason, the eyewitnesses’ statements.", "He also argued that only a few of the Roma present had been asked to testify and that some of them had been intimidated by the police and prevented from giving testimony. 57. Lastly, the applicant noted that although the police officers had declared that they had been attacked by Roma armed with bats, no official investigation into the allegations had been opened. He concluded that these statements had merely been an attempt to justify the police actions. 2.", "The Court’s assessment 58. The Court notes from the outset that it is common ground that the applicant suffered injuries on or around the date of the incidents. However, the parties disagreed on whether or not the injuries were caused by police officers. 59. The Court reiterates that Article 3 enshrines one of the fundamental values of democratic society.", "Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 of the Convention even in the event of a public emergency threatening the life of the nation (see Assenov and Others, cited above, p. 3288, § 93). 60. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.", "The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering.", "It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92). 61. In considering whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers, cited above, § 74).", "The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. 62. The Court considers that the degree of bruising found by the doctor who examined the applicant (see paragraph 13 above) indicates that the latter’s injuries, whether caused by the police or by someone else, were sufficiently serious to amount to ill-treatment within the scope of Article 3 (see, for example, A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 21, and Ribitsch, cited above, pp. 9 and 26, §§ 13 and 39). It remains to be considered whether the State should be held responsible under Article 3 in respect of these injuries.", "63. The Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 64.", "The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007) even if certain domestic proceedings and investigations have already taken place. 65.", "In the present case the Court notes that the applicant was admitted to the hospital soon after the events and that the medical report indicated the injuries sustained. The applicant filed a criminal complaint against police officers who he accused of having beaten him. His declarations are coherent and supported by the medical report and some witness testimonies. It is, nonetheless, true that the witnesses gave conflicting testimonies; all the officials and some of the passers-by denied that any violence had occurred while all the villagers stated that it had. Lastly, the criminal investigation conducted in the case concluded that the officers were not responsible for the injuries.", "66. There had been no official admission of any act of violence against the applicant. 67. However, the Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible.", "If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102). 68. The Court notes that a criminal investigation was carried out in the case. It remains to be assessed whether it was effective, as required by Article 3. 69.", "From the outset, the Court notes that the investigations lasted for one year, and considers that this length is not in itself problematic (see paragraph 54 above). 70. As to the effectiveness of the investigations, the Court notes the following. 71. Although twenty to thirty villagers were present during the incidents, only three testified before the Suceava Police and five testified before the military prosecutor.", "All police officers and public guards present gave evidence. 72. There is no explanation as to why the other villagers did not testify during the investigation. They were either not called to testify, or, as the applicant claims, they were intimidated by the police. Either way, the fact that they did not give testimony casts doubt as to how thoroughly the police investigated the case.", "73. The Court is also concerned about the way the villagers’ statements were discarded by the military prosecutor. Firstly, according to the Government (see paragraph 50 above) the prosecutor was right to discard those statements as they were evidently biased and less credible. However, the Court cannot but notice that the prosecutor did not explain why the villagers’ statements would be less credible than those of the police officers, as all participants could be considered equally biased due to their opposing positions in the proceedings (alleged victims against alleged perpetrators). 74.", "Moreover, the prosecutor’s conclusion that those villagers had not been present during the incident is contradicted by the evidence in the case, including these persons’ statements before the same prosecutor. 75. The Court also considers that the alleged contradictions between the applicant’s statements and those of the witnesses were not adequately examined by the prosecutor, who only noted, briefly, the differences concerning the applicant being allegedly beaten over the head. He failed to address the common points of the statements, including of those that the prosecutor relied on (see paragraphs 32 and 37 above), from which it could have been inferred that the applicant had in fact sustained injuries all over his body. 76.", "Lastly, the Court considers as does the applicant that the fact that the police officers did not report the Roma’s alleged insulting behaviour sheds doubt on their version of the facts. The police officers’ explanation for their reference to the “pure Gypsy” behaviour will be examined below (see paragraphs 111-132 below). 77. Another point of concern is the fact that the investigators limited themselves to exonerating the police officers and thus failed to identify those responsible for the applicant’s injuries. This is particularly serious bearing in mind that the applicant was a minor at the date of the events and also severely disabled.", "78. It is true that if the violence had not been perpetrated by police officers but by a private individual, the criminal prosecution of the person responsible could only have been started at the request of the victim (plângere prealabilă, Article 180 of the Romanian Criminal Code). However, no such complaint could be lodged if the police did not identify the alleged perpetrators of the crimes. Therefore, in the case under review, the applicant could not immediately lodge a criminal complaint against those who had allegedly beaten him. 79.", "Lastly, the Court recalls that it has already established that the applicable law at the date of the facts made the hierarchical and institutional independence of the military prosecutor doubtful (see Barbu Anghelescu, §§ 40-30 and 70; Bursuc, §§ 104 and 107; and Dumitru Popescu (no. 1), §§ 74-78, judgments cited above). 80. In the light of the above and on the basis of all the material placed before it, the Court considers that the Government have not satisfactorily established that the applicant’s injuries were caused otherwise than by the treatment inflicted on him by the police officers, and concludes that these injuries were the result of inhuman and degrading treatment (see also Cobzaru, cited above, § 74). Accordingly, there has been a violation of Article 3 of the Convention.", "81. Having regard to the above-mentioned deficiencies identified in the investigation, the Court also concludes that the State authorities failed to conduct a proper investigation into the applicant’s allegations of ill‑treatment (see also Cobzaru, cited above, § 75). Thus, there has been a violation of Article 3 of the Convention also under its procedural head. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 82.", "The applicant further complained that, because of the decision not to prosecute of 2 October 2001, he could not file a civil action for compensation against the police officer who had beaten him. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal...” A. The parties’ submissions 83. The Government submitted that the investigations conducted by the authorities in the case had been effective and that the police officers accused of ill-treatment had been exonerated based on all the evidence adduced in the file. 84.", "They contended that after the decision of the prosecutor of 2 October 2001, the applicant could have lodged an action with the civil courts, based on Articles 998-999 of the Civil Code. Such an action would have had prospects of success, since the civil courts were not bound by the prosecutor’s decision. It would have allowed the applicant to establish the police officers’ civil responsibility. 85. Relying on the case Van Oosterwijck v. Belgium (judgment of 6 November 1980, Series A no.", "40, pp. 18-19, § 37), they pointed out that the applicant’s negative opinion of the prospects of success alone could not of itself justify or excuse failure to exercise a remedy. 86. The applicant contended that the findings of a criminal investigation were binding on the civil courts in so far as they concerned the existence of the facts alleged, the person responsible and his or her liability, which rendered such remedy ineffective in his particular case. B.", "The Court’s assessment 87. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-IV). 88. The Court makes reference to its findings under Article 13 below, according to which the appeal before the courts against the prosecutor’s decision is an effective remedy in this case (see paragraphs 99-110 below).", "89. In these circumstances, the Court considers that the applicant should have challenged the prosecutor’s decision of 2 October 2001 and that it is not for this Court to speculate either on the outcome of such appeal or on its influence on the civil courts called to settle the compensation (see, mutatis mutandis, Moldovan and Others (no. 2), nos. 41138/98 and 64320/01, § 120, ECHR 2005‑VII (extracts); Menesheva v. Russia, no. 59261/00, § 76, 9 March 2006; and Corsacov v. Moldova, no.", "18944/02, § 82, 4 April 2006). 90. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 91.", "The applicant also complained that the authorities’ failure to carry out an effective investigation capable of providing redress for the ill‑treatment suffered by the applicant constituted a violation of Article 13 of the Convention. Furthermore, he complained that he could not effectively challenge, before a court, the decision not to prosecute taken by the military prosecutor in favour of the police officer who had allegedly injured him. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 92. The Court notes that this complaint has two distinct branches: the ineffectiveness of the criminal investigation and the lack of appeal against the military prosecutor’s decision. It will deal with each one separately.", "A. Effectiveness of the investigation 1. Admissibility 93. The Court notes that these aspects of the complaint are linked to the complaint examined under the procedural head of Article 3 and must therefore likewise be declared admissible. 2.", "Merits 94. As to the merits, the Court recalls that it has concluded that there was a procedural violation of Article 3 in respect of the same aspects (see paragraph 81 above). Therefore, it does not deem it necessary in the present case to make a separate finding under Article 13 of the Convention for this branch of the complaint (see, mutatis mutandis, Šečić v. Croatia no. 40116/02, § 61, ECHR 2007‑...). B.", "Appeal against the prosecutor’s decision 95. The Court considers that a separate issue arises under Article 13 in so far as the applicant complained that he could not lodge a complaint against the prosecutor’s decision not to institute criminal proceedings, in particular bearing in mind the fact that the applicant alleged that the prosecutor’s decision prevented him from seeking damages before the civil courts. This matter has not been examined under the procedural head of Article 3, above. The Court will therefore examine it further. 1.", "The parties’ submissions 96. The Government pleaded non-exhaustion of domestic remedies as the applicant had not availed himself of the possibility of challenging, before a court, the military prosecutor’s decision not to prosecute. They noted that this new appeal, provided by Article 2781 of the Code of Criminal Procedure, had been introduced by Law no. 281 of 24 June 2003 and had been available to the applicant from 1 July 2003. 97.", "Citing Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001‑IX) and Nogolica v. Croatia ((dec.), no. 77784/01, ECHR 2002‑VIII), they considered that the applicant had to exhaust this remedy, although it had been available only after the present application had been lodged with the Court. 98. The applicant submitted that there were no special circumstances in his case that would allow for an exception to the rule that the remedy must exist prior to the lodging of the application.", "He further claimed that the Government had not proved the effectiveness of this remedy. 2. The Court’s assessment a) Admissibility 99. The Court considers that the Government’s argument raises issues as to the effectiveness, from the applicant’s perspective, of complaining against the prosecutor’s decision. It is thus closely linked to the merits of the complaint under examination.", "Therefore the Court joins the preliminary objection to the merits of the applicant’s complaint. 100. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "b) Merits 101. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability, at the national level, of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 of the Convention is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 of the Convention varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2285, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp.", "1895-96, § 103; and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 102. In view of the Court’s findings with regard to Article 3 above, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).", "Thus, it remains to be established whether the applicant had an effective remedy available in Romanian law so as to challenge the prosecutor’s decision not to indict the police officers. 103. The Court recalls that in the present case the incidents between the applicant and the police took place on 3 April 2001, the criminal complaint was lodged on the 18 April 2001 and the Military Prosecutor decided not to prosecute on 2 October 2001, decision confirmed by the hierarchically superior Prosecutor’s Office on 15 May 2002. On 1 January 2004, Law no. 281/2003 became applicable.", "104. The Court reiterates that the rule on the exhaustion of domestic remedies is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity - that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 65, and the Aksoy, cited above, p. 2275, § 51). It is true that in order for the exhaustion rule to come into operation, the effective remedy must exist at the date when the application is lodged with the Court. However this rule is subject to exceptions which might be justified by the specific circumstances of each case (see Baumann v. France, no 33592/96, 22 May 2001, § 47, unreported, Brusco, cited above).", "The Court has accepted that this was the case when at the national level a new law, specifically designed to provide direct redress to violations of fundamental procedural rights, was introduced with retroactive effect and put thus an end to a structural problem that existed in the national legal system before its adoption (see Içyer v. Turkey (dec.), no. 18888/02, §§ 83‑84, ECHR 2006‑I; Charzyński v. Poland (dec.), no. 15212/03, §§ 40‑41, ECHR 2005‑V; and mutatis mutandis Ismayilov v. Azerbaijan, no. 4439/04, § 38, 17 January 2008). 105.", "Turning to the present case, the Court has already established that before the amendments to the Code of Criminal Procedure of 2003 (Law no. 281/2003), the interested parties had no effective possibility of challenging the prosecutor’s decision before a court (see Rupa v. Romania (dec.), no. 58478/00, 14 December 2004; and Kalanyos and Others, cited above). 106. However, after the introduction of the above amendments persons in the applicant’s situation could avail themselves of the new remedy introduced by Law no.", "281/2003 which set a one-year time-limit for interested parties to appeal against a prosecutor’s decision taken before the entry into force of this Law. The newly introduced provision describes in details the procedure to be followed before the courts and the applicable time‑limits. It gives the courts the power to control the investigation carried out by the prosecutor in the case, and to hear evidence. 107. The Court notes that this new provision has removed the obstacles that were decisive when the Court found that the complaint mechanism available before the 2003 amendments did not comply with all the requirements of an effective remedy (see also, mutatis mutandis, Nogolica, cited above).", "Moreover the new appeal was specifically designed to provide direct redress for similar complaints to the one raised by the applicant. 108. Furthermore this appeal became applicable less than three years from the date of the incidents. The Court considers that this period is not lengthy enough to seriously alter the recollection of facts by those involved and thus to reduce the effectiveness of the courts’ examination of facts (see, mutatis mutandis, Dumitru Popescu (no. 1), cited above, § 56).", "109. In the light of these circumstances and recalling the subsidiary character of the Convention machinery, the Court considers that the applicant should have challenged before the courts the prosecutor’s decision in the case once the remedy provided by Law no. 281/2003 came into force. 110. Accordingly, the Court considers that in the present case there has been no violation of Article 13 of the Convention in so far as it refers to the impossibility of lodging an appeal against the military prosecutor’s decision not to press charges.", "IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLES 3 AND 13 OF THE CONVENTION 111. The applicant complained that the ill-treatment that he had suffered and the decision not to prosecute the police officer who had beaten him had been predominantly due to his Roma ethnicity, contrary to the principle of non‑discrimination set forth in Article 14 of the Convention taken together with Articles 3 and 13. Article 14 of the Convention reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties’ submissions 112.", "The Government considered that nothing in the file could prove discrimination against the applicant. They contended that the alleged flaws in the criminal investigations had not been caused by the applicant’s ethnicity. 113. Lastly, they contended that the word “Gypsy” had a pejorative connotation only in certain contexts, and, even then mainly in the oral language. 114.", "The applicant made reference to the broader situation of Roma in Romania, as reflected in various reports by NGOs, the Council of Europe and the European Commission (for a summary of these reports, see Cobzaru, cited above, §§ 44-52). He also contended that the word “ţigan” was offensive, in particular when used to differentiate the person from a person of Romanian ethnicity, as it had happened in this case (see paragraph 7 above). 115. The applicant also contended that racist remarks in official police documents had gone unnoticed by the prosecutors (see paragraph 36 above) and considered that the Prefect was undully quick in ruling out a racist motive behind the incidents (see paragraph 17 above). B.", "The Court’s assessment 1. Admissibility 116. The Court notes that this complaint is linked to those examined under Articles 3 and 13 and must therefore likewise be declared admissible. 2. Merits 117.", "The Court’s case-law on Article 14 establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII).", "118. Faced with the applicant’s complaint of a violation of Article 14, as formulated, the Court’s task is to establish whether or not racism was a causal factor in the impugned conduct of the authorities during the events and the ensuing investigation, so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 3. 119. The Court will start by looking into the alleged racial motives behind the conduct of the investigations. In this context, it reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events.", "Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, § 160, and Šečić, §§ 66-67, judgments cited above). 120.", "In the present case, the military prosecutor addressed, to a certain extent, the potential racist implications of the incidents. It remains to be seen if the authorities used best endeavours to assess the racist aspects of the case. 121. The Court notes that the military prosecutor concluded that there had been no racial aspect to the incidents, based solely on C.C.’s and the police officers’ estimation of the conflict. He disregarded the fact that the same witnesses had declared that C.C.", "had complained to the deputy mayor that he had come before elections to win Roma votes and had reneged on his promises when elected. The Court considers that this remark cannot be regarded as completely racially neutral. Moreover, it finds problematic the fact that only the villagers, mainly Roma, were considered to be biased in their statements during the criminal investigations, while the police officers’ statements were integrated into the military prosecutor’s reasoning and conclusion (see paragraph 73 above). 122. The Court is dissatisfied that the military prosecutor did not address in any way the remarks from the Suceava Police report describing the villagers’ alleged aggressive behaviour as “purely Gypsy”, although such remarks are clearly stereotypical.", "123. The Court is also concerned, as is the applicant, with the levity with which the Prefect concluded that the incidents of 3 April 2001 had had no racist motivation. 124. Consequently, the Court considers that the authorities did not do everything in their power to investigate the possible racist motives behind the conflict. 125.", "The Court will further look into the implication of this finding for the examination of the allegations of a “substantive” violation of Article 14. 126. The Court reiterates that in assessing evidence it has adopted the standard of proof “beyond reasonable doubt” (see paragraph 63 above); nonetheless, it has not excluded the possibility that in certain cases of alleged discrimination it may require the respondent Government to disprove an arguable allegation of discrimination and – if they fail to do so – find a violation of Article 14 of the Convention on that basis (see Nachova and Others, cited above, § 157, and Bekos and Koutropoulos v. Greece, no. 15250/02, § 65, ECHR 2005‑XIII (extracts)). 127.", "Lastly, the Court acknowledges that where it is alleged – as here – that a violent act was motivated by racial prejudice, shifting the burden of proof to the respondent Government might amount to requiring the latter to prove the absence of a particular subjective attitude on the part of the person concerned (see Nachova and Others, § 157, and Bekos and Koutropoulos, § 65, judgments cited above). 128. In the present case it is not disputed that the incidents of 3 April 2001 took place between Roma villagers and police forces. The applicant himself is of Roma origin. The police officers stopped in front of a pub owned by C.C., a Roma ethnic, and the dispute that arose, as related by the villagers or, to a certain extent, as reported by the police officers, were not racially neutral.", "The Court reiterates that the villagers claimed the police officers were asking F.L. whether he was “Gypsy or Romanian” before beating him, at the deputy mayor’s request to teach the Roma “a lesson” (see paragraph 7 above). Likewise, C.C.’s dispute with the deputy mayor that evening, had at its core racist elements. Furthermore, the Court considers that the remarks from the Suceava Police report describing the villagers’ alleged aggressive behaviour as “pure Gypsy”, are clearly stereotypical and prove that the police officers were not racially neutral, either during the incidents or throughout the investigation. 129.", "The Court finds thus no reason to consider that the applicant’s aggression by the police officers was removed from this racist context. 130. For all these reasons, the Court considers that the burden of proof lies on the Government, regard having had to all the evidence of discrimination ignored by the police and the military prosecutor and the above conclusion of a racially biased investigation into the incidents. 131. Therefore, in the present case the evidence indicating the racial motives behind the police officers’ actions is clear and neither the prosecutor in charge with the criminal investigation nor the Government could explain in any other way the incidents or, to that end, put forward any arguments showing that the incidents were racially neutral.", "132. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 3. 133. Lastly, having regard to the finding under Article 13 of the Convention, (see paragraph 94 above), the Court considers that no particular issue arises under Article 14 taken in conjunction with Article 13. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 134.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 135. The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage, that is, the money his family had spent on his repeated hospitalisations after the beating of 3 April 2001. He also claimed EUR 70,000 in respect of non-pecuniary damage. 136.", "The Government requested the Court to dismiss the applicant’s claims for just satisfaction. They considered that the State’s responsibility could not be engaged for the hospitalisation costs and that the claims in respect of non‑pecuniary damage were exaggerated and unsubstantiated. 137. The Court notes that the applicant’s claims for pecuniary damages are unsubstantiated and rejects them accordingly. 138.", "On the other hand, it awards the applicant EUR 15,000 in respect of non‑pecuniary damage. B. Costs and expenses 139. The ERRC claimed EUR 2,278 for the costs and expenses incurred before the Court, namely the preparation of the case, 10 hours of reviewing previous submissions, research on case-law, contacts with partners and client and 22 hours of drafting submissions to the Court. They asked that the award be paid directly to them, in a separate account.", "140. The Government contended that the contract signed by the applicant with ERRC had not set the hourly fees. 141. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no.", "41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Chamber may reject the claim in whole or in part. 142. In the present case, having regard to the above criteria, to the itemised list submitted by the applicant’s representative and to the number and complexity of issues dealt with and the substantial input of ERRC, the Court awards the requested amount, that is EUR 2,278 to be paid to a bank account indicated by the applicant’s representative. C. Default interest 143.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning Articles 3 and 13, alone or combined with Article 14 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention both under its substantive and procedural limbs; 3. Holds that there has been no violation of Article 13 of the Convention in so far as it concerns the possibility for the applicant to challenge the military prosecutor’s final decision; 4.", "Holds that there has been a violation of Article 14 taken in conjunction with Article 3 of the Convention; 5. Holds that there is no need to examine the complaint under Article 13, alone or in conjunction with Article 14 of the Convention, concerning the lack of an effective investigation; 6. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the respondent’s State national currency; (b) that the respondent State is to pay the applicant’s representative, ERRC, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,278 (two thousand two hundred and seventy-eight euros) in costs and expenses plus any tax that may be chargeable; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FIFTH SECTION CASE OF SHESTOPALOVA v. UKRAINE (Application no. 55339/07) JUDGMENT STRASBOURG 21 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Shestopalova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Nona Tsotsoria, President,Síofra O’Leary,Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 28 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 55339/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Danuta Zbignevna Shestopalova (“the applicant”), on 19 November 2007.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice. 3. The applicant complained under Article 6 § 1 of the Convention that there had been a violation of her right of access to a court. 4.", "On 27 May 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Melitopol. 6.", "Between 2004 and 2006 the applicant was head of Melitopol City Council’s Disadvantaged Persons’ Welfare Centre (Центр по обслуговуванню одиноких, непрацездатних та малозабезпечених громадян Управління праці, соціального захисту та житлових субсидій Мелітопольської міської Ради – “the Centre”). On 21 April 2006 she was dismissed as part of a reorganisation of the Centre. Another person was subsequently appointed to a position similar to the one previously occupied by the applicant. 7. In May 2006 the applicant instituted civil proceedings in the Melitopolskyy Local Court (“the Melitopolskyy Court”) seeking reinstatement, salary arrears and compensation for non-pecuniary damage.", "On 24 October 2006 the court rejected the applicant’s claim. It found that the Centre had offered the applicant another position but that she had rejected this proposal, and that a more experienced person had been appointed as the head of the Centre. Following an appeal by the applicant, on 7 December 2006 the Zaporizhzhya Regional Court of Appeal upheld the decision of 24 October 2006. The applicant lodged a further appeal, and on 22 August 2007 the Supreme Court of Ukraine quashed these decisions and remitted the case to the first-instance court for fresh consideration. It held that the case was to be considered under the administrative justice procedure since it concerned a public-service dispute.", "8. Accordingly, the applicant instituted administrative proceedings before the Melitopolskyy Court, which, on 21 February 2008, again found against her for reasons similar to those listed in its decision of 24 October 2006. The applicant appealed, and on 16 July 2008 the Dnipropetrovsk Administrative Court of Appeal quashed this decision and terminated the proceedings on the grounds that it fell to be examined under the civil justice procedure as the applicant was not a public servant. On 2 March 2011 the Higher Administrative Court of Ukraine upheld this decision. On 14 April 2011 the same court rejected the applicant’s request for leave to appeal to the Supreme Court of Ukraine against the decision of 2 March 2011.", "9. On 28 March 2011 the applicant again lodged a civil claim seeking reinstatement, salary arrears and compensation for non-pecuniary damage. On 4 August 2011 the Melitopolskyy Court refused to examine the merits of the applicant’s civil claim as the applicant had sought to have adjourned previous court hearings in respect of her case on numerous occasions without good reason. On 5 October 2011 the Zaporizhzhya Regional Court of Appeal upheld the decision of the first-instance court. II.", "RELEVANT DOMESTIC LAW A. Constitution of Ukraine of 28 June 1996 10. The relevant provisions of the Constitution of Ukraine read as follows: Article 125 “In Ukraine the system of courts is constituted in accordance with the territorial principle and the principle of specialisation and is defined by law. A court is formed, reorganised and liquidated by [the enactment of] a law, a draft of which is presented to the Verkhovna Rada of Ukraine by the President of Ukraine, after consultations with the Supreme Council of Justice. The Supreme Court is the highest judicial body in the system of courts of Ukraine.", "The higher specialised courts operate in accordance with the law. Administrative courts function with the aim of protecting people’s rights, freedoms and interests in the public sphere. The creation of extraordinary and special courts shall not be permitted.” B. Code of Civil Procedure (the wording applicable at the time of the circumstances of the case) Article 15. Competence of the courts in respect of the examination of civil cases “1.", "The courts examine in civil proceedings cases concerning: 1) the protection of affected, unrecognised or disputed rights, and freedoms or interests arising from civil, housing, land, family, and labour relations; 2) other [types of] relations, in the event that the examination of such cases is not covered by the rules governing other [types of] proceedings.” C. Code of Administrative Procedure (the wording applicable at the time of the circumstances of the case) Article 17. The jurisdiction of the administrative courts in respect of administrative cases “1. The jurisdiction of the administrative courts extends to legal relations arising in connection with the implementation of authoritative powers by a public agency or officer, as well as in connection with the creation of such an agency or public [office] by means of elections or a referendum. 2. The jurisdiction of the administrative courts extends to public disputes, in particular: 1) disputes between individuals or legal entities and the public agency or officer concerning the challenging of their decisions (regulatory legal instruments or individual acts), actions or omissions; 2) disputes concerning the acceptance of citizens for public service posts, their duties in such posts, and their dismissal from the public service; 3) disputes between public agencies or officers concerning the implementation of their duties by their wielding their authority (including delegated authority); 4) disputes arising in connection with the conclusion, enforcement, termination, cancellation or acknowledgment of the invalidity of administrative contracts; 5) disputes initiated by a public agency or officer in cases stipulated by the Constitution and laws of Ukraine; 6) disputes concerning relations related to the electoral process or referendum process.", "3. The jurisdiction of the administrative courts does not extend to cases of a public‑law nature 1) that fall within the jurisdiction of the Constitutional Court of Ukraine; 2) that are to be examined under the rules of criminal procedure; 3) concerning the enforcement of administrative sanctions; 4) concerning relations which relate to the internal activities or exclusive authority of a public association under the law and the statute (that is to say the internal regulations) of a public association.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 11. The applicant complained under Article 6 § 1 of the Convention that the domestic courts had failed to examine the merits of her reinstatement claim and had deprived her of her right of access to a court. This provision provides, in so far as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribuna l...” A.", "The parties’ submissions 12. The Government maintained that the termination of the proceedings by the administrative courts in the applicant’s case cannot be considered as constituting the final settlement of her case and can in no way be considered as having deprived the applicant of her right of access to a court. According to the Government, the applicant should have lodged a fresh civil claim. They noted that she did so on 28 March 2011 but that the domestic courts left her civil claim unexamined because of her attitude, given that she had sought to have adjourned court hearings in respect of her case on numerous occasions without good reason. They also noted that she had not appealed against the decisions of the Supreme Court and had shown no interest in any further examination of her case.", "They therefore considered that the applicant had not exhausted the domestic remedies that were available to her. They added that the complaint was in any case manifestly ill-founded, since the applicant had shown no interest in a fresh examination of her civil claim. 13. The applicant replied that her applications for the adjournment of court hearings had been reasonable, and that by leaving her civil claim unheard the domestic courts had failed to examine the merits of her reinstatement claim and had thus deprived her of the right of access to a court. She also stated that she had not appealed against the decision of 5 October 2011 because she had not been served with the respective decision.", "B. The Court’s assessment 1. Admissibility 14. The Court finds that the issue of the exhaustion of the domestic remedies in the applicant’s case is closely linked to the substance of her complaint under Article 6 § 1 of the Convention. It should therefore be joined to the merits.", "15. The Court considers that the applicant’s complaint as to her alleged lack of access to a court is not manifestly ill‑founded, within the meaning of Article 35 § 3 (a) of the Convention. It also finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 16. The Court reiterates that, according to its case-law, Article 6 § 1 embodies the “right to a court”, of which the right of access (that is to say the right to institute proceedings before the domestic courts) constitutes only one aspect. For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that constitutes an interference with his or her rights (see, notably, Bellet v. France, 4 December 1995, § 36, Series A no. 333‑B; Tserkva Sela Sossoulivka v. Ukraine, no 37878/02, § 50, 28 February 2008, and the references noted therein). 17.", "The Court also maintains that its task is not to examine whether or not the domestic courts had jurisdiction to determine the merits of the case or to establish which of the courts had jurisdiction to hear the applicant’s complaints on their merits (see Tserkva Sela Sossoulivka, cited above, § 51). 18. This being so, the Court notes that the applicant was able to institute proceedings before the domestic courts but that they finally failed to rule on the merits of her reinstatement claim, having found no jurisdiction in respect of the matter, notwithstanding the fact that the procedural admissibility requirements had been complied with. 19. The Court further considers that in the present case the domestic courts gave contradictory instructions regarding which court had jurisdiction to determine the merits of the applicant’s claim.", "20. The Court notes, in particular, that the Higher Administrative Court refused to follow the rulings of the Supreme Court determining administrative jurisdiction (aдміністративна юрисдикція) over the applicant’s case. Given that the Supreme Court is Ukraine’s highest judicial body which interprets the law in an authoritative way, the applicant had a legitimate expectation that this ruling would not be challenged. 21. The Court reiterates in this context that Article 6 of the Convention requires the States to provide procedural means for the effective and expedient resolution of jurisdictional conflicts (see Loyen v. France (dec.), no.", "46021/99, 6 April 2000). 22. In the light of the foregoing, the Court dismisses the Government’s statement that the termination of the proceedings by the administrative courts in the applicant’s case cannot be considered as constituting a final settlement. The Court observes that the applicant has already taken all necessary steps to have her claim examined by the domestic courts, either in civil or in administrative proceedings. At the point that she received the judgment of the Higher Administrative Court of 2 March 2011 refusing to examine the merits of her claim and switching jurisdiction to the civil courts again, the applicant had exhausted her options in her attempts to approach the domestic courts.", "23. The Court refers to the case of Tserkva Sela Sosulivka (cited above), in which it found that a similar situation amounted to a denial of justice which had impaired the very essence of the applicant’s right of access to a court, as secured by Article 6 § 1 of the Convention. 24. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was deprived of her right of access to a court. There has accordingly been a violation of Article 6 § 1 of the Convention.", "25. It follows that the Government’s preliminary objection regarding the exhaustion of domestic remedies (see paragraph 12 above), as previously joined to the merits (see paragraph 14 above), must be dismissed. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 26. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "27. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 29. The applicant claimed 200,000 euros (EUR) in respect of non‑pecuniary damage. 30. The Government argued that the sum claimed by the applicant was excessive. 31.", "The Court, ruling on an equitable basis, awards the applicant EUR 1,500 in respect of non-pecuniary damage. B. Costs and expenses 32. The applicant also claimed UAH 467.85 (EUR 15) for the costs and expenses incurred before the Court. 33.", "The Government partially contested the amount claimed as being unsubstantiated. Specifically, they argued that the receipts submitted only accounted for a total of UAH 340 (EUR 10) in expenses and asked the Court to reject the applicant’s claim for the remainder. 34. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 15 for the proceedings before it. C. Default interest 35.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s preliminary objection; 2. Declares the application admissible in so far as it concerns the right of access to a court, and inadmissible in respect of the remainder; 3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant’s right of access to a court and, consequently, dismisses the Government’s preliminary objection; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage and EUR 15 (fifteen euros) in respect of costs and expenses, to be converted into Ukrainian hryvnas at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginNona TsotsoriaActing Deputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF DIMITRIEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 26602/02) JUDGMENT STRASBOURG 18 December 2008 FINAL 06/04/2009 This judgment may be subject to editorial revision. In the case of Dimitrievski v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President,Karel Jungwiert,Volodymyr Butkevych,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 25 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 26602/02) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Tihomir Dimitrievski (“the applicant”), on 2 July 2002.", "2. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. 3. On 9 May 2006 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).", "THE FACTS 4. The applicant was born in 1936 and lives in Skopje. 5. On 3 April 1995 the applicant instituted civil proceedings before the then Skopje Municipal Court (Општински Суд Скопје) (“the first-instance court”) against the Copyright Agency of Macedonia-Skopje (“the company”) claiming payment of an outstanding dividend. He alleged that the company’s restructuring had been unlawful and that the latter had not calculated his salary in compliance with the applicable legislation at that time (the applicant alleged that the company had not been fully privatised and that accordingly, it should have applied legislation concerning socially-owned enterprises).", "He further claimed that the company had misappropriated part of its profits and distributed them to its employees as salaries. In that latter context, he claimed a higher dividend than he had actually received (he claimed to have possessed 13.63% of the company’s capital and not 11.918%). 6. On 17 February 1997 the court ordered an expert examination of the applicant’s claim. It appears that the expert report was produced in August 1997.", "7. On 29 May 1997 the applicant brought a separate civil action against the company’s manager. On 25 December 1997 the first-instance court joined the two applications since they concerned the same issues of facts and law. 8. On 3 December 1997 the applicant unsuccessfully proposed a friendly settlement of the case.", "9. In September 1998 the applicant successfully applied for the removal of the judge sitting in his case. The sitting judge also asked to withdraw due to the applicant’s difficult behaviour, namely that he had repeatedly accused the courts and experts of bias and incompetence. 10. None of five hearings fixed between 25 November 1999 and 5 October 2000 was adjourned at the applicant’s request.", "11. On 29 November 2000 the chairman of the panel deciding the applicant’s case withdrew because the applicant had brought criminal charges against her. The latter were rejected by the public prosecutor. 12. Hearings listed on 29 May, 12 July and 21 December 2001 and 14 February 2002 were rescheduled due to the absence of the sitting judge or the incorrect summoning of the defendants.", "13. By submissions of 18 November 1998, 4 May 1999, 25 April 2000, 25 April 2001 and 1 March 2002, the applicant submitted further applications increasing his claim. 14. On 28 March 2002 the first-instance court dismissed the applicant’s claim. On 4 September 2002 this decision was served on the applicant.", "15. On 19 December 2002 the Skopje Court of Appeal dismissed an appeal lodged by the applicant on 18 September 2002. 16. On 12 February 2003 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court. On 5 and 20 March 2003 he filed supplements to his appeal.", "17. On 23 June 2004 the Supreme Court dismissed the applicant’s appeal. This decision was served on him on 16 December 2004. 18. On 20 December 2004 the first-instance court dismissed the applicant’s request for rectification of its decision, which had been in fact a request for a fresh decision on the merits.", "19. The composition of the first-instance court’s panel changed four times during the proceedings in question. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 21.", "The Government did not raise any objection as to the admissibility of this complaint. 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 23. The Government submitted that the period which elapsed before the entry into force of the Convention in respect of the former Yugoslav Republic of Macedonia should not be taken into consideration. They stated that there had been complex circumstances related to the case, including the nature of the dispute (the company’s restructuring and payment of the dividend); the change of the corporate status of the company during the proceedings and the applicant’s behaviour.", "As to the latter, they submitted that he had contributed considerably to the length of the proceedings, namely that he had brought two separate claims which had been joined subsequently; he had filed numerous and voluminous submissions repeating his claims in unclear language; he had increased his claim several times and requested removal of the sitting judges. He had also brought criminal charges against one of them. 24. As to the national courts, the Government argued that no delays were attributable to them. They concluded that the State could not be held responsible for the applicant’s behaviour.", "25. The applicant contested the Government’s arguments concerning the complexity of the case and his contribution to the length of the proceedings. In this latter context, he argued that he had had a right to file submissions in support of his arguments. Furthermore, he had attended all hearings as scheduled. 2.", "The Court’s assessment 26. The Court notes that the proceedings started on 3 April 1995 when the applicant requested the courts to decide his claims. However, as noted by the Government, the period which falls within the Court’s jurisdiction began on 10 April 1997, after the Convention entered into force in respect of the former Yugoslav Republic of Macedonia (see Lickov v. the former Yugoslav Republic of Macedonia, no. 38202/02, § 21, 28 September 2006). 27.", "In assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings on 10 April 1997 (see Ziberi v. the former Yugoslav Republic of Macedonia, no. 27866/02, § 41, 5 July 2007). In this connection, the Court notes that at that point the proceedings had lasted over two years at one level of jurisdiction. 28. The proceedings ended on 16 December 2004 when the Supreme Court’s decision of 23 June 2004 was served on the applicant.", "The proceedings therefore lasted over nine years and eight months, of which seven years, eight months and six days fall within the Court’s temporal jurisdiction at three court levels. 29. With reference to its settled case-law on this matter, the Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case having regard to its complexity, to the conduct of the applicant and to that of the authorities dealing with the case (see Markoski v. the former Yugoslav Republic of Macedonia, no. 22928/03, § 32, 2 November 2006). 30.", "The Court first observes that the subject matter of the case before the domestic courts was complex, as shown, inter alia, by the fact that it involved examination of a considerable amount of documentary evidence concerning the company and its privatisation. The courts were also requested to determine the outstanding dividend and to examine other ancillary issues, such as the payment of the applicant’s salary. The necessity of obtaining an expert examination of the applicant’s claim supports the Court’s findings about the complexity of the case. 31. The Court considers that the applicant contributed to the protraction of the proceedings.", "He initially brought two separate claims concerning the same issues of fact and law which led to their being joined in single proceedings; he increased his claim several times; he challenged the impartiality of one judge and brought criminal charges against another one; and he questioned the competence of the expert involved in his case. In this connection, the Court reiterates that although a party to civil proceedings cannot be blamed for using the venues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wąsowska v. Poland, (dec.), no. 41413/98, 5 April 2001). The Court finds that the applicant was responsible for one-year delay of the proceedings in question. On the other hand, the applicant attended all scheduled hearings.", "32. The Court finds that significant delays are attributable to the national authorities. While the higher courts examined the applicant’s appeals with reasonable expedition, the first-instance court gave the first and only decision nearly seven years after the introduction of the applicant’s claim, of which nearly five years fall within the Court’s temporal jurisdiction. Despite the latter’s behaviour, that time cannot be regarded as reasonable. During this period, a number of hearings were adjourned because either the defendants were not summoned properly or the sitting judge was absent.", "It further took about six months for the court-appointed expert to produce his opinion. That delay can be attributed only to the State (see Stojanov v. the former Yugoslav Republic of Macedonia, no. 34215/02, § 60, 31 May 2007). The changes of the composition of the adjudicating panel added to the length of the proceedings since the hearing restarted after each change. Finally, it took a total of about eleven months to serve two court decisions on the applicant (see paragraphs 14 and 17 above).", "33. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 34. There has accordingly been a breach of Article 6 § 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36. The applicant claimed 350,000 euros (EUR) in respect of pecuniary damage, corresponding to the unpaid dividend plus interest. He also claimed EUR 30,000 in respect of non-pecuniary damage, for the stress and mental suffering caused by the protracted length of the proceedings.", "37 The Government contested these claims as unsubstantiated. They argued that there was no causal link between the alleged violation and the pecuniary damage claimed. By making that claim, the applicant was in fact asking the Court to decide his case as brought before the national courts. 38. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, it awards the applicant EUR 600 in respect of non-pecuniary damage. B. Costs and expenses 39. The applicant also claimed EUR 4,460 for the costs and expenses incurred before the domestic courts. These included the courts’ and the expert’s fees.", "He further claimed EUR 3,238 for copying, mailing and translation of documents submitted to the Court and for medical and transport services related to his poor health. The applicant provided payment slips in support of his claims. 40. The Government contested these claims. 41.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Gjozev v. the former Yugoslav Republic of Macedonia, no. 14260/03, § 63, 19 June 2008). As to the costs and expenses incurred domestically, the Court notes that they were not incurred in order to seek through the domestic legal order prevention and redress of the alleged violation complained of before the Court (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 34, 20 April 2006). The Court therefore makes no award under this head.", "On the other hand, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 200 for the proceedings before the Court. C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 600 (six hundred euros) for non-pecuniary damage; (ii) EUR 200 (two hundred euros) in respect of costs and expenses; (iii) plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekRait MarusteRegistrarPresident" ]

[ "FIRST SECTION CASE OF ALEKSANDRA DMITRIYEVA v. RUSSIA (Application no. 9390/05) JUDGMENT STRASBOURG 3 November 2011 FINAL 03/02/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aleksandra Dmitriyeva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 11 October 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "9390/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Aleksandra Petrovna Dmitriyeva (“the applicant”), on 26 January 2005. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. Referring to events which took place between 8 and 10 December 2001, the applicant alleged that police officers had beaten and unlawfully detained her, having broken into the area of the apartment which she lived in against her will.", "She also complained about the lack of effective investigation into the alleged ill-treatment by the authorities. 4. On 12 January 2010 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1946 and lives in St Petersburg. 6. The applicant, her husband and their son reside in an apartment, which they share with two other families. She suffers from a number of diseases, affecting her skin, kidneys and thyroid gland.", "The applicant is classed as Category 2 disabled under Russian law. 7. In April 2001 the applicant’s son allegedly beat up Bo., who was a member of one of the families residing in the same apartment. Bo. complained to the police of having been beaten.", "On 1 October 2002 the applicant’s son was convicted of affray in this connection and given a six-month conditional sentence. A. Events of 8 December 2001 8. At around 5 p.m. on 8 December 2001 K., a neighbourhood police inspector, and police officer S., the Deputy Head of the 28th Section of the St Petersburg Central District Department of the Interior (“the District Department of the Interior”) arrived at the applicant’s apartment to invite the applicant’s son to attend an interview. At the time, he had not been either classed as a suspect or formally charged.", "Bo. let the officers into the apartment and they saw the applicant’s son entering his room and locking the door behind him. 9. The applicant blocked the way to her son’s door. S. explained the reasons for their visit to the applicant, but the applicant asked them to leave.", "According to S., the applicant verbally insulted him and punched him several times in the chest. The applicant disagreed and submitted that she had simply blocked access to the door, but did not insult or punch anyone. 10. The applicant’s neighbours, who were present during the incident, later confirmed that the applicant had used abusive language and had tried to hit S. 11. K. then left the building in order to prevent the applicant’s son from escaping through a window and S. stayed in the apartment and called the police, asking them to send reinforcements.", "Some time later, officers Sh., D.B. and M. arrived at the applicant’s apartment. S. told them to take the applicant to the police station for having insulted the policemen on duty. 12. According to the applicant, and as also noted in the statement of her neighbours given during the subsequent investigation, thereafter the policemen forced the door to the room of the applicant’s son open, entered the room and some time later led him outside of the apartment and put him in a car.", "13. According to S., he offered to let the applicant put her winter clothes on, but the applicant refused. Sh. and M. then took the applicant by the hands, led her out of the apartment and put her in the car. The applicant resisted their efforts.", "14. The applicant submitted that while she had been in the apartment, one of the policemen had knocked her to the floor, had grabbed her by the wrists and had dragged her out of the apartment. He had dragged her down two staircases of the building and out to the car. She denied having been given the chance to put her winter clothes on. 15.", "According to the applicant, it had been minus 10o C outside. The applicant’s son had been put in the same car. The police brought them to the District Department of the Interior’s premises and locked them in cells for administrative detainees. 16. Some time later the applicant’s husband brought her warm clothes.", "A record made after the incident concerning the administrative offence of minor affray under Article 158 of the RSFSR Administrative Offences Code states that the applicant “used abusive language in public”. The record describes the applicant’s identity and time of the incident, but does not mention whether any decision was taken in connection with her alleged misconduct, whether the applicant was taken into custody and whether or when she was released. The applicant confirmed having seen a copy of the record in the police station. 17. The Government were unable to provide the Court with the materials pertaining to the applicant’s administrative case, explaining that they were destroyed following the expiry of the time-limit for storage of such documents in February 2003, April 2005 and April 2007.", "They did not submit any specific information as to the existence of a record of the applicant’s detention. 18. According to the applicant, she had spent approximately twenty hours in a cell for administrative detainees in the District Department of the Interior’s premises. She was not given any food, was not provided with medical assistance and did not have the opportunity to sleep, as there was neither a bed nor bedding. Given that she had suffered an injury to her tail bone, the only position that she had been able to cope with was staying upright all the time.", "It is not clear whether any records of the applicant’s detention were made. 19. The Government submitted that there had been no standard rules concerning the conditions for such detention, that the applicant’s cell had been equipped with a wooden bench, that the applicant had not complained about the state of her health and that the authorities had not impeded third parties, such as a relative, from bringing their own food to feed the applicant. 20. The applicant was released on 9 December 2001 at around 1 p.m., without having been brought before a judge or otherwise interrogated.", "On the same date, the applicant was examined by a doctor who recorded a bruise on the applicant’s tail bone. The doctor stated specifically that the bruise had been formed as a result of an impact occurring no less than once by a blunt object in a mechanical way, similar to a blow, and that it “could have been inflicted during a fall onto a flat surface or [by] continuous dragging along the floor or down a staircase”. 21. The administrative proceedings against the applicant and her son concerning the charge of minor affray were later discontinued or abandoned. 22.", "The Government did not dispute the timing of the applicant’s detention and release. B. Criminal investigation 1. First round of investigation 23. On 12 December 2001 the applicant asked a prosecutor to initiate criminal proceedings against police officers S., K. and the policeman who had dragged her from the apartment to the car.", "In her application, she referred specifically to the policemen’s unlawful entry to the apartment and the applicant’s family’s accommodation, to being beaten and to her subsequent unlawful arrest and detention. The letter described in detail the conditions of her detention. On 28 January 2002 Ts., an assistant prosecutor at the St Petersburg Central District Prosecutor’s Office, refused to institute criminal proceedings. The applicant did not provide the Court with a copy of the decision. 24.", "On 8 February 2002 M., a supervising prosecutor at the St Petersburg Prosecutor’s Office, instituted criminal proceedings against S. on the basis of the applicant’s complaint of S.’s unlawful actions. She argued that: “... [the decision of 28 January 2002] had been unlawful and had to be quashed insofar as it had concerned the actions of the police officers. Thus, [the relevant legislation] indeed empowers the policemen to enter without hindrance the residential premises of private citizens. However, this power is provided only in case the [policemen are pursuing] the persons suspected of criminal activity. In the case at hand, [the applicant’s son] was not a suspect within the meaning of [the domestic law on criminal procedure], the criminal case against him was instituted only later, which policemen K. and S. certainly knew.", "In addition, in breach of the mentioned legal norm obliging the police to inform about all such cases the relevant prosecutor within 24 hours, this has not been done. The unlawful actions of the policemen [in question] mostly provoked the subsequent actions of [the applicant], which was unjustifiably viewed by the policemen as a minor affray. [The applicant’s] intent in the present situation was directed at the protection of her son, and not the breach of public order. As was earlier noted in [previous decision of the prosecutor’s office], the [applicant’s] actions did not qualify as [an offence of insulting a public officer] ... because the relevant actions did not have a lawful character ...” The prosecutor considered that the applicant had been taken to the police station and had been detained there unlawfully. The prosecutor decided to institute criminal proceedings but for some reason failed explicitly to quash the decision of 28 January 2002.", "25. On 14 March 2002 an expert examination of the applicant’s medical condition was conducted. The expert noted that the applicant had a bruise on her tail bone which could have occurred, among other reasons, as a result of her being dragged down the staircase on 8 December 2001. 26. Investigator Ch.", "of the St Petersburg Central District Prosecutor’s Office, in charge of the criminal case against S., collected the following evidence. He questioned S., who stated that during the incident in the applicant’s apartment she had verbally insulted and pushed him several times and that he had had to call for reinforcements and take the applicant to the police station. S. had not known about the applicant’s disability at the time of the incident. 27. The investigator also questioned K., who stated that he had been in charge of investigating Bo.", "having been beaten up by the applicant’s son. On 8 December 2001, having learned that the applicant’s son was at home, he had gone with officer S. to invite him to attend a police interview. They had met the applicant in the apartment and she had started to verbally insult them and push S. out of the apartment. The applicant’s neighbours had witnessed the incident. Then K. had left the building and had seen the reinforcing officers arriving.", "Sh. and M. had gone upstairs and had soon come back, leading the applicant by the hands to the car. 28. Sh. told the investigator that on 8 December 2001 he had arrived at the applicant’s apartment.", "He had seen the applicant swearing and pushing S. Then S. had given the order to take the applicant to the station. He and another policeman had taken her by the hands and had led her out of the apartment to the car. The applicant had resisted. 29. The investigator questioned the applicant’s neighbours Bo.", "and S., who stated that they had seen her insulting and trying to hit officer S. They stated that the two policemen had then taken the applicant to the car, despite her resistance. The neighbours also gave evidence to the effect that the police officers had forced open the door to the applicant’s son’s room and had entered it despite the applicant’s objections. 30. L., a passer-by, stated to the investigator that she had seen two policemen leading a woman from an apartment block to a car. The woman had been resisting and screaming.", "She had then been “carefully put into the car”. 31. The applicant told the investigator that in the apartment a police officer had hit her so hard that she had fallen to the floor. He had then taken her by the wrist and had dragged her along the floor out of the apartment. She had walked by herself from the entrance of the apartment block to the car.", "32. In the light of the above evidence, the investigator concluded that S., by ordering the applicant’s transfer to the police station, had acted lawfully. Accordingly, on 8 June 2002 he took a decision to discontinue the criminal proceedings against S. 2. Second round of investigation 33. On 1 July 2002 deputy prosecutor B. S. of the St Petersburg Central District Prosecutor’s Office quashed the decision of 8 June 2002 and ordered additional investigation of the applicant’s complaint concerning alleged unlawful actions by S. 34.", "On 21 October 2002 an investigator at the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings against S. He argued that S. had acted lawfully and had not abused his authority. The investigator also found that the applicant had insulted S. and had punched him several times in the chest, and therefore that she was liable to prosecution for having committed violent actions towards an officer on duty. He separated the case relating to the applicant’s actions in respect of the officer into a different set of criminal proceedings. On 28 April 2003 the criminal proceedings against the applicant in this respect were discontinued for the lack of evidence of a crime. 3.", "Third round of investigation 35. On 17 February 2003 deputy prosecutor B.S. of the St Petersburg Prosecutor’s Office quashed the decision of 21 October 2002 and ordered additional investigation into the applicant’s complaints. 36. On 3 April 2003 investigator A. Sh.", "of the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings. The investigator stated that the applicant’s bruise had occurred as a result of her active resistance to the lawful actions of policemen. On the way to the car, the applicant had tried to hold on to a door frame, the rails of the staircase and a metal fence on the street, and had bent her feet so that the policemen had had to carry her. The investigator argued that taking the applicant to the police station had been justified by the need to hold her responsible for her breach of public order. The investigator concluded that there was no evidence that S. had abused his powers.", "The investigator also stated that the police had made a record of the applicant’s administrative offence and that they had arrested the applicant in order to bring her before a judge who was competent to decide on her guilt as regards the administrative offence in accordance with applicable law. 4. Fourth round of investigation 37. On 30 December 2003 deputy prosecutor Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 3 April 2003 and ordered additional investigation by another prosecutor’s office.", "The prosecutor noted that it had not been possible to establish with certainty the circumstances of the incident between the applicant and the police officers due to inconsistencies in the witnesses’ statements. In the decision, the prosecutor referred to the record of the applicant’s administrative and police detention but noted discrepancies as regards the beginning of the applicant’s detention and also stated that the time of the applicant’s release was not recorded at all. He considered that it was necessary to carry out a comprehensive medical expert examination of the applicant and noted the inadequacy of the investigation conducted so far. 38. On 18 February 2004 an investigator from the St Petersburg Admiralteyskiy District Prosecutor’s Office discontinued the criminal proceedings against S. He noted that the decision of 8 February 2002 had not quashed the decision of 28 January 2002 and that the original decision was still in force.", "Thus, the institution of criminal proceedings at a time when there was a valid decision to discontinue them was unlawful. The investigator noted in his decision that, in entering the apartment against the will of its owner and ordering the policemen to take the applicant to the police station, S. had acted unlawfully. He also noted that officer Sh. had led the applicant out of the apartment. According to the investigator, the applicant had been detained at the police station on the basis of reports by a number of policemen, namely B., Sh.", "and M. 5. Fifth round of investigation 39. On 31 March 2004 deputy prosecutor A. Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 18 February 2004 due to the inadequacy of the investigation and ordered additional investigation. 40.", "On 31 May 2004 investigator Zh. of the St Petersburg Admiralteyskiy District Prosecutor’s Office discontinued the criminal proceedings against S. The investigator stated that it had not been possible to establish with certainty the circumstances of the incident between the applicant and police officers due to inconsistencies in the witnesses’ statements. He argued that S. had unlawfully entered the apartment against the applicant’s will and had given an illegal order to take her to the police station. The investigator also added that S. had violated the applicant’s rights, as he had not checked whether her detention at the police station for more than three hours was lawful. The investigator further argued that the institution of criminal proceedings at a time when the decision of 28 January 2002 to discontinue them was still in force was unlawful and all evidence collected in the course of the newly opened investigation was inadmissible.", "The applicant’s son challenged the decision in court on the applicant’s behalf. 41. On 17 February 2005 the Smolninskiy District Court in St Petersburg examined the applicant’s complaint against the investigator’s decision of 31 May 2004 and rejected it. The court upheld the investigator’s conclusion that the institution of criminal proceedings at a time when the decision of 28 January 2002 to discontinue them was still in force was unlawful and all evidence gathered in the course of the newly opened proceedings was inadmissible. The applicant appealed.", "On 7 April 2005 the St Petersburg City Court rejected the applicant’s appeal. 6. Sixth round of investigation 42. On 2 June 2004 deputy prosecutor A. Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 8 February 2002 to institute criminal proceedings.", "On 2 June 2004 the deputy prosecutor quashed the decision of 28 January 2002 to discontinue the criminal proceedings and ordered additional investigation. 43. On 11 June 2004 deputy prosecutor K. of the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings against S. The deputy prosecutor noted that police officers Sh. and M. had taken the applicant by the hands and had led her out of the apartment. He concluded that the police officers had acted lawfully during the incident, which had been provoked by the applicant and her son.", "The deputy prosecutor also mentioned the fact that no records of the time of the applicant’s release had been made at the police station and added that the materials of inquiry concerning the administrative proceedings against the applicant and her son, namely the records of administrative offences, had been destroyed. In taking the decision, the prosecutor did not mention any specific piece of evidence, either new or old. The applicant’s son challenged this decision in court on her behalf. 44. On 1 November 2004 the Smolninskiy District Court in St Petersburg rejected the complaint against the decision of 11 June 2004.", "The court noted that: “... the statements of all persons questioned in connection with the case have been analysed, the events have been described in the decision [of 11 June 2004] in chronological order and do not contradict the evidence contained in the materials of inquiry ... submitted to the court. The statements of policemen Sh., B., K. and S. that they did not commit any illegal actions towards Dmitriyeva and that the conflict was provoked by [the applicant], who had refused to follow the lawful orders of the policemen, are also confirmed by the statements of witness L. ...” The applicant appealed against the judgment. 45. On 27 January 2005 the St Petersburg City Court rejected the applicant’s appeal. II.", "RELEVANT DOMESTIC LAW 46. Section 11(18) of the Police Act 1991 gives the police the right to enter premises when pursuing a person suspected of having committed a crime or when the police have sufficient information to believe that a crime has been or is being committed on the premises or that an accident has happened there and also for the purposes of ensuring the safety of citizens and of the public in cases of natural disasters, catastrophes, accidents, epidemics, epizootics and public disorders. The police have to notify a prosecutor of all cases of entry into the homes of persons against their will within twenty-four hours. 47. Article 158 of the RSFSR Administrative Offences Code 1984, as in force at the relevant time, punished minor affray, namely the use of abusive language in public places, harassment of citizens and other similar actions disturbing the public order and peace.", "Article 238 of the Code provided that an accused person could be brought to a police station for the purpose of making a record of an administrative offence if it had not been possible to make it on the spot. Article 240 required that administrative detention be recorded. According to Article 242, a person who committed an administrative offence could be detained for no more than three hours. However, individuals who committed minor affray could be detained until the examination of the case by a court or by the head of a law-enforcement body. III.", "RELEVANT INTERNATIONAL DOCUMENTS 48. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) (CPT/Inf (92) 3) reads as follows: “42. Custody by the police is in principle of relatively short duration ... However, certain elementary material requirements should be met. All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e.", "sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets. Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e.", "something more substantial than a sandwich) every day. 43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area.", "The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.” The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47). 49. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) reads, in so far as it concerns conditions of detention in administrative-detention cells located within police stations, as follows: “25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench.", "Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic. The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service.", "Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED ILL-TREATMENT DURING THE ARREST AND THE LACK OF INVESTIGATION INTO THE EVENTS 50. The applicant complained with reference to the events of 8 December 2001 that she had been violently thrown to the floor and dragged out of her apartment and down a staircase by a police officer and that the authorities had failed properly to investigate the incident. The Court will examine these grievances under Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 51. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions 52.", "The Government contested the applicant’s account of events and argued that the police officers had acted lawfully and proportionately. The incident had been thoroughly investigated and the domestic authorities had determined that the applicant’s allegations of ill-treatment had been unsubstantiated. 53. The applicant disagreed and maintained her complaints. She referred, in particular, to the medical record noting her injury and to various deficiencies in the investigation to insist on her initial account of the events in question.", "2. The Court’s assessment (a) Alleged ill-treatment during the arrest 54. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.", "Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question of whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000-IV). 55.", "Furthermore, allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita, cited above, § 121). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. 56. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no.", "336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). The Court further reiterates that, being sensitive to the subsidiary nature of its role and cautious in taking on the role of a first-instance tribunal of fact, it is nevertheless not bound by the findings of domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case (see, by contrast, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B; see also Matyar v. Turkey, no. 23423/94, § 108, 21 February 2002, and Vidal v. Belgium, 22 April 1992, §§ 33 and 34, Series A no.", "235‑B,). 57. In the instant case, the Court observes that the parties did not dispute that in the course of the visit of the policemen to the apartment in which the applicant lived on 8 December 2001, she blocked their passage in a corridor and was then forcefully restrained and brought to the police car which waited outside. It remains to be determined whether the applicant had indeed been merely led out of the apartment, as argued by the Government, or whether she had been thrown to the floor and dragged down a staircase by the hands, as suggested by the applicant. It should then be determined whether the ill-treatment complained of reached the minimum level of severity within the meaning of Article 3 of the Convention.", "58. In connection with the former question, the Court would note that the parties did not dispute the validity of the medical report drawn up on 9 December 2001 immediately following the applicant’s release, which confirmed the presence of a bruise on the applicant’s tail bone (see paragraphs 20 and 25). The applicant’s allegations of ill­treatment in this connection were examined and rejected by the domestic authorities in the course of the criminal investigation into the events of 8 December 2001 which ended with the decision of 11 June 2004 (see paragraph 43). That decision was upheld by the domestic courts at two judicial instances on 1 November 2004 and 27 January 2005 respectively (see paragraphs 44 and 45). The Court notes, however, that the authorities at the domestic level largely ignored the medical data contained in that report and, apart from the decision of 3 April 2003 which was later quashed (see paragraph 36), made no serious attempt to explain the origin of this injury and to establish in detail the relevant factual circumstances (see paragraphs 26-32, 34, 36, 38, 40 and 43).", "Furthermore, it is clear that there is nothing in the case file or the parties’ submissions suggesting that the injury described in the report had been inflicted either before the applicant’s arrest on 8 December 2001 or in the period following her release on the next day. In such circumstances, the Court concludes that no satisfactory and convincing explanation for the origin of the applicant’s injuries has been obtained or advanced either at the domestic level, or in the proceedings before this Court. Without prejudice to the question of the personal criminal liability of the alleged perpetrators of the acts in question, the Court concludes therefore that the Government failed to discharge its burden and that it was not satisfactorily established that the applicant’s account of events had been inaccurate or otherwise erroneous. 59. Accordingly, the Court accepts the description of the events of 8 December 2001 as submitted by the applicant.", "60. Furthermore, having regard to all the circumstances of the treatment as such, its physical and mental effects and the applicant’s health condition and age, the Court concludes that the ill-treatment at issue amounted to inhuman and degrading treatment in violation of Article 3 of the Convention. 61. Accordingly, there has been a breach of the substantive limb of Article 3 of the Convention on account of the way in which the applicant was arrested and brought to the police car on 8 December 2001. (b) Alleged failure to carry out an effective investigation 62.", "The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, § 55, 15 February 2007; Matko v. Slovenia, no. 43393/98, § 84, 2 November 2006; Assenov and Others v. Bulgaria, § 102, 28 October 1998, Reports of Judgments and Decisions 1998‑VIII; and Labita, cited above, § 131).", "63. The minimum standards of “effectiveness” defined by the Court’s case-law also require that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February 2005, and Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006‑III). 64.", "Turning to the case at hand, the Court notes that the parties did not dispute the validity of the medical report drawn up on 9 December 2001, almost immediately following the applicant’s release, and confirming the presence of a bruise on the applicant’s tail bone. The applicant’s allegations, which were detailed and consistent throughout the domestic proceedings and before this Court, were, at least to some extent, corroborated by a medical certificate recording an injury. The domestic authorities themselves repeatedly admitted having serious doubts concerning the lawfulness of the applicant’s arrest and detention and reacted to the applicant’s complaint by instituting criminal proceedings in this connection (see paragraphs 23, 24 and 38). They were therefore under an obligation to conduct an effective investigation into the applicant’s allegations, both concerning the ill-treatment during her arrest and also in so far as she complained of pain and suffering as a result of being detained in a cell with an injury to the tail bone (see Fedotov v. Russia, no. 5140/02, §§ 69-70, 25 October 2005), satisfying the above requirements of Article 3 of the Convention.", "65. In this connection, the Court notes that the prosecuting authorities, who were made aware of the applicant’s ill-treatment and subsequent detention, carried out a preliminary investigation which did not result in a criminal prosecution. The applicant’s complaints were also subsequently subject to examination by the domestic courts at two levels of jurisdiction (see paragraphs 43-45). In the Court’s opinion, the issue is consequently not so much whether there was an investigation, since the parties did not dispute that there was one, but whether it was conducted diligently, whether the authorities were determined to identify and prosecute those responsible and, accordingly, whether the investigation was “effective”. 66.", "The Court reiterates that the applicant was entirely reliant on the prosecutor to gather the evidence necessary to corroborate her complaint. The prosecutor had the legal power to interview the police officers and order their medical examinations, summon witnesses, visit the scene of the incident, collect forensic evidence and take all other crucial steps for the purpose of establishing the truth of the applicant’s account. The Court will therefore assess the thoroughness of the investigation. In this connection, the Court notes a number of significant omissions capable of undermining its reliability and effectiveness. 67.", "First, the Court is struck by the fact that even though the applicant complained of the actions of several police officers, including S., K., M. and Sh., with the latter two being directly involved in the episode during which the applicant was allegedly thrown to the floor and dragged out of the apartment, the criminal proceedings were opened against S. only (see paragraph 23). The Court finds that this shortcoming fundamentally incapacitated the investigation, having switched its focus from the use of allegedly excessive force through the specific actions of officers Sh. and M. to the general guidance of the operation by S. Furthermore, the Court notes that the investigating authority ignored the applicant’s allegations concerning the unacceptable conditions of her detention in a cell for administrative detainees. 68. Second, the Court notes that the initial witness statements collected by the investigation contained many inconsistencies which had to be ironed out by meticulous comparison of these pieces of evidence with one another in relation to specific details or possibly reconstructions.", "It was important to conduct this process as quickly as possible whilst memories of what had happened were still fresh, but also in order to avoid the loss of contact with witnesses. As acknowledged by the investigating authority itself (see paragraphs 37 and 40), the necessary actions were not carried out even more than two years later and in fact they were not conducted at the domestic level at all (see paragraph 62). The Court, however, is mindful of the important role which investigative interviews play in obtaining accurate and reliable information from suspects, witnesses and victims and, ultimately, the discovery of the truth about the matter under investigation. Observing the suspects’, witnesses’ and victims’ demeanour during questioning and assessing the probative value of their testimony forms a substantial part of the investigative process. 69.", "Third, the Court would note that on 2 June 2004 all of the previous investigative actions were quashed and declared null and void because of a breach of domestic procedure at an initial stage of investigation. The evidence that was lost as a result was never recovered, as it appears that the subsequent decision of 11 June 2004 did not rely on any specific piece of evidence collected after that date (see paragraph 43). 70. Lastly, the Court would deplore the overall quality of the final legal decision which summarised the findings of the investigation (see paragraph 43). In addition to being crippled by the previously mentioned and apparently uncorrected defects and not being based on any specific pieces of evidence, it failed to establish the relevant factual circumstances of the case or assess the proportionality of the use of force by the policemen.", "71. Having regard to the above failings of the Russian authorities, the Court considers that the investigation carried out into the applicant’s allegations of ill-treatment was ineffective and insufficient. 72. There has accordingly been a violation of Article 3 of the Convention under its procedural limb on account of the authorities’ failure to properly investigate the circumstances of the applicant’s arrest and ill-treatment. II.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION 73. The applicant complained that her detention for approximately twenty hours in a cell for administrative detainees at the District Department of the Interior’s premises on 8 and 9 December 2001 was incompatible with Article 3 of the Convention in that she had been injured and had slept on the floor and had not been given any food or drink. A. Admissibility 74. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 75. As regards the applicant’s detention in a temporary detention cell, the Government submitted that no specific rules had existed at the domestic level describing the standards for such detention.", "They also stated that the cell in question had been equipped with a wooden bench, that the applicant had made no complaints about the state of her health to the policeman in charge throughout the period of her detention in the cell, and that the authorities had not impeded third parties, such as a relative, from bringing their own food to feed the applicant. 76. The applicant disagreed and maintained her complaints. 2. The Court’s assessment 77.", "The Court notes that the only account of the conditions of the applicant’s detention at the police station is that furnished by her. The Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-founded nature of the applicant’s allegations (see Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004). 78.", "In the present case, the domestic authorities have had ample opportunity to investigate the conditions of detention in the cells at the police station, notably by conducting an on-site inspection or by questioning the police officers or other witnesses concerned (see paragraphs 64-72 below). However, their submissions contained no specific information on this point, apart from an acknowledgement, which did not rely on any specific evidence, that the conditions of such detention had been unregulated, that the applicant had not been fed by the police, that the cell had had a bench and that the applicant could have called for medical assistance, but had failed to do so (see paragraph 18). Nor did the Government offer any convincing explanation for their failure to submit all relevant information. 79. Given these circumstances, the Court will examine the merits of the complaint on the basis of the applicant’s submissions.", "80. The Court observes that between 8 and 9 December 2001 the applicant was detained in a cell at the premises of the St Petersburg Central District Department of the Interior for a period of approximately twenty hours. During that time she received no food or drink and could not use the toilet. 81. The Court recalls that it has found a violation of Article 3 in a case where an applicant had been kept for twenty-two hours in an administrative-detention police cell without food or drink or unrestricted access to a toilet.", "It also noted that the unsatisfactory conditions of his detention had exacerbated the mental anguish caused by the unlawful nature of his detention (see Fedotov v. Russia, no. 5140/02, § 67, 25 October 2005 and Shchebet v. Russia, no. 16074/07, §§ 85-96, 12 June 2008). Furthermore, the Court has previously considered that the mere fact of holding an applicant in custody for three months in a detention centre designed only for short-term detention disclosed a violation of Article 3 (see Kaja v. Greece, no. 32927/03, §§ 49-50, 27 July 2006).", "82. The applicant’s description coincides with the findings of the CPT, which inspected various cells for administrative detainees located within several police stations across Russia that same year. The CPT found, in particular, that there had been no provision for supplying detainees with food and drinking water and that access to a toilet had been problematic. It stated that such cells were totally unacceptable for extended periods of custody (see paragraphs 48-49 above). In connection with its findings above, the Court would emphasise that it considers it unacceptable for a person to be detained in conditions in which no provision is made for meeting his or her basic needs (see Riad and Idiab v. Belgium, nos.", "29787/03 and 29810/03, § 106, ECHR 2008-... (extracts)). 83. Indeed, there is no evidence in the present case of any positive intention to humiliate or debase the applicant. Nevertheless, the Court reiterates that the absence of any such intention cannot exclude a finding of a violation of Article 3 of the Convention (see Novoselov v. Russia, no. 66460/01, § 45, 2 June 2005, and Peers v. Greece, no.", "28524/95, §§ 70‑72, ECHR 2001-III). Even if there had been no fault on the part of the police officers, it should be emphasised that the Governments are answerable under the Convention for the acts of any State agency, since what is in issue in all cases before the Court is the international responsibility of the State (see Novoselov, cited above, and Lukanov v. Bulgaria, § 40, 20 March 1997, Reports 1997-II). 84. The Court notes that the applicant was kept overnight with an injured tail bone in a cell unfit for an overnight stay, without food or drink. These unsatisfactory conditions exacerbated the mental anguish caused by the arbitrary nature of her detention (see paragraphs 94-97 below).", "In these circumstances, the Court considers that the applicant was subjected to inhuman treatment, incompatible with Article 3 of the Convention. 85. The Court finds, accordingly, that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention on 8 and 9 December 2001. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 86.", "The applicant complained that her arrest and detention for approximately twenty hours on 8 and 9 December 2001 had been unlawful and arbitrary. She relied on Article 5 of the Convention, which, in so far as relevant, provides as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Admissibility 87. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 88.", "The Government contested the applicant’s complaint, arguing that the investigating authorities and the domestic courts had examined various aspects of this complaint and had concluded that the applicant’s detention had been lawful and in full compliance with domestic legal requirements. They relied, in particular, on Articles 241 and 242 of the RSFSR Administrative Offences Code 1984, which had made acts constituting minor affray an administrative offence punishable by administrative arrest of up to fifteen days, and argued that under applicable procedure it had been necessary for the policemen either to bring the applicant before a judge or to arrest the applicant in order to interrupt her unlawful conduct. They were unable to submit any documents concerning the applicant’s arrest, subsequent detention and release and explained this failure by the expiry of the relevant time-limits for storage of the documents. 89. The applicant disagreed and maintained her initial position.", "2. The Court’s assessment 90. The Court notes, firstly, the undisputed fact that the overall length of time during which the applicant was held in police custody was about twenty hours between the applicant’s arrest at around 5 p.m. on 8 December 2001 and her release on 9 December 2001 at around 1 p.m. (see paragraphs 8-15, 20 and 22). The Government did not contest the applicability of Article 5 to the applicant’s situation and the Court notes its previous findings that the applicant was arrested at her apartment, then forcibly brought downstairs to the police car, and then taken to the police station. In view of the above circumstances, the Court finds that the applicant’s arrest and subsequent detention constituted a deprivation of liberty within the meaning of Article 5 § 1 (see Gillan and Quinton v. the United Kingdom, no.", "4158/05, § 57, ECHR 2010‑... (extracts), and Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008). 91. The Court next notes that the applicant’s deprivation of liberty did not fall under sub-paragraphs (a), (d), (e) and (f) of paragraph 1 of Article 5. Nor was it covered by sub-paragraph (b), as there is no evidence of the applicant’s failure to comply with any lawful court order or to fulfil any obligation prescribed by law.", "It remains to be determined whether the applicant’s deprivation of liberty fell within the ambit of sub-paragraph (c). 92. It is significant in this connection that the explanation for the applicant’s arrest and subsequent detention provided by the respondent Government in the proceedings before this Court, namely the need to bring the applicant before a judge competent to handle an administrative case or to interrupt her unlawful behaviour, is inconsistent with the outcome of the criminal inquiry into the events of 8-9 December 2001, which in its final version referred to the applicant’s refusal to follow legitimate orders of the policemen (see paragraph 44). The Court would also recall that at each new round of investigation into the incident of 8 December 2001 the competent authorities gave a fresh explanation for the actions of the policemen with the previous version being silently ignored or implicitly discarded. 93.", "Thus, in his initial statement, policeman S. mentioned the need to take the applicant to the police station for “having insulted the policemen on duty” (see paragraphs 11 and 26). In the decision dated 21 October 2002 the investigator concluded that there was a need to investigate violent actions towards the policemen allegedly committed by the applicant (see paragraph 34). The investigator later mentioned the need to punish the applicant for a breach of public order (see paragraph 36) and finally in its last two decisions of 11 June and 1 November 2004 the authorities explained the arrest as a legitimate response to a provocation by the applicant (see paragraph 43) or as a reaction for her refusal to follow legitimate orders given by the policemen (see paragraph 44). Given the Court’s previous reservations concerning the overall poor quality of the investigation (see paragraph 77-85 above) and the fact that the applicant was never tried, let alone declared culpable (see paragraphs 34, 17 and 20) in respect of any of the aforementioned types of conduct, the Court finds that the exact motivation behind the applicant’s arrest and continued detention was not meaningfully elucidated at the domestic level. It would therefore be hesitant to accept the Government’s latest account unconditionally and finds it necessary to review it in detail.", "94. Turning to the circumstances of the applicant’s arrest and subsequent detention, the Court notes that the Government’s explanation manifestly contradicts the course of events and remains unsupported by the documents submitted. 95. The Court observes that the respondent Government were unable to produce any documents confirming the applicant’s arrest and subsequent detention, explaining such inability with reference to the destruction of the relevant documents due to the expiry of the time-limit for their storage. In addition, they admitted that the domestic authorities had made no records in respect of the applicant’s release.", "The Court reiterates that the absence of a record of arrest and detention with an indication of a number of details such as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Menesheva v. Russia, cited above, § 87). The Court has previously considered that the loss of records is capable of depriving an applicant of an opportunity to usefully challenge his arrest and detention (see Boris Popov v. Russia, no. 23284/04, §§ 74-75, 28 October 2010). This is precisely what happened in the present case, where the destruction of the relevant records demonstrably impeded the pending criminal investigation at the domestic level, such loss being specifically mentioned and deplored by the investigative authorities (see paragraph 43), which repeatedly questioned the lawfulness of the applicant’s detention (see paragraphs 24 and 38). The storage of the relevant records for at least the duration of the relevant investigation was thus incumbent on the national authorities and it follows that the unavailability of the record of the applicant’s arrest is imputable to the national authorities.", "96. The Court would reiterate that the case file contains no records in respect of the applicant’s arrest and there is an acknowledgement by the Government that her detention remained undocumented in part, at least as regards her release (see paragraphs 16 and 17). The applicant was neither brought before a judge after her arrest (see paragraphs 16-22), nor found liable by a police authority (see paragraph 16), nor was there any need to bring the applicant to the police station to draw up a record, as the relevant record could have easily been produced on the spot (see paragraph 47). In addition, the Government were unable to produce any evidence that the police brought proper administrative proceedings against the applicant in connection with the events of 8 December 2001. Against this background, the Court cannot accept the Government’s account of the reasons underlying the applicant’s arrest and detention and finds that the applicant’s arrest was not “effected for the purpose of bringing [her] before the competent legal authority on reasonable suspicion of having committed an offence” and could not be “reasonably considered necessary to prevent [her] committing an offence or fleeing after having done so” within the meaning of Article 5 § 1 (c).", "97. It follows that the applicant’s arrest did not have any legitimate purpose under Article 5 § 1 and was accordingly contrary to that provision. There has therefore been a violation of that Article. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 98.", "The applicant further complained that the policemen had entered her accommodation against her will and had broken into her son’s room in breach of domestic law. The Court will examine this grievance under Article 8, which, in its relevant parts, reads as follows: “1. Everyone has the right to respect for ... his home ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 99. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 100.", "The Government contested the applicant’s complaint. They argued that the policemen had acted in compliance with domestic law and that they had paid a visit to the applicant in order to serve a summons on her son. The policemen had been allowed to enter the common area of the apartment by B., the applicant’s neighbour. They had not entered any private premises belonging specifically to the applicant or her family. 101.", "The applicant disagreed, having noted that the policemen had entered her family’s accommodation by breaking down the door to the applicant’s son’s room. She further argued that applicable law had required the policemen to inform a competent prosecutor of any such actions within twenty-four hours and that this condition had never been met. 2. The Court’s assessment (a) Whether there was an interference with the applicant’s Article 8 rights 102. The Court notes that the parties were essentially in agreement that the policemen had entered the common area of the flat in which the applicant lived on the invitation of her neighbour, Bo.", "The parties disagreed, however, whether the policemen had actually entered the private accommodation of the applicant and her family or whether they had remained confined to the common area of the flat. In this connection, the Court notes that the final decision summarising the findings of the investigation remained silent on that point, whilst the eye-witnesses who were questioned essentially confirmed the version of events submitted by the applicant, namely that after the applicant’s removal to the police car the policemen forced open the door to the applicant’s son’s room and some time later also took him away (see paragraphs 12 and 29). 103. Given its previous reservations concerning the overall quality of the investigation and the fact that in their arguments the Government did not rely on any specific evidence which would corroborate their factual position, the Court finds it established that the policeman entered the accommodation belonging to the applicant and her family, as alleged by the applicant and the witnesses, and that there was an interference with the applicant’s home within the meaning of Article 8 § 1 of the Convention. (b) Whether the interference was “in accordance with the law” 104.", "Under the Court’s case-law, the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, among other things, that the measure should have some basis in domestic law. 105. Turning to the case at hand, the Court recalls that the principal aim of the police’s visit on 8 December 2001 to apartment in which the applicant lived was to serve a summons on the applicant’s son in connection with an ongoing investigation into a recent incident involving their neighbour, Bo. The Court is prepared to accept, therefore, that the police had entered the applicant’s accommodation within the apartment in pursuit of a suspect within the meaning of section 11(18) of the Police Act 1991. 106.", "The case file indicates, however, that the police failed to notify a prosecutor of the incident and thus manifestly breached the requirements of that domestic provision. This omission was mentioned as a finding of fact by supervising prosecutor M. in her decision of 8 February 2002 (see paragraph 24) in which she considered that the policemen had acted unlawfully, whilst all subsequent decisions passed over this point in silence. Against this background, the Court concludes that the above requirement of domestic law has not been complied with and that the interference with the applicant’s rights under Article 8 was not, therefore, “in accordance with the law”. 107. It follows that there has been a violation of Article 8 in this case.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 5 AND 8 108. The applicant complained that she had not had an effective remedy in respect of the violations alleged under Articles 5 and 8 of the Convention. She referred to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 109. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 110. The Government disagreed.", "They stated that the applicant had had unrestricted access to various types of domestic proceedings in which the courts would have been competent to review her complaints. 111. The applicant disagreed and maintained her complaints. 2. The Court’s assessment (a) The general principles 112.", "The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996-VI). (b) Application of those principles 113.", "In view of the Court’s findings above with regard to Articles 5 and 8, these complaints are clearly “arguable” for the purposes of Article 13. The applicant should accordingly have been able to avail herself of effective and practical remedies capable of enforcing the substance of these Convention rights. 114. However, in circumstances where, as here, the arrest, detention and release records were quickly destroyed or never existed (see paragraph 95), whilst the entry by the police to the applicant’s private area of the shared apartment in which she lived remained undocumented and the criminal investigation into the events of 8 and 9 December 2001 was ineffective on account of, among other things, failure to establish relevant factual details (see paragraphs 64-72 above), and where the effectiveness of any other remedy that may have existed, including the civil remedies suggested by the Government, was consequently undermined, the Court finds that the State has failed in its obligations under Article 13 of the Convention. 115.", "Consequently, there has been a violation of Article 13 of the Convention in conjunction with Articles 5 and 8 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 116. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 117.", "The applicant claimed 110,000 euros (EUR) in respect of non‑pecuniary damage sustained as a result of the events at issue. 118. The Government argued that the sum claimed by the applicant was excessive and unjustified. 119. As to non-pecuniary damage, the Court sees no reason to doubt that the applicant suffered distress as a result of the manner in which she was arrested and subsequently detained in inappropriate conditions and that sufficient just satisfaction would not be provided solely by the finding of a violation.", "Making an assessment on an equitable basis as required by Article 41, the Court awards the applicant EUR 15,000. B. Costs and expenses 120. The applicant also claimed 34,000 Russian roubles (RUB) for costs and expenses incurred before the domestic courts and the Court. 121.", "The Government agreed that the applicant had spent RUB 25,000 in this connection and viewed the rest of her claims under this head as unsubstantiated. 122. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 550 covering costs under all heads. C. Default interest 123.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of the substantive aspect of Article 3 of the Convention on account of the way in which the applicant was arrested and brought to the police car on 8 December 2001; 3. Holds that there has been a violation of the procedural aspect of Article 3 of the Convention on account of the authorities’ failure to investigate properly the circumstances of the applicant’s arrest and ill-treatment; 4.", "Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention on 8 and 9 December 2001; 5. Holds that there has been a violation of Article 5 of the Convention on account of the applicant’s arbitrary arrest and detention on 8 and 9 December 2001; 6. Holds that there has been a violation of Article 8 of the Convention on account of the unlawful entry by the policemen to the applicant’s apartment on 8 December 2001; 7. Holds that there has been a violation of Article 13 taken in conjunction with Articles 5 and 8 of the Convention; 8. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros), in respect of non-pecuniary damage, and EUR 550 (five hundred and fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on both amounts, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrar President" ]

[ "SECOND SECTION CASE OF SESZTAKOV v. HUNGARY (Application no. 59094/00) JUDGMENT STRASBOURG 16 December 2003 FINAL 16/03/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sesztakov v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrGaukur Jörundsson,MrK.", "Jungwiert,MrV. Butkevych,MrsW. Thomassen,MrM. Ugrekhelidze, judges,and Mr T.L. Early, Deputy Section Registrar, Having deliberated in private on 25 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 59094/00) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Rezső Sesztakov (“the applicant”), on 21 February 2000. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. 3.", "On 23 April 2002 the Court decided to communicate the applicant's complaint concerning the length of matrimonial proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 4. The applicant was born in 1959 and lives in Somlóvásárhely, Hungary. 5.", "On 6 May 1993 the applicant's wife requested the Ajka District Court to hold a preliminary hearing with a view to instituting divorce proceedings. In turn, on 7 July 1993 the applicant brought an action before the District Court claiming maintenance for the couple's son, who was at the time in the applicant's care. The District Court held hearings on the maintenance claim on 13 September and 3 November 1993. On the latter date the applicant's wife formally filed for divorce. The divorce proceedings were subsequently joined to the claim for maintenance.", "6. In the joined proceedings, hearings took place on 27 April, 17 June, 16 September and 31 October 1994, 3 February and 5 April 1995. 7. On the latter date the District Court pronounced, in a partial decision, the couple's divorce. In line with the parties' agreement, it granted the mother custody of their son.", "The court ordered the applicant to pay maintenance, regulated his right of access to the boy and ordered the parties to share the use of their flat which was in common ownership. The court relied on the testimonies of numerous witnesses, including a social worker, the applicant's two step-children born out of the mother's previous marriage, and the couple's son. 8. On the applicant's appeal of 12 May 1995, the Veszprém County Regional Court held a hearing on 26 September 1995. At a hearing on 10 October 1995 the Regional Court allowed the applicant's appeal and amended the District Court's decision in the part concerning the amount of maintenance and the details of his access rights.", "9. On 13 December 1995 the proceedings were resumed before the District Court in respect of the division of the matrimonial property. A hearing was held on 13 December 1995. A further hearing took place on 21 February 1996. On the latter date the District Court decided to obtain various expert opinions.", "10. On 31 May and 23 July 1996, respectively, property and valuation experts submitted their opinions. 11. At a hearing on 18 October 1996 the District Court appointed a motor-vehicle expert to prepare an opinion. On 12 December 1996 the expert was urged to submit his opinion.", "On 31 December 1996 the expert informed the court that the applicant could not be located at the address notified to him. On 17 February 1997 the expert was requested to submit an opinion as soon as possible. On 27 February 1997 the expert submitted his opinion. 12. Further hearings were held on 28 April, 12 May and 17 November 1997.", "Meanwhile, on 6 June 1997 the applicant requested further expert evidence to be taken. Although it experienced difficulties in finding an expert jeweller, the District Court finally appointed one on 27 February 1998 and requested the parties to contact him. On 30 July 1998 the expert submitted his opinion. 13. On 28 September 1998 an expert psychologist submitted his opinion.", "A hearing scheduled for 28 October 1998 was adjourned at the applicant's request. 14. The next hearing took place on 20 January 1999. The District Court ordered the property expert to complete his opinion of 31 May 1996, taking into account any possible changes which might have occurred in the meantime. On 19 March 1999 the District Court requested the expert to proceed as a matter of urgency.", "On 24 March 1999 the expert submitted his opinion, which was based on an on-site inspection of the property. 15. Further hearings took place on 27 September and 25 October 1999. On the latter date both the applicant and his representative failed to appear before the court. Meanwhile, the District Court made enquiries with the parties' bank as regards the mortgage situation of their flat.", "On 29 October 1999 the court requested the parties to waive their rights to secrecy in respect of their bank details. The waivers were sent to the bank on 17 November 1999. On 28 December 1999 the District Court made a further enquiry with the bank as regards payments transferred from the parties' bank account to cover housing expenses. On 24 January 2000 the District Court ordered the applicant to submit his waiver in the form required by the bank. The bank submitted the requested banking details on 27 March 2000.", "16. At the hearings of April and 22 May 2000 several witnesses were heard on the use of the parties' flat. On the latter date the District Court carried out an inspection of the flat. 17. On 13 December 2000 the District Court ruled on the division of the matrimonial property.", "On 20 and 27 December 2000, respectively, the applicant and the defendant appealed. 18. The Veszprém County Regional Court held hearings on 20 February, 1 and 20 March 2001. During this period the parties were involved in negotiations aimed at reaching an agreement on the sale of their flat. On the parties' joint request of 28 March 2001, the Regional Court discontinued the proceedings on 3 April 2001 and annulled the decision of 13 December 2000.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” 20. The Government contested that argument. 21.", "The period to be taken into consideration began on 7 July 1993 and ended on 3 April 2001. It thus lasted almost seven years and nine months. A. Admissibility 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 23. The Government accepted that the legal issues raised by the case were not particularly complex. They stated that some delay in the proceedings was due to the difficulties experienced by the District Court in obtaining the opinion of a motor-vehicle expert opinion and in finding a competent expert jeweller.", "However, the court made all necessary efforts to obtain these opinions. Accordingly, no unreasonable delay could be imputed to the authorities. They further claimed that the parties' lack of co-operation during the proceedings also hindered the submission of the expert opinions. 24. The applicant contested these arguments.", "25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 26. The Court considers that the case was not particularly difficult as regards the facts and the law to be applied.", "27. As regards the conduct of the applicant, the Court observes that there was a delay in the proceedings between 18 October 1996 and 27 February 1997 because the applicant was could not be located at the address notified to the expert. Moreover, he requested that the hearing scheduled for 28 October 1998 be postponed and failed to appear at the hearing on 25 October 1999. For the Court, however, the resultant delays were not significant, having regard to the overall length of the proceedings. 28.", "As regards the conduct of the judicial authorities, the Court observes that no hearings were scheduled in the case in the periods between 17 November 1997 and 28 October 1998 and 20 January and 27 September 1999. During the latter period, the only progress in the case would appear to have been the submission of an updated version of the property expert's opinion, which had apparently become obsolete. 29. The Court would also note that it took the District Court five years from the date of the partial decision on the issues of divorce, custody and maintenance to deliver a first-instance decision on the division of the matrimonial property. 30.", "In these circumstances, the Court considers that the delay in the proceedings must be mainly attributed to the national authorities. 31. Having regard particularly to the overall length involved and to what was at stake for the applicant, the Court concludes that his case was not determined within a reasonable time. There has accordingly been a violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE PROCEEDINGS 32. The applicant also complained that the decisions given by the domestic courts in the above proceedings were wrong. He invoked Articles 6 and 13 of the Convention. Admissibility 33. The Court considers that there is nothing in the case-file indicating that the courts lacked impartiality or that the proceedings were otherwise unfair.", "The applicant's submissions do not disclose any appearance of a violation of his Convention rights in this respect. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicant also complained that the outcome of the proceedings concerning the custody of his son infringed his right to respect for his family life.", "He relied on Article 8 of the Convention. Admissibility 35. The Court observes that the applicant and his former wife agreed that the latter would have custody of their child. Consequently, on 5 April 1995 the Ajka District Court approved this agreement and awarded custody to the mother. 36.", "It follows that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention and that this complaint must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 37. Lastly, the applicant complained that the outcome of the proceedings, in so far as the ownership and use of the flat were concerned, infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No.", "1, which provides as relevant: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ... .” Admissibility 38. As to the division of the matrimonial property, the Court observes that the applicant and his ex-wife concluded an agreement on this matter. Therefore, the applicant cannot claim to be a victim in this respect within the meaning of Article 34 of the Convention.", "Concerning the use of the flat, the Court notes that the court decisions provided a solution to a civil-law dispute between private parties. Those decisions cannot of themselves engage the responsibility of the respondent State under Article 1 of Protocol No. 1, the more so since there is no appearance of arbitrariness in the decisions reached or in the procedures followed. 39. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41. The applicant claimed 5,000,000 Hungarian forints (HUF) in respect of pecuniary and non-pecuniary damage. 42.", "The Government found the applicant's claim excessive. 43. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 4,500 in respect of non-pecuniary damage, having regard to the frustration which he can reasonably be considered to have suffered as a result of the protracted nature of the proceedings. B.", "Costs and expenses 44. The applicant made no claim under this head. C. Default interest 45. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 4,500 (four thousand five hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyJ.-P. Costa Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF KOTOWSKI v. POLAND (Application no. 12772/06) JUDGMENT STRASBOURG 29 September 2009 FINAL 29/12/2009 This judgment may be subject to editorial revision. In the case of Kotowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 8 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 12772/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Marek Kotowski (“the applicant”), on 12 March 2006.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 25 March 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1964 and lives in Bydgoszcz. A. Criminal proceedings against the applicant and his detention on remand 5.", "On 13 July 2005 the applicant was arrested on suspicion of physical and mental cruelty towards his common-law wife. On 16 July 2005 he was detained on remand. The court relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged, which was supported by evidence from witnesses and documents. The court also relied on the risk that he might tamper with evidence, since the victim was his next of kin. 6.", "On 12 October 2005 the Bydgoszcz District Court (Sąd Rejonowy) extended his detention until 13 January 2006. It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant. It also relied on the risk that he might tamper with evidence. 7. On 4 January 2006 the court extended the applicant’s detention until 13 April 2006.", "On 10 April 2006 it ordered that the term should be extended until 13 July 2006. The court referred to the grounds for detention listed in the previous decisions. 8. In the meantime, the District Court had proceeded with the trial. The hearings were held on 29 November 2005, 4 January, 6 February and 8 May 2006.", "The court heard evidence from 12 witnesses and in the course of the proceedings two expert reports were given. 9. In the course of the proceedings the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and decisions extending his detention. 10. On 11 May 2006 the Bydgoszcz District Court convicted the applicant as charged and sentenced him to 3 years’ imprisonment.", "He appealed. 11. The applicant’s detention was subsequently extended on several occasions. 12. On 5 January 2007 the Bydgoszcz Regional Court (Sąd Okręgowy) upheld the trial court’s judgment.", "13. On 17 August 2007 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as being manifestly ill-founded. B. Censorship of the applicant’s correspondence 14. On 2 October 2006 the applicant complained that the Court’s letter of 15 September 2006 had been censored by the authorities. The envelope of this letter, produced by the applicant, bears a red stamp that read: “Censored” (Cenzurowane).", "II. RELEVANT DOMESTIC LAW AND PRACTICE 15. The relevant domestic law concerning censorship of detainees’ correspondence is set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 16. The applicant complained under Article 8 of the Convention that during his detention his correspondence was censored by the authorities. The relevant part of this provision reads as follows: “1. Everyone has the right to respect for ... his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 17. The Government submitted that the applicant had not exhausted all available domestic remedies in that he had failed to bring an action under Article 24 §§ 1 and 2 in conjunction with Articles 417, 448 and 23 of the Civil Code. These provisions would have allowed him to assert that by censoring his correspondence the authorities had breached his personal rights protected by the Civil Code and claim non-pecuniary damages. 18. In this connection, the Government relied on the Śrem District Court’s judgment of 21 December 2005 in which a prisoner had been awarded 3,000 Polish zlotys (PLN) in damages from the State Treasury for a breach of secrecy of his correspondence with the European Court of Human Rights.", "The judgment was partly amended on 19 May 2006 by the Poznań Regional Court, which reduced the amount of damages granted to the claimant. 19. Further, the Government provided an example of the judgment delivered by the Warsaw Regional Court on 27 November 2006 in which a prisoner had been awarded PLN 5,000 in damages from the State Treasury for a breach of secrecy of his correspondence with the Central Board of the Prison Service and the Central Electoral Office. The Regional Court held that secrecy of correspondence was one of the personal rights protected under Article 23 of the Civil Code and that in the case of its breach a claimant may be entitled to an award of non-pecuniary damages. The judgment was upheld by the Warsaw Court of Appeal on 28 June 2007.", "20. The applicant did not comment. 21. The censorship in the present case concerned one Court letter of 15 September 2006. 22.", "The Court welcomes the case-law developments cited by the Government. However it considers that the two examples of domestic case-law provided by the Government do not constitute evidence of a sufficiently established judicial practice to show that a claim for damages under Article 24 §§ 1 and 2 in conjunction with Articles 417, 448 and 23 of the Civil Code was an effective remedy available in theory and practice at the date of introduction of the instant application. It is true that in its decision in the case of Sobolewski v. Poland (no.1), (no. 39655/05, 16 December 2008), the Court noted that the applicant prisoner had obtained compensation for the interference with his correspondence and had thus obtained adequate redress. However, in that case, the question concerned not the effectiveness of the remedy under the relevant provisions of the Civil Code but the separate issue of whether the applicant could still be considered a victim.", "The Court did not pronounce on the issue of exhaustion. As to the decision of the Warsaw Court of Appeal of 28 June 2007 invoked by the Government, the Court observes that it was delivered after the date of introduction of the application, and on that account cannot be held against the applicant. 23. In the circumstances of the case, it cannot therefore be said that any attempt by the applicant to seek redress by lodging such an action would have provided reasonable prospects of a successful outcome. 24.", "For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 26. The Court notes that an envelope in which a Court letter of 15 September 2006 was sent to the applicant bears a stamp indicating that the letter had been censored (see paragraph 14 above). 27. The Court has held on many occasions that as long as the Polish authorities continue the practice of marking detainees’ letters with the “censored” stamp, the Court has no alternative but to presume that those letters have been opened and their contents read (see Matwiejczuk v. Poland, no.", "37641/97, § 99, 2 December 2003, and Pisk-Piskowski v. Poland, no. 92/03, § 26, 14 June 2005 and Michta v. Poland, no. 13425/02, § 58, 4 May 2006). 28. It follows that in respect of the applicant’s letter there was “interference” with his right to respect for his correspondence under Article 8.", "29. The Court reiterates that any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34; and Niedbała v. Poland no. 27915/95, § 78).", "30. The Court notes that the interference with the applicant’s right to respect for his correspondence took place on one occasion when the applicant was detained in a remand centre. 31. The Court observes that, according to Article 214 of the Code of Execution of Criminal Sentences, persons in detention should enjoy the same rights as those convicted by a final judgment. Accordingly, the prohibition of censorship of correspondence with the European Court of Human Rights contained in Article 103 of the same Code, which expressly relates to convicted persons, was also applicable to detained persons (see Michta v. Poland, no.", "13425/02, § 61, 4 May 2006, and Kwiek v. Poland, no. 51895/99, § 44, 30 May 2006). Thus, censorship of the Court’s letter to the applicant was contrary to the domestic law. It follows that the interference in the present case was not “in accordance with the law”. 32.", "Having regard to that finding, the Court does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with. 33. Consequently, the Court finds that there has been a violation of Article 8 of the Convention. II. OTHER ALLEGED VIOLATION OF THE CONVENTION A.", "The lawfulness of the applicant’s detention 34. The applicant complained under Article 5 § 1 of the Convention that he was unjustifiably held in detention on remand. Moreover, he complained that during his pre-trial detention no consideration had been given to the possibility of imposing on him other, less severe, preventive measures. 35. The Court notes that the applicant’s detention was based on Article 249 § 1 of the 1997 Code of Criminal Procedure.", "In this case the applicant was detained on a reasonable suspicion of having committed physical and mental cruelty towards his common-law wife. The decision to place him in custody had a legal basis and was issued by the appropriate judicial authority. There is nothing to suggest that the legal basis for his detention was not clearly defined or lacked the necessary foreseeability required under the Convention. It follows that in that sense, the applicant’s detention was “lawful” within the meaning of Article 5 § 1 of the Convention. 36.", "Consequently, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. B. Unfairness of the criminal proceedings 37. The applicant also complained under Articles 6 of the Convention that the criminal proceedings in his case were unfair. 38.", "However, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references). 39.", "In the present case the applicant did not allege any particular failure to respect his right to a fair hearing on the part of the relevant courts. Indeed, his complaints are limited to challenging his allegedly wrongful conviction. Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly. 40. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 42. The applicant claimed 7,000 euros (EUR) in respect of non‑pecuniary damage.", "43. The Government contested this claim. 44. The Court awards the applicant EUR 500 in respect of non‑pecuniary damage. B.", "Costs and expenses 45. The applicant submitted no claim for costs and expenses. C. Default interest 46. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the censorship of the applicant’s correspondence admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 500 (five hundred euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "THIRD SECTION CASE OF HARUTYUNYAN v. ARMENIA (Application no. 36549/03) JUDGMENT STRASBOURG 28 June 2007 FINAL 28/09/2007 In the case of Harutyunyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Boštjan M. Zupančič, President,Corneliu Bîrsan,Jean-Paul Costa,Alvina Gyulumyan,Davíd Thór Björgvinsson,Ineta Ziemele,Isabelle Berro-Lefèvre, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 7 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 36549/03) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Misha Harutyunyan (“the applicant”), on 29 October 2003. 2.", "The applicant, who had been granted legal aid, was represented by Mr H. Alumyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3. On 5 July 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the lack of a fair trial to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1980 and lives in Yerevan. A. Background to the case 5.", "On 25 June 1998 the applicant was drafted into the army and assigned to military unit no. 33651, situated next to the border with Azerbaijan. 6. On 3 December 1998 the applicant, together with five fellow servicemen, was placed on watch in position no. 24.", "7. On 4 December 1998 one of the six watchmen, serviceman H., was found dead in a nearby trench, having been killed by a machine-gun shot. At the time of the killing, only three of the remaining five watchmen were in the area of position no. 24, namely the applicant and servicemen T. and A. The latter two were apparently cutting wood together not far from the position.", "It appears that the applicant had been seen to have an argument with H. earlier that day. B. Arrest of the applicant and servicemen T. and A., and their ill-treatment 8. On 4 March 1999 servicemen T. and A. were brought to a military police station. On 5 March 1999 the applicant was also brought to the same police station.", "The military police officers started to beat them, seeking to force them to confess to serviceman H.’s murder. According to the applicant, they told the police officers that serviceman H. must have been shot from the other side of the border, to which the officers replied that it had already been established that serviceman H. had been killed at close range, and continued to beat them. 9. The applicant was initially punched and kicked. The police officers then began to hit him with rubber clubs.", "The applicant lost consciousness on several occasions but was revived and continued to be beaten. After a while the police officers began to squeeze the applicant’s fingertips with pliers. The same torture techniques were applied to servicemen T. and A. 10. On 5 March 1999 serviceman T. confessed to the investigator that he had witnessed how the applicant had taken his machine gun and shot H. Since serviceman A. was with serviceman T. at the time of the murder, he was coerced into making a statement to the effect that serviceman T. had told him that he had witnessed the murder.", "11. The police officers subsequently continued to torture the applicant, forcing him to confess to the murder. According to the applicant, this continued for over a month. He was unable to walk and talk properly, and all his fingertips were swollen. C. The applicant’s confession and the institution of criminal proceedings against him 12.", "On 16 April 1999 the applicant was interrogated as a suspect by the investigator examining the case, to whom he confessed that he had accidentally shot serviceman H. 13. On 17 April 1999 the applicant was formally charged with premeditated murder and questioned as an accused by the investigator; during this interview he repeated his confession. Thereafter he was taken to the crime scene, where he made the same statement in front of a video camera and the relevant record was drawn up. On the same date the applicant was placed in pre-trial detention. 14.", "According to the applicant, immediately after their release from the police station on an unspecified date, servicemen T. and A. informed the Military Prosecutor of Armenia (ՀՀ զինվորական դատախազ) in writing that they had been coerced into slandering the applicant. 15. On 19 June 1999 the applicant and servicemen T. and A. were subjected to medical examinations, during which various injuries to their fingers and A.’s head were noted. 16. On 11 August 1999 a confrontation was held between the applicant and serviceman T., during which the latter confirmed his earlier testimony against the applicant.", "D. The applicant’s conviction at first instance 17. On an unspecified date, the applicant’s criminal case was brought before the Syunik Regional Court (Սյունիքի մարզի առաջին ատյանի դատարան). 18. On 26 October 1999 a hearing was held during which serviceman T. confirmed his earlier testimony against the applicant. 19.", "On 6 December 1999 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to thirteen years’ imprisonment. 20. On 15 June 2000 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) quashed this judgment and remitted the case for additional investigation. 21. On 12 September 2000, following the additional investigation, the case was brought again before the Syunik Regional Court.", "22. On 13 June 2001 the Syunik Regional Court decided to remit the case for further investigation. 23. On 3 August 2001 the Criminal and Military Court of Appeal quashed this decision on an appeal by the prosecutor and remitted the case to the Syunik Regional Court for examination on the merits. 24.", "In the proceedings before the Syunik Regional Court, the applicant’s lawyer asked that the applicant’s confession statements of 16 and 17 April 1999 and the statements made by witnesses T. and A. during the investigation in 1999 be declared inadmissible, since they had been obtained under torture. By that time criminal proceedings had already been instituted against the relevant military police officers on account of the torture of the applicant and servicemen T. and A. 25. On 19 June 2002 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to ten years’ imprisonment. The sentence was to be calculated from the first day of the applicant’s detention on 17 April 1999.", "In its judgment, the Regional Court stated that “[T]he following ha[d] been established during the court examination” and went on to describe the circumstances in which the applicant had shot serviceman H. The Regional Court then stated: “For these actions [the applicant] was charged [with premeditated murder]. During ... questioning on 16 April 1999 [the applicant] admitted to the investigating authority that [serviceman H.] had died from a bullet accidentally shot from [the applicant’s] machine gun. On 17 April 1999 during questioning as an accused he again admitted that [serviceman H.] had died from a bullet which had been shot by [the applicant] as a result of a violation of the rules for the handling of weapons. [The applicant] confirmed this statement during the re-enactment of the circumstances of the incident [on 17 April 1999], the video recording of which has been examined during the court proceedings. [The applicant] later revoked this confession.", "During the court proceedings [the applicant] pleaded not guilty and stated that he had not killed [serviceman H.]; they had not had an argument on the day of the incident, they had not sworn at each other, he was unaware of the circumstances of [serviceman H.’s] death, and his confession had been made under the influence of the violence and threats inflicted on him by the [police officers]. Such arguments [by the applicant] are unfounded, contradict the evidence obtained during the court examination and cannot serve as a basis for avoiding criminal liability and punishment. [The applicant’s] ... arguments have been rebutted and his commission of the offence has been proven by the following evidence obtained during the court examination: ...” 26. As an example of such evidence, the Regional Court went on to cite the statement made by witness T. on 5 March 1999. It further stated: “[Witness T.] made the same statement before the Syunik Regional Court at [the hearing of 26 October 1999].", "During the investigation [witness T.] confirmed this statement at a confrontation with [the applicant on 11 August 1999]. Thereafter [witness T.] revoked this statement and submitted that he had not witnessed the circumstances in which [serviceman H.] had been killed. He also made a similar statement during this court examination, indicating that his statement about witnessing the killing of [serviceman H. by the applicant] had been made under the influence of the violence inflicted on him by the [police officers]. A similar statement was also made by [witness A. ].” 27.", "The Regional Court went on to cite a number of circumstantial and hearsay witness statements and an expert opinion to the effect that the shot had been fired at close range, and concluded that: “Having evaluated the contradictory statements made by [witnesses T. and A.] during the investigation and the court examination, the court finds that in reality the coercion was applied by [the police officers] at the military police station for the purpose of ensuring disclosure of the truth. ... The revocation at a later stage by [witness T.] of his [statements made during the investigation] was aimed at helping [the applicant] to avoid criminal liability. The fact that [witness T.] was aware of the circumstances of [serviceman H.’s] death was confirmed by the unconstrained submissions he made at the [court hearing of 26 October 1999], without being subjected to any ill-treatment or threats, and the stories he told to [two fellow villagers] following his demobilisation.” 28.", "The Regional Court concluded by citing other evidence substantiating the applicant’s guilt, such as (i) a forensic examination of the victim’s tissue samples and a medical examination of his corpse, according to which he had died from a shot fired at close range; (ii) a ballistic examination, to the effect that the shell found at the crime scene had been fired from AK-74 type machine gun no. 916236, which had been issued to the applicant; (iii) the record of examination of the crime scene, drawn up on 17 April 1999, and a number of other materials. E. Conviction of the military police officers 29. On 9 October 2002 the Avan and Nor Nork District Court of Yerevan (Երևան քաղաքի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարան) found military police officer M. and three other police officers guilty of abuse of power and imposed sentences ranging from three to three and a half years’ imprisonment. The District Court found: “On 4 March 1999, in connection with the murder of [serviceman H.], ... [police officer M.] brought [servicemen A. and T.] and others to the military police station.", "On 5 March 1999 [the applicant was also brought to the station]. There [the police officers] beat them for several days, delivered numerous blows to [the applicant] and others with a rubber club and squeezed their fingertips with pliers, causing injuries of various degrees. Then [the police officers] forced them to take off their shoes, put their hands on the backs of their heads and get down on their knees, and started to club their soles. By threatening to continue the ill-treatment, [the police officers] forced [the applicant] to confess that he had murdered [serviceman H.], [serviceman T.] to state that he had witnessed that murder, and [serviceman A.] to state that he was aware of the murder.", "[The police officers] also threatened the victims with retaliation if they informed any higher authority about the ill-treatment ... On 5 January 2000, in his office in the military police department in Yerevan, [police officer M.] forced [serviceman A.] to state in relation to the ill-treatment that he was not familiar with [police officer M.], that nobody had beaten him and that the injuries on his fingers had been sustained as a result of his hand being squashed by a car door ... The systematic, unprecedented, essentially cruel and degrading actions inflicted by [the police officers on the applicant and others], which had the attributes of torture, entailed grave consequences in that such actions violated the legally guaranteed rights and interests of [the] servicemen ...” 30. This judgment was based on various witness statements, including those of the applicant and servicemen T. and A., and the results of the medical examinations. 31.", "In his witness statement, the applicant submitted, inter alia, that he had been detained until the end of March 1999 in the military police station, where he was regularly beaten. At the end of March 1999 he was transferred to a military prosecutor’s office but then brought back to the police station on 10 April 1999. On his return journey, police officer M. threatened him with retaliation if he refused to confess. On the same day another police officer also threatened him, but promised to qualify the offence as accidental if the applicant agreed to confess; after this the applicant made his confession statement. 32.", "In his witness statement, serviceman A. submitted, inter alia, that after testifying to the investigator, he and serviceman T. were kept in the canteen of the police station for about a month. At the beginning of April, police officer M. called him and serviceman T. and demanded that, when questioned by the investigator, they tell him that they had not been beaten or ill-treated in the police station, and that the injuries on their fingers had been sustained as a result of their fingers being squashed by a car door. On 5 January 2000 police officer M. threatened to kill him if he informed the investigator about the ill-treatment. 33. In his witness statement, serviceman T. submitted, inter alia, that on 30 November 1999, under pressure from police officer M., he had testified to the investigator that nobody had beaten him.", "34. On an unspecified date the applicant’s lawyer lodged an appeal against this judgment. 35. On 14 November 2002 the Criminal and Military Court of Appeal refused to examine the appeal since, according to the domestic law, a victim in criminal proceedings had the right to appeal only if the proceedings had been instituted on the basis of his or her complaint. 36.", "On 26 December 2002 the Court of Cassation (ՀՀ վճռաբեկ դատարան) upheld this decision. F. Appeal and cassation proceedings in the applicant’s criminal case 37. On an unspecified date the applicant lodged an appeal against his conviction of 19 June 2002. 38. In the proceedings before the Criminal and Military Court of Appeal, the applicant submitted that he was not aware of the circumstances of serviceman H.’s death and that he had been coerced into making his confession statement.", "39. Witness T. submitted that he had not seen who had killed serviceman H., since he and witness A. had been absent at the material time. He further submitted that the statement made by him during the preliminary investigation, to the effect that he had witnessed the murder, was untrue and that he had been forced to make it. Immediately after the incident all five servicemen had agreed to say that serviceman H. had been killed by an Azeri sniper, but in reality he knew nothing about the circumstances of H.’s death. Witness A. made similar submissions.", "40. On 1 April 2003 the Criminal and Military Court of Appeal decided to uphold the applicant’s conviction. In doing so, the Court of Appeal found that the above submissions were made as a result of collusion between the applicant and the witnesses, aimed at helping him to avoid criminal liability. These submissions were rebutted by the evidence obtained in the case, such as: (a) The applicant’s confession of 16 April 1999 to the investigator. Later and in court the applicant had revoked this statement, as having been made under coercion, but had failed to indicate the details of any coercion applied to him in the investigator’s office.", "(b) Submissions by witnesses T. and A. to the Syunik Regional Court at the hearing of 26 October 1999, to the effect that one of them had witnessed and the other was aware of the murder. Witnesses T. and A. had later revoked these submissions but accepted that no coercion had been applied to them in court and that these submissions, albeit untrue, had been made voluntarily. (c) Other circumstantial and hearsay witness statements, the relevant expert opinions, various records and the video recording. 41. The Court of Appeal concluded by stating that the evidence obtained under coercion in the military police station, which was corroborated by the factual circumstances of the case, had not constituted the basis for the charges and had not been used as evidence.", "42. On 14 April 2003 the applicant’s lawyer lodged an appeal. He argued, inter alia, that the applicant’s confession statement of 16 April 1999, and the record and the video recording prepared at the crime scene on the following day, had been made as a result of the beatings, ill-treatment and threats inflicted on the applicant, and could not therefore be used as evidence against him. Furthermore, the Court of Appeal should not have relied on the submissions made by witness T. at the very early stage of the proceedings, including the hearing of 26 October 1999, to justify the credibility of his first accusatory statement, made under torture. These submissions had been the result of the fear experienced by witness T. following the unprecedented violence inflicted on him.", "He had been under constant pressure from the investigators, having been detained on several occasions, and at the time of the above-mentioned hearing he had not yet been demobilised and was afraid of being taken back into custody and subjected to ill-treatment again. As an example of witness T.’s fear of telling the truth, the applicant’s lawyer referred to T.’s testimony of 30 November 1999, in which he had submitted that the injuries to his fingers had been sustained as a result of his fingers being squashed by a car door. For the last three years, however, since he had revoked his earlier statements, witness T. had been insisting that he was not aware of the circumstances of serviceman H.’s death. Finally, the applicant’s lawyer argued that, contrary to what had been indicated in the Court of Appeal’s judgment, witness A. had never made any accusatory submissions against the applicant during the court examination of the case. On the contrary, he had always insisted that witness T. could not have witnessed the murder since they had been together at the material time.", "43. On 8 May 2003 the Court of Cassation dismissed the lawyer’s appeal and upheld the Court of Appeal’s judgment. In doing so, the Court of Cassation found, inter alia, that: “The conclusions in the judgment are corroborated by the evidence examined in court, in particular, statements by [witnesses T., A. and others, and the results of various expert opinions]. ... It has been established that after the incident [servicemen T. and A., the applicant and others] agreed ... to testify that [serviceman H.] had been killed by [the Azeris], nevertheless, [serviceman T.] testified in the first-instance court on 26 October 1999 that [serviceman H.] had been killed ... by [the applicant].", "The arguments of [the applicant’s] lawyer that the judgment was based on statements by [witnesses T. and A.] which had been obtained under torture are groundless, contradict the materials of the case and are rebutted by the following evidence. [The applicant and witnesses T. and A. were beaten for several days by the police officers] who demanded that they make honest statements concerning the murder of [serviceman H.]. The police officers did not take any statements from them. The statements were taken by the relevant investigator from the military prosecutor’s office, who did not ill-treat them ... [The relevant police officers were convicted].", "No criminal proceedings were brought against any of the investigators dealing with the case. ... On 11 August 1999 a confrontation was held between [the applicant and serviceman T. in the presence of the applicant’s lawyer], during which [serviceman T.] contended that [serviceman H.] had been killed with a machine gun [by the applicant]. It has been established that no ill-treatment was inflicted on him at that time. At a later stage [serviceman T.] revoked the above statements and submitted that he had not seen who had killed [serviceman H.], although he did not deny that on several previous occasions he had submitted that it was [the applicant] who had killed [serviceman H.]. The Court of Appeal rightly considered [T.’s] confession statement as reliable and regarded it as proof of [the applicant’s] guilt.", "During the preliminary investigation [the applicant] testified to the investigator from the military prosecutor’s office that it was he who had killed [serviceman H.], albeit accidentally. Thus, irrespective of the fact that during the preliminary investigation the military police officers ill-treated [the applicant and witnesses T. and A. ], the evidence obtained in the case, if evaluated from the perspective of relativity and admissibility, is sufficient in its entirety to convict [the applicant] of the incriminated crime.” 44. On 22 December 2003 the applicant was released on parole. II.", "RELEVANT DOMESTIC LAW 45. The relevant provisions of the Code of Criminal Procedure (ՀՀ քրեական դատավարության օրենսգիրք) read as follows: Article 11 § 7: Security of person “In the course of criminal proceedings no one shall be subjected to torture and to unlawful physical or mental violence, including such treatment inflicted through the administration of medication, hunger, exhaustion, hypnosis, denial of medical assistance and other cruel treatment. It is prohibited to coerce testimony from a suspect, accused, defendant, victim, witness and other parties to the proceedings by means of violence, threat, trickery, violation of their rights, and through other unlawful actions.” Article 20 § 1: No obligation to testify “No one shall be obliged to testify against himself ...” Article 105 § 1: Materials inadmissible as evidence “The following materials cannot constitute the basis for charges and be used as evidence in criminal proceedings: (1) materials obtained under violence, threat, trickery, humiliation of a person, and through other unlawful actions ...” Article 106 § 1: Establishment of inadmissibility of evidence “The inadmissibility of factual data as evidence, and the possibility of their limited use in the proceedings, shall be established by the examining authority of its own motion or upon the request of a party.” Article 126: Examination of evidence “Evidence obtained in the case must be thoroughly and objectively examined: it must be analysed, compared with other evidence, new evidence must be collected, and its sources must be verified.” Article 369 § 3: Drafting of a judgment “A judgment shall be composed of introductory, descriptive-motivational and concluding parts.” Article 371: Descriptive-motivational part of a judgment “The descriptive-motivational part of a judgment shall contain: (1) the content of the accusation; (2) the court’s conclusions with regard to the circumstances of the case, the accusation being tested and the defendant’s guilt; (3) the evidence on which the court’s conclusions are based; and (4) the legal provisions on which the court relied in reaching its decision.” III. RELEVANT INTERNATIONAL DOCUMENTS 46. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides: Article 15 “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 47. The applicant complained that his right not to incriminate himself and his right to a fair trial had been infringed by the use at his trial of his confession statements and the statements by witnesses T. and A., which had been obtained under torture. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 48. The Government claimed that the Court lacked competence ratione temporis to examine the applicant’s complaints. They submitted that the evidence in question was obtained under torture from the applicant and witnesses T. and A. on 16 and 17 April 1999.", "Hence, the facts which, according to the applicant, amounted to a violation of Article 6 § 1 of the Convention took place prior to the date of the Convention’s entry into force in respect of Armenia, namely 26 April 2002. 49. The applicant submitted that he was complaining under Article 6 § 1 of the Convention about the use of the evidence in question at his trial. The relevant court proceedings had taken place after the date of the Convention’s entry into force in respect of Armenia. 50.", "The Court observes that, in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, among many other authorities, Jovanović v. Croatia (dec.), no. 59109/00, ECHR 2002-III). The Court notes that the applicant does not complain of the fact of ill-treatment per se, which undoubtedly took place before 26 April 2002, that is, the date of the Convention’s entry into force in respect of Armenia. His complaints relate to the use of evidence obtained as a result of such ill-treatment in the criminal proceedings against him. As far as these proceedings are concerned, the Court notes that the relevant court judgments and decisions were taken after 26 April 2002 (see paragraphs 25, 40 and 43 above).", "It follows that the applicant’s complaints fall within the Court’s competence ratione temporis. 51. The Court further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The Government 52. The Government admitted that the applicant and witnesses T. and A. had been subjected to torture and forced to make statements during the investigation in the military police department on 16 and 17 April 1999. However, Article 105 of the Code of Criminal Procedure (CCP) prohibited the use of such evidence.", "Thus, the domestic courts could not and did not rely on these statements in convicting the applicant. They merely referred to them in their judgments as facts which had taken place, adding that these statements had later been revoked. The domestic courts were obliged under Article 126 of the CCP to compare this evidence with other evidence obtained in the case, and to verify its sources and admissibility. However, it would have been illegal to admit these statements as evidence since both the applicant and the witnesses had already revoked them. Besides, when the applicant was being tried at first instance, criminal proceedings had already been instituted against the military police officers in question, and, by the time the Court of Appeal examined the applicant’s case, these police officers had already been convicted.", "53. Furthermore, the Court of Appeal stated in its judgment of 1 April 2003 that “the evidence obtained under coercion in the military police station, which was corroborated by the factual circumstances of the case, had not constituted the basis for charges and had not been used as evidence”. The Court of Appeal also cited all the other evidence, which, taken in its entirety, was sufficient to secure the applicant’s conviction. This included various witness statements, expert opinions and other evidence. Nor did the Court of Cassation rely on the illegally obtained evidence, merely stating in its decision of 8 May 2003 that the evidence in its entirety was sufficient to find the applicant guilty.", "By such “evidence”, the Court of Cassation was referring only to the statements made by witnesses during the court proceedings. Finally, had the courts based their judgments on the applicant’s confession statement, then the crime committed by the applicant would not have been qualified as “premeditated murder” but as “involuntary manslaughter” since the applicant had confessed to having “accidentally shot serviceman H.”. In sum, neither the Syunik Regional Court nor the Court of Appeal had used the applicant’s confession and the statements of witnesses T. and A., obtained under torture, as a basis for the applicant’s conviction. 54. The Government further submitted that, even assuming that the domestic courts used the statements obtained under torture as a basis for their judgments, there was no violation of Article 6 since the applicant’s guilt had been proven by other evidence.", "In Schenk v. Switzerland (12 July 1988, § 48, Series A no. 140), the Court found no violation of Article 6 since the unlawfully obtained evidence was not the only evidence proving the applicant’s guilt. According to the Court’s case-law, the admissibility and evaluation of evidence fell within the competence of the domestic courts, and the Court had to verify whether the proceedings as a whole were fair. In the present case, the finding of the applicant’s guilt was based on a number of other items of evidence, including testimonies given by the applicant and witnesses T. and A. during the court proceedings. (b) The applicant 55.", "The applicant submitted that the Government’s assertion that the statements obtained under torture had not been used as part of the basis for his conviction contradicted the facts of the case. According to Article 369 of the CCP, a judgment was to be composed of introductory, descriptive-motivational and concluding parts. According to Article 371 of the CCP, the descriptive-motivational part of a judgment was to contain: (1) the content of the accusation; (2) the court’s conclusions with regard to the circumstances of the case, the accusation being tested and the defendant’s guilt; (3) the evidence on which the court’s conclusions were based; and (4) the legal provisions on which the court relied in reaching its decision. The descriptive-motivational part of the Syunik Regional Court’s judgment of 19 June 2002 started with the words “The following has been established during the court examination”, followed by the circumstances of the case, the conclusions of the court and the evidence on which these conclusions were based. As part of such evidence, the court referred to the applicant’s confession statements of 16 and 17 April 1999 and the statements by witnesses T. and A., which had been obtained under torture.", "Thereafter, having compared the statements of witnesses T. and A. made during the preliminary investigation, including those made under coercion, with those made at a later stage of the proceedings, the Regional Court gave preference to the statements obtained under torture, stating that “the coercion was applied for the purpose of ensuring disclosure of the truth”. 56. Furthermore, the Court of Appeal, having upheld the judgment of 19 June 2002, thereby considered it to be lawful and well-grounded. Moreover, the Court of Appeal itself referred to the applicant’s confession statement of 16 April 1999 as evidence substantiating his guilt. The Court of Appeal further referred to the statements by witnesses T. and A., made at the earliest stage of the proceedings before the Syunik Regional Court.", "However, as opposed to witness T., witness A. had never made such submissions before the Regional Court. Thus, the statements referred to were the statements made by witness A. during the preliminary investigation, when he was tortured. Furthermore, the Court of Cassation in its decision of 8 May 2003 did not deny that the statements obtained under torture of witnesses T. and A. had been used as a basis for the applicant’s conviction. The Court of Cassation also referred to the applicant’s confession of 16 April 1999 as proof of his guilt. Finally, despite numerous requests by the defence, none of the courts at any of the three levels of jurisdiction delivered a decision declaring the statements obtained under torture inadmissible, although they were vested with such a right under Article 106 of the CCP.", "In sum, the Government’s assertion that the evidence obtained under torture was not used as a basis for the applicant’s conviction contradicted the circumstances of the case. 57. The applicant further submitted that the use of evidence obtained under torture was in violation of Article 6 of the Convention. It was evident from the judgments of the courts at all three levels of jurisdiction that the coerced statements by the applicant and witness T. played a decisive role in securing the applicant’s conviction. It was true that the applicant’s conviction had also been based on a number of other items of evidence.", "However, this other evidence was used simply to confirm the three main items of evidence in the case, namely the statements by the applicant and witnesses T. and A., which had been made under duress. The courts also based their findings on the statement made by witness T. during the first trial in the Syunik Regional Court. However, the case had been examined three times by the Regional Court and at both the second and third trials witness T. submitted that he had been forced to slander the applicant as a result of torture and intimidation and that he was not aware of the circumstances of serviceman H.’s death. 2. The Court’s assessment 58.", "The Court considers it necessary first of all to address the parties’ arguments as to whether the applicant’s confession statements of 16 and 17 April 1999 and the statements by witnesses T. and A. of 5 March 1999, which had been obtained under duress, were used by the domestic courts as evidence in the criminal proceedings against the applicant. Having regard to the judgment of the Syunik Regional Court of 19 June 2002, the Court notes that the Regional Court cited the applicant’s confession statements without expressing any doubts as to their credibility (see paragraph 25 above). Furthermore, in rebutting the applicant’s plea of innocence, the Regional Court explicitly relied, inter alia, on witness T.’s statement of 5 March 1999 (see paragraph 26 above). The Regional Court concluded by stating that “the coercion was applied by the police officers at the military police station for the purpose of ensuring disclosure of the truth” (see paragraph 27 above). This statement prompts the Court to believe that, despite the fact of ill-treatment, the Regional Court did not see any reason to doubt the credibility of the statements made by the applicant and witnesses T. and A. in March and April 1999 and therefore to exclude these statements as evidence.", "Furthermore, the Criminal and Military Court of Appeal in its judgment of 1 April 2003 explicitly cited the applicant’s confession statement of 16 April 1999 as proof of his guilt (see paragraph 40 above). The Court of Cassation in its decision of 8 May 2003 also found that “the Court of Appeal rightly considered T.’s confession statement as reliable and regarded it as proof of the applicant’s guilt”. It further cited the applicant’s confession, made to the investigator on 16 April 1999, among the evidence obtained in the case (see paragraph 43 above). The Court finally notes that none of the courts at any of the three levels of jurisdiction explicitly declared the statements in question inadmissible, despite several requests to that effect by the defence. 59.", "In the light of the above, the Court concludes that the applicant’s confession statements and the statements by witnesses T. and A., which had been obtained under duress, were used by the domestic courts as part of the evidence on which the applicant’s conviction was based. The Government’s assertions to the contrary thus have no basis in the findings of the domestic courts. It remains therefore to be determined whether the use of the statements thus obtained breached the applicant’s rights as guaranteed by Article 6 of the Convention. 60. The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States in the Convention.", "In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, among other authorities, Schenk, cited above, §§ 45-46). 61. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.", "This involves an examination of the “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V, and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX).", "62. As regards in particular the examination of the nature of the Convention violation found, the Court observes that notably in Khan (cited above, §§ 25-28) and P.G. and J.H. v. the United Kingdom (cited above, §§ 37-38) it has found the use of covert listening devices to be in breach of Article 8, since recourse to such devices lacked a legal basis in domestic law and the interferences with the applicants’ right to respect for their private life were not “in accordance with the law”. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of those cases conflict with the requirements of fairness guaranteed by Article 6 § 1.", "63. The Court observes, however, that different considerations apply to evidence recovered by a measure found to violate Article 3. An issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention, even if the admission of such evidence was not decisive in securing the conviction. The use of evidence obtained in violation of Article 3 in criminal proceedings raises serious issues as to the fairness of such proceedings. Incriminating evidence – whether in the form of a confession or real evidence – obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture should never be relied on as proof of the victim’s guilt, irrespective of its probative value.", "Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe or, in other words, to “afford brutality the cloak of law” (see, as the most recent authority, Jalloh v. Germany [GC], no. 54810/00, §§ 99 and 105, ECHR 2006‑IX). 64. In the present case, the Court notes that the applicant was coerced into making confession statements and witnesses T. and A. into making statements substantiating the applicant’s guilt. This fact was confirmed by the domestic courts (see paragraphs 29-36 above) and is not in dispute between the parties.", "The Court is not called upon to decide in the present case whether the ill-treatment inflicted on the applicant and witnesses T. and A. for the purpose of coercing them into making the above statements amounted to torture within the meaning of Article 3, this question, in any event, falling outside the Court’s competence ratione temporis (see paragraph 50 above). In this connection, however, the Court notes with approval the findings of the Avan and Nor Nork District Court of Yerevan in its judgment of 9 October 2002, condemning the actions of the police officers and evaluating them as having the attributes of torture (see paragraph 29 above). Furthermore, the Government in their submissions also characterised the ill-treatment inflicted on the applicant and witnesses T. and A. as torture (see paragraph 52 above). Even if the Court lacks competence ratione temporis to examine the circumstances surrounding the ill-treatment of the applicant and witnesses T. and A. within the context of Article 3, it is nevertheless not precluded from taking the above evaluation into account for the purposes of deciding on compliance with the guarantees of Article 6. The Court further notes its finding that the statements obtained as a result of such treatment were in fact used by the domestic courts as evidence in the criminal proceedings against the applicant (see paragraph 59 above).", "Moreover, this was done despite the fact that ill‑treatment had already been established in parallel proceedings instituted against the police officers in question. 65. In this respect the Court notes that the domestic courts justified the use of the confession statements by the fact that the applicant had confessed to the investigator and not to the police officers who had ill-treated him, the fact that witness T. had confirmed his earlier confession at the confrontation of 11 August 1999, and the fact that both witnesses T. and A. had made similar statements at the hearing of 26 October 1999 before the Syunik Regional Court. The Court, however, is not convinced by such justification. First of all, in the Court’s opinion, where there is compelling evidence that a person has been subjected to ill-treatment, including physical violence and threats, the fact that this person confessed – or confirmed a coerced confession in his later statements – to an authority other than the one responsible for this ill-treatment should not automatically lead to the conclusion that such confession or later statements were not made as a consequence of the ill-treatment and the fear that a person may experience thereafter.", "Secondly, such justification clearly contradicted the finding made in the judgment convicting the police officers in question, according to which “by threatening to continue the ill-treatment, the police officers forced the applicant to confess” (see paragraph 29 above). Finally, there was ample evidence before the domestic courts that witnesses T. and A. were being subjected to continued threats of further torture and retaliation throughout 1999 and early 2000 (see paragraphs 29 and 32-33 above). Furthermore, the fact that they were still performing military service could undoubtedly have added to their fear and affected their statements, which is confirmed by the fact that the nature of those statements essentially changed after demobilisation. Hence, the credibility of the statements made by them during that period should have been seriously questioned, and these statements should certainly not have been relied upon to justify the credibility of those made under torture. 66.", "In the light of the foregoing considerations, the Court concludes that, regardless of the impact the statements obtained under torture had on the outcome of the applicant’s criminal proceedings, the use of such evidence rendered his trial as a whole unfair. There has accordingly been a violation of Article 6 § 1 of the Convention. 67. Having reached this conclusion, the Court does not consider it necessary to address separately the applicant’s argument that the use of his confession statements undermined his right not to incriminate himself. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 69. The applicant claimed a total of about 12,000,000 Armenian drams (AMD) (approximately 22,160 euros (EUR)) in respect of pecuniary damage. In particular, during the four years and eight months spent in detention and prison, each week his parents brought him parcels with food, cigarettes and toiletries.", "Each parcel cost about AMD 20-25,000 (approximately EUR 36-46), so the aggregate amount constituted AMD 5‑6,000,000. Furthermore, during this entire period he was deprived of the opportunity to work. Assuming that he could earn at least AMD 100,000 per month (approximately EUR 185), this loss amounted to AMD 5,600,000. The applicant also claimed compensation for non-pecuniary damage in the amount of EUR 120,000. He submitted that the breaches of the Convention resulted in his loss of liberty for about four years and eight months.", "In addition, he had been branded a murderer throughout this entire period. 70. The Government submitted that the alleged expenses for parcels, which were not supported by any documentary evidence, were not a consequence of the alleged violation. They were neither necessary nor could they be regarded as real damage or lost profit. In any event, these expenses were exaggerated since, according to the relevant prison rules, only one parcel per month could be received by a detainee or convict.", "With regard to the claim of lost earnings, this claim was of a hypothetical nature. Besides, there was no causal link between the applicant’s imprisonment and his unemployment. As regards the non-pecuniary damage, the Government submitted that a finding of a violation would be sufficient. In any event, the amount claimed was exorbitant. 71.", "The Court notes that the applicant’s claim concerning expenses for parcels does not concern any pecuniary loss incurred by him and relates to expenses allegedly borne by his parents, who were not applicants in the present case and cannot therefore be regarded as persons directly affected by the violation found. As regards the loss of alleged earnings, the Court agrees with the Government that this claim is of a hypothetical nature. It therefore rejects the applicant’s claim for pecuniary damage. On the other hand, the Court considers that the applicant must have suffered frustration, helplessness and anxiety as a result of the use of evidence obtained under torture in the criminal proceedings against him, and that this cannot be compensated solely by the finding of a violation. The Court notes, however, that the amount of non-pecuniary damage claimed is excessive.", "The Court, ruling on an equitable basis, awards the applicant EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 72. The applicant also claimed a total of AMD 13,115,000 (approximately EUR 24,220) for costs and expenses, including transport and hotel costs in the amount of AMD 1,464,000 (approximately EUR 2,703) incurred by his lawyer who, having attended 16 court hearings before the Syunik Regional Court, had to travel by taxi to Syunik Region and occasionally stay there overnight; 770 hours of legal work carried out by his lawyer since May 1999, which amounted to AMD 11,550,000 (approximately EUR 21,330); and postal expenses in the amount of AMD 101,000 (approximately EUR 186). With regard to the transport costs, the applicant submitted that he was unable to submit any proof of these costs since only a few taxis in Armenia were equipped with facilities enabling them to provide receipts.", "With regard to the 770 hours of legal work, the applicant submitted that, since he was insolvent from 2000, he had reached an agreement with his lawyer that he would pay him the above sum in the future, after he had been released and was able to earn money. 73. The Government submitted that the applicant had failed to substantiate his claims concerning legal fees with any documents. He had not submitted any proof that these costs had been actually incurred or were necessary, or that an agreement existed between him and his lawyer to make such payments in the future. In any event, the amount claimed was exorbitant.", "With regard to the travel and hotel costs, the applicant had again failed to submit any documentary proof. His submission that taxis in Armenia were not equipped with the relevant facilities was untrue, and he had also failed to substantiate the necessity of travelling to Syunik Region by taxi when other cheaper means of transport existed. Finally, with regard to postal expenses, nothing indicated that the postal receipts submitted by the applicant’s representative, Mr Alumyan, concerned communications made with the Court in connection with the present case and not other cases in which Mr Alumyan was also involved as the representative. 74. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see The Sunday Times v. the United Kingdom (Article 50), 6 November 1980, § 23, Series A no.", "38). The Court notes that the documentary evidence produced by the applicant only covers his postal expenses in the amount of 144 United States dollars (approximately EUR 122). As regards the sum which he allegedly owed to his lawyer, the applicant failed to submit any documentary proof of such an agreement. Nor did he submit any proof that he owed his lawyer any money for travel and subsistence costs, or even that such costs had been actually incurred. In such circumstances, noting that the amount of costs and expenses substantiated with documentary proof is less than the sum of EUR 715 received by the applicant in legal aid from the Council of Europe, the Court rejects the applicant’s claim for costs and expenses.", "C. Default interest 75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in that the applicant was denied a fair trial; 3.", "Holds that there is no need to examine separately the complaint under Article 6 § 1 of the Convention concerning an alleged violation of the applicant’s right not to incriminate himself; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable on this amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident" ]

[ "FIRST SECTION CASE OF MYSIN v. RUSSIA (Application no. 6521/07) JUDGMENT STRASBOURG 16 October 2014 This judgment is final but it may be subject to editorial revision. In the case of Mysin v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Khanlar Hajiyev, President,Erik Møse,Dmitry Dedov, judges,and Søren Prebensen, Acting Deputy Section Registrar, Having deliberated in private on 23 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6521/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Viktor Aleksandrovich Mysin (“the applicant”), on 20 December 2006.", "2. The applicant, who had been granted legal aid, was represented by Ms O. Druzhkova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. On 30 April 2010 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE A. Conditions of the applicant’s detention between 18 July 2005 and 19 December 2007 4. On 25 June 2004 the applicant was arrested on suspicion of theft of documents and death threat and later charged with several counts of murder and robbery. While in police custody, he was allegedly subjected to beatings. 5.", "On 9 July 2004 the applicant was placed in remand prison IZ-27/1 in Khabarovsk. 6. After an initial period of detention in ordinary cells of the prison, on 18 July 2005 the applicant was transferred to a special section designed for detention of persons sentenced to life imprisonment. The applicant stayed in several cells of that section until his departure to a correctional colony on 19 December 2007. 7.", "The parties disagreed on many aspects of the material conditions of the applicant’s detention during that period. 8. In the Government’s submission, the applicant was accommodated in four cells: 9. All cells measured 8.1 sq. m and had 2 sleeping places.", "The applicant stayed in them either alone or with another detainee, but the design capacity was never exceeded. 10. Each cell had a window covered by metal bars which allowed sufficient access to natural light and fresh air. Two light bulbs, one for daytime and another for night-time lighting were installed in the cells. Running water was available at all times.", "Toilet pans were located at between 1 and 1.3 m from beds and dining tables and separated from the rest of the cells by a 1.5 meter-high brick partition. The applicant was allowed daily hour-long outdoor exercise. He could take a shower and wash his clothing once a week. 11. In support of their position, the Government produced a number of certificates and statements issued by the director of remand prison IZ-27/1 on 7 July 2010 showing the numbers of the cells where the applicant stayed, the frequency of outdoor exercise and visits to the shower, as well as descriptions of the cells, their equipment and sanitary installations.", "The certificates were accompanied by copies of the applicant’s cell record, the prison population register and the schedules of outdoor exercise and sanitary measures covering the entire period of the applicant’s detention. 12. Further to the Court’s request, the Government submitted a floor plan of the facility, containing indications of the cell surface. 13. The applicant disputed the Government’s submissions concerning the cells.", "He provided the following information in that regard: 14. According to the applicant, the cells presented the following characteristics: The applicant did not provide any information about the number of sleeping places in the cells. 15. All cells were located in the semi-basement of the remand prison. They were poorly lit and ventilated.", "Metal shutters on the windows blocked access to natural light and fresh air. Heating did not function. Drinking water was available only on request from the prison guards. The toilet pan was not separated from the living area. The courtyard for outdoor exercise was very small.", "16. To corroborate his claims, the applicant submitted statements by two detainees from the adjacent cells who also stated that the applicant had been ill-treated by prison guards. 17. On 25 July 2006 the Supreme Court of Russia found the applicant guilty as charged and sentenced him to life imprisonment. B.", "Complaints about the conditions of detention 18. On 30 May 2006 the applicant’s mother complained to the regional prison authority about the conditions of his detention. In response to the complaint, on 27 June 2006 the authority admitted that the cell where the applicant was held had to be repaired and directed the management of the prison to transfer the applicant to another cell. 19. On 2 August 2006 the applicant complained to the regional prosecutor about the conditions of his detention.", "He claimed, in particular, that there were metal shutters on windows, that the toilet pan was not separated from the rest of the cell and that the heating was too weak. Following an inquiry into the applicant’s allegations, on 19 August 2006 the district prosecutor concluded that “the [remand prison] cells [were being] renovated and properly maintained” and refused to open a criminal investigation into the matter. The applicant complained to a court. 20. On 18 September 2006 the Kirovskiy District Court of Khabarovsk dismissed the applicant’s complaint against the prosecutor’s decision of 19 August 2006.", "The applicant appealed against the decision of 18 September 2006, but provided no further information about the outcome of these proceedings. 21. On 9 October 2006 the applicant’s mother lodged another complaint with the regional prison authority, claiming, in particular, that the conditions of his detention had not improved. On 13 November 2006 the authority replied that the applicant’s cell had been recently renovated and satisfied the legal standards and that the applicant had no complaints in that regard. THE LAW I. ADMISSIBILITY A.", "The applicant’s complaints about the conditions of his detention from 18 July 2005 to 19 December 2007 and the alleged absence of an effective domestic remedy 22. The Government submitted that the applicant had not exhausted the domestic remedies because he had not raised the issue of the allegedly inhuman conditions of his detention before the Russian authorities, and in particular that he had not applied to domestic courts with claims for compensation of non-pecuniary damage. The Government referred to the cases of Mr D. and Mr G. who were granted compensations for the conditions of their pre-trial detention in different regions of Russia. 23. The applicant disagreed with the Government’s submissions, pointing out his numerous attempts to bring the complaint to the attention of the Russian authorities (see paragraphs 18-21 above).", "24. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for complaining about inhuman conditions of detention. Thus, the Court finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 71, 17 January 2012 and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 70, 10 January 2012).", "25. The Court finds that the complaints concerning the conditions of the applicant’s detention and the existence of effective domestic remedies raise issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that they are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. B.", "The remainder of the applicant’s complaints 26. The applicant also raised complaints about the conditions of his detention prior to 18 July 2005, the alleged ill-treatment by policemen and a lack of medical assistance, as well as about alleged deficiencies in the criminal proceedings against him. The Court has given careful consideration to these grievances in the light of all the material in its possession and considers that, in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II.", "THE MERITS A. Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention 27. The Court has already examined the effectiveness of various domestic remedies suggested by the Russian Government, including civil claims for compensation, in a number of cases concerning inadequate conditions of an applicant’s detention (see Fetisov and Others v. Russia, cited above, §§ 82-87 and Ananyev and Others v. Russia, cited above, §§ 93-118) and concluded that for the time being the Russian legal system does not dispose of an effective remedy for such grievances. 28. The Court finds no reason to depart from those findings in the present case. Accordingly, it dismisses the Government’s objection as to the non-exhaustion of domestic remedies and finds that the applicant did not dispose of an effective domestic remedy for his complaints, in breach of Article 13 of the Convention.", "B. Alleged violation of Article 3 of the Convention 29. The applicant complained that the conditions of his pre-trial detention in remand prison IZ-27/1 of Khabarovsk between 18 July 2005 and 19 December 2007 violated Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 1. Establishment of facts 30. The applicant was held in the Khabarovsk remand prison IZ-27/1 between 18 July 2005 and 19 December 2007, that is for almost two years and five months.", "31. The Government submitted documents which described various aspects of the applicant’s detention. Of particular note are the applicant’s cell record, the prison population register and the floor plan of the remand prison – the original documents which were prepared during the period of the applicant’s stay in the prison and covered the entire length of the detention. They showed that the applicant had been detained in cells 182, 176, 178 and 181 which measured 8.1 sq. m, had been equipped with two sleeping places and had accommodated no more than two persons during the period under examination.", "32. The applicant’s evidence included statements by two detainees. The Court observes that they presented an account of the applicant’s alleged ill‑treatment by prison guards but did not contain any significant details related to the material conditions of detention. Their evidential value is further diminished by the fact that their authors did not stay in the same cell as did the applicant. Furthermore, the applicant did not provide any information regarding the number of sleeping places.", "33. In such circumstances, the Court lends credence to the documents presented by the Government and rejects the applicant’s allegation of overpopulation. It finds it plausible that the applicant disposed of at least four square metres of personal space and was provided with a sleeping place in all the cells and was allowed daily outdoor exercise during the period of his detention. 2. Compliance with Article 3 34.", "The Court found it established that the applicant was provided between four and eight square metres of floor surface and disposed of his own sleeping place. It cannot be said that the dimensions of his cells were so small as to restrict the applicant’s freedom of movement below the threshold tolerated by Article 3 (see Ananyev and Others v. Russia, cited above, §§ 143-148). 35. In the light of the parties’ submissions, the Court also finds it established that the applicant was allowed a one-hour period of outdoor exercise daily. Windows were not fitted with metal shutters, allowing natural light and fresh air to penetrate into the cells.", "The cells were also equipped with artificial lighting. 36. The Court observes that the lavatory pans, the dining tables and the sleeping places were all located inside the cells in very close proximity. Brick partitions separated the toilets from the rest of the cells. Cold running water was available in the cells and the applicant had regular access to a shower and washing facilities.", "37. Taking into account the cumulative effect of those conditions, the Court considers that the conditions of the applicant’s detention in remand prison IZ-27/1 of Khabarovsk between 18 July 2005 and 19 December 2007 cannot be regarded as inhuman or degrading. There has been therefore no violation of Article 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicant claimed 14,600 euros in respect of non‑pecuniary damage. 40. The Government did not comment.", "41. The Court has found a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy for the applicant’s complaint about the conditions of his pre-trial detention. 42. The Court considers that the finding of a violation constitutes sufficient just satisfaction (see Ananyev and Others v. Russia, cited above, § 173). Accordingly, it rejects the applicant’s claims in respect of non-pecuniary damage.", "B. Costs and expenses 43. The applicant did not claim any costs and expenses incurred either before the domestic courts or the Court. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join to the merits the Government’s objection relating to the exhaustion of domestic remedies and rejects it; 2.", "Declares the complaints concerning the conditions of the applicant’s detention in remand prison IZ-27/1 of Khabarovsk from 18 July 2005 to 19 December 2007 and the alleged absence of an effective domestic remedy in this connection admissible and the remainder of the application inadmissible; 3. Holds that there has been no violation of Article 3 of the Convention; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds that the finding of a violation constitutes sufficient just satisfaction. Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren PrebensenKhanlar HajiyevActing Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF P.S. v. GERMANY (Application no. 33900/96) JUDGMENT STRASBOURG 20 December 2001 FINAL 04/09/2002 This judgment will become final in the circumstances set out in Article 44 § 2. In the case of P.S. v. Germany, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrI.", "Cabral Barreto, President,MrG. Ress,MrL. Caflisch,MrR. Türmen,MrB. Zupančič,MrsH.S.", "Greve,MrK. Traja, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 29 November 2001, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33900/96) against the Federal Republic of Germany lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, P.S. (“the applicant”), on 9 July 1996.", "2. The German Government (“the Government”) were represented by their Agent, Mr Stoltenberg, Ministerialdirigent. The President of the Chamber acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). Moreover, the applicant was, exceptionally, granted leave to represent himself (Rule 36). 3.", "Relying on Article 6 § 3(d) of the Convention, the applicant alleged that he had been convicted on the basis of statements made by a witness whom he had never been given an opportunity to examine or to have examined. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 6 June 2000, the Chamber declared the application admissible.", "7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). The case was assigned to the newly composed Third Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8.", "In the late evening of 29 April 1993, the father of S., born in 1985, laid a criminal information against the applicant, alleging that the applicant, her private music teacher, had sexually abused S. during an individual music lesson that afternoon. S. and her mother were questioned at the local police office on the afternoon of 30 April 1993. S. was heard by a police officer and confirmed her father’s statements. S.’s mother stated that S. had been very disturbed after her music lesson and that she had later confided in her mother. 9.", "On 10 January 1994 the Künzelsau District Court, sitting with a single judge, convicted the applicant of having committed the offence of sexual abuse of a child in concurrence with the offence of sexual abuse of a charge. He was sentenced to seven months’ imprisonment on probation. In establishing the relevant facts, the court relied on the statements made by the mother concerning her daughter’s account of the relevant events, her behaviour after the music lesson on 29 April 1993 and her character in general, and also on the evidence given by the police officer who had questioned S. shortly after the offence in April 1993. The court dismissed the applicant’s request for a psychological expert opinion regarding the credibility of S.’s statements on the ground of the court’s own professional experience, acquired as a judge in family matters, in evaluating statements made by children. Moreover, the court observed that it had not been reasonable to hear S. herself, as, according to her mother, she had meanwhile repressed her recollection of the event in question and would seriously suffer if reminded thereof.", "If S. were to be examined, this would not contribute to a further clarification of the facts, but seriously impair her personal development. 10. The applicant appealed to the Heilbronn Regional Court, requesting his acquittal. In the appeal proceedings, he was assisted by counsel. 11.", "On 17 March 1995 the Heilbronn Regional Court dismissed the applicant’s appeal against his conviction of sexual abuse of a child, but set aside the conviction of sexual abuse of a charge. The sentence to seven months’ imprisonment on probation was upheld. The Regional Court noted that the applicant had denied having sexually abused S. It found that his guilt could be established on the basis of the evidence before it, i.e. the statements made by S.’s mother and the police officer as well as a psychological expert opinion on the question of S.’s credibility, ordered in the context of the appeal proceedings. In her report of November 1994, the expert, who had questioned S. in October 1994, confirmed that S.’s statements were credible.", "The Regional Court considered that the absence of S.’s testimony in court constituted a serious shortcoming in the taking of evidence. In this respect, it noted that the parents had refused to bring their daughter to court on account of the risk that her state of health would deteriorate as she suffered from neurodermatitis. According to the Regional Court, the parents’ refusal was understandable. In this respect, the Regional Court had regard to a medical certificate confirming the parents’ statements and the findings of the psychological expert that S.’s state of health would most likely deteriorate again if she were to be heard anew on the event in question. Taking into account that S.’s statements had been reported by her mother and by the police officer and that an expert opinion on her credibility had been prepared, the Regional Court, considering the rather trivial nature of the charge and the sentence at stake, reached the conclusion that S. was to be regarded as a witness out of reach.", "12. On 2 August 1995 the Stuttgart Court of Appeal dismissed the applicant’s appeal on points of law. 13. On 18 January 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint, leaving open the question whether the complaint had been lodged in time. II.", "RELEVANT DOMESTIC LAW 14. The conduct of trial proceedings is governed by sections 226 to 275 of the Code of Criminal Procedure (Strafprozessordnung). 15. As regards the taking of evidence, section 244(2) provides that the court shall, proprio motu, extend the taking of evidence to all facts and evidence important for the decision in order to determine the truth. A request for the taking of evidence may be refused under the statutory conditions of section 244(3) to (6).", "Pursuant to section 244(3), second sentence, an application may, inter alia, be refused if the evidence is unavailable. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 16. The applicant complained that he could not put questions to the child S., the main prosecution witness. He invoked Article 6 § 3 (d) of the Convention according to which “3.", "Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 17. The applicant considered that questioning S. in court would have been important for establishing the truth. 18. The respondent Government maintained that in the overall circumstances the requirements of a fair hearing were met. In particular, the courts used statements, made by the mother and by the police officer conducting the criminal investigation, on the events of 29 April 1993, and also the mother’s statements as a witness to the child’s agitated state.", "The decision not to interrogate the child in court was based on the fear of damage to her health as a result of emotional stress, as indicated in a medical certificate. Moreover, the Regional Court had regard to an expert’s opinion on her psychological examination of the child. The applicant had sufficient opportunity to comment on these statements and did not, in the appeal proceedings, request that the child be interrogated in court. According to the Government, the child did not have to be examined by a psychological expert at the earliest possible stage of the proceedings. 19.", "The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and that as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling on whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see the Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, p. 470, § 67; and the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, p. 711, § 50). 20. This being the basic issue, and also because the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 (see, amongst many other authorities, the Van Mechelen and Others judgment cited above, p. 711, § 49), the Court will consider the applicant’s complaints from the angle of paragraphs 3 (d) and 1 taken together. 21.", "All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see the Van Mechelen and Others judgment cited above, p. 711, § 51; and the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, § 49). 22.", "In appropriate cases, principles of fair trial require that the interests of the defence are balanced against those of witnesses or victims called upon to testify, in particular where life, liberty or security of person are at stake, or interests coming generally within the ambit of Article 8 of the Convention (see the Doorson judgment cited above, p. 470, § 70). 23. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (ibid., p. 471, § 72). 24.", "Where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see the van Mechelen and Others judgment cited above, p. 712, § 55; the Doorson judgment cited above, p. 472, § 76; and the Windisch v. Austria judgment of 27 September 1990, Series A no. 186, p. 11, § 31). Accordingly, the Court has held in a previous case that there was a violation of Article 6 § 1, taken together with Article 6 § 3 (d), noting that “in convicting the applicant in the instant case [of a sexual offence on a minor] the domestic courts relied solely on the statements made in the United States before trial and that the applicant was at no stage in the proceedings confronted with his accusers” (see the A.M. v. Italy judgment, no. 37019/97, 14 December 1999, §§ 26, 28). 25.", "In the present case, the applicant was convicted of having sexually abused S., an eight-year-old girl. 26. The Court notes that at no stage of the proceedings has S. been questioned by a judge, nor did the applicant have any opportunity of observing the demeanour of this witness under direct questioning, and thus from testing her reliability (see the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 20, § 42 in fine; and the Windisch judgment cited above, p. 11, § 29). 27.", "At first instance, the District Court, in its decision of 10 January 1994, relied on the statements made by S.’s mother, who had given evidence concerning her daughter’s account of the events and her behaviour on 29 April 1993 as well as her character in general, and of the police officer who had questioned the girl shortly after the offence in April 1993. The District Court decided not to hear S. in order to protect her personal development as, according to her mother, she had meanwhile repressed her recollection of the event and would seriously suffer if reminded thereof. 28. Organising criminal proceedings in such a way as to protect the interests of juvenile witnesses, in particular in trial proceedings involving sexual offences, is a relevant consideration, to be taken into account for the purposes of Article 6. However, the reasons given by the District Court, in its judgment of 10 January 1994, for refusing to question S. and dismissing the applicant’s request for an expert opinion are rather vague and speculative and do not, therefore, appear relevant.", "29. The Regional Court, aware of the shortcomings in the taking of evidence, ordered a psychological expert opinion on S.’s credibility which was eventually prepared in October 1994, i.e. one and a half years after the relevant events. The girl was again not heard in court on account of her parents’ refusal, which was motivated by the possible risk to her health. In addition to the evidence available at first instance, the Regional Court had at its disposal an expert opinion on S.’s credibility.", "However, considering the delay of about eighteen months between the event in question and the preparation of this opinion, the Court finds that in the present circumstances, the procedure followed by the judicial authorities cannot be considered as having enabled the defence to challenge the evidence of S., reported in court by third persons, one of them a close relative. 30. Finally, the information given by the girl was the only direct evidence of the offence in question and the domestic courts based their finding of the applicant’s guilt to a decisive extent on S.’s statements. In this respect, the present case is similar to the one of A.M. v. Italy referred to above and differs from previous decisions where the Court was satisfied that criminal proceedings concerning sexual offences, taken as a whole, were fair, as the convictions were either entirely based on evidence other than the statements of the victim (cf. no.", "36686/97, Dec. 12 January 1999), or not solely based on the statements of the victims (no. 35253/97, Dec. 31 August 1999). 31. In these circumstances, the use of this evidence involved such limitations on the rights of the defence that the applicant cannot be said to have received a fair trial. 32.", "There has thus been a violation of paragraph 3 (d), taken in conjunction with paragraph 1, of Article 6 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 34. The applicant did not file any claims for just satisfaction under Article 41.", "The Court, for its part, sees no ground for examining this question of its own motion (see, mutatis mutandis, the Nasri v. France judgment of 13 July 1995, Series A no. 320-B, p. 26, § 49). FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been a violation of paragraph 3 (d), taken in conjunction with paragraph 1, of Article 6 of the Convention. Done in English, and notified in writing on 20 December 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent Berger Ireneu Cabral BarretoRegistrarPresident" ]

[ "FIRST SECTION CASE OF YURIY RUDAKOV v. RUSSIA (Application no. 48982/08) JUDGMENT STRASBOURG 15 January 2015 FINAL 15/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yuriy Rudakov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 9 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "48982/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yuriy Ignatyevich Rudakov (“the applicant”), on 12 August 2008. 2. The applicant was represented by Mr Ye. Nazarov, a lawyer practising in Staryj Oskol, Belgorod Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged, in particular, that his detention pending the study of the case file had been unlawful and that his detention as a whole had not been based on relevant and sufficient grounds. 4. On 25 March 2011 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lives in Chernyanka, a village in Belgorod Region. A. Criminal proceedings against the applicant 6. On 10 October and 16 November 2007 criminal proceedings were instituted against the management of the Kristall-Group holding (“the holding”) under Articles 176 § 1 (loan fraud) and 159 § 3 (fraud) of the Criminal Code.", "7. On 18 November 2007 criminal proceedings were instituted against the applicant, director general of the holding, on suspicion of fraud and loan fraud under Articles 159 § 3 and 176 § 1 of the Criminal Code respectively. On the same day the applicant was arrested in Kursk. Criminal cases against the management of the holding were joined to the criminal case against the applicant. 8.", "On the same day (18 November 2007) the investigator questioned witnesses L. and D., the applicant’s subordinates. L. claimed that the applicant had told him to temporarily leave Belgorod Region and not to divulge anything to the police. D. claimed that he feared the applicant, who was, in his opinion, capable of anything in order to evade criminal liability. 9. On 19 November 2007 Sverdlovskiy District Court of Belgorod (“the District Court”) decided to remand the applicant in custody.", "The court held as follows: “... Substantiating the request [for application of a custodial measure], the investigator indicated that [the applicant] might try to flee from the pre-trial investigation and the court, as well as obstruct the administration of justice. Those arguments have been confirmed. The court came to this conclusion for the following reasons. When the criminal cases were opened in respect of the unlawful actions of the management of the holding, investigative actions were carried out in the course of which it was necessary to question [the applicant] ... The suspect has a permanent place of residence, employment and a family.", "Nevertheless, for a long time the investigating authorities could not get hold of [the applicant] either through his work, his family, or his place of residence. The arguments advanced by the prosecution to the effect that [the applicant], using his office, exerted pressure on the witnesses in the case, have also been confirmed ... These circumstances counter the arguments to the contrary advanced by the defence ... In view of the above, the court considers it impossible to impose on [the applicant] any other, more lenient, preventive measure, and deems the arguments by the prosecution to be substantiated and sufficient for applying the preventive measure of detention ...” 10. On 27 November 2007 the applicant was charged with two counts of fraudulently obtaining a loan under Article 176 § 1 of the Criminal Code.", "11. On 28 November 2007 Belgorod Regional Court (“the Regional Court”) upheld the detention order of 19 November 2007 on appeal. 12. On 15 January, 4 March and 8 May 2008 the District Court extended the applicant’s detention until 10 March, 18 May and 18 July 2008 respectively. The court opined that the grounds for holding the applicant in custody were still valid.", "It considered that the risk of the applicant’s absconding or otherwise interfering with the proceedings had been supported by statements of witness L. (see paragraph 8 above) and the fact that when the police had identified the applicant’s whereabouts in Kursk he had tried to escape. The court considered and rejected other pertinent facts, such as the fact that since 8 December 2007 the applicant had no longer been director general of the holding, that the suspicion under Article 159 § 3 of the Criminal Code had been dropped, and that the applicant had a permanent place of residence, a family, and positive references. The court further held that the time spent by the applicant in detention had not exceeded the reasonable limits, that the proceedings were being conducted diligently and that less stringent preventive measures could not secure the applicant’s proper conduct during the preliminary investigation. On 22 January, 13 March and 19 May 2008 respectively, the Regional Court upheld the above extension orders on appeal. 13.", "In the meantime, on 8 February 2008 criminal proceedings were instituted against the applicant under Article 199 § 2 of the Criminal Code (tax evasion), and on 4 May 2008 the applicant was charged with five counts of loan fraud and tax evasion under Articles 176 § 1 and 199 § 2 of the Criminal Code respectively. 14. On 23 May 2008 the prosecution discontinued the criminal proceedings on suspicion of fraud under Article 159 § 3 of the Criminal Code in the absence of constituent elements of the above offence. 15. On 28 May 2008 the applicant and his lawyer were informed that the pre-trial investigation had been terminated and were given access to the case file.", "16. On 7 July 2008 the investigator requested the court to extend the applicant’s detention. The investigator noted, in particular, that pre-trial investigation had been completed and that on 28 May 2008 the applicant had been given access to the case file, comprising one hundred volumes. However, by the end of a month he had only studied twenty-three volumes. Considering the case volume the investigator requested that the applicant’s detention be extended for at least two months.", "17. On 11 July 2008 the District Court, reiterating the reasons which prompted the application of the custodial measure to the applicant and noting the considerable volume of the case file which the applicant had been unable to study in full, extended the applicant’s detention until 18 September 2008. The Court also noted that it had failed to establish any new circumstances warranting the alteration or termination of the custodial measure. On 23 July 2008 the Regional Court upheld the above decision on appeal. 18.", "On 17 September and 6 October 2008 the District Court extended the applicant’s detention pending study of the case file until 10 October and 18 November 2008 respectively, that is for a total duration of twelve months. The Court again noted the gravity of the charges against the applicant, the considerable volume of the case file, of which the applicant had read only eighty-two and ninety volumes respectively, and the absence of any grounds for altering or terminating the custodial measure. On 25 September and 20 October 2008 the Regional Court upheld the above extension orders on appeal. 19. On 11 November 2008 the Regional Court extended the applicant’s detention pending study of the case file until 10 January 2009.", "The court held, in particular, that upon completion of the investigation the applicant had been given access to the case file in compliance with the time-limit set out in Article 109 § 5 of the Code of Criminal Procedure; that since the applicant had not finished reading the case file before the expiry of the maximum period of detention (he had read ninety-nine volumes of the case file and studied 1,300 additional pages of material evidence, and there remained one more volume of the case file and 15,600 additional pages of material evidence to read) the provisions of Article 109 § 7 of the Code of Criminal Procedure had allowed the investigator to request a further extension of the period of detention; that the grounds for application of the custodial measure persisted; that application of a less stringent preventive measure had not been possible despite the arguments put forward by the applicant; that the investigation had been particularly complex due to the volume of the case involving several episodes; that no evidence had been submitted to the effect that the applicant’s health prevented him from remaining in custody, and that the applicant had made no complaints regarding the conditions of his detention. On 23 December 2008 the Supreme Court of Russia upheld the above extension order on appeal. 20. On 30 December 2008 the Regional Court further extended the applicant’s detention for an unlimited period of time while the applicant and his defence counsel finished studying the case file. On 24 February 2009 the Supreme Court of Russia upheld the above decision on appeal.", "21. On 16 March and 19 March 2009 respectively the applicant’s defence counsel and the applicant completed studying the case file. 22. On 7 April 2009 the case file was remitted to the trial court. 23.", "On 7 September 2009 the District Court convicted the applicant of setting up fraudulent loans and tax evasion under Articles 176 § 1 and 199 § 1 of the Criminal Code respectively and sentenced him to three years and six months’ imprisonment. 24. On 18 November 2009 the Regional Court upheld the applicant’s conviction on appeal. B. Proceedings before the Constitutional Court 25.", "The applicant challenged the compatibility with the Constitution of the provisions of Article 109 §§ 4, 7 and 8 of the Code of Criminal Procedure in so far as they allowed the extension of detention “pending investigation” beyond the maximum time-limit and for an unlimited duration while the defendant read the material of the case file. 26. On 30 January 2009 the Constitutional Court declined to examine the applicant’s complaint, relying on its findings in the case of Mr Ye. (see Relevant domestic law and practice section below). 27.", "The applicant once again challenged the compatibility of Article 109 §§ 4, 7 and 8 of the Code with the Constitution. In addition to his previous concerns the applicant contended that he had been discriminated against in comparison with other detainees in respect of whom the investigation had not been completed within the authorised detention period and others who had been granted access to the case material less than one month before the expiry of the authorised detention period, and who could therefore benefit from immediate release. 28. On 19 March 2009 the Constitutional Court declined to examine the applicant’s complaint. Reference was again made to the case of Mr Ye.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of the Russian Federation 29. Article 22 of the Constitution provides that everyone shall have the right to freedom and inviolability of person. It further provides that arrest, detention and remand in custody shall be allowed only by a court decision.", "B. The Criminal Code of the Russian Federation 30. Article 15 of the Criminal Code provides that serious offences are premeditated offences for which the Criminal Code prescribes a maximum penalty of between five and ten years’ imprisonment. Particularly serious offences are premeditated offences for which the Code prescribes a maximum penalty of more than ten years’ imprisonment or a heavier penalty. 31.", "Large-scale fraud is punishable by up to six years’ imprisonment (Article 159 § 3 of the Code). 32. Loan fraud is punishable by up to five years’ imprisonment (Article 176 § 1 of the Code). 33. Large-scale tax evasion is punishable by up to two years’ imprisonment (Article 199 § 1 of the Code).", "34. Particularly large-scale tax evasion is punishable with up to six years’ imprisonment (Article 199 § 2 of the Code). C. The Code of Criminal Procedure of the Russian Federation 1. Arrest and preventive measures in criminal proceedings 35. The police may arrest a person suspected of committing an offence punishable by imprisonment if the person is caught in the act of committing an offence or immediately after committing it.", "No judicial authority is required for the arrest (Article 91). 36. Within forty-eight hours of the time of the arrest a suspect must be released if a preventive measure in the form of remand in custody has not been imposed on the person or a final decision has not been deferred by a court. When remand in custody is deemed necessary, an application must be lodged to that effect with a district court by a prosecutor or by an investigator with the consent of a prosecutor (Article 94). 37.", "“Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). 38. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).", "39. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 2. Time-limits for detention “pending the investigation” (a) Initial detention and its extensions 40. After arrest the suspect is placed in custody “pending investigation”.", "The period of detention “pending investigation” must not exceed two months (Article 109 § 1). 41. If the investigation cannot be completed within the two-month time‑limit, and in the absence of any grounds for lifting or altering the preventive measure, the period of detention pending investigation may be extended to up to six months. Further extensions to up to twelve months are possible only in relation to persons accused of serious or particularly serious criminal offences, in view of the complexity of the case and if there are grounds justifying detention (Article 109 § 2). 42.", "In exceptional circumstances detention pending the investigation may be extended to up to eighteen months in respect of detainees charged with a particularly serious criminal offence (Article 109 § 3). 43. Extension of detention beyond eighteen months is prohibited and the detainee must be released immediately, unless the prosecution’s request for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the Code of Criminal Procedure (Article 109 § 4). (b) Supplementary extension for studying the case file 44. Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in paragraphs 2 and 3 (Article 109 § 5).", "45. If access is granted on a later date the detainee must be released after the expiry of the maximum period of detention (Article 109 § 6). 46. If access is granted thirty days before the expiry of the maximum period of detention but the thirty-day period proves insufficient to read the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period (Article 109 § 7).", "47. Within five days of receipt of a request for an extension, the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted the period of detention is extended until such time as will be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (Article 109 § 8). 3. Time-limits for detention “during judicial proceedings” 48.", "Once the defendant has finished reading the file, the prosecutor sends the case to the trial court and from that date the detention is classified as “during judicial proceedings”). The period of detention “during judicial proceedings” is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). D. Case-law of the Constitutional Court of the Russian Federation 49. Examining the compatibility of Article 97 of the RSFSR Code of Criminal Procedure (now replaced by Article 109 of the Code of Criminal Procedure, the sole difference between the two Articles being that Article 97, in contrast to the new Article 109, imposed a six-month limitation on the maximum period of detention for the purpose of studying the case file) with the Constitution, on 13 June 1996 the Constitutional Court ruled as follows: “... affording the defendant sufficient time for studying the file must not result in ... his being detained indefinitely.", "Indefinite detention would amount to punishment of the defendant for exercising his procedural rights and thereby inducing him to waive those rights ...” 50. On 25 December 1998 the Constitutional Court issued a further clarification of its position (decision no. 167-O), finding as follows: “3. ... the studying of the file [by the defendant and his counsel] is a necessary condition for extending the term of detention [beyond eighteen months] but it may not be taken on its own as a sufficient ground for granting such an extension... For that reason, in each case the prosecutor’s application for extending the period of detention beyond eighteen months (Article 97 §§ 4, 6 of the RSFSR Code of Criminal Procedure) must refer not to the fact that the defendant and his counsel continue to study the file... but rather to factual information demonstrating that this preventive measure cannot be revoked and the legal grounds for its continued application remain ... 6. ...", "Article 97 § 5 of the RSFSR Code of Criminal Procedure expressly provides that, on an application by a prosecutor, a judge may extend a defendant’s detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [trial] court, but by no longer than six months. Accordingly, the law does not provide for the lodging of repeated applications for extension of the defendant’s detention, even after an additional investigation [has been carried out] ... In the absence of an express legal provision for repeated extensions of detention on that ground, any other interpretation of [Article 97] would breach the prohibition on arbitrary detention within the meaning of the Constitutional Court’s decision of 13 June 1996.” 51. By its decision no. 184-O of 6 June 2003 the Constitutional Court declined to examine a complaint by a Mr Ye., in which he challenged the compatibility with the Constitution of Article 109 § 8 of the Code of Criminal Procedure, in so far as it allowed the extension of detention pending investigation beyond the maximum time-limit and indefinitely while the defendant finished reading the material in the case file.", "The Constitutional Court held that such an extension was only possible if there still existed “sufficient grounds to believe” that the accused might abscond during the investigation or trial, reoffend or otherwise obstruct the establishment of the truth, as provided by Article 97 of the Code of Criminal Procedure. In so far as the challenged provision did not set a specific time-limit for holding the defendant in custody while he studied the case file, the Constitutional Court considered that it allowed for the possibility of determining such a time-limit for each particular case, depending on its specific features, on condition that the grounds for detention established in Article 97 had been sufficiently confirmed. The court concluded that the challenged provision could not be interpreted as providing for superfluous or unlimited detention. Neither did it deprive the defendant and his counsel of the right to challenge before a higher court the lawfulness and validity of the extension order, as well as to make an application for lifting or altering the custodial measure. 52.", "By decision no. 352-O of 11 July 2006, the Constitutional Court confirmed its position, by reference to above-cited decision no. 167-O, that in the absence of an express provision to that effect, time-limits during a pre-trial investigation may not be repeatedly extended, particularly on the same grounds, in excess of the maximum time-limit set out in the Code of Criminal Procedure. 53. By its decision no.", "271-O-O of 19 March 2009, the Constitutional Court declined to examine a similar complaint by a Mr R. With reference to its previous decisions of 13 June 1996, 25 December 1998 and 6 June 2003, the Constitutional Court held that even though Article 109 § 8 did not define the maximum period within which an extension could be granted for the purpose of studying the case file, it did not imply the possibility of excessive or unlimited detention because, in granting an extension, the court should not rely solely on a well-founded suspicion that the defendant had committed the offence, but should mainly base its decision on specific circumstances justifying the continued detention, such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending, as well as the importance of the subject matter of the proceedings, the complexity of the case, the conduct of the defendant, and other relevant factors. E. Case-law of the Supreme Court of the Russian Federation 54. In its decision no. 22 of 29 October 2009 “On the Application by the Courts of Preventive Measures in the Form of Remand in Custody, Bail and House Arrest” the Plenum of the Supreme Court held as follows: “18. ... Pursuant to Article 109 § 7 of the Code of Criminal Procedure, following a request by an investigator the court may extend an accused’s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [trial] court, if upon completion of the pre-trial investigation the accused has been given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in Article 109 §§ 2 and 3 [six, twelve, eighteen months].", "In that case the relevant extension order should indicate the exact period for which the extension is made.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 55. The applicant complained under Article 5 § 1 (c) that his detention pending the study of the case file had been unlawful in so far as it exceeded the maximum detention period provided for by the domestic law. The relevant part of Article 5 provides as follows: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...” A. Admissibility 56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions by the parties 57. The Government submitted that the applicant’s detention pending investigation had not exceeded the time-limits set out in the domestic law. The provisions of the domestic law providing for the possibility of extending the applicant’s detention pending the investigation until such time as the file has been read in full and the case sent for trial were sufficiently clear and foreseeable in their application. Such an extension was only possible if, aside from the necessity for a defendant to study the case file, there remained relevant and sufficient reasons for continuing to hold him or her in custody, the end-date of the detention period in question depending solely on how soon the defendant would finish studying the case file.", "The Government further noted that the applicant had been provided with an opportunity to study the case file in full, and that he had not been restricted in the time available to him for doing so. The fact that the applicant needed seven months to complete studying the case file is explained not as much by the volume of the case as by the applicant’s own conduct, since sometimes the applicant studied the case file for only two hours a day. 58. The applicant maintained his complaint. He claimed that the provisions of domestic law governing the extension of detention for studying the case file by a detainee were not sufficiently clear and foreseeable in their application, and that they were discriminatory depending on whether the investigation had been completed or not within the authorised detention period and on whether, in the case where the investigation had been completed, a detainee was granted access to the case less or more than one month before the expiry of the authorised detention period (Article 109 §§ 5-8).", "As a result the domestic law put detainees belonging to the same category in different positions vis-à-vis the possibility of release after the expiry of the maximum permitted period of detention pending investigation. The applicant contested the Government’s argument to the effect that he had been deliberately delaying familiarising himself with the case file material. He submitted in this connection that none of the requests filed by the investigation authority to the court for extension of his detention mentioned a deliberate delay in studying the case file on his part. On the contrary, in order to accelerate the studying of the case file the applicant even agreed to receive the case file at weekends and in his cell in the remand prison. 2.", "The Court’s assessment (a) General principles 59. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration is compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent individuals from being deprived of their liberty in an arbitrary fashion (see, among other authorities, Khudoyorov v. Russia, no. 6847/02, § 124, ECHR 2005‑X (extracts)).", "60. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow a person, who is given appropriate advice if necessary, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Jėčius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland, no.", "28358/95, §§ 50-52, ECHR 2000-III). (b) Application of these principles in the present case 61. The Court observes that the applicant was arrested on 18 November 2007 and remanded in custody the following day. On 27 November 2007 he was charged with loan fraud under Article 176 § 1 of the Criminal Code, and on 4 May 2008 - with loan fraud and particularly large-scale tax evasion under Articles 176 § 1 and 199 § 2 of the Criminal Code respectively. The Court notes that under Russian law particularly large-scale tax evasion is categorised as a serious offence (see paragraphs 30 and 34 above).", "62. The Court further observes that the applicable provisions of domestic law permitted up to twelve months’ detention during an investigation (hereinafter “the maximum detention period”) in respect of individuals accused of serious offences (Article 109 § 2 of the Code of Criminal Procedure, cited in paragraph 41 above). The domestic law further provided that the period in question could be extended if the defendant was granted access to the case file no later than thirty days before the expiry of the maximum detention period and if the thirty-day period proved insufficient for him or her to read the entire case file (Article 109 §§ 5, 7 and 8, cited in paragraphs 44, 46 and 47 above). 63. In the present case the maximum twelve-month period of the applicant’s detention during the investigation was to expire on 18 November 2008 (see paragraph 18 above).", "The applicant was granted access to the case file on 28 May 2008, over five months before the expiry of the maximum detention period (see paragraph 15 above). His detention was subsequently extended within the maximum twelve-month period, - on 11 July, 17 September and 6 October 2008 until 18 September, 10 October and 18 November 2008 respectively, to enable him to finish studying the case file. However, this time proved insufficient for him to read the entire case file comprising hundred volumes and thousands of additional pages of material evidence. For that reason, at the request of the investigator the District Court further extended the applicant’s detention beyond the maximum twelve-month period on 11 November 2008 - until 10 January 2009, and on 30 December 2008 - for an unlimited period of time until the applicant and his defence counsel read the case file in full (see paragraphs 17 and 20 above). 64.", "The Court reiterates that it has previously examined the issue of extension of detention pending study of case file by a defendant in a number of Russian cases, and has arrived at the conclusion that the relevant provisions of Russian law were not foreseeable in their application and fell short of the “quality of law” standard required under the Convention, in so far as they did not contain any express rule regarding the possibility of repeated extensions of a defendant’s detention pending study of the case file (see Tsarenko v. Russia, no. 5235/09, §§ 59-63, 3 March 2011; Suslov v. Russia, no. 2366/07, §§ 75-79, 29 May 2012; and Pyatkov v. Russia, no. 61767/08, §§ 86-91, 13 November 2012). 65.", "In the present case the Court sees no reason to depart from its previous conclusion. It considers, therefore, that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention pending the investigation from 18 September 2008 to 7 April 2009 in the absence of any express provision in Article 109 of the Code of Criminal Procedure for repeated extensions of the detention period in order to allow the defendant to study the case file. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 66. The applicant complained that his detention had not been based on relevant and sufficient grounds and that the domestic court had failed to consider a more lenient preventive measure notwithstanding the non-violent nature of the criminal offences with which he had been charged and other pertinent factors.", "He relied on Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 67. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Submissions by the parties 68. The Government submitted that the applicant’s detention had been based on relevant and sufficient grounds. The applicant was charged with five counts of loan fraud and tax evasion, which is a serious crime.", "His conduct after the opening of the criminal case against him gave grounds to believe that he might abscond from justice or exert pressure on witnesses. According to the case file material the applicant, being director general of the holding, forced his subordinates (witnesses L. and D.) to abscond from the investigation, refuse to testify or give false testimony. It has also been established that after the opening of the criminal case and the beginning of checks at the holding, the applicant had absconded from the investigation and left Belgorod Region, that for over a month he had been in hiding, and that he had been finally arrested in Kursk where he had also attempted to escape. At the examination of the issue of extension of the applicant’s detention the applicant’s lawyer repeatedly requested the court to release the applicant on bail. The proposed bail was, however, disproportionate to the damage caused by the crimes charged against the applicant and could not secure his appropriate behaviour during the investigation and his participation in the trial.", "The Government further submitted that the applicant’s detention between 28 May 2008 and 30 March 2009 (over ten months) had been attributable to the applicant, who had been deliberately delaying the studying of the case file. The circumstances of the case and the applicant’s conduct, relied on by the domestic court it the extension orders, did not leave any doubts that the applicant’s release prior to the delivery of the judgment had not been possible. At the same time the domestic court gave due consideration to the conditions of the applicant’s detention, his state of health and other factors which could have had an impact on the court’s decisions as to the preventive measure. The proceedings were conducted in compliance with the “special diligence” requirement. The Government concluded, therefore, that the length of the applicant’s detention did not breach the requirements of Article 5 § 3 of the Convention.", "69. The applicant maintained his complaint. He challenged, first of all, the validity of the grounds advanced by the domestic court in the choice of the custodial measure. The applicant submitted, in particular, that he had acquired the status of a suspect in the criminal case on 18 November 2007 and therefore his business trips prior to that date could not have been viewed by the domestic court as an attempt to abscond from the investigation and trial. Besides, on 1 November 2007 he gave an explanation to detective officer of the 1st Interdistrict Investigation Department of Tax Crimes Investigation Unit of the Ministry of Internal Affairs for Belgorod Region, and supplied samples of his handwriting, which disproved the assertion of the domestic authorities to the effect that he had been hiding from the investigation.", "The applicant explained his failure to appear for questioning as a witness on 12 November 2007 by the fact that the competent authorities omitted to properly notify him of the scheduled questioning. Indeed, no proof to the contrary can be found in the case file. There had also been no credible evidence that he had in any way interfered with the investigation for the court to opt for a custodial measure. The applicant further challenged the validity of the grounds for subsequent extensions of his detention. In particular, the domestic court had failed to take into account the fact that the suspicion of fraud had been abandoned and that no relevant charge had been brought against the applicant on 27 November 2007, and that from 8 December 2007 the applicant was no longer the Director General of the holding and could therefore not put any pressure on his former employees.", "The domestic court also remained reluctant to take into consideration the fact that the applicant had positive references, no criminal record, a permanent place of residence, and so on. Finally, the applicant believed that the proceedings had not been conducted with “special diligence” as required by Article 5 § 3 of the Convention. 2. The Court’s assessment (a) General principles 70. In determining the length of detention during judicial proceedings under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see Panchenko v. Russia, no.", "45100/98, § 91, 8 February 2005; Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV; and Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7). 71. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto.", "Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, § 30, Series A no. 254‑A, and Pantano v. Italy, no. 60851/00, § 66, 6 November 2003). 72.", "The persistence of a reasonable suspicion that an arrested person has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita, cited above, §§ 152 and 153). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).", "When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000). (b) Application of these principles in the present case (i) Period to be taken into consideration 73. The applicant was arrested on 18 November 2007. On 7 September 2009 he was convicted.", "The total length of the applicant’s pre-trial detention amounted, therefore, to almost twenty-two months. (ii) Grounds for continued detention 74. The Court observes that on 19 November 2007 the domestic court took a decision to remand the applicant in custody, referring to the risk of his absconding and interfering with the investigation. The court took into consideration that for a certain time before the applicant’s arrest the investigating authorities could not get hold of him either though his work, his family or his place of residence and that the applicant, using his office, had exerted pressure on witnesses in the case. 75.", "The applicant’s detention pending investigation was subsequently extended on three occasions, - on 15 January, 4 March and 8 May 2008. The domestic court considered that the risk of the applicant’s absconding or otherwise interfering with the establishment of the truth persisted, and relied in this connection on statements by witness L. (see paragraph 8 above) and the applicant’s attempt to escape during his arrest. The court further considered and rejected the applicant’s arguments in favour of application of a more lenient preventive measure, assessed the overall period spent by the applicant in detention and found it reasonable, and found that the proceedings were being conducted diligently. 76. Afterwards, on 11 July 2008 the District Court, reiterating the grounds which prompted application of the custodial measure to the applicant and noting considerable volume of the case file, extended the applicant’s detention until 18 September 2008 to enable the applicant to finish studying the case file in its entirety.", "77. Having regard to the foregoing, the Court is willing to accept that up until 18 September 2008 the applicant’s detention was justified by relevant and sufficient reasons. 78. As regards the subsequent period of the applicant’s detention pending the investigation, however, the Court reiterates that it has found that the applicant’s remand in custody between 18 September 2008 and 7 April 2009 had been in contravention of Article 5 § 1 of the Convention (see paragraphs 61-65 above) making unnecessary further examination of whether the applicant’s detention during the period in question was justified under Article 5 § 3 of the Convention (see Chuprikov v. Russia, no. 17504/07, § 67, 12 June 2014).", "79. Furthermore, as to the applicant’s continued detention for five months pending trial between 7 April 2009 and 7 September 2009, the Court observes that the Government have failed to demonstrate, by submitting relevant documents, the existence of relevant and sufficient grounds which justified the applicant’s detention during that period. 80. In the light of the foregoing the Court concludes that although there existed relevant and sufficient grounds for the applicant’s continued detention at the earlier stage of the investigation, the unlawfulness of the applicant’s subsequent detention between 18 September 2008 and 7 April 2009 and failure of the domestic authorities to provide relevant and sufficient grounds for the applicant’s continued detention pending trial lead the Court to the conclusion that the domestic authorities failed to justify the applicant’s continued deprivation of liberty in its entirety. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.", "81. There has therefore been a violation of Article 5 § 3 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 82. Lastly, the applicant complained under Article 6 § 1 of the Convention about the outcome of the criminal proceedings against him and under Article 1 of Protocol No.", "4 to the Convention about having been convicted of failing to comply with a contractual obligation. 83. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 84. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 85. The applicant claimed 1,000,000 euros (EUR) in respect of non‑pecuniary damage. 86.", "The Government considered the applicant’s claim to be excessive and submitted that if the Court were to find a violation, the finding of such a violation would in itself constitute sufficient just satisfaction. 87. The Court notes that it has found violations under Article 5 §§ 1 and 3 of the Convention. It considers, therefore, that the applicant’s distress and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to him on this amount.", "B. Costs and expenses 88. The applicant also claimed 100,000 Russian roubles for legal costs and expenses incurred before the Court. In support of his claims the applicant submitted a copy of his agreement with Mr Ye. Nazarov dated 8 August 2008 and a statement of the amount due dated 12 September 2011.", "89. The Government considered the applicant’s claim to be excessive and not reasonable as to quantum. 90. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,100 for legal costs and expenses incurred by the applicant in the proceedings before the Court.", "C. Default interest 91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 5 §§ 1 and 3 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 5 § 3 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FOURTH SECTION CASE OF A.N. v. LITHUANIA (Application no. 17280/08) JUDGMENT STRASBOURG 31 May 2016 FINAL 31/08/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.N.", "v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Boštjan M. Zupančič,Nona Tsotsoria,Paulo Pinto de Albuquerque,Egidijus Kūris,Iulia Motoc,Gabriele Kucsko-Stadlmayer, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 19 April 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 17280/08) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr A. N. (“the applicant”), on 28 March 2008. The Chamber decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court. 2.", "The applicant was represented by Mr V. Gžimaila, a lawyer practising in Akmenė. The Lithuanian Government (“the Government”) were represented by their then Agent, Ms E. Baltutytė. 3. The applicant complained that, by depriving him of his legal capacity without his participation and knowledge, the domestic authorities breached his rights under Articles 6 and 8 of the Convention. 4.", "On 3 January 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Naujoji Akmenė. 6.", "In November 1989 he started military service in the armed forces of the Soviet Union. Medical records dated 20 June 1990 drafted by a panel of doctors in his military unit in Riazan (Russia), stipulated that at that time he had problems communicating with others and was autistic, though he had a normal memory and level of intelligence. He was diagnosed with sluggish schizophrenia, which he had developed during military service. On those grounds, he was released from military service. 7.", "Having returned from the army to Lithuania, by 2005 he had been treated in psychiatric institutions no less than fifteen times. In 2004 he was diagnosed with residual and then paranoid schizophrenia. 8. In February 2006 the applicant attempted suicide by setting himself on fire. He was admitted to the trauma unit of a hospital.", "9. In reply to a prosecutor’s request for information, on 14 November 2006 the Akmenė District Psychiatric Health Centre (Akmenės rajono psichikos sveikatos centras) confirmed that the applicant had been attending there since 1999, and continued to be treated there for schizophrenia. In 2004 episodes of the applicant’s illness became more frequent. That year the applicant attempted to commit suicide; he did not accept that he was ill. He was admitted to the Šiauliai Psychiatric Hospital (Šiaulių psichiatrijos ligoninė), where he spent about a month before being released for outpatient care at his own request.", "Since July 2005 the applicant stopped attending the Akmenė District Psychiatric Health Centre and taking his medication, because he firmly refused any consultations with the psychiatrists. He would also submit numerous complaints to various authorities. 10. On 24 November 2006 the applicant’s mother asked a prosecutor to initiate proceedings with a view to her son being declared legally incapacitated. According to her, his mental illness started when he was in the Soviet army.", "She and her husband lived in a house separate from him in neighbouring Akmenė. By 2006 the applicant’s condition reached such a stage that he was afraid to leave his apartment or let his parents in, and he did not take care of himself. He even attempted to take his own life by setting himself on fire. 11. On the same day, the prosecutor sent the request by the applicant’s mother to the Akmenė District Court, together with an extract from the applicant’s medical records.", "It was noted that his schizophrenia had worsened and that he had become a danger to himself. He was thus in need of help from others. It was indispensable to ascertain whether there was a basis for declaring him legally incapable, if psychiatrists established that he could not understand or control his actions. The prosecutor relied on Articles 2.10, 3.242 § 1 and 3 of the Civil Code, Articles 135, 462-465, 491‑493 of the Code of Civil Procedure, and Article 19 of the Law on Prosecution Service. 12.", "By a ruling of 29 November 2006 the Akmenė District Court ordered an expert examination to ascertain (i) whether the applicant was suffering from mental illness, (ii) whether he could understand his actions and (iii) whether he could take part in court proceedings. His mother was to be informed of that decision. 13. Having examined the applicant in person and scrutinised his medical records, on 8 January 2007 a psychiatrist concluded that he suffered from paranoid schizophrenia. He was also very mistrusting and had strong feelings of persecution.", "Psychiatrists took into account the letters by his mother to the Akmenė District Psychiatric Health Centre and the prosecutor to the effect that the applicant did not take care of his daily needs, and had social and health issues and suicidal thoughts. The psychiatrist thus established that the applicant could not correctly understand or control his actions, and noted that he “could not take part in court proceedings, could not be questioned, and court documents could not be served on him”. 14. In a one page form sent to the Akmenė District Court on 29 January 2007, Akmenė District social services ticked a box to say that they “agreed” with the prosecutor’s request for the applicant to be declared incapacitated. They also indicated that they would not take part in the court hearing, which was scheduled for 31 January 2007.", "15. On 23, 24, 25 and 30 January 2007 attempts were made by the Akmenė District Court to personally serve the applicant with the summons concerning the forthcoming hearing for his legal incapacitation and care. The copy of the summons indicated that it had not been served because, according to his next door neighbour, the applicant was mentally ill and opened the door to no one. 16. At a public hearing on 31 January 2007 the Akmenė District Court, relying on Articles 465-468 of the Code of Civil Procedure, granted the prosecutor’s request for the applicant to be declared incapacitated, on the grounds that he could not understand or control his actions.", "The prosecutor and the applicant’s mother were in attendance. The applicant’s mother testified about her son’s history of mental illness. She also stated that he had recently been living away from his parents, but could not take care of himself, did not pay maintenance fees for his apartment, and would not go out or take his medication. The ruling stipulated that it could be appealed against within thirty days. 17.", "The Government submitted that, given the fact that it had not actually been possible to serve the summons on the applicant, the decision of 31 January 2007 had only been sent to the interested parties in the case, that is to say the applicant’s mother, the prosecutor and social services. 18. On 5 February 2007 the applicant drafted what appears to be a response to the prosecutor’s request of 24 November 2006 to incapacitate him. Therein he mentions that he received a copy of the prosecutor’s request on 30 January 2007. The letter appears essentially to be a complaint about his treatment in psychiatric hospitals and diagnosis with schizophrenia.", "He concludes by stating that because of obvious forgery of his medical examination results and clear bias on the part of the prosecutor, the applicant refused to undergo medical examination in Lithuania. A stamp on the letter indicates that it was received by the Akmenė District Court on 5 February 2007. 19. Having established that the applicant was legally incapacitated, by a ruling of 6 March 2007 the Akmenė District Court appointed the applicant’s mother as his guardian and the administrator of his property. The decision was taken at a public hearing in which she, a prosecutor and a representative from social services took part.", "The ruling stipulated that the applicant had not taken part because of ill-health. 20. The applicant was forcibly admitted to the Šiauliai Psychiatric Hospital on 9 March 2007, after showing signs of agitation and behaving aggressively towards his parents. The police and some firemen had to break down the door of his apartment to get to him. On 11 March 2007 he consented to treatment until 13 March 2007, when he refused any further treatment in writing.", "21. On 13 March 2007 the Šiauliai Psychiatric Hospital asked the State Guaranteed Legal Aid Service (“the Legal Aid Service”) to provide legal aid to the applicant, who was to be forcibly hospitalised. It was granted the same day, and a lawyer was appointed to represent him. Later that day, in the presence of a psychiatrist and the appointed lawyer, the Šiauliai District Court granted a request by the psychiatric hospital for the applicant to be forcibly hospitalised. The court noted that the applicant was absolutely uncritical of his own behaviour, and that his state of mind at that time meant that he posed a danger to himself and others.", "The ruling was final and not appealable. It indicated that on 31 January 2007 the applicant had been declared legally incapacitated, and that on 6 March 2007 his mother had been appointed as his guardian. 22. The Government submitted to the court an extract from the applicant’s medical records, which indicated that he had been at the Šiauliai Psychiatric Hospital from 9 March until 22 June 2007. The doctor indicated in that record that a copy of the court ruling of 13 March 2007 had been given to the applicant.", "It is not clear when that was done. The Government submitted that the court decision of 13 March 2007 had been handed to the applicant by his treating doctor on 15 March 2007. 23. On 6 April 2007 the applicant signed a document certifying that his treatment plan from the Šiauliai Psychiatric Hospital had been explained to him and that he agreed to follow it. 24.", "Having been released from the psychiatric hospital, on 26 November 2008 the applicant approached the Legal Aid Service. In his application he wrote that by a ruling of 31 January 2007 he had been declared legally incapacitated, and that he would need the time-limit for appealing against it to be renewed. He also indicated that in March 2007 his mother had been appointed his guardian and the administrator of his property. He noted that he had not known about the two decisions until 9 March 2007, upon his admission to the Šiauliai Psychiatric Hospital. He also expressed a wish to appeal against them.", "25. On 31 December 2008 the Legal Aid Service refused the request as having no prospect of success. It noted that the applicant fell into the category of people entitled to legal aid; however, given that the proceedings for his incapacitation had been terminated, his request for legal aid was clearly irrelevant. 26. The Legal Aid Service noted that the decisions the applicant wished to challenge had been taken in January and March 2007.", "Given that he had not requested legal aid until 28 November 2008, he had missed the deadline for appeal against those decisions. Representing him in such proceedings would have had no prospect of success. 27. As to the appointment of the applicant’s mother as his legal guardian, the Legal Aid Service indicated that he had given no grounds for doubting her ability to perform her duties as guardian and the administrator of his property. Lastly, it observed that guardianship could be revoked at the request of a prosecutor or social services.", "Given that the applicant himself could not apply to the court with such a request, there was no legal basis for providing him legal assistance. 28. On 15 December 2008 the applicant requested that the Akmenė District Court give him a copy of the court rulings regarding his incapacitation and the appointment of his legal guardian. 29. On 16 December 2008 a judge of the Akmenė District Court wrote to the applicant informing him that those court rulings would not be given to him, because his mother had been appointed as his legal guardian and the administrator of his property.", "30. In their observations on the admissibility and merits of the case, sent to the Court on 2 May 2012, the Government noted that at that time the applicant had lived separately in his own apartment. He had been unemployed but had received disability pension. His guardian had helped him with daily chores. He had also received regular outpatient treatment at the Akmenė District Psychiatric Health Centre.", "31. On 13 August 2014 the applicant complained to the Šiauliai prosecutor’s office that in 2004 he had been forcibly admitted to the Šiauliai Psychiatric Hospital and made to undergo medical treatment. The applicant asked that a pre-trial investigation be opened regarding his allegations. 32. By a final ruling of 11 November 2014, the Šiauliai Regional Court held that the applicant’s complaints about events in 2004 were unfounded.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legal incapacity and guardianship legislation 33. As concerns legal incapacity and guardianship, the Civil Code, in force at the material time and until 31 December 2015, provided: Article 2.10. Declaration of a person’s incapacity “1.", "A natural person who, as a result of mental illness or dementia, is unable to understand the meaning of his actions or control them may be declared incapacitated. The incapacitated person shall be placed under guardianship. 2. Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian... 3. Where a person who was declared incapacitated recovers from illness or his state of health improves considerably, the court shall reinstate his capacity.", "Once the decision takes effect, guardianship of the person shall be revoked. 4. A request to declare a person legally incapacitated may be lodged by a person’s spouse, parents or adult children, a care institution or a public prosecutor. They also have the right to apply to the courts for recognition of the person’s capacity.” Article 2.11. Limitation of a person’s active civil capacity “1.", "The courts may impose restrictions on a person’s civil capacity if he abuses alcohol, drugs or narcotic or toxic substances. Once limitations on a person’s capacity have been imposed, he shall be placed under guardianship...” Article 2.111. The Register of legally incapacitated persons and persons of limited capacity “1. The Register of legally incapacitated persons and persons of limited capacity shall record persons who are declared in accordance with the procedure laid down by the court to be legally incapacitated or whose civil capacity is limited ..., guardians and curators (globėjai ir rūpintojai) of such persons; the data of the court decisions, adopted in respect of them, concerning the establishment and revocation of legal capacity or limitation of legal capacity...” Article 3.238. Guardianship “1.", "Guardianship is established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person. 2. Guardianship includes guardianship of a person’s assets, but if necessary, an administrator may be appointed to manage [these].” Article 3.240. Legal status of guardians and curators “1. Guardians and curators represent those under guardianship in accordance with the law and defend the rights and interests of legally incapacitated people or people of limited active capacity without any specific authorisation.", "2. A guardian is entitled to enter into all necessary transactions in the interests and on behalf of the legally incapacitated person represented...” Article 3.241. Guardianship and curatorship authorities “1. Guardianship and curatorship authorities are municipal or regional authorities concerned with the supervision and control of the activities of guardians and curators. 2.", "The functions of guardianship and curatorship in respect of residents of a medical or educational institution or [an institution run by a] guardianship (curatorship) authority who have been declared by the court as legally incapable or of limited active capacity shall be performed by the relevant medical, educational or guardianship (curatorship) authority until a permanent guardian or curator is appointed...” 34. In 2007, the year the applicant was declared legally incapacitated, the Code of Civil Procedure provided that an application to declare a person legally incapacitated could be submitted by his spouse, children or parents, a guardianship institution or a public prosecutor (Article 463 § 1). The parties to the incapacitation proceedings consisted of, besides the person who had initiated them, the person whose legal capacity was in question, as well as the guardianship (care) authority. The court could also invite close relatives or family members living with the person whose incapacitation was to be decided to join the proceedings. If it was impossible to call into or question in court a person subject to incapacitation proceedings or serve court documents on him because of his state of health, as confirmed by medical opinion, the court could hear the case in his absence (Article 464 §§ 1 and 2).", "35. An application for a person’s incapacity had to contain information about the mental illness (psichikos sutrikimas) which had left him unable to understand the meaning of his actions or control them. In addition, it had to contain a medical report and other evidence about his psychological state (Article 465). When preparing the case the judge had to order a psychiatric report to establish the person’s psychological state, and obtain medical documents necessary for the expert report (Article 466). 36.", "The question of incapacity had to be decided at an oral hearing, having informed all the parties to the proceedings. If the court considered it necessary to hear and question the person whose legal capacity was in question, and he did not appear, the court could order the police to escort him, or order another court within whose territory that person resides, to question him. The person had to be questioned in the presence of a court psychiatrist (Article 467 §§ 1 and 2). 37. A person declared legally incapacitated by the court had a right to appeal against the decision to a higher court (Article 468 § 5).", "38. A copy of the decision had to be sent to the parties and third parties absent from the hearing within five days of the date the decision was pronounced (Article 275 § 1). 39. Article 366 § 1 (6) and (7) of the Code of Civil Procedure provided that proceedings could be reopened if one of the parties was incapacitated and did not have a representative, or if the court had taken a decision in respect of a party not involved in the proceedings. 40.", "The Law on State Guaranteed Legal Aid (Valstybės garantuojamos teisinės pagalbos įstatymas – “the Law on Legal Aid”) provided that those subject to incapacitation proceedings were eligible for “secondary” legal aid regardless of their assets and level of income levels (Article 12 § 1 (11)). The authorities could refuse to provide legal aid where an applicant’s claims were manifestly ill-founded or where representation in the matter had no reasonable prospect of success (Article 11 § 6 (1, 2)). 41. The Constitution provides that citizens who are recognised as incapable by the courts cannot participate in elections or stand for election as a Member of the Seimas (Articles 34 and 56). 42.", "The Civil Code stipulates that a transaction is voidable if it is made by someone who, within the procedure established by law, is recognised as legally incapable by reason of a mental disorder (Article 1.84 § 2). A person who has been declared legally incapacitated by a court judgment in force cannot marry (Article 3.15 § 1). Furthermore, a will may only be made by a legally capable person able to understand the importance and consequences of his actions (Article 5.15 § 2). 43. Article 27 of the of the Law on Mental Healthcare (Psichikos sveikatos priežiūros įstatymas) provides that a person who is seriously mentally ill and refuses hospitalisation can be admitted involuntarily to hospital if there is a real danger that by his actions he is likely to commit serious harm to his health or life or the health or life of others.", "In such circumstances, the patient may be involuntarily hospitalised and given treatment in a mental health facility without court authorisation for a period not exceeding forty-eight hours. If the court does not give authorisation within this time, the involuntary hospitalisation and treatment must be stopped (Article 28). B. Legislative steps to regulate the situation of those suffering from a mental disability 1. Explanatory memorandum No.", "XIIP-1656 by the Ministry of Justice 44. On 2 April 2014 the Ministry of Justice adopted an explanatory memorandum (aiškinamasis raštas) in connection with proposed legislative changes relating to the protection of the rights of the disabled. The changes were prompted by the ratification of the United Nations Convention on the Rights of Persons with Disabilities, ratified by Lithuania in 2010 (for the relevant extracts from that Convention, see paragraph 69 below) and the Court’s practice. The changes aimed at improving existing domestic standards in the light of Article 12 of the aforementioned Convention, which specifies that States should recognise that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life, and therefore States should take appropriate measures to provide them with access to the support they may require in exercising their legal capacity. 45.", "The explanatory memorandum acknowledged that the law as it existed in Lithuania lacked a legal framework for how assistance could be provided to people with disabilities, including those suffering from mental illness. As a result, those with psychiatric illnesses, owing to which they could not always make decisions in their best interests, would be exposed to the most restrictive measure – full incapacitation. Even if a person could partially understand or control his actions, limiting his legal capacity by only allowing him to act in certain areas of life was not permitted by law. However, limited legal capacity could be established in respect of people who abused narcotic or psychotropic substances or alcohol (Articles 2.10 and 2.11 of the Civil Code, see paragraph 33 above). 46.", "It was also pertinent that under Article 2.10 of the Civil Code, once a person was declared legally incapacitated, he lost the right to act in his name in all areas of his life. Moreover, under the law in force the person whose legal capacity could be restricted in future had no right to indicate how he wished his pecuniary or non-pecuniary rights to be dealt with after incapacitation. The existing law also lacked a means of guaranteeing that, after the person was declared incapacitated, his or her earlier wishes would be taken into account. The explanatory memorandum thus proposed that the existing law be amended by emphasising the need to individualise the measures of incapacitation so that they were fully justified (visapusiškai pagrįstos) and applied to each person’s particular situation. 47.", "As to the misgivings concerning the proceedings for limiting a person’s capacity, the Ministry of Justice noted that, should a person’s health improve, the same people who could ask for his incapacitation could then submit a request to restore his legal capacity (Article 2.10 §§ 2 and 4 of the Civil Code, see paragraph 33 above). However, the incapacitated person could not apply to the court himself. Furthermore, no independent body had an obligation to periodically review the incapacitated person’s condition or ask the court to review the incapacitation decision. As a result, the existing legislation did not prevent situations where the guardian of the incapacitated person, abusing his or her rights or executing them improperly, failed to ask the court to declare the incapacitated person legally capable even if his health had improved. Moreover, there was no legal requirement for a court to review an incapacity decision if none of the people who could initiate incapacity proceedings had not asked for a review for a long time.", "Nor was it possible to ask for the decision to be reviewed by an independent body which monitors the incapacitated person’s state of health. As a result, the incapacitated person’s rights could be restricted for a disproportionately long time. 48. The Ministry of Justice further observed that under Article 465 of the Code of Civil Procedure, the request for a person’s incapacitation had to contain a description of the circumstances, including the mental illness which had left the person unable to understand the meaning of his actions or control them. It also had to contain a doctor’s report and other evidence about the person’s state of mind (apie asmens psichinę būklę).", "However, this definition of evidence was restrictive and narrow. 2. Legislative amendments in force from 1 January 2016 49. On the basis of the aforementioned proposals by the Ministry of Justice, on 26 March 2015 the Seimas adopted a number of legislative amendments relating to the protection of the rights of people with disabilities. They came into force on 1 January 2016, and are summarised below.", "(a) Civil Code 50. Article 2.10 of the Civil Code now provides that a person who cannot understand or control his actions in a particular area of his life because of psychological illness may be declared by the court as legally incapacitated in that area (neveiksnus tam tikroje srityje) by court decision. In that particular area the person must act through his guardian. The court must establish a definitive list stating in which areas the person is incapacitated. It must also restore legal capacity in those areas if his health improves.", "51. A request to declare a person legally incapacitated in a certain area may be submitted by his spouse, parents or adult children, a care institution or a prosecutor, who may all request that the court restore legal capacity. Unlike previously, the Civil Code now provides that such requests for restoration of legal capacity may be lodged, no more than once per year, by the person declared legally incapacitated. 52. A request to restore a person’s legal capacity may also be lodged by the State [of Mind] of Incapacitated Persons’ Review Commission (Neveiksnių asmenų būklės peržiūrėjimo komisija), a new independent body to be established in every municipality.", "It must review the incapacitated person’s state of mind on its own initiative, if no request has been lodged by the parties entitled to do so within a year of the incapacity decision. Furthermore, it must be impartial and work on the basis that restriction of legal capacity should be used as little as possible and measures for limiting legal capacity should be individualised and reasoned. When reviewing the person’s state of health, the Commission must hear his opinion, except where objective reasons make that impossible. When it has doubts over whether it is appropriate to apply to the court for restoration of legal capacity, all of those doubts should be interpreted for the benefit of the incapacitated person (Articles 2.10 and 2.101). 53.", "The Civil Code also extends the ability to restrict a person’s civil capacity in a particular area of his life (fizinių asmenų civilinio veiksnumo apribojimas tam tikroje srityje) to those with mental illnesses (Article 2.11). Accordingly, a person who, because of mental illness, may not understand or control his or her actions in a particular area, may be declared by a court to have limited active legal capacity in that area, where he may not act without the agreement of his curator. A request to declare a person partially legally restricted in a certain area may be submitted by his spouse, parents or adult children, a care institution or a prosecutor. They can also request the court to restore legal capacity. Unlike previously, the Civil Code now provides that a request to restore a person’s legal capacity may also be lodged by the person whose capacity was partially restricted.", "54. The Civil Code was also supplemented by new Article 2.1371, which concerns preliminary arrangements (išankstinis nurodymas). It provides that an adult may make preliminary arrangements about how his pecuniary or non-pecuniary rights will be managed, should he be declared incapacitated in a certain area or partially capacitated in another. In the preliminary arrangements the person may name a person he wishes the court to appoint as his guardian, express his intentions about where he will live in future, name a specific person to deal with any financial and non-financial matters, or make other arrangements. Such preliminary arrangements must be approved by a notary and take effect after the court decision regarding the person’s legal incapacity.", "From that point onwards, the preliminary arrangements are binding on everybody, unless the court decides that they are not in the incapacitated person’s interests. (b) Code of Civil Procedure 55. Article 465 now stipulates that an application for a person’s incapacitation in a certain area must contain a description of the circumstances, including the medical condition which has left him unable to understand or control his actions. A medical report and other evidence must be added to the application. It must also list the areas in which the person should be declared incapacitated.", "Unlike previously, the new element to be included is a conclusion by a social worker about the person’s ability to take care of his or her daily needs independently or with assistance in particular areas. 56. Article 467 § 6 now provides that when hearing a case for a person’s incapacity in a certain area, it is obligatory that the person concerned is represented by a lawyer. 57. In accordance with Article 469, the court may review an earlier incapacity decision at the request of, inter alia, the incapacitated person himself, should his health improve.", "In such proceedings the person’s lawyer must take part, and if he does not have a lawyer the court will order the Legal Aid Service to secure one. Should a court decide to maintain a decision that a person is incapable in certain areas, it must ex officio evaluate whether he needs help in other areas and suggest to him that he agrees to assistance in those areas. (c) Other legislative changes 58. The Law of Local Government (Vietos savivaldos įstatymas) was supplemented by adding “ensuring a review of the state [of mind] of incapacitated persons” (neveiksnių asmenų būklės peržiūrėjimo užtikrinimas) to the functions of local government (Article 7 § 37). 59.", "The Law on State Guaranteed Legal Aid Service was amended to stipulate that when a healthcare institution contacts the Legal Aid Service for legal aid to be provided to a mental health patient, the Legal Aid Service must adopt a decision the same day and familiarise the patient with it. It must also provide appropriate facilities to enable the patient and his lawyer to communicate (Article 22). C. Supreme Court guidance regarding incapacity and guardianship proceedings 1. Ruling of 11 September 2007 in civil case no. 3K-3-328/2007 60.", "In the above ruling, the Supreme Court noted that a person whose incapacity was requested was also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure). As a result, he enjoyed the rights of an interested party, including the right to be duly informed of the time and place of any hearing. The fact that the incapacitation case was heard in the absence of D.L. – who did not open the door to anyone and thus did not accept correspondence – was assessed by the Supreme Court as a violation of her right to be duly informed of the time and place of hearing. It also found that by failing to hear the person concerned and without making sure that she had been aware of the proceedings, the first-instance court had breached the principle of equality of arms and her right to appeal against the incapacity decision, because it had not been served on her.", "The Supreme Court also referred to Principle no. 13 of Recommendation No. R(99)4 by the Committee of Ministers of the Council of Europe (see paragraph 68 below), stating that a person has the right to be heard in any proceedings which could affect his legal capacity. This procedural guarantee should be applicable to the fullest extent possible, at the same time bearing in mind the requirements of Article 6 of the European Convention on Human Rights. In this regard, the Supreme Court also referred to the Court’s case-law to the effect that mental illness could result in appropriate restrictions of a person’s right to a fair hearing.", "However, such measures should not affect the very essence of that right (the Supreme Court relied on Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33, and Lacárcel Menéndez v. Spain, no. 41745/02, § 31, 15 June 2006). 61. In the same ruling, the Supreme Court also emphasised that determining whether a person can understand his or her actions was not only a scientific conclusion for forensic psychiatry, but also a question of fact which should be decided by the court on assessing all the other evidence and, if necessary, hearing expert evidence.", "Taking into consideration the fact that a declaration of incapacity entailed very serious interference with a person’s right to respect for his private life, it could only be made in exceptional circumstances. 2. Ruling of 11 July 2008 in civil case no. 3K-3-370/2008 62. In that ruling, the Supreme Court reiterated the Court’s case-law to the effect that depriving a person of legal capacity entailed serious restrictions on his rights under Article 8 of the Convention.", "Very weighty reasons therefore had to be given for incapacitation (the Supreme Court referred to Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999). It drew attention to the fact that different degrees of incapacity may exist, and that it may vary from time to time. Full restriction of legal capacity should therefore not be an unavoidable result when protecting the rights of the mentally disabled. The Supreme Court established two criteria to be observed: medical, the mental illness or disorder, recognised by a forensic psychiatric examination report and legal, the inability to understand and control one’s actions because of the mental illness.", "Both criteria were essential and of equal importance to each case regarding someone’s incapacitation. The Supreme Court emphasised that the question of establishing incapacity could not be examined in a purely formalistic way, simply following the medical criteria established in the expert’s conclusion and considering it to be sufficient grounds for finding someone incapable (the Supreme Court relied on Shtukaturov v. Russia, no. 44009/05, ECHR 2008). Moreover, the medical expert report as to the mental capacity of the person did not bind the court. 63.", "In the same ruling, the Supreme Court underlined that under Article 2.10 of the Civil Code, legal incapacitation entailed a very serious restriction on a person’s right to respect for his private life, because he would become completely dependent on his guardian for an indefinite period of time. Legal status could only be reviewed on the initiative of the person’s guardian or others, but not on the initiative of the incapacitated person. For that reason, fairness of the incapacitation proceedings was crucial. The Supreme Court also observed that under Article 464 of the Code of Civil Procedure, a person whose incapacitation was at issue should be present at the hearing where his incapacitation is being decided, unless medical experts have deemed his participation impossible because of his or her state of mind. 3.", "Ruling of 23 March 2012 in civil case no. 3K-3-166/2012 64. In that ruling, the Supreme Court observed that incapacitation stripped a person of all his rights, including the right to marry, vote, deal with his assets and choose where to live; in fact, it eliminated him from society. For that reason, it was vital to give priority to defending the rights of the vulnerable using all means possible during incapacitation proceedings. The Supreme Court once again reiterated that in order to justify full incapacitation, the mental disorder must be “of a kind and degree” warranting such a measure.", "65. In that particular case, the Supreme Court found that the question of legal capacity had only been examined at one level of jurisdiction, which was not sufficient to protect the incapacitated person’s interests. Moreover, when assessing fairness of proceedings, the entire proceedings, including the appellate stage, counted. In the circumstances of the case, the legally incapacitated person first appealed against the first-instance court’s decision to incapacitate her. Later she withdrew her appeal, an application which the appellate court had quickly accepted.", "The Supreme Court found that without holding a hearing and examining whether the plaintiff truly wished to terminate the court proceedings (and with information that she actually objected to her incapacitation), the appellate court had failed to take into account the importance of the issue at stake for her, and had thus breached her right to a fair hearing and the principle that priority must be given to the protection of the rights of the vulnerable. The Supreme Court referred to, inter alia, the Convention on the Rights of Persons with Disabilities, Article 12 of which reads that the disabled shall be provided with the support they may require in exercising their legal capacity. 66. Lastly, in that case the incapacitated person’s guardian submitted a written request to the Supreme Court, arguing that she was the only person who could legally represent the incapacitated person. She requested that the court dismiss the incapacitated person’s appeal on points of law.", "The Supreme Court dismissed that request. D. Other relevant domestic law 67. The Code of Civil Procedure provided at the material time that a court decision could be appealed against within thirty days. If there was a valid reason for missing that deadline, a request to extend the time-limit could be submitted within six months of the decision of the first-instance court (Article 307). Proceedings could be reopened if, for example, the court had ruled on the rights and obligations of a person not party to those proceedings.", "Such a request had to be submitted to the court within three months of the date the person learned of the grounds for reopening the proceedings, but no later than five years from the date the decision was adopted (Articles 365-368). III. RELEVANT INTERNATIONAL MATERIALS 68. Recommendation No. R(99)4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults was adopted on 23 February 1999.", "The relevant parts read as follows: Principle 3 – Maximum reservation of capacity “1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2.", "In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” Principle 6 – Proportionality “1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.” Principle 7 – Procedural fairness and efficiency “1.", "There should be fair and efficient procedures for the taking of measures for the protection of incapable adults. 2. There should be adequate procedural safeguards to protect the human rights of the persons concerned and to prevent possible abuses.” Principle 11 – Institution of proceedings “1. The list of those entitled to institute proceedings for the taking of measures for the protection of incapable adults should be sufficiently wide to ensure that measures of protection can be considered in all cases where they are necessary. It may, in particular, be necessary to provide for proceedings to be initiated by a public official or body, or by the court or other competent authority on its own motion.", "2. The person concerned should be informed promptly in a language, or by other means, which he or she understands of the institution of proceedings which could affect his or her legal capacity, the exercise of his or her rights or his or her interests unless such information would be manifestly without meaning to the person concerned or would present a severe danger to the health of the person concerned.” Principle 12 – Investigation and assessment “1. There should be adequate procedures for the investigation and assessment of the adult’s personal faculties. 2. No measure of protection which restricts the legal capacity of an incapable adult should be taken unless the person taking the measure has seen the adult or is personally satisfied as to the adult’s condition and an up-to-date report from at least one suitably qualified expert has been submitted.", "The report should be in writing or recorded in writing.” Principle 13 – Right to be heard in person “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” Principle 14 – Duration, review and appeal “1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. 2. Measures of protection should be reviewed on a change of circumstances and, in particular, on a change in the adult’s condition.", "They should be terminated if the conditions for them are no longer fulfilled. 3. There should be adequate rights of appeal.” 69. The United Nations Convention on the Rights of Persons with Disabilities was ratified by the Republic of Lithuania on 27 May 2010, where it entered in force on 17 September 2010. The relevant parts read as follows: Article 12Equal recognition before the law “1.", "States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5.", "Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” Article 13Access to justice “1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 70.", "Without relying on any particular provision of the Convention, the applicant complained about the fairness of his incapacitation proceedings. 71. The Court considers that the complaint falls to be examined under Article 6 § 1 of the Convention. The relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Admissibility 1. Submissions by the parties (a) The Government (i) Six-month rule 72.", "The Government firstly noted that the decision to declare the applicant legally incapacitated had been adopted on 31 January 2007. However, he had only lodged his application with the Court on 28 March 2008, nearly a year and two months later. The Government admitted that they did not have information to determine if or when the applicant had received the decision regarding his incapacitation. It could only be presumed that his mother, later appointed as his guardian, had informed him of that decision. In any case, it was completely clear that the applicant had found out about the decision on 9 March 2007, as he had referred to it himself in his request to be provided with legal aid on 26 November 2008 (see paragraph 24 above).", "On the basis of an extract from the applicant’s medical records (see paragraph 22 above), the Government argued that on 15 March 2007 the treating doctor had given him a copy of the Šiauliai District Court’s decision of 13 March 2007, and in the later decision it had been clearly indicated that he had been declared legally incapable by the Akmenė District Court on 31 January 2007. For the Government, the six‑month time-limit had therefore started running from at least 15 March 2007. They also noted the applicant’s letter to the Akmenė District Court, in which he had stated that he had seen the prosecutor’s request to have him declared incapacitated (see paragraph 18 above). The applicant, however, had not taken any action for nearly a year and a half, within either the domestic system or the international system. The Government were also of the view that the alleged violation of the applicant’s rights could not be considered to be of a continuous nature.", "(ii) Exhaustion of domestic remedies 73. The Government further maintained that the applicant had failed to exhaust the available domestic remedies. Firstly, he had missed the thirty‑day time-limit to appeal against the Akmenė District Court’s decision of 31 January 2007, as well as the six-month time-limit to extend the time‑limit for lodging an appeal, if there had been valid reasons for missing the thirty-day time-limit (see paragraph 67 above). Nor had he given any valid reasons why any of those time-limits had been missed. It was therefore reasonable for the Legal Aid Service to have concluded that the appeal against the decision to incapacitate him had had no prospects.", "The Government also deemed it appropriate to note that in his request for legal aid the applicant had asked the Legal Aid Service to appeal against the aforementioned incapacity decision and had requested that the court extend the missed time-limit for lodging an appeal. However, he had not requested a reopening of the civil proceedings (atnaujinti procesą) regarding his legal incapacity, which was a different legal avenue (see paragraph 67 above). Lastly, he had not challenged before the administrative courts the Legal Aid Service’s refusal to assist him either. (b) The applicant 74. The applicant submitted that he had not known about the incapacitation decision of 31 January 2007 or the decision of 6 March 2007 to appoint his mother as his guardian, because he had not taken part in those proceedings.", "He admitted that he had been “shown” both decisions by a doctor on 9 March 2007, when he had been taken to the Šiauliai Psychiatric Hospital. Until then, no one had informed him about the proceedings regarding his legal incapacitation. He had not been present at either of the hearings himself, and had not even known when they had taken place. 75. Lastly, the applicant submitted that his mother would not give him the decisions, and that on 16 December 2008 the Akmenė District Court had refused to give him a copy of the decision regarding his legal incapacity.", "The applicant also pointed out that on 31 December 2008 the Legal Aid Service had denied his request for legal assistance in connection with the incapacitation proceedings. 2. The Court’s assessment (a) Six-month rule 76. The Court reiterates that the six-month rule is autonomous and must be construed and applied to the facts of each individual case, so as to ensure effective exercise of the right of individual petition (see, among many other authorities, Büyükdağ v. Turkey (dec.), no. 28340/95, 6 April 2000; Fernández-Molina González and Others v. Spain (dec.), nos.", "64359/01 and others, ECHR 2002 IX (extracts); and Zakrzewska v. Poland, no. 49927/06, § 55, 16 December 2008). While taking account of domestic law and practice is an important aspect, it is not decisive in determining the starting point of the six-month period (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 52 and 55, 29 June 2012). 77.", "The Court points out that the six-month period cannot start to run until the applicant has effective and sufficient knowledge of the final domestic decision. Furthermore, it is for the State relying on the failure to comply with the six-month time-limit to establish the date the applicant became aware of that decision (see Baghli v. France, no. 34374/97, § 31, ECHR 1999‑VIII, and more recently, Sgaibă v. Romania (dec.), no. 6005/05, § 25, 27 January 2015). 78.", "In the instant case, the Court firstly observes that the Government did not deny that the Akmenė District Court decision had never been served on the applicant, but maintained that it had been sent to the applicant’s mother. Be that as it may, service on the applicant’s mother in the particular circumstances of this case is not sufficient, for it was precisely on her initiative that the applicant was declared legally incapacitated. Moreover, given that no appeal was ever lodged against the 31 January 2007 decision, it is clear that the mother agreed with it. 79. The Court does not lose sight of the applicant’s statement that he had been “shown” the Akmenė District Court decisions of 31 January and 6 March 2007 regarding his legal incapacitation and the appointment of his legal guardian when he was placed in the Šiauliai Psychiatric Hospital on 9 March 2007 (see paragraphs 24 and 74 above).", "That notwithstanding, nothing in the case file indicates that those two decisions were in fact handed over to him. Moreover, it is not unreasonable to state that his mental illness, which had become more serious by that time, made it difficult for him to understand those decisions (see paragraph 20 above). The Court has also carefully scrutinised his medical records, relied on by the Government. It is however unable to find in those records an indication to the effect that either of the two decisions were given to the applicant on 15 March 2007 (see paragraph 22 above). 80.", "Lastly, the Court refers, on the one hand, to its settled case-law stating that the applicant must show due diligence in obtaining a copy of the decision deposited with the court’s registry (see Mıtlık Ölmez and Yıldız Ölmez v. Turkey (dec.), no. 39464/98, 1 February 2005). On the other hand, and whilst noting that the UN Convention on the Rights of Persons with Disabilities was not in force in respect of Lithuania at the relevant time, the Court nevertheless stresses the State’s obligation to help to ensure that disabled people have effective access to justice (see Article 13 of that Convention, paragraph 69 above). Accordingly, it is somewhat struck by the Akmenė District Court’s letter to the applicant of 16 November 2008, informing him that the rulings regarding his legal incapacity and guardianship would not be given to him (see paragraph 29 above). Clearly, they were not without meaning to the applicant, nor did knowing their content present any danger to him (see, mutatis mutandis, Principle 11 of Recommendation No.", "R(99)4, cited in paragraph 68 above). 81. In these circumstances and in the absence of any irrefutable evidence showing that the knowledge which the applicant presumably had about the Akmenė District Court’s decision regarding his legal incapacitation was effective and sufficient (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999-II), the Government’s preliminary objection that the application was lodged outside the six-month period must be dismissed. (b) Exhaustion of domestic remedies 82.", "In the particular circumstances of the case, the Court considers that the Government’s objections as to the applicant’s failure to exhaust domestic remedies is intrinsically linked to his complaint that he did not have a fair hearing when the matter of his legal capacity was decided. These objections should therefore be joined to the merits. (c) Conclusion 83. The Court also finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicant 84. The applicant complained about the lack of involvement in the proceedings regarding his incapacitation.", "As a result of those proceedings, however, he had been deprived of all of his “human and civil” rights and, in his words, had had no right to appeal to any court on any grounds. He also complained of a lack of assistance on the part of the Akmenė District Court, which had refused to give him a copy of his incapacitation decision, and the Legal Aid Service, which had not supported him when he had attempted to have his legal capacity restored. Another example of this lack of effective access to justice was his forced hospitalisation on 13 March 2007, when a lawyer he had never met had “represented” him during the hearing of that day at the Šiauliai District Court. He argued that the lawyer had in fact represented the interests of the Šiauliai Psychiatric Hospital, which earlier that day had asked the Legal Aid Service to secure a lawyer. It was not the practice of the Šiauliai Psychiatric Hospital for a person who was treated there to have a lawyer to represent his interests.", "(b) The Government 85. The Government argued that the proceedings before the Akmenė District Court for the applicant’s legal incapacitation had been fair. The court had firstly assigned a forensic expert to determine whether the applicant’s mental health allowed his participation in the proceedings. Notwithstanding the experts’ negative answer, the court attempted to secure the applicant’s appearance at the hearing, having summoned him. Four attempts to serve that summons had failed because the applicant had not opened the door of his apartment.", "86. The Government also submitted that the aim of the applicant’s legal incapacitation proceedings had been to protect his interests, for he had been in need of constant care and help from others. Accordingly, his mother and the prosecutor, who had been protecting the public interest, had taken part in the court hearing on 31 January 2007, after social services had consented to the incapacitation proposal and asked the court to hear the case in their absence. The applicant’s mother had been questioned and had described the applicant’s state of health and expressed concern for his life. In this connection, the Government also noted that under Article 464 of the Code of Civil Procedure, the court was allowed to decide the case without the person subject to the incapacitation proceedings, if he could not be present for objective reasons (see paragraph 34 in fine above).", "87. The Government admitted that the Legal Aid Service had refused to provide free legal aid to appeal against the decisions of 31 January and 6 March 2007. However, there had been valid reasons for this (see paragraph 73 above). Lastly, the Government did not have any information that there would be a conflict of interests between the applicant and his mother. 2.", "The Court’s assessment (a) General principles 88. In most of the previous cases before the Court involving “persons of unsound mind”, the domestic proceedings concerned their detention and were thus examined under Article 5 of the Convention. However, the Court has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 are broadly similar to those under Article 6 § 1 of the Convention (see Stanev v. Bulgaria [GC], no. 36760/06, § 232, ECHR 2012 and the case-law cited therein). In deciding whether the proceedings in the present case for the reopening of the guardianship appointment were “fair”, the Court will therefore have regard, mutatis mutandis, to its case-law under Article 5 § 1 (e) and Article 5 § 4 of the Convention (see D.D.", "v. Lithuania, no. 13469/06, § 116, 14 February 2012). 89. In the context of Article 6 § 1 of the Convention, the Court accepts that in cases involving a mentally-ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make appropriate procedural arrangements in order to secure the good administration of justice, protection of the health of the person concerned, and so forth (see Shtukaturov v. Russia, no.", "44009/05, § 68, ECHR 2008). 90. The Court accepts that there may be situations where a person deprived of legal capacity is entirely unable to express a coherent view. It considers, however, that in many cases the fact that an individual has to be placed under guardianship because he lacks the ability to administer his affairs does not mean that he is incapable of expressing a view on his situation. In such cases, it is essential that the person concerned should have access to court and the opportunity to be heard either in person or, where necessary, through some form of representation.", "Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right, except in very exceptional circumstances, such as those mentioned above. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental health issues, are not fully capable of acting for themselves (see D.D. v. Lithuania, cited above, § 118). 91. The Court also reiterates that there is the importance of ensuring the appearance of the fair administration of justice and a party to civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims.", "Here, as with other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures (see P., C. and S. v. the United Kingdom, no. 56547/00, § 91, ECHR 2002-VI). (b) Application to the present case 92. The Court firstly turns to the question of whether the applicant was aware of his incapacitation proceedings, so that he could effectively take part in them. Looking at the proceedings in a chronological order, it observes that there is nothing in the medical expert report of 8 January 2007 to conclude that when examined the applicant, who had been seen regularly by psychiatrists since 1990, was clearly informed or realised that this time it was his legal capacity at stake (see paragraph 13 above; see also Shtukaturov, cited above, §§ 15 and 69).", "93. The Court also has regard to the fact that the Akmenė District Court took efforts proprio motu to notify the applicant about the proceedings, but on 23, 24, 25 and 30 January the summons was not delivered because the applicant did not open the door of his apartment (see paragraph 15 above). Moreover, the Court accepts that the applicant should have learned about the incapacitation proceedings on at least 30 January 2007, when, in his words, he had found the prosecutor’s request for his incapacitation (see paragraph 18 above). Be that as it may, the Akmenė District Court ruled on the issue already the following day, and there is nothing to indicate that the applicant’s written plea of 5 February 2007 received any reaction from the court. The Court therefore concludes that the applicant did not participate in the 31 January 2007 hearing before the Akmenė District Court in any form.", "It remains to be ascertained whether, in the circumstances, this was compatible with Article 6 of the Convention. 94. The Government argued that the decisions taken by the national judge had been lawful in domestic terms. However, the crux of the complaint is not the domestic legality but the “fairness” of the proceedings from the standpoint of the Convention and the Court’s case-law. 95.", "In a number of previous cases (concerning compulsory confinement in a psychiatric hospital) the Court confirmed that a person of unsound mind must be allowed to be heard either in person or, where necessary, through some form of representation (see, for example, Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33). In Winterwerp, the applicant’s freedom was at stake. However, in the present case the outcome of the proceedings was at least equally important for the applicant: his personal autonomy in almost all areas of his life was in issue (see paragraph 119 below). 96.", "The applicant was indeed an individual with a history of psychiatric troubles. From the case material, however, it appears that despite his mental illness, he had been a relatively independent person. Indeed, and despite his suicide attempts in 2004 and 2006, for most of the time he lived alone, and could apparently take care of himself. Furthermore, the Court notes that the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court’s examination. His participation was therefore necessary, not only to enable him to present his own case, but also to allow the judge to have at least brief visual contact with him, and preferably question him to form a personal opinion about his mental capacity (see Shtukaturov, cited above, § 72).", "Given that the potential finding of the applicant being of unsound mind was, by its very nature, largely based on his personality, his statements would have been an important part of his presentation of his case (see D.D. v. Lithuania., cited above, § 120; see also Principle 13 of the Recommendation No. R (99) 4 by the Council of Europe). 97.", "The Court has already acknowledged the Akmenė District Court’s attempts to summons the applicant (see paragraph 93 above). Given that the attempts to secure his presence by sending a summons to his address failed for reasons beyond the district court’s control, it remains to be seen whether his absence could have been compensated for by other means, or through some form of representation. 98. The Court has examined the Government’s argument that the applicant’s mother and the prosecutor attended the 31 January 2007 court hearing on the merits. However, and without doubting their good intentions, in the Court’s opinion their presence did not make the proceedings truly adversarial.", "Indeed, whilst by law the prosecutor was performing the function of defending the public interest, there was no one at the court hearing who could, on the applicant’s behalf, rebut the arguments or conclusions by his mother or the prosecutor. For the Court, taking into account the principle of procedural fairness (see Principle 7 in paragraph 68 above), it would have been appropriate for Akmenė District social services to pay more attention to the merits of the applicant’s case. However, their involvement was restricted to a simple indication of the word “agree” in their response to the prosecutors’ request, as sent to the Akmenė District Court (see paragraph 14 above), without providing a more elaborate or comprehensive response. In this connection, the Court also draws particular attention to the new Lithuanian legislation which requires social workers to provide what appears to be a very specific conclusion as to the person’s capacity or incapacity to act in particular areas (see paragraph 55 above). The Court also notes that after legislative changes in 2015 the State [of Mind] of Incapacitated Persons’ Review Commission, which has a very specific role of monitoring people with disabilities in order to protect their rights, was brought into Lithuanian legislation (see paragraph 52 above), thus making the current legal background substantially different from that which existed in 2007, when the applicant’s case was decided by the Akmenė District Court.", "The lack of any meaningful involvement on the part of social services in the applicant’s case, especially in view of the clear European standards that in 2007 already existed and that prompted amendments to Lithuanian legislation in order to rectify the shortcomings of the legislation applicable at the material time (see paragraphs 44, 68 and 69 above), leads the Court to conclude that his interests at the Akmenė District Court were not represented to make the proceedings fair in any form. 99. Furthermore, it transpires from the Akmenė District Court decision of 31 January 2007 that the court ruled exclusively on the basis of the psychiatric report without summoning the medical expert who wrote it for questioning (see D.D. v. Lithuania, cited above, § 120). Furthermore, that medical expert report to the effect that the applicant could not take care of himself appears to be based on an account by the applicant’s mother, without there being any proof that those circumstances had been verified by the State or municipal authorities themselves.", "Similarly, the Court observes that the Akmenė District Court did not call anyone else as a witness so that more light could be shed on the applicant’s state of health (see paragraph 62 above). 100. Lastly, the Court notes that it must always assess the proceedings as a whole, including the decision of the appellate court (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001).", "It also considers that the principle that particular attention must be given to the protection of the rights of the vulnerable extends to appeal proceedings. The Lithuanian Supreme Court clearly shared the view that rights of persons with disabilities had to be guaranteed at all stages of court proceedings (see paragraph 65 above). The Court has also held that the right to request that a court review a declaration of incapacity is one of the most important rights for the person concerned (see Kędzior v. Poland, no. 45026/07, § 89, 16 October 2012). 101.", "In the present case, the Court points out that the applicant contacted the Legal Aid Service with a request to appeal against his incapacity decision and the decision to appoint a legal guardian. The Court reiterates its earlier finding that the decision of 31 March 2007 was never handed over to the applicant (see paragraphs 79-81 above). Accordingly, he may not be blamed for not appealing against that decision within thirty days, or for asking to extend the time-limit for appeal within six months of the date the incapacity decision was adopted. In this connection, it is also relevant that for the period of 9 March to 22 June 2007 the applicant was in the Šiauliai Psychiatric Hospital, where, this not having been disputed by the Government, he had no access to a lawyer. Against this background, and whilst accepting that by the time the applicant contacted the Legal Aid Service on 26 November 2008 the time-limits of thirty days and six months had already expired, the Court can only hold that the Legal Aid Service’s response was purely formalistic and limited to the question of time-limits which, in their view, the applicant had to observe (see paragraphs 25 and 26 above; also see paragraph 73 above regarding the Government’s suggestion about another legal avenue theoretically available to the applicant).", "102. The Court reiterates that the applicant was a person suffering from mental illness, a factor which militated in favour of the State employing measures to help him to ensure effective access to justice (see Article 13 of the UN Convention on the Rights of Persons with Disabilities, paragraph 69 above). Accordingly, and given the complexity of the legal issues at stake, the Court cannot share the Government’s view that in his plea to the Legal Aid Service the applicant should have specified the request to reopen civil proceedings as the appropriate legal avenue, whereas in fact he only asked to extend the time-limit to lodge an appeal against the 31 January 2007 decision (see paragraphs 24 and 73 above). To require him to have such an understanding of the law would be plainly disproportionate. The Court also is mindful of the fact that at the material time the applicant, once declared incapacitated, had no legal standing and thus could not bring any court action himself, including against the Legal Aid Service.", "In the light of the foregoing considerations, the Court dismisses the Government’s preliminary objection of failure to exhaust domestic remedies (see paragraph 73 above). 103. As to the quality of legal assistance received by the applicant from the Lithuanian authorities, the Court lastly gives weight to his statement that during the proceedings for his forced hospitalisation the lawyer appointed by the Legal Aid Service “represented” him without even having seen or talked to him (see paragraphs 21 and 84 above). The Court nevertheless notes legislative changes that are a precondition for such practice to become extinct in future. Accordingly, from 1 January 2016 the Legal Aid Service are required by law to provide appropriate facilities to enable patients and their lawyers to communicate (see paragraph 59 above), which seems particularly relevant where a person is being held in isolation in a psychiatric hospital, as was the situation in the instant case.", "104. In view of the above considerations, the Court holds that at the material time the regulatory framework for depriving people like the applicant of their legal capacity did not provide the necessary safeguards. The Court will revert further to this matter in the context of the applicant’s complaint under Article 8 of the Convention. 105. The Court also concludes that the applicant was deprived of a clear, practical and effective opportunity to have access to court in connection with his incapacitation proceedings, and particularly in respect of his request to restore his legal capacity (see Kędzior, cited above, § 90).", "There has, accordingly, been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 106. The applicant complained that by depriving him of his legal capacity, the authorities had stripped him of his right to private life. 107.", "The Court considers that the complaint falls to be examined under Article 8 of the Convention. The relevant part reads as follows: “1. Everyone has the right to respect for his private ... life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions by the parties 108. The applicant argued that he was conscientious, lived a normal life alone and took proper care of himself.", "That notwithstanding, because of his legal status as an incapacitated person, he had been effectively barred from taking part in community life and developing relationships with anyone of his choosing. In particular, he could not find a job, take part in elections, get married, enter into legal transactions or even draw up a will. His situation was exacerbated by the fact that, in accordance with Article 2.10 of the Civil Code, a request to restore legal capacity could only be lodged by a person’s family members, a care institution or a prosecutor. However, he had been prevented from directly applying to a court for restoration of his legal capacity. An incapacitated person had to rely on the good will of others, but not on objective factors such as improvement of health.", "This was impossible in the applicant’s case, because his mother considered him to be mentally ill, whereas he was healthy. 109. The Government accepted that the applicant’s incapacitation could be considered to be an interference with his right to respect for his private life. However, that interference had a basis in domestic law and was aimed at protecting his interests. Lastly, and given that his mental illness had worsened to such a level that he had become a danger to himself, as illustrated by his attempts to commit suicide, the interference was necessary and proportionate.", "110. For the Government, it was also important that the Akmenė District Court’s decision to declare the applicant legally incapacitated had been based on his state of health. However, in compliance with Article 469 of the Code of Civil Procedure, where a person’s health improves considerably, the question of legal capacity could be examined again. According to the established practice of the courts, a person could initiate a review of his capacity by asking his guardian, care institution or a prosecutor to start proceedings to change his status. He could also submit a request to be provided with “secondary” legal aid himself.", "That notwithstanding, the Government had no information that the applicant had ever complained of a conflict of interests between him and his mother. B. The Court’s assessment 1. Admissibility 111. The Court has held that deprivation of legal capacity undeniably constitutes a serious interference with the right to respect for a person’s private life protected under Article 8 (see, for example, Matter v. Slovakia, no.", "31534/96, § 68, 5 July 1999). It reiterates that Article 8 secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his personality (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003‑IX (extracts)). It has not been disputed by the Government that the Akmenė District Court’s decision of 31 January 2007 deprived the applicant of his capacity to act independently in almost all areas of his life: at the relevant time he was no longer able to sell or buy any property on his own, work, choose a place of residence, marry, or bring a court action in Lithuania. The Court cannot but hold that the deprivation of legal capacity thus amounted to an interference with his right to respect for his private life (see Shtukaturov, cited above, § 83).", "112. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 113.", "The Court reiterates that any interference with an individual’s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under Article 8 § 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought. 114. In the instant case, the Court acknowledges that the applicant’s incapacitation proceedings had a legal basis, namely Article 2.10 of the Civil Code, Article 19 of the Law on Prosecution Service and Article 465 of the Code of Civil Procedure (see paragraphs 11 and 16 above). The Court also has no reason to doubt that the measure was taken in the applicant’s interests. 115.", "It remains to be examined whether the applicant’s legal incapacitation was necessary and proportionate. (a) General principles 116. The applicant claimed that his full incapacitation had been an inadequate response to the problems he had experienced. Indeed, under Article 8 of the Convention the authorities had to strike a fair balance between the interests of a person of unsound mind and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody’s mental capacity, the authorities should enjoy a wide margin of appreciation (also see paragraph 125 below).", "This is mostly explained by the fact that the national authorities have the benefit of direct contact with the people concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see Shtukaturov, cited above, § 87). 117. At the same time, the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life (ibid., § 88).", "118. Furthermore, the Court reiterates that whilst Article 8 of the Convention contains no explicit procedural requirements, the decision‑making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The extent of the State’s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see Shtukaturov, cited above, § 89).", "(b) Application to the present case 119. The Court firstly notes that the interference with the applicant’s right to respect for his private life was very serious. As a result of his incapacitation, he became fully dependent on his mother as his guardian in almost all areas of his life, and this was clearly recognised by the Lithuanian Supreme Court (see paragraphs 61-64 above). 120. The Court has already found that the proceedings before the Akmenė District Court did not give the judge an opportunity to examine the applicant in person.", "In such circumstances, it cannot be said that the judge had the benefit of direct contact with the person concerned, which would normally call for judicial restraint on the part of the Court. Furthermore, the applicant’s incapacitation proceedings ended at one level of jurisdiction, his participation in that decision-making process being reduced to nothing. 121. Turning to the Akmenė District Court’s decision of 31 January 2007, the Court observes that it essentially relied on two pieces of evidence − the forensic expert report and the testimony of the applicant’s mother. The Court admits that the effect of the applicant’s illness on his social life, health and pecuniary interests was depicted more clearly by his mother, who stated that her son had recently lived apart, but could no longer take care of himself, did not go out or take medication, and would not pay maintenance fees for his apartment (see paragraphs 10 and 16 above).", "122. Because of the complexity of such an assessment and the special knowledge it requires, the Court finds that it was certainly correct that the Akmenė District Court sought to obtain an expert opinion on the applicant’s mental health, as it had been instructed by Article 464 of Code of Civil Procedure (see paragraph 34 above). That report, however, mainly referred to the applicant’s suffering from schizophrenia and his ensuing mistrust and feelings of persecution, without explaining what kind of actions, except for his inability to take part in the court proceedings, he was capable of understanding or controlling. It is true that the expert referred to the applicant’s inability to take care of his daily needs. However, that was more of a narrative of his mother’s opinion than an independent analysis by the psychiatrist.", "123. The Court does not cast doubt on the competence of the doctor who examined the applicant and accepts that the latter was seriously ill. However, the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. By analogy with the cases concerning deprivation of liberty, in order to justify full incapacitation the mental disorder must be “of a kind or degree” warranting such a measure (see Shtukaturov, cited above, § 94; also see the Lithuanian Supreme Court’s analogous conclusion in paragraph 62 above). However, the questions to the doctor, as formulated by the judge, did not concern “the kind and degree” of the applicant’s mental illness (see paragraph 12 above).", "As a result, the report of 8 January 2007 did not analyse the degree of his incapacity in sufficient detail. 124. It transpires that the existing legislative framework did not leave the Akmenė District Court any other choice. In case of mental illness, Article 2.10 of the Lithuanian Civil Code at that time distinguished only between full capacity and full incapacity, but did not provide for any “borderline” situation other than for drug or alcohol addicts (see paragraph 33 above). At this juncture, the Court considers that where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to his individual circumstances and needs (see Principle 6 of Recommendation No.", "R(99)4, paragraph 68 above). Contrary to this standard, Lithuanian legislation did not provide for a tailor-made response. The Court thus finds that the guardianship regime was not geared to the applicant’s individual case but entailed restrictions automatically imposed on anyone who had been declared incapable by a court. This conclusion is further confirmed by the latest legislative changes and, in particular, the explanatory memorandum by the Ministry of Justice, wherein the flaws of the former legal regulation were pointed. Partial incapacity was thus introduced to Lithuanian legislation on 1 January 2016 (see paragraphs 44 et seq.", "above). 125. The Court reiterates its view that the authorities in principle have broad discretion in determining a person’s mental capacity (see paragraph 116 above). However when restrictions on the fundamental rights apply to a particularly vulnerable group in society that has suffered considerable discrimination in the past, the Court has also held that then the State’s margin of appreciation is substantially narrower and must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion.", "Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs. In the past, the Court has identified a number of such vulnerable groups that suffered different treatment, persons with mental disabilities being one of them (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, and Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011). 126.", "The applicant has put much emphasis on the fact that he was unable to himself request that the court lift his legal incapacity. Indeed, the applicant’s incapacitation, which applied for an indefinite period, at the material time could not have been challenged other than by his guardian, on whose initiative the applicant was incapacitated, a care institution, whose involvement in the applicant’s case the Court has already found to be lacking (see paragraph 98 above), or a public prosecutor. The Court has already held, in respect of partially incapacitated individuals, that given the trends emerging in national legislation and the relevant international instruments, Article 6 § 1 of the Convention must be interpreted as guaranteeing a person, in principle, direct access to a court to seek restoration of his or her legal capacity (see Stanev, cited above, § 245). In the latter judgment the Court observed that eighteen of the twenty national legal systems studied in 2011 provided for direct access to the courts for any partially incapacitated individuals wishing to have their status reviewed. In seventeen States such access was open even to those declared fully incapable (ibid., §§ 95 and 243).", "This indicates that there is now a trend at European level towards granting legally incapacitated individuals direct access to the courts to seek restoration of their capacity. The Court has also had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations”. It may also be appropriate in cases of this kind that the domestic authorities establish after a certain lapse of time whether such a measure continues to be justified. Re-examination is particularly justified if the person concerned requests it (see Matter, cited above, §§ 51 and 68). 127.", "The Court lastly takes note that recently the Lithuanian legislation was amended and from 1 January 2016 the applicant is finally able to initiate proceedings aimed at varying his incapacitation decision (see paragraph 57 above). However, this positive development cannot alter the above conclusion, which relates to the period prior to entry into force of the aforementioned amendment (see Berková v. Slovakia, no. 67149/01, §§ 174 and 175, 24 March 2009). 128. In sum, having examined the decision-making process and the reasoning behind the domestic decisions, the Court concludes that the interference with the applicant’s right to respect for his private life was disproportionate to the legitimate aim pursued.", "There was, therefore, a breach of Article 8 of the Convention on account of the applicant’s full incapacitation. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 129. Lastly, the applicant complained about his placement in the Šiauliai Psychiatric Hospital in 2004. 130.", "The Court observes, however, that in 2014 the applicant’s complaint was dismissed by the Šiauliai Regional Court as having no basis (see paragraph 32 above). In the light of the materials in its possession, the Court sees no reason to defer from that conclusion. Accordingly, this complaint must be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 131.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 132. The applicant did not submit any claims for pecuniary or non‑pecuniary damage, but requested a review of his diagnosis with schizophrenia and the decision regarding his legal incapacity. 133. In the light of his submissions and the material in the case file, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.", "B. Costs and expenses 134. The applicant did not claim any costs or expenses. Accordingly, the Court makes no award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it; 2. Declares the complaints concerning the fairness of the applicant’s incapacitation proceedings and interference with his right to respect for his private life admissible, and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that there has been a violation of Article 8 of the Convention; 5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.", "Done in English, and notified in writing on 31 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliAndrás SajóRegistrarPresident" ]

[ "THIRD SECTION CASE OF GREŠÁKOVÁ v. SLOVAKIA (Application no. 77164/12) JUDGMENT STRASBOURG 22 November 2016 This judgment is final but it may be subject to editorial revision. In the case of Grešáková v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,Alena Poláčková, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 77164/12) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Ms Mária Grešáková (“the applicant”), on 27 November 2012.", "2. The applicant was represented by a law firm – JUDr. Stopka, JUDr. Blendovský, JUDr. Strapáč, PhD., s.r.o., – with its registered office in Čadca.", "3. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 4. On 20 March 2015 the application was communicated to the Government. 5.", "The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1975 and lives in Rudinská. 7.", "On 17 December 2008 the applicant lodged a civil action with the Žilina District Court (file no. 8 C 240/2008) seeking an order for the defendant (a municipality) to enter into a contract with her concerning the transfer of a flat, in which she resided. 8. The District Court scheduled two hearings for 8 June and 8 July 2009; it ruled on the merits of the action and granted the action on the latter date. The applicant lodged an appeal; the judgment was quashed by a court of appeal on 8 April 2010 and the matter was remitted on 4 June 2010 to the District Court.", "9. The applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court contesting the length of the proceedings in so far as those had been held before the District Court. 10. On 11 October 2012 the Constitutional Court (file no. II.", "ÚS 423/2012) rejected her complaint on the ground that, prior to lodging her constitutional complaint, the applicant had failed to exhaust ordinary remedies, in particular lodging a complaint with the President of the District Court under the Courts Act (Law no. 757/2004). The Constitutional Court noted that the court of appeal had transferred the case file to the District Court on 4 June 2010 and that the applicant had lodged her constitutional complaint on 27 September 2012. It found that, within that period, the District Court had failed actively to proceed with the matter for one year and a half. The Constitutional Court observed that the Court’s previous case-law – such as Ištván and Ištvánová v. Slovakia (no.", "30189/07, 12 June 2012), which concerned a delay of more than six years – dealt with unjustified delays imputable to the courts that were substantially longer than those in the present case (one year and a half). The Constitutional Court considered that, because the unjustified delays in the present case had been shorter (compared to those in respect of Ištván and Ištvánová and other similar cases), it was justified in requiring – before turning for protection to the Constitutional Court – that the applicant lodge a complaint with the President of the District Court with a view to accelerating her proceedings. 11. Following the Constitutional Court’s decision, the District Court scheduled a hearing for 9 September 2015. At the time of communication of the application the proceedings were still pending.", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 12. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. 13. As in other similar cases (see, for example, Ištván and Ištvánová, cited above; Csákó v. Slovakia, no.", "47386/07; 25 June 2013; and Klinovská v. Slovakia, no. 61436/09, 8 October 2013), the Court considers that this complaint falls to be examined under Article 6 § 1 in conjunction with Article 13 of the Convention, the relevant part of which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 14. The Government referred to the Constitutional Court’s finding that, before introducing her constitutional complaint, the applicant had failed to raise the issue of the length of the proceedings with the President of the District Court in order to give the President a chance to remedy the situation. Since the unjustified delays in the present proceedings had been shorter than those previously assessed by the Court (see, for example, Ištván and Ištvánová, cited above), the requirement to lodge a complaint with the President of the District Court prior to taking the case to the Constitutional Court had been justified. By failing to lodge a complaint, the applicant had not met the admissibility requirement of exhaustion of ordinary remedies before turning to the Constitutional Court.", "Consequently, the Government sought guidance from the Court in order to clarify the issue at stake. 15. The applicant disagreed and reiterated her complaint. 16. The Court observes that, in Ištván and Ištvánová (cited above), it examined at length the applicants’ compliance with the exhaustion requirement under Article 35 § 1 of the Convention in respect of their length-of-proceedings complaint.", "In that case, the applicants had lodged their constitutional complaint shortly after they had lodged their complaint under the Courts Act with the president of the court concerned. They had even received an answer from the president allowing their complaint and indicating that corrective measures would be taken. Since only a short time had elapsed following that response, the Constitutional Court declared their complaint inadmissible. It reiterated that the applicants had been obliged to allow the president of the court in question to take adequate action in respect of their complaint under the Courts Act and to remedy the situation prior to their seeking constitutional protection. The Court then scrutinised the aforesaid requirement imposed on the applicants by the Constitutional Court.", "17. In doing so, the Court confirmed that in respect of the excessive length of proceedings, the remedy that was normally considered to be effective and that accordingly had to be used for the purposes of the exhaustion of domestic remedies rule under Article 35 § 1 of the Convention was the complaint under Article 127 of the Constitution. In addition, the Court took into account the fact that, when examining complaints about length of proceedings, the president of the court concerned acted in the capacity of a “manager” rather than in a judicial capacity. Moreover, the Court observed that a complaint to the president of the court in question as a remedy had no compensatory potential (see Ištván and Ištvánová, cited above, §§ 78-84). 18.", "It was, inter alia, for the aforesaid reasons that the Court concluded that the applicants in Ištván and Ištvánová could not be reproached under Article 35 § 1 of the Convention for having failed to exhaust domestic remedies on account of the way in which they had acted – that is, by firstly turning (under the Courts Act) to the president of the court concerned and shortly thereafter to the Constitutional Court under Article 127 of the Constitution. 19. The Court also observes that other cases have already been resolved in the Committee formation in the light of the conclusions reached in Ištván and Ištvánová (see for example Csákó v. Slovakia, no. 47386/07; 25 June 2013; Untermayer v. Slovakia, no. 6846/08, 9 July 2013; Klinovská v. Slovakia, no.", "61436/09, 8 October 2013; and Bednár v. Slovakia, no. 64023/09, 8 October 2013). 20. Turning to the facts of the present case, the Court considers that the applicant’s situation is similar to that of Mr Ištván and Ms Ištvánová in that her access to the Constitutional Court under Article 127 of the Constitution became dependent on her lodging a complaint under the Courts Act with the President of the District Court (see paragraph 10). 21.", "The Court notes that the Government seek to distinguish the present case from those such as Ištván and Ištvánová (cited above) on the ground that the unjustified delays in the instant proceedings were shorter than the unjustified delays established in the other cases. 22. It notes that a similar argument was advanced but failed to convince the Court in the case of Ištván and Ištvánová, where the Government had argued that “making use of a complaint under the Courts Act was not required in cases where the length of proceedings was ‘extreme’ and ‘manifestly disproportionate’, provided that the complainant had actively been seeking their acceleration” (see Ištván and Ištvánová, cited above, §§ 86 and 91). 23. In addition, the Court observes that, rather than focusing on the examination of the reasonableness of the length of the proceedings as a whole in terms of Article 6 § 1 of the Convention, the approach proposed by the Government appears to be limited to an examination of the domestic law concept of unjustified delays attributable to the individual court in question.", "Such delays may, however, occur before different levels of courts dealing with a case in one set of proceedings; they may also occur before different courts dealing with a single case at the same level (for example, in the case of a transfer of jurisdiction). 24. In that respect, the Court reiterates that it has to satisfy itself in each individual case whether the protection of a person’s right granted by the Constitutional Court is comparable to that which the Court could provide under the Convention. In cases concerning the length of proceedings this requirement will only be met where the Constitutional Court’s decision is capable of covering all stages of the proceedings complained of and thus in the same way as decisions given by the Court, of taking into account their overall length (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005).", "25. The Court notes that in the present case the Government limited their argument to the notion of the difference between the length of the unjustified delays attributable to the District Court and the unjustified delays attributable to the courts in cases such as Ištván and Ištvánová. 26. The Court considers that, to the extent that the Government’s argument has been substantiated, it does not contain any elements invalidating the reasons behind its findings in Ištván and Ištvánová in respect of the exhaustion of domestic remedies or otherwise calling for a different conclusion. It follows that the Government’s inadmissibility plea must be dismissed.", "27. The Court finds that the Article 6 § 1 complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and that no other ground for declaring it inadmissible has been established. It must accordingly be declared admissible. 28. In view of the above, the Court considers that the complaint under Article 13 of the Convention, which is linked to the complaint under Article 6 § 1, must likewise be declared admissible.", "B. Merits 29. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 30.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to those raised in the present case (see Frydlender, cited above). 31. In the present case, the period to be taken into consideration began on 17 December 2008 and the proceedings were still pending in September 2015, after the application had been communicated. The Court notes that it has not been informed about the subsequent course of the proceedings. However, it considers that this is not an impediment to its examination of the merits of the present length-of-proceedings complaint because, having regard to its case-law on the subject, the length of the proceedings in the present case was excessive and had already failed to meet the “reasonable time” requirement at the time of the communication of the application.", "32. There has accordingly been a breach of Article 6 § 1. 33. Furthermore, the Court notes that the Government have submitted no observations in respect of the Article 13 complaint. In view of the conclusions reached above as regards exhaustion of domestic remedies in respect of the complaint under Article 6 § 1 of the Convention, the Court finds, as it has previously in similar circumstances (see Ištván and Ištvánová, cited above, § 113), that the applicant did not have an effective remedy in respect of her complaint about the length of the proceedings.", "There has accordingly also been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 35.", "The applicant claimed 1,500 euros (EUR) in respect of non‑pecuniary damage. 36. The Government left the matter to the Court’s discretion. 37. The Court considers that the applicant must have sustained non‑pecuniary damage.", "Ruling on an equitable basis, and in view of the scope of the applicant’s claim, it considers that it should be allowed in full. It thus awards the applicant EUR 1,500 under that head. B. Costs and expenses 38. Submitting documentary evidence, the applicant also claimed EUR 323.50 for the costs and expenses incurred before the Constitutional Court.", "As for the costs and expenses incurred before the Court, she claimed EUR 189.60 in respect of lodging the application with the Court and EUR 95.71 in respect of the further submission upon the communication of the application. 39. The Government invited the Court to determine these claims in accordance with the Court’s case-law. 40. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 600 in respect of the proceedings before the Constitutional Court and before the Court.", "C. Default interest 41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 13 of the Convention, in conjunction with Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 1,500 (thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; Done in English, and notified in writing on 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı Helen KellerDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF BOTNARI v. THE REPUBLIC OF MOLDOVA (Application no. 74441/14) JUDGMENT STRASBOURG 5 June 2018 This judgment is final but it may be subject to editorial revision. In the case of Botnari v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paul Lemmens, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 15 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 74441/14) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Viorica Botnari (“the applicant”), on 20 November 2014.", "2. The applicant was represented by Mr A. Postica, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3. The applicant alleged that she had been detained in inhuman and degrading conditions of detention and that she was not provided with adequate medical care in breach of Article 3 of the Convention.", "She also complained under Article 13 of the Convention about a violation of her right to an effective remedy in respect of her complaints under Article 3. 4. On 27 January 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1972 and is currently detained in Chișinău. A. The applicant’s arrest and the conditions of detention 6. On 17 March 2010 the applicant was arrested by police office and charged with fraud and forgery of official documents. She was placed in the detention centre of the General Directorate for Fighting Organised Crime of the Ministry of the Interior (“the GDFOC”).", "7. According to the applicant, she was held there in an underground cell which offered substandard conditions of detention. 8. The applicant further submitted that she was transferred to Prison no. 13, where she was detained in a cell with sixteen other inmates and was subjected to passive smoking.", "She was not provided with bedding and was not able to sleep normally. The cell was infested with vermin and the food was of a very poor quality. 9. According to the Government, the applicant was transferred from the detention facility of the Ministry of the Interior to Prison no. 13 on 29 March 2010.", "On 30 March 2011 she was released from detention and was placed under house arrest. On 26 January 2012, after having been declared a wanted person, the applicant was again arrested and again placed in detention in Prison no. 13. On 19 September 2012 she was released from prison and was placed under house arrest. On 5 June 2013 the applicant was again placed in detention in Prison no.", "13. On 10 June 2013 the Centru District Court found the applicant guilty as charged and sentenced her to thirteen years and six months’ imprisonment. The case was pending before the Chişinău Court of Appeal at the time of the parties’ observations. 10. According to the Government, during her detention in Prison no.", "13 after 5 June 2013 the applicant was held in cells nos. 108 and 110, each designed to hold eight detainees and measuring 18 sq. m, and in cell no. 109 designed to hold six detainees and measuring 18 sq. m. Cell no.", "109 was lit by a 100-W bulb and had a window, as well as a tap and a toilet separated from the rest of the cell by a partition. All the cells were regularly disinfected. B. The applicant’s medical condition while in detention and the medical care provided to her 11. On 26 February 2003 the applicant was diagnosed with non-Hodgkin lymphoma (“NHL” – a type of blood cancer).", "This disease affected her spleen, bone marrow and lymph nodes. She was also diagnosed with chronic hepatitis. 12. According to the applicant, while being detained in the detention facility of the GDFOC, her medical treatment was interrupted and the GDFOC administration refused to transfer her to a hospital. After she had been transferred to Prison no.", "13, she was not provided the medical assistance required for her condition. 13. According to the applicant, while in detention, her state of health deteriorated. In both detention facilities there was no specialist oncologist and chemotherapy was unavailable. The applicant undertook her last chemotherapy session in a specialist civilian hospital in April 2013 while under house arrest.", "Following an enquiry lodged in December 2013 by the applicant’s lawyer about the medical care received by the applicant while in detention, the Prisons Authority replied on 14 February 2014 that she had been registered as an oncology patient since 5 June 2013 and had been provided with medical treatment in line with her diagnosis. 14. According to two extracts from the applicant’s medical records dated 26 June 2014 and 9 July 2015 and signed by the head and the deputy head of the medical unit of Prison no. 13, the applicant was in need of specific medical treatment from the Institute of Oncology and her medical condition was qualified as being of medium seriousness. 15.", "The Government submitted that from 24 April 2010 to 9 July 2012 the applicant had refused on several occasions to be hospitalised either in the prison hospital (Prison no. 16) or in the medical section of Prison no. 13. On two occasions the applicant had refused to undergo inpatient treatment at the Institute of Oncology, which was a specialist civilian hospital. The applicant had been examined on several occasions by a therapist and a haematologist and given medical treatment.", "Every year, the Prisons Authority concluded a service contract, with a budget amounting to 35,000 Moldovan lei (MDL – approximately 1,555 euros (EUR)), with the Institute of Oncology. Accordingly, specific types of treatment such as chemotherapy and radiotherapy were available. II. RELEVANT MATERIAL 16. The Court refers to the relevant material cited in its previous case-law concerning the Republic of Moldova (see, for instance, Shishanov v. the Republic of Moldova, no.", "11353/06, §§ 50-61, 15 September 2015, and Valentin Baştovoi v. Republic of Moldova, no. 40614/14, §§ 13-14, 28 November 2017). 17. In its reports for 2013, 2014 and 2015 on conditions of detention, the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found serious problems in Prison no. 13, notably concerning overcrowding, food quality, ventilation and access to daylight.", "In view of its findings it recommended in its reports for 2014 and 2015 that Prison no. 13 be closed or, if that was not possible, that the conditions of detention there be urgently improved. 18. The relevant parts of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) report concerning its visit to the Republic of Moldova between 14 and 25 September 2015 read as follows: “44. Prison no.", "13 in Chișinău has been visited by the Committee on several occasions. Being one of the oldest prisons in the country (dating from the 1850s), its replacement by a new prison establishment has long been planned. The delegation was informed during the 2015 visit that the opening of a new 1,500-place remand prison in the Chișinău area, financed in large part by a loan from the Council of Europe Development Bank, was now envisaged for June 2018. Chișinău Prison, with an official capacity of 1,000 places, remains the largest prison establishment in the Republic of Moldova and operates primarily as a remand facility, with a very high turnover of prisoners (according to the management, between 13,000 and 15,000 prisoners were admitted to the prison every year). At the time of the visit, the establishment was accommodating 1,186 inmates in three separate accommodation blocks, including 81 female adults and 22 male juveniles.", "The inmate population also included 56 sentenced prisoners (who mainly worked in the prison’s general services) and two persons serving administrative sanctions. In addition, eight life-sentenced prisoners were temporarily held in the establishment as they had a case pending before a court in Chișinău. ... 45. At the time of the 2015 visit, the Moldovan prison population had increased by some 1,300 inmates as compared to the CPT’s previous visit in 2011 and stood at approximately 7,770 (some 20% on remand). This represents an incarceration rate of some 220 per 100,000 inhabitants – one of the highest among Council of Europe member states.", "The Moldovan authorities recognised that the size of the prison population and the resulting overcrowding in prisons constituted a major challenge. Indeed, the delegation observed for itself that the national standard of at least 4 m2 of living space per prisoner was far from being met in most of the prison establishments visited; in particular at Chișinău and Soroca Prisons, the levels of overcrowding had reached disturbing proportions. In this context, the delegation was told by the authorities that the increase in the number of prisoners was largely attributable to the rising re-offending rates and excessive resort to remand detention, as well as to reluctance on the part of judges to grant early conditional release. 46. The CPT recommends that the Moldovan authorities make vigorous efforts – in consultation with the prosecutorial and judicial authorities – to eradicate prison overcrowding, in the light of the above-mentioned remarks.", "In so doing, the authorities should be guided by the relevant Recommendations of the Committee of Ministers of the Council of Europe: Recommendation R (99) 22 concerning prison overcrowding and prison population inflation, Recommendation Rec(2000)22 on improving the implementation of the European rules on community sanctions and measures, Recommendation Rec(2003)22 on conditional release (parole), Recommendation Rec(2006)13 on the use of remand in custody, and Recommendation Rec(2010)1 on the Council of Europe Probation Rules. ... 74. The women’s section at Chișinău Prison displayed shortcomings similar to those observed in the men’s accommodation areas, notably as regards state of repair, access to natural light and living space (for example, eight prisoners in a cell of some 20 m2). It is also a matter of concern that, like their male counterparts, female prisoners generally spent 22 hours confined to their cells; they were usually not offered any other activity apart from two hours of outdoor exercise per day. In this context, the recommendation and the comment made in paragraphs 60 and 62 should be read as applying also to female prisoners at Chișinău Prison.", "75. In both prisons, the delegation received complaints from female prisoners regarding difficulties in obtaining hygiene products. Further, female prisoners at Chișinău Prison, as well as inmates under the initial regime at Rusca Prison, were entitled to shower only once a week. The CPT recommends that steps be taken at Chișinău and Rusca Prisons to ensure that female prisoners have access to sufficient quantities of personal hygiene products; the specific hygiene needs of women should be addressed in an appropriate manner. Steps should also be taken in these prisons to allow female prisoners more frequent access to shower facilities, taking into account Rule 19.4 of the European Prison Rules.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19. The applicant complained that the material conditions of detention and the lack of medical care both in the detention centre of the GDFOC and in Prison no. 13 amounted to inhuman and degrading treatment. She relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 20. The Government submitted that by not claiming compensation for the damage allegedly caused by her detention in inhuman conditions and by the alleged lack of medical care, the applicant had failed to exhaust the available domestic remedies.", "They submitted a summary of forty-six cases examined by the domestic courts in which detainees had lodged claims seeking compensation for violations of Article 3 of the Convention. They also pointed to an explanatory decision of the Supreme Court of Justice dated 24 December 2012 concerning the compensatory remedy introduced for violations of Articles 3, 5 and 8. In addition, they submitted that the complaints concerning the conditions of detention and lack of medical assistance prior to 5 June 2013 should be dismissed for being lodged outside the six-month time-limit, arguing that the applicant had been released from prison on 19 September 2012. 21. The applicant argued that she had no effective remedies in respect of her complaints under Article 3 of the Convention and that her detention amounted to a “continuing situation”.", "She added that she had not been provided with adequate medical care for her condition. 22. In so far as the Government’s first objection is concerned, it is noted that no copies of the relevant judgments were submitted to the Court. 23. Moreover, the Court observes that it found violations of Article 13 of the Convention in Malai v. Moldova (no.", "7101/06, §§ 45-46, 13 November 2008), I.D. v. Moldova (no. 47203/06, § 50, 30 November 2010), and Rotaru v. Moldova (no. 51216/06, § 47, 15 February 2011) on account of the lack of effective remedies in Moldova for inhuman and degrading conditions of detention. It also notes that the remedy suggested by the Government does not have a preventive effect in the sense of improving the conditions of an applicant’s detention, but only a compensatory effect (see, for instance, Holomiov v. Moldova, no.", "30649/05, § 107, 7 November 2006). It is not therefore effective in cases where people are still detained in such conditions at the time of lodging their application with the Court (see, for instance, Oprea v. Moldova, no. 38055/06, § 33, 21 December 2010). In the present case, the applicant was in detention at the time she lodged her application. The Court therefore rejects the Government’s objection.", "24. As to the question of the six-month time-limit for lodging the application, the Court reiterates that the object of the six-month time-limit under Article 35 is to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation (see B. and D. v. the United Kingdom, no. 9303/81, Commission decision of 13 October 1986, Decisions and Reports (DR) 49, p. 44). The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State so as to render the applicant a victim (see Montion v. France, no.", "11192/84, Commission decision of 14 May 1987, DR 52, p. 227; and Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108). Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see D.P. and J.C. v. the United Kingdom (dec.), no.", "38719/97, 26 June 2001). 25. In Koval v. Ukraine ((dec.), no. 65550/01, 30 March 2004) and in Mikhaniv v. Ukraine ((dec.), no. 75522/01, 20 May 2008), where the applicants were also detained in several different detention facilities, the Court held that each period of detention referred to specific events which had occurred on identifiable dates and that therefore they could not be construed as a “continuing situation”.", "The Court concluded that the six-month period envisaged by Article 35 § 1 of the Convention must be counted from the date on which each particular period of detention ended. 26. The Court notes that, in the instant case, the applicant did not deny the information provided by the Government stating that on 29 March 2010 she had been transferred to Prison no. 13 and that she had been released from that prison on two occasions, but only argued that her situation should be construed as a “continuing situation”. 27.", "The Court further notes that the application was lodged with the Court on 20 November 2014. There is nothing to suggest that the applicant was in any way impeded by the authorities from complaining before that date regarding her detention in the detention centre of the GDFOC from 17 March 2010 to 29 March 2010 and regarding the first two periods of detention in Prison no. 13 (from 29 March 2010 to 30 March 2011 and from 26 January 2012 to 19 September 2012). It is true that the applicant was deprived of liberty within the framework of the same criminal proceedings. Nonetheless, in view of the significant gap between the first period of detention and the second such period (ten months) and between the second period and the third (eight and a half months) with which the complaints are concerned, the Court cannot treat them as part of a continuing situation as described above (see Haritonov v. Moldova, no.", "15868/07, § 26, 5 July 2011). In such circumstances, the Court considers that only the complaint concerning the last period of detention, in Prison no. 13 from 5 June 2013 until present, was lodged within the time-limit provided for in Article 35 of the Convention. Consequently, the complaints in respect of the other periods of detention in Prison no. 13 and the detention facility of the Ministry of the Interior must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.", "28. The Court considers that the remainder of the complaints under Article 3 of the Convention (about the conditions of the applicant’s detention and lack of medical care in Prison no. 13 between 5 June 2013 until present) raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no grounds for declaring them inadmissible have been established. The Court therefore declares it admissible. B.", "Merits 1. Conditions of detention in Prison no. 13 29. The applicant submitted that the conditions of detention in Prison no. 13 amounted to inhuman and degrading treatment, and referred in particular to overcrowding, poor food quality, passive smoking, lack of bedding and the presence of vermin in the cell.", "30. The Government submitted that the conditions of detention in Prison no. 13 did not amount to inhuman and degrading treatment and argued that between 2007 and 2012, as well as in 2015, repairs had been carried out on many cells, on the bathrooms and on the heating and water supply systems. All the cells were regularly disinfected. Moreover, the detainees were provided with bedding, hygiene products tailored to their needs, and hot food three times a day in accordance with Government Decision no.", "609 concerning the minimum daily food requirements for detainees. 31. The Court reiterates that the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).", "32. It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39, 7 April 2005, Ananyev and Others, nos. 42525/07 and 60800/08, §§ 139-165, 10 January 2012 , §§ 145–147 and 149, and Muršić v. Croatia [GC], no. 7334/13, § 104, ECHR 2016).", "33. In the present case, the Court notes that overcrowding was confirmed by the Government’s data concerning the size and occupancy of the cells (see paragraph 9 above), the Human Rights Centre (see paragraph 16 above) and the CPT (see paragraph 17 above). Moreover, the poor food quality, as found by the Human Right Centre in its reports, and the passive smoking to which the applicant had been exposed, further increased the applicant’s suffering, which exceeded the unavoidable level of hardship inherent in detention. In the absence of any evidence from the Government that considerable improvements in Prison no. 13 had taken place in recent years, the Court considers that there is no reason to depart from the conclusions reached in its previous judgments (see, among recent authorities, Pisaroglu v. the Republic of Moldova, no.", "21061/11, § 18, 3 March 2015; Cristioglo v. the Republic of Moldova, no. 24163/11, § 23, 26 April 2016, and Valentin Baştovoi, cited above, § 25). 34. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention in respect of the applicant’s conditions of detention. 2.", "Medical assistance 35. The applicant submitted that she had not been provided with the specific medical care required for her condition. 36. The Government submitted that the applicant did not give any information concerning the period after 5 June 2013. 37.", "The Court reiterates that, although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79). 38. The Court observes that the authorities were aware that the applicant had been diagnosed with a serious illness (see paragraph 10 above) and had been prescribed specific medical treatment in line with her diagnosis within the Institute of Oncology (see paragraph 13 above).", "Although she had refused to undergo inpatient treatment during her previous periods of detention, there is no evidence of such a refusal after her last placement in Prison no. 13 on 5 June 2013. 39. The Court also observes that the Government did not submit any information as to the steps taken by the prison administration to implement the above-mentioned prescribed medical treatment (see paragraph 13 above), namely, whether the applicant had been transferred to a specialist medical institution. Nor did the Government provide information as to the factors, if any, that had prevented the applicant’s transfer to the above-mentioned civilian hospital for the purpose of the specific medical treatment required for her condition as had been recommended by doctors, or any other evidence demonstrating her refusal to be hospitalised in a civilian hospital during her last period of detention (as opposed to the first two periods, see paragraph 14 above).", "40. It follows that the applicant did not receive the medical treatment prescribed by the doctors, of which the prison administration was fully aware, due to the failure to transfer her to the Institute of Oncology. 41. The Court therefore finds that the denial of adequate medical care to the applicant amounted to a breach of Article 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 42. Relying on Article 13 of the Convention, the applicant complained of a violation of her right to an effective domestic remedy in respect of her complaints under Article 3. 43. The Government argued that it was open to the applicant to bring a civil claim for compensation for any alleged violation of Article 3. They relied on a list of domestic cases (see paragraph 19 above).", "They also added that the applicant had not lodged any complaint before the domestic authorities about the conditions of detention and lack of medical care. 44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "45. The Court reiterates that Article 13 guarantees the availability at national level of a remedy by which to complain of a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see De Tommaso v. Italy [GC], no. 43395/09, § 179, ECHR 2017 (extracts)). 46.", "In the present case, for the same reasons as those which have led to the dismissal of the Government’s objection concerning the exhaustion of domestic remedies (see paragraph 22 above), the Court finds that there has been a violation of Article 13 of the Convention owing to the absence of any effective remedies in respect of complaints concerning conditions of detention in Moldova. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48.", "The applicant claimed 15,000 euros (EUR) in respect of non–pecuniary damage suffered as a result of her detention in inhuman and degrading conditions and insufficient medical care. 49. The Government submitted that the amount claimed by the applicant was excessive. 50. The Court considers it appropriate to award the applicant compensation in respect of non-pecuniary damage.", "Deciding on an equitable basis, it awards her EUR 10,000. B. Costs and expenses 51. The applicant also claimed EUR 1,800 for the costs and expenses incurred before the domestic courts and the Court. She relied on a contract with her lawyer, as well as an itemised timesheet outlining the hours worked by him, amounting to fifteen hours at an hourly rate of EUR 120.", "52. The Government considered the amount claimed excessive and disputed the number of hours worked by the applicant’s lawyer. 53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)).", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 for costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 3 (concerning poor conditions of detention and insufficient medical care in Prison no. 13 from 5 June 2013 until present) and under Article 13 admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s conditions of detention in Prison no.", "13 from 5 June 2013 until present and the insufficient medical care given to her; 3. Holds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Hasan BakırcıPaul LemmensDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF ČAKAREVIĆ v. CROATIA (Application no. 48921/13) JUDGMENT STRASBOURG 26 April 2018 FINAL 26/07/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Čakarević v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Aleš Pejchal,Krzysztof Wojtyczek,Ksenija Turković,Pauliine Koskelo,Tim Eicke,Jovan Ilievski, judges,and Abel Campos, Section Registrar, Having deliberated in private on 16 January, 13 February and 27 March 2018, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no.", "48921/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Ilinka Čakarević (“the applicant”), on 9 July 2013. 2. The applicant was represented by Mr E. Bradamante, a lawyer practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged in particular that her right to peaceful enjoyment of her possessions had been violated, as well as her right to respect for her private life, when she had been ordered to repay unduly received unemployment benefits. 4. On 20 October 2015 these complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1954 and lives in Rijeka. 6. On 10 December 1995 the applicant’s employment as an unqualified worker was terminated as a result of her employer becoming insolvent. At that time she had twenty-four years and ten months of service (radni staž) recorded in her “employment book” (radna knjižica). 7.", "The medical documentation submitted by the applicant shows that since 1993 she has been suffering from a psychiatric condition – depression and neurosis. The medical documents from various dates show her continuous incapacity of working. A. Administrative proceedings 8. On 5 November 1996 the Regional Office of the Croatian Employment Bureau in Rijeka (Hrvatski zavod za zapošljavanje, Područna služba u Rijeci, hereinafter “the Rijeka Employment Bureau”) granted the applicant unemployment benefits in the amount of 410.89 Croatian kunas (HRK – about 55 euros (EUR)) for 468 days, starting from 11 December 1995.", "There was no appeal, so that decision became final. 9. On 17 June 1997 the applicant lodged an application with the Rijeka Employment Bureau for the extension of the duration of unemployment benefits due to her ongoing temporary inability to work. She submitted a medical certificate that she had been ill and thus temporarily incapable of working. 10.", "On 27 June 1997 the Rijeka Employment Bureau, relying on section 25(1)(2) of the Employment Act, renewed her entitlement to unemployment benefits until further notice. She was to receive HRK 441 (about EUR 59) per month. This entitlement was to continue unless any legally prescribed conditions for withholding the payments occurred before the entitlement period expired, or until her right to compensation ceased to exist. 11. In December 1997 two additional pensionable years of service (staž osiguranja) were entered into the applicant’s employment book.", "However, that did not mean that the applicant was actually employed, but only that contributions for her pension and invalidity insurance had been paid. Such contributions are regularly paid by employers. However, since the applicant was not employed, these contributions were paid by the Croatian Employment Bureau. 12. On 26 May 1999 the Rijeka Employment Bureau provided the applicant with an “employment benefit card” (kartica korisnika novčane naknade).", "13. On 27 March 2001 the Rijeka Employment Bureau terminated the applicant’s entitlement to unemployment benefits with effect from 10 June 1998. It held that the deadline prescribed in section 25(1)(2) of the Employment Act had expired on 9 June 1998. 14. On 3 April 2001 the Rijeka Employment Bureau established that the applicant was to repay it the amount of HRK 19,451.69 (about EUR 2,600).", "15. The applicant lodged appeals against both decisions with the Central Office of the Croatian Employment Bureau (Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Employment Bureau”). She argued that she had the right to unemployment benefits until she retired. She also relied on her family circumstances and submitted that she was married and that her husband’s pension was HRK 1400 (about EUR 188), and that they had a child of school age and an older son who was employed. However, that body dismissed both her appeals as unfounded on 11 May 2001 and 15 May 2001.", "It held that she had been entitled to unemployment benefits for as long as she had been unable to work, but subject to a limit of twelve months. 16. On 25 July 2001 the applicant then lodged two administrative actions with the Administrative Court, seeking the annulment of the Central Employment Bureau’s decisions of 11 and 15 May 2001. She claimed that she had twenty-seven years of service, and as such was entitled to unemployment benefits until she was next employed or until she retired. 17.", "On 22 September 2004 the Administrative Court dismissed the claim concerning the decision of 11 May 2001 upholding the decision of 27 March 2001 (see paragraph 10 above) as ill-founded, endorsing the arguments and conclusions of the lower bodies. 18. In a separate judgment of the same day the Administrative Court quashed the decision of 15 May 2001 which upheld the decision of 3 April 2001 by which the applicant had been ordered to repay the sum of HRK 19,451.69 (see paragraph 14 above). It instructed the parties to seek relief in civil proceedings before a competent municipal court. 19.", "On 25 March 2005 the Rijeka Employment Bureau contacted the applicant by letter, proposing to reach an out-of-court settlement within fifteen days regarding the repayment of the unemployment benefits which she had received between 9 June 1998 and 27 March 2001, in total HRK 19,451.69. She was cautioned that the Rijeka Employment Bureau would otherwise be compelled to institute civil proceedings against her for repayment of the amount claimed. 20. The applicant replied that she was in poor health, unemployed and without any income, and that in these circumstances she could not accept the obligation to repay the money sought. 21.", "On 14 April 2009 the applicant lodged an application with the Rijeka Employment Bureau, seeking to overturn its 27 March 2001 decision to terminate her entitlement to unemployment benefits. It was dismissed on 29 June 2009 and this decision was upheld on appeal on 10 July 2009 as well as by the High Administrative Court on 5 July 2012. 22. A subsequent constitutional complaint by the applicant was declared inadmissible on 19 December 2012. B.", "Civil proceedings 23. On 3 August 2005 the Rijeka Employment Bureau brought a civil action against the applicant for unjust enrichment, seeking repayment of HRK 19,451.69, together with statutory interest, on the basis of the unemployment benefits she had received between 10 June 1998 and 27 March 2001. 24. On 16 November 2005 the applicant responded to the civil action, alleging, inter alia, that the Rijeka Employment Bureau’s actions violated her human rights. She also submitted medical documentation demonstrating her fragile state of health, numerous health problems caused by her difficult personal situation due to long-term unemployment, the poverty in which she and her family lived, and her inability to work.", "She also brought a counterclaim against the Rijeka Employment Bureau, seeking payment of unemployment benefits from 31 January 2011 to the date of her future retirement, in the amount of HRK 55,680.15. 25. On 26 June 2006 the Rijeka Municipal Court (Općinski sud u Rijeci) dismissed the Rijeka Employment Bureau’s claim as unfounded, relying on section 55 of the Employment Mediation and Unemployment Rights Act (see paragraph 36 below). It held that the applicant could not be held responsible for the bureau’s errors and negligence, particularly bearing in mind that she had not concealed any fact or misled it. The same court also rejected the applicant’s counterclaim, given that a final and binding decision on her entitlement to unemployment benefits had already been adopted in the administrative proceedings, and that such a decision could not be contested in the context of civil proceedings.", "26. Both the applicant and the Rijeka Employment Bureau lodged appeals against the first‑instance judgment. 27. On 25 February 2009 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal and upheld the first-instance judgment with regard to her counterclaim. It also allowed the Rijeka Employment Bureau’s appeal and, relying on section 210 of the Civil Obligations Act, reversed the first-instance judgment in respect of the unjust enrichment claim, and ordered the applicant to pay HRK 19,451.69 plus statutory interest running form 3 August 2005 (the date of lodging the claim against the applicant) to the Rijeka Employment Bureau.", "It held that the applicant was obliged to return the amount in dispute in view of the fact that a legal basis for the unemployment benefits had ceased to exist on 10 June 1998. 28. The applicant then lodged both an appeal on points of law and a constitutional complaint. 29. On 28 April 2010 the Supreme Court declared her appeal on points of law inadmissible.", "The applicant then lodged a constitutional complaint against that decision. 30. On 14 March 2013 the Constitutional Court dismissed both of her constitutional complaints as unfounded. It served its decision on the applicant’s representative on 27 March 2013. 31.", "Meanwhile, on 5 December 2012 the applicant had replied to the Rijeka Employment Bureau’s letter offering her an out-of-court settlement for the amount owed to be reimbursed in sixty instalments. She had stated that she was not able to repay the amount due because she was unemployed, in ill health and had no income. She asked the Rijeka Employment Bureau for debt relief. C. Enforcement proceedings 32. On 22 April 2013, before the Rijeka Municipal Court, the Rijeka Employment Bureau lodged an application to enforce the Rijeka County Court’s judgment of 25 February 2009 against the applicant.", "33. On 20 June 2013 the Rijeka Municipal Court issued a writ of execution in respect of the applicant’s bank account(s). 34. On 26 June 2013 the first-instance court ordered the applicant to pay court fees in the amount of HRK 540 (about EUR 72), on account of the enforcement application and the writ of execution. 35.", "By a letter of 14 August 2013 the Financial Agency (FINA) informed the first-instance court that there were no records of the applicant’s active bank accounts. 36. By a conclusion (zaključak) of 30 September 2013 the Rijeka Municipal Court informed the Rijeka Employment Bureau about the Financial Agency’s letter and ordered it to give the court information about the applicant’s bank account or make a further proposal. 37. On 22 October 2013 the Rijeka Employment Bureau lodged an application to change the object of the enforcement (prijedlog za promjenu predmeta i sredstva ovrhe), and requested enforcement in relation to the applicant’s movable property, given that she was unemployed and had no income, real property or motor vehicle.", "38. By a decision taken on 8 December 2014 the Rijeka Municipal Court declared the application of 22 October 2013 inadmissible on the basis that it was premature, since changing the object of enforcement is not possible before a writ of execution becomes final. 39. The enforcement proceedings are still ongoing. II.", "RELEVANT DOMESTIC LAW 40. The relevant part of the Employment Act (Zakon o zapošljavanju, Official Gazette no. 59/1996), as in force at the material time, provided: Section 23 “... (3) An unemployed person (a man) who was employed for thirty years, or an unemployed person (a woman) who was employed for twenty-five years, is entitled to unemployment benefits until [he or she is] next employed ... ...“ Section 25 “The duration of the right to unemployment benefit ... shall be extended in respect of the unemployed person ...: ... 2. during the period of temporary incapacity to work, within the meaning of health insurance regulations, while this incapacity is ongoing, but for no longer than twelve months; ...” 41. The relevant part of the Employment Mediation and Unemployment Rights Act (Zakon o posredovanju pri zapošljavanju i pravima za vrijeme nezaposlenosti, Official Gazette no. 32/2002, with its subsequent amendments), as in force at the material time, provided: Section 55 “(1) An unemployed person granted an allowance to which he or she was not entitled ... shall pay this back if: 1) [all or part of the allowance was] granted on the basis of false or inaccurate data which he or she knew or ought to have known to be false or inaccurate, or [granted] in some other unlawful manner; 2) he or she was granted an allowance because he or she failed to report a change affecting [his or her entitlement] or the scope of the entitlement, and he or she knew or ought to have known about this change.", "...” 42. The relevant part of the Employment Mediation and Unemployment Rights Act as amended in 2017 (Zakon o posredovanju pri zapošljavanju i pravima za vrijeme nezaposlenosti, Official Gazette no. 16/2017) reads as follows: Section 65 “(1) An unemployed person granted an allowance at the expense of the [Employment] Bureau to which he or she was not entitled shall pay this back to the [Employment] Bureau on the basis of unjust enrichment. ...” 43. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos.", "53/1991, 73/1991, 3/1994, 7/1996 and 112/1999), as in force at the material time, provided: UNJUST ENRICHMENTGENERAL RULE Section 210 “(1) When a part of the property of one person passes, by any means, into the property of another person, and such a transfer has no basis in a legal transaction or law, the acquirer shall return that property. If this is not possible, the acquirer shall provide compensation for the value of the benefit received. (2) The transfer of property also includes any benefit obtained by someone performing an action. (3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not exist or which subsequently ceased to exist.” RULES OF REIMBURSEMENT When a reimbursement may not be requestedSection 211 “A person who has made payment knowing that he was not obliged to pay is not allowed to seek reimbursement, unless he has retained a right to seek reimbursement or has made payment in order to avoid duress.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 44. The applicant complained that the Rijeka County Court’s judgment of 25 February 2009 ordering her to repay HRK 19,451.69 with interest to the Rijeka Employment Bureau had resulted in her being deprived of her possessions. She relied on Article 1 of Protocol No. 1 to the Convention, which reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Scope of the case 45. As to the scope of the case, the Court considers it appropriate to point out at the outset that the applicant’s communicated complaint does not concern the Employment Bureau’s decision to terminate her entitlement to unemployment benefits and administrative proceedings related to that decision. Rather, it refers to the domestic civil courts’ judgments which characterized the amounts she had received after her right to employment benefits ceased as unjust enrichment and obliged her to repay that money together with interests to the State. 46.", "The Court notes, however, that the administrative proceedings concerning the applicant’s right to unemployment benefits ran in part concurrently with the civil proceedings for unjust enrichment instituted against her by the State. The administrative proceedings were terminated by the Constitutional Court’s decision of 19 December 2012. At that point, the civil proceedings were still ongoing and were finally concluded by the Constitutional Court’s decision of 14 March 2013, served on the applicant on 27 March 2013. The two proceedings were to a certain extent interrelated. In the administrative proceedings, her right to receive the employment benefits was terminated retroactively.", "However, no final court decision as to whether the applicant was obliged to return the payments made to her after the date when her right to unemployment benefits ceased was adopted in these proceedings since the issue of unjust enrichment falls under the jurisdiction of civil courts (see paragraph 18 above). Only after the civil proceedings were finally concluded was the applicant’s position as to her obligation to repay the money she had received finally decided at national level. 47. Thus, in order to assess whether the applicant’s obligation to repay the State the money she should not have received satisfied the requirements of Article 1 of Protocol No. 1 the Court must look at all circumstances surrounding that issue.", "B. Admissibility 1. The parties’ submissions 48. The Government argued that the applicant had not had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention, because the amount she had been ordered to pay back had been the possession of the State. Further to this, section 25(1)(2) of the Employment Act had been publicly available, clear and precise, and the applicant should have been aware that, upon the expiry of the twelve-month period, her right to unemployment benefits would end.", "In addition, the applicant could not have had “legitimate expectations” of keeping those amounts. 49. The applicant argued that she had received the unemployment benefits on the basis of the Rijeka Employment Bureau’s final decision of 27 June 1997. 2. The Court’s assessment (a) General principles 50.", "The Court reiterates at the outset that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see, among many authorities, Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II, and Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010). 51.", "Although Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I; and Béláné Nagy v. Hungary [GC], no. 53080/13, § 74, ECHR 2016).", "52. A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition. Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts. The mere fact that a property right is subject to revocation in certain circumstances does not prevent it from being a “possession” within the meaning of Article 1 of Protocol No.", "1, at least until it is revoked (see Béláné Nagy, cited above, § 75; Beyeler v. Italy [GC], no. 33202/96, § 105, ECHR 2000‑I; and Krstić v. Serbia, no. 45394/06, § 83, 10 December 2013). 53. The Court recalls that in each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No.", "1 (see Depalle, cited above, § 62, with further references). (b) Application of these principles in the present case 54. The question whether the circumstances of the present case come within the scope of application of Article 1 of Protocol No. 1, i.e. whether the applicant’s right to peaceful enjoyment of her possessions is engaged, must be assessed with a view to the fact that between 10 June 1998 and 27 March 2001 the applicant had received payments on the basis of an administrative decision granting her unemployment benefits (see paragraph 10 above).", "In other words, the competent administrative authority had made regular disbursements of money (cash), which the applicant had obtained the effective enjoyment of in reliance on the underlying administrative decision in her favour. Subsequently, however, the domestic courts made a finding to the effect that the payments had taken place without a legal basis and ordered the applicant to refund the respective amounts as unjust enrichment (see paragraph 27 above). The Court therefore finds that the issue of whether Article 1 of Protocol No. 1 is applicable ratione materiae should be analysed by considering whether, under those specific circumstances, the applicant can be said to have had a legitimate expectation, within the autonomous meaning of the Convention, of being able to retain the funds already received as unemployment benefits without her entitlement to those past disbursements being called into question retrospectively. 55.", "The Court notes that the grant of the benefit in question depended on various statutory conditions, the assessment of which was the sole responsibility of the social security authority. In the present case, the competent authority had taken a decision to extend the applicant’s entitlement to unemployment benefits (see paragraph 10 above) and subsequently continued to make the respective payments beyond the date on which such an entitlement was, according to the applicable statutory limit, due to expire. 56. In this respect, the Court considers that an individual should in principle be entitled to rely on the validity of a final (or otherwise enforceable) administrative decision in his or her favour, and on the implementing measures already taken pursuant to it, provided that neither the beneficiary nor anyone on his or her behalf has contributed to such a decision having been wrongly made or wrongly implemented. Thus, while an administrative decision may be subject to revocation for the future (ex nunc), an expectation that it should not be called into question retrospectively (ex tunc) should usually be recognised as being legitimate, at least unless there are weighty reasons to the contrary in the general interest or in the interest of third parties (compare Kopecký v. Slovakia [GC], no.", "44912/98, § 47, ECHR 2004‑IX; Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, §§ 34 and 39, Series A no. 332). 57. The Court has held that, as a rule, a legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a “sufficient basis in national law” (see ibid., § 52; see also Depalle, cited above, § 63). It has, however, also held that the fact that the domestic laws of a State do not recognise a particular interest as a “right” is not always decisive, in particular in circumstances where the lapse of time justifies concluding that the individual’s interest in the “status quo” had become vested in a sufficiently established manner for being recognised as capable of engaging the application of Article 1 of Protocol No.", "1 (see, mutatis mutandis, Depalle, cited above, § 68). 58. In the present case, the Court considers that although the domestic courts found that as a matter of domestic law, the applicant had no protection against the authorities’ reclaim of the funds already received, which according to them constituted unjust enrichment (see paragraph 27 above), several circumstances speak in favour of recognising the applicant’s legal position as protected by a “legitimate expectation” for the purposes of the application of Article 1 of Protocol No. 1. 59.", "Firstly, there is no indication or even allegation that the applicant had in any way contributed to the impugned situation, namely that the disbursement of the benefits had been continued beyond the applicable statutory time-limit. The Government accepted that payment of the unemployment benefits beyond the prescribed time-limit was the sole responsibility of the authorities (see paragraph 70 below). 60. Secondly, the applicant’s good faith in receiving the contested unemployment benefits is not contested. 61.", "Thirdly, the administrative decision in reliance on which the applicant had received the payments had not contained any express mention of the fact that under the relevant statutory provisions the entitlement would expire on a certain date, i.e. after twelve months. 62. Fourthly, there was a long lapse of time, amounting to over three years, after the expiry of the statutory time-limit during which the authorities failed to react while continuing to make the monthly payments. 63.", "The Court finds that these circumstances were capable of inducing in the applicant a belief that she was entitled to receive those payments (compare Chroust v. the Czech Republic (dec.), no. 4295/03, 20 November 2006). 64. Moreover, the Court considers that, taking into account in particular the nature of the benefits as current support for basic subsistence needs, the question of whether the situation was capable of giving rise to a legitimate expectation that the entitlement was duly in place must be assessed with a view to the situation prevailing at the time when the applicant was in receipt of the payments and consumed the proceeds. The fact that the administrative courts subsequently established that the payments had taken place without a legal basis in domestic law is under these circumstances not decisive from the point of view of determining whether at the time when the payments were received for the purpose of covering the applicant’s living costs she could entertain a legitimate expectation that her presumed entitlement to those funds would not be capable of being called into question retrospectively (see, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no.", "222; and Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003). 65. The Court therefore concludes that in the circumstances of the present case, the applicant had a legitimate expectation of being able to rely on the payments she had received as rightful entitlements and that Article 1 of Protocol No. 1 is applicable ratione materiae to her complaint.", "3. Conclusion as to the admissibility 66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits 1. The parties’ submissions (a) The applicant’s submissions 67. The applicant alleged that the Rijeka Employment Bureau had adopted a decision granting her unemployment benefits “until further notice”. Moreover, on 26 May 1999, that is one year after her right to unemployment benefits had allegedly ceased, the Rijeka Employment Bureau had provided her with an “unemployment benefit card”, which had stated that she was entitled to unemployment benefits until 31 December 2010. She alleged that she had had no reason to doubt that the payments were legitimate.", "In her opinion, she had received the unemployment benefits legally, and there was no legal basis for repaying the amount at issue, as had been established by the Rijeka Municipal Court. Moreover, section 211 of the Civil Obligations Act had been totally disregarded by the courts (see paragraph 43 above). The Rijeka Employment Bureau had known that she would not be entitled to the unemployment benefits after 10 June 1998, because it had stated that in its decision of 27 March 2001. Therefore, the Rijeka Employment Bureau had not retained its right to seek reimbursement. 68.", "As to the Government’s allegations that she had failed to respond to the Rijeka Employment Bureau’s proposals regarding repayment of the amount due in sixty instalments, the applicant argued that this was not true, because it could be seen from the documents she had submitted to the Court that she had replied and informed the Rijeka Employment Bureau about her difficult economic and health situation. In this connection, the applicant maintained that dividing the burden between the Rijeka Employment Bureau, whose negligence and misconduct had created the situation, and herself, an unemployed person with no income and in poor health, would not be fair, and would impose a burden on her as a result of the State organ’s error. (b) The Government’s submissions 69. The Government argued, were the Court to find that the applicant had possession, that the interference with the applicant’s rights under Article 1 of Protocol No. 1 was lawful.", "The judgment ordering the applicant to repay the unemployment benefits had had its legal basis in section 210 of the Civil Obligation Act, which had been clear, foreseeable and publicly available. Further to this, it had been in the general interest for the unduly received benefits to be paid back. 70. In conclusion, the Government stated that depriving the applicant of the amount at issue had been necessary for the protection of State’s finances and the principle of rule of law, and had not imposed an excessive individual burden on her because she had been not entitled to this amount. They pointed out that, just as it could not be expected that the mistakes of the State would be remedied at the expense of citizens, it was not fair to allow the unlawful acquisition of property by citizens as a result of those mistakes.", "In this context, the Government pointed out that the Rijeka Employment Bureau had been fully aware of its own mistake. That is why the Rijeka Employment Bureau had proposed an agreement whereby the applicant would repay the amount due in sixty individual instalments, in order to share the burden of the situation. However, the applicant had failed to respond to this proposal. In view of the foregoing, the Government were of the opinion that there had been no violation of the applicant’s rights protected by Article 1 of Protocol No. 1 to the Convention.", "2. The Court’s assessment (a) As regards the issue of the existence of an interference 71. The Government does not contest that the impugned judgment adopted in the civil proceedings against the applicant amounted to an interference with her rights under Article 1 of Protocol No. 1, and the Court sees no reason to hold otherwise. 72.", "In the circumstances of the present case, the Court considers that the applicant’s complaint should be examined under the general rule enunciated in the first sentence of the first paragraph of Article 1 of Protocol No. 1, especially as the situations envisaged in the second sentence of the first paragraph and in the second paragraph are only particular instances of interference with the right to peaceful enjoyment of property as guaranteed by the general rule set forth in the first sentence (see Beyeler, cited above, § 106; and Perdigão v. Portugal [GC], no. 24768/06, § 62, 16 November 2010). The Court will now assess whether that interference was prescribed by law, whether it pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim pursued (see Broniowski v. Poland [GC], no. 31443/96, §§ 147-151, ECHR 2004‑V).", "(b) Whether the interference was based in law 73. The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions must be lawful. In particular, the second paragraph of Article 1 of Protocol No. 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, Konstantin Stefanov v. Bulgaria, no.", "35399/05, § 54, 27 October 2015). 74. The parties’ views differed as to whether the interference with the applicant’s property right was lawful (see paragraphs 49 and 68 above). 75. The Court notes that the Rijeka County Court’s judgment relied on section 210 of the Civil Obligations Act related to unjust enrichment (see paragraphs 28 and 44 above).", "However, it did not give any explanation as to why section 55 of the Employment Mediation and Unemployment Rights Act was not to be applied in the applicant’s case since that rule appears to be a more specific one as regards the applicant’s situation. That provision obliged an unemployed person granted an allowance to which he or she had not been entitled to pay this back if it had been granted on the basis of false or inaccurate data which he or she had known to be false or inaccurate, or if it had been granted in some other unlawful manner (see paragraph 41 above). This question can nevertheless be left open, as in the present case it is more essential to decide on the proportionality of the interference. (c) Whether the interference pursued a legitimate aim 76. The Court reiterates that the domestic court’s judgment in this case was based on the general rules of civil law governing unjust enrichment and not on the legislation governing unemployment benefits.", "The Court considers therefore that the interference pursued a legitimate aim since it is in the public interest that property received on a basis which does not exist or which has ceased to exist should be returned to the State. In particular, the interference was aimed at correcting a mistake of the social security authority. (d) Whether the interference was proportionate 77. The Court must examine whether the interference struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the applicant’s right to the peaceful enjoyment of her possessions, and whether it imposed a disproportionate and excessive burden on the applicant (see, among other authorities, Béláné Nagy, cited above, § 115). 78.", "The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, and will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (ibid., § 113). However, that margin may be narrower in cases such as the present one, where the mistake is attributable solely to the State authorities. 79. The Court has held, in the context of the discontinuation of a social benefit, that bearing in mind the importance of social justice, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment.", "It would also be unfair to other individuals contributing to the social security fund, in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest (see Moskal v. Poland, no. 10373/05, § 73, 15 September 2009). 80. The present case, however, stands to be distinguished from the situation prevailing in Moskal, because unlike the latter case, what is at issue now is not the discontinuation of the applicant’s unemployment benefit but an obligation imposed on her to repay benefits already received in reliance on an administrative decision.", "In the present context, it is therefore more pertinent to recall the Court’s case-law to the effect that mistakes solely attributable to State authorities should in principle not be remedied at the expense of the individual concerned, especially where no other conflicting private interest is at stake (see, mutatis mutandis, Platakou v. Greece, no. 38460/97, § 39, ECHR 2001‑I; Radchikov v. Russia, no. 65582/01, § 50, 24 May 2007; Freitag v. Germany, no. 71440/01, §§ 37-42, 19 July 2007; Gashi, cited above, § 40; and Šimecki v. Croatia, no. 15253/10, § 46, 30 April 2014).", "The Court has also held that where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see Tunnel Report Limited v. France, no. 27940/07, § 39, 18 November 2010, and Zolotas v. Greece (no. 2), no. 66610/09, § 42, ECHR 2013 (extracts)). 81.", "In assessing compliance with Article 1 of Protocol No. 1, the Court must carry out an overall examination of the various interests in issue (see Perdigão, cited above, § 68), bearing in mind that the Convention is intended to safeguard rights that are “practical and effective” (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III). It must look behind appearances and investigate the realities of the situation complained of (see Broniowski, cited above, § 151; Hutten-Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006‑VIII; and Zammit and Attard Cassar v. Malta, no.", "1046/12, § 57, 30 July 2015). That assessment may involve the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see Tunnel Report Limited v. France, no. 27940/07, § 39, 18 November 2010, and Zolotas v. Greece (no.", "2), no. 66610/09, § 42, ECHR 2013 (extracts)). 82. As to the applicant’s conduct, the Court notes that the applicant has not been alleged to have contributed to the receipt of benefits beyond her legal entitlement by false submissions or other acts which would not have been in good faith. 83.", "As the competent authority had taken a decision in the applicant’s favour and continued to make the respective payments, the applicant had a legitimate basis for assuming that the payments received were legally correct. While it is true that section 25 of the Employment Act clearly provides that a woman employed for less than twenty-five years has the right to unemployment benefits in respect of a temporary incapacity to work, for a maximum period of twelve months (see paragraph 41 above), the decision issued to the applicant had not contained any express mention of that time-limit, and the applicant was thus not put on notice of it. Moreover, given that two additional years of service had been entered into the applicant’s employment book (see paragraph 11 above), it appears that she, as an unqualified worker, was not without grounds for believing that she met the requirements set out in section 23(3) of the Employment Act (see paragraph 40 above). Under these circumstances, the Court does not find it reasonable to conclude that the applicant was required to realise that she was in receipt of unemployment benefits beyond the statutory maximum period. 84.", "As to the conduct of the authorities, the Court notes at the outset that, in the context of property rights, particular importance must be attached to the principle of good governance. In the instant case, the Court considers that the authorities failed in their duty to act in good time and in an appropriate and consistent manner (see Moskal, cited above, § 72). 85. It is established that the Rijeka Employment Bureau made a mistake when it did not define the period during which the applicant was entitled to further unemployment benefits in its decision of 27 June 1997. That mistake was further perpetuated when unemployment benefits were paid to the applicant for a period of almost three years following the expiry of the maximum period set out in section 25(2)(1) of the Employment Act.", "86. The Court also notes that, even though the unemployment benefit payments which the applicant should not have received were entirely the result of an error of the State, the applicant was ordered to repay the overpaid amount in full, together with statutory interest. Therefore, no responsibility of the State for creating the situation at issue was established, and the State avoided any consequences of its own error. The whole burden was placed on the applicant only. 87.", "The Court acknowledges that the applicant was offered to repay her debt in sixty instalments. However, the fact remains that the sum the applicant was ordered to repay to the State which included the statutory interests as well represented a significant amount of money for her given that she was deprived of her only source of income at the same time as well as her overall financial situation (see paragraphs 15, 24 and 31 above). 88. As to the applicant’s personal situation, the Court notes that the sum she received on account of unemployment benefits is a very modest one and as such has been consumed for satisfying the applicant’s necessary basic living expenses, that is to say for her subsistence. 89.", "The national courts in deciding on unjust enrichment did not take into consideration the applicant’s health and economic situation. She has been suffering from a psychiatric condition since 1993 and has become incapable of working. She has been unemployed for a long period of time, since 1995. At the time her employment was terminated as a result of her employer becoming insolvent she was only two months short of qualifying for unemployment benefits until next employment or retirement under Section 23 of the Employment Act (see paragraphs 6 and 40, see also mutatis mutandis Béláné Nagy, cited above, § 123). The information from the enforcement proceedings suggests that she has no bank accounts, no income of any sort, and no property of any significance.", "In these circumstances paying her debt even in sixty instalments would put at risk her subsistence. 90. In view of the above considerations, the Court finds that under the circumstances of the present case, the requirement imposed on the applicant to reimburse the amount of the unemployment benefits paid to her in error by the competent authority beyond the statutory maximum period entails an excessive individual burden on her. 91. It follows that there has been a violation of Article 1 of Protocol No.", "1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 92. The applicant complained that the national authorities had violated her right to respect for her private life as provided for in Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 93. The Government contested that argument. 94. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.", "95. Having regard to the fact that the arguments advanced by the parties are the same as those examined in the context of Article 1 of Protocol No. 1 to the Convention, the Court does not consider it necessary to examine this complaint separately. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 96.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 97. The applicant claimed HRK 83,801.69 (about 11,150 euros (EUR)) in respect of pecuniary damage. According to her, this figure was equivalent to the sum of HRK 19,451.69 (about EUR 2,600) with accrued default interest from 3 August 2005 until the date of payment, and the sum of HRK 64,350.00 (about EUR 8,560) in respect of lost employment benefits between April 2001 and December 2010, with accrued default interest on each instalment of HRK 550 (about EUR 75) from the month when compensation had to be paid until the date of payment. She also claimed HRK 435,650.00 (about EUR 57,700) in respect of non-pecuniary damage.", "98. The Government contested these claims. 99. As regards pecuniary damage, it appears from the documents submitted by the parties that the applicant has not paid the amount she was ordered to pay to the Rijeka Employment Bureau, and that the enforcement proceedings are still ongoing (see paragraphs 32-39 above). As to the sum of HRK 64,350.00 in respect of lost employment benefits between April 2001 and December 2010, the Court finds no causal link between the amount claimed and the finding of a violation (see also paragraph 45 above).", "It therefore rejects the claim in respect of pecuniary damage. 100. In respect of non-pecuniary damage, having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B.", "Costs and expenses 101. The applicant also claimed HRK 18,906.25 for costs and expenses incurred before the domestic courts and HRK 9,875.00 for those incurred before the Court. 102. The Government contested this claim. 103.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 830 for costs and expenses incurred in the proceedings before the Constitutional Court, and EUR 1,300 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant. C. Default interest 104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds that there is no need to examine the complaint under Article 8 to the Convention; 4. Holds, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,130 (two thousand one hundred and thirty euros), plus any tax that may be chargeable, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident" ]

[ "GRAND CHAMBER CASE OF SIMEONOVI v. BULGARIA (Application no. 21980/04) JUDGMENT STRASBOURG 12 May 2017 This judgment is final but it may be subject to editorial revision. In the case of Simeonovi v. Bulgaria, The European Court of Human Rights, sitting as a Grand Chamber composed of: András Sajó, President,Luis López Guerra,Mirjana Lazarova Trajkovska,Angelika Nußberger,Nebojša Vučinić, André Potocki,Paul Lemmens,Helena Jäderblom,Ksenija Turković,Dmitry Dedov,Robert Spano,Jon Fridrik Kjølbro,Yonko Grozev,Gabriele Kucsko-Stadlmayer,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 6 July 2016 and 18 January 2017, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 21980/04) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Bulgarian nationals, Mr Lyuben Filipov Simeonov and Ms Nelly Nikolova Simeonova and Mr Filip Lyubenov Simeonov (“the applicants”), on 8 June 2004.", "2. The applicants were represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).", "On 23 August 2011 a Chamber of that Section declared the application partly admissible, rejecting all the complaints raised by the second and third applicants and some of the complaints raised by the first applicant, Mr Lyuben Filipov Simeonov (“the applicant”). The applicant’s complaints under Article 3 concerning the lack of medical care in prison, his conditions of detention and the allegedly excessive strictness of his prison regime, as well as the complaints under Article 6 §§ 1 and 3 (c) relating to the lack of assistance from a lawyer for the first few days of his detention, were communicated to the Government. 4. On 20 October 2015 a Chamber of the Fourth Section composed of Guido Raimondi, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Paul Mahoney, Krzysztof Wojtyczek, Yonko Grozev, judges, and Françoise Elens-Passos, Section Registrar, delivered a judgment unanimously declaring the application partly admissible and finding a violation of Article 3 on account of the conditions of detention and the prison regime imposed on the applicant, and no violation of Article 6 §§ 1 and 3 (c) on account of the lack of assistance from a lawyer for the first few days of his detention. 5.", "On 12 January 2016 the applicant requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. The panel of the Grand Chamber acceded to that request on 14 March 2016. 6. The composition of the Grand Chamber was determined in accordance with the provisions of Articles 26 §§ 4 and 5 of the Convention and Rule 24. 7.", "On 20 May 2016 the President of the Grand Chamber gave leave to the non-governmental organisation Association for the Prevention of Torture, based in Geneva (Switzerland) to submit written documents on the right to legal assistance. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 6 July 2016 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsM. KOTSEVA,Agent,MsM.", "DIMITROVA,Agent; (b) for the applicantMrJ. MCBRIDE,Counsel,MsS. MARGARITOVA-VUCHKOVA,CounselMsN. SIMEONOVA. The Court heard addresses by Mr McBride, Ms Kotseva and Ms Dimitrova, and the replies of Mr McBride and Ms Dimitrova to the questions put by the judges.", "9. On 15 July 2016 the President of the Grand Chamber decided to grant the applicant legal aid. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1975 and is detained in Sofia Prison.", "A. Criminal proceedings against the applicant 1. The applicant’s arrest and detention in police custody 11. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed.", "The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide. 12. The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S. 13.", "By decision of 9 July 1999 a police officer ordered the applicant’s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee’s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time. 14.", "On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next. 15. On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant’s detention for twenty-four hours from 8 p.m. 16.", "On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day. 17. The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant’s right to the assistance of a lawyer and does not bear his signature. 18.", "The applicant affirmed that he had submitted four requests, on 3, 4, 5 and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests. 19. He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders. 20.", "The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant’s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold-up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident. 21. On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold-up in the bureau de change in Burgas.", "When questioned immediately after being charged, he made the following statements: “I have read the charge sheet in the presence of my officially appointed lawyer, D. Todorov. I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence. I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.” 2. Continuation of the criminal proceedings against the applicant 22. On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer.", "A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims. 23. On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12 October 1999 he remained silent and stated that he would give evidence at a later date.", "24. On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S. 25. On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva. 26.", "Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence. 27. On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again. 28.", "On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh. 29. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers.", "In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person. 30. On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court. 31. The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001.", "During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day. 32. On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it.", "The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant’s placement under the “special” prison regime. 33. Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment.", "In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change.", "He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B.", "was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed.", "A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E.", "to fetch the money for them, which he had done. 34. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias. 35.", "The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re‑examination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidence‑gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias.", "36. The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused. 37. On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter’s factual and legal findings.", "The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered. 38. The Court of Appeal observed that the accused’s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court.", "The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial statements, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him. 39. The Court of Appeal turned its attention to the applicant’s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time.", "Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events. 40.", "The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests.", "41. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds. 42. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal.", "In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant’s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant’s detention in police custody.", "43. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken.", "44. Furthermore, in endorsing the Court of Appeal’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused’s rights had been fully respected. B. The applicant’s conditions of detention 45. The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000.", "He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held. 1. Burgas Investigation Detention Facility 46. The applicant submitted that he had been held in a cell without windows, a toilet or running water.", "The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees.", "The three detainees had had to take turns sleeping because the cell only had one bench. 47. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees.", "The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity. 2. Burgas Prison 48. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack.", "There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules.", "49. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 48 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests.", "50. According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library.", "He had consulted a psychologist on several occasions and had had a number of meetings with the prison’s activity coordinator. 3. Sofia Prison 51. Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population. 52.", "The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet. 53. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell.", "He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners. 54. Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases.", "The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant’s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books.", "55. According to a report by the governor of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 sq. m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting.", "56. Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population. 57. Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence.", "His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Conditions for the execution of life sentences, and compensatory remedies under the 1988 State and Municipalities Responsibility for Damage Act 58. The relevant domestic law and case-law concerning the regulations on the execution of life sentences and actions for damages in respect of poor conditions of detention were summarised in Harakchiev and Tolumov v. Bulgaria (nos.", "15018/11 and 61199/12, §§ 108-135 and §§ 136-146 respectively, ECHR 2014 [extracts]). B. The right to the assistance of a lawyer in criminal proceedings and information to be provided to detainees concerning their rights 1. The Ministry of the Interior Act and its implementing regulations 59. The Ministry of the Interior Act 1997 and its 1998 implementing regulations allowed the police to arrest persons suspected of having committed criminal offences and detain them for twenty-four hours.", "Arrestees were entitled to legal assistance from the time of their arrest. The relevant provisions of the Act and the implementing regulations, in the version in force at the time of the applicant’s arrest, read as follows: Section 70 of the 1997 Act “(1) The police may detain persons: 1. who have committed criminal offences ... (4) Detained persons shall be entitled to legal assistance as of the time of their arrest.” Regulation 54 of the Act’s implementing regulations “(1) A detention order shall be made in respect of the persons mentioned in section 53 (1). (2) Orders made under (1) above shall mention: ... 5. the rights secured to the person concerned under section 70(3) and (4) of the Ministry of the Interior Act. (3) The order must be signed by the police department and the detainee. ... (6) A copy of the order shall be presented to the detainee.” 60.", "At the time of the applicant’s arrest domestic legislation did not provide for presenting detainees with a separate document setting out their rights, including the right to legal assistance. 61. On 6 March 2002 the Minister of the Interior issued an internal instruction stating that, immediately after their arrest, detainees had to sign two copies of a statement setting out their rights, including the right to legal assistance. 62. In 2003 Implementing Regulation 54(3) of the Ministry of the Interior Act (see paragraph 59) was amended.", "The amended regulation provided for the presentation to detainees of a “declaration of rights” which they had to sign, stating, in particular, their intention either to avail themselves of or to waive their right to legal assistance. The new wording of the paragraph was as follows: “(3) The detainee shall fill in a declaration indicating that he has been informed of his rights and stating whether or not he intends to use his rights under paragraph (2) (5) (b)-(e).” 63. The domestic legislation and regulations introduced in this sphere since that time have incorporated a reference to the “declaration of rights” which detainees must sign after their arrest. 2. Code of Criminal Procedure 64.", "At the time of the proceedings in issue, the 1974 Code of Criminal Procedure allowed investigators responsible for criminal cases to order the suspect’s detention for twenty-four hours. The detention period could be extended by a prosecutor up to a maximum of three days. The legislative provisions on such detention and the rights conferred on the suspect during detention read as follows: Article 202 “(1) The investigator may, even without the prosecutor’s authorisation, order preliminary detention for a criminal offence which is subject to mandatory prosecution and for which a preliminary investigation is compulsory where: 1. the person in question was arrested at or just after the time of commission of the offence; 2. an eyewitness has identified the person as the perpetrator of the offence; 3. visible traces of the offence have been discovered on the person’s body or clothing or in his place of residence; 4. the person in question has attempted to flee ...” Article 203 “(1) The investigator must inform the prosecutor of the detention within twenty-four hours, mentioning the reasons for it. (2) The prosecutor must immediately confirm or revoke the detention order. Under the circumstances set out in Article 202 § 1, points 1 and 3, where detention has been ordered for a serious crime which is subject to mandatory prosecution, the prosecutor may extend the period of detention up to a maximum of three days.", "(3) If, on expiry of the period set out in paragraphs 1 and 2 above, the person concerned has not been charged with an offence, the investigator must release him. ...” Article 206 “(1) Individuals who are under a detention order ... within the meaning of Article 202 shall have the following rights: to be informed of the offences of which they are suspected; to make statements; to take action ... to challenge measures taken by the authorities responsible for the preliminary investigation ... 2) As regards the statements ... mentioned in the previous paragraph, the provisions of Articles 73 [and] 87 ... shall be applicable mutatis mutandis.” 65. During the preliminary investigation the suspect is formally notified of the charges against him by means of an indictment. This confers on him official defendant (обвиняем) status. From then on the person’s statements can be recorded for use in evidence in the criminal proceedings.", "The defendant has several procedural rights, including the right to the assistance of a lawyer at the preliminary investigation stage. The relevant provisions of the 1974 Code of Criminal Procedure read: Article 50 “The defendant is a person who has been charged under the conditions and according to the procedures set out in the present Code.” Article 51 “(1) The defendant has the following rights: to know the charges against him and the evidence on which those charges are based, to give statements on the charges, to have access to the case file and obtain the requisite copies of case papers, to submit evidence, to take part in the criminal proceedings, to submit requests ..., to speak last during questioning, to challenge the decisions of courts and preliminary investigation bodies infringing his rights and legitimate interests and to be assisted by a defence lawyer. At the defendant’s request, the defence lawyer shall be present during the implementation of the investigative measures. ...” Article 67 “(1) The defence lawyer may be a person practising the legal profession. ...” Article 70 “(1) Participation by a defence lawyer in the criminal proceedings is mandatory where: ... 3. the criminal case concerns a crime punishable by the death penalty, life imprisonment or a prison sentence of at least ten years.", "(3) When participation by a defence lawyer is mandatory, the competent authority shall be required to appoint a person practising the legal profession as defence lawyer. (4) The officially appointed defence lawyer shall be excluded from the criminal proceedings if the defendant engages a different defence lawyer.” Article 72 “(1) The defendant may, at any stage in proceedings, waive his right to the assistance of a defence lawyer, except in the situation mentioned in Article 70 § 1, paragraphs. 1 to 3. ...” Article 73 “(1) The defence lawyer may take part in the criminal proceedings as of the time the person concerned has been arrested or charged. (2) The authority responsible for the preliminary investigation must inform the defendant of his right to the assistance of a defence lawyer and permit him to contact such lawyer.", "That authority cannot implement any investigative measures before having fulfilled that obligation. ...” Article 85 “(1) Evidence shall be established on the basis of the defendant’s statements, the suspect’s statements, witness statements, records of the investigative and procedural steps and by other means as laid down in this Code. (2) Evidence which has not been gathered or drawn up in conformity with the rules of the present code shall be declared inadmissible. ...” Article 87 “(1) The defendant shall give evidence orally and directly before the competent authority. The defendant shall give evidence in the presence of a defence lawyer if he so requests.", "That request shall be recorded in minutes and the defence lawyer shall be invited to attend the questioning. ... (3) The defendant may refuse to give evidence. ...” Article 91 “(1) The indictment and the conviction cannot be based solely on the defendant’s confessions. (2) Confessions by the defendant shall not release the competent authorities from their obligation to gather other evidence in the course of the proceedings.” 3. Case-law 66.", "Under the established case-law of the Bulgarian Supreme Court of Cassation, if the authorities responsible for criminal investigations fail to formally charge the suspect in accordance with the requirements of the Code of Criminal Procedure, that omission amounts to a restriction of the rights of the defence and forces the courts to refer the case back to the preliminary investigation stage and the aforementioned authorities so that they can remedy the omission (Тълкувателно решение № 2 от 7.10.2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК). 67. By the same token, the absence of a defence lawyer during the charging of the suspect and the implementation of the subsequent investigative measures, when legal assistance is mandatory under the Code of Criminal Procedure, amounts to a major procedural flaw which necessitates the referral of the case back to the authorities responsible for the preliminary investigation (Решение № 68 от 21.04.1992г. по н.д.", "№ 986/91г. на ВС, I н.о.). In that situation those authorities are required to repeat the investigative measures in question in the presence of a defence lawyer (Решение № 604 от 31.10.1991г. по н.д. № 436/91г.", "на ВС, I н.о.). 68. Under the established case-law of the Bulgarian courts, evidence gathered in breach of the rules set out in the Code of Criminal Procedure, including statements made to the police, has no probative value and is excluded from the case file (Решение № 179 от 21.11.1997г. на ВКС по н.д. № 182/1997г.", "ВК ; Решение № 361 от 8.07.2003г. на ВКС по н.д. № 123/2003г.,III н.о. ; Решение № 518 от 21.01.2009г. на ВКС по н.д.", "№ 435/2008г., II н.о., НК). III. RELEVANT INTERNATIONAL AND EUROPEAN UNION LAW A. United Nations 69. Article 14 of the 1966 International Covenant on Civil and Political Rights (“the Covenant”) protects the right to a fair trial.", "The relevant parts of that provision read as follows: Article 14 “... 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ... (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; ... (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ...” 70. The Human Rights Committee (HRC) is the body responsible for monitoring the implementation of the Covenant by means of periodic State reports and individual communications. 71. The HRC considers that legal assistance should be possible not only at the trial stage but at all stages in proceedings (see Kelly v. Jamaica, 1991, 253/1987, § 5.10., and Borisenko v. Hungary, 2002, 852/1999, § 7.5), including during police questioning (see Gridin v. the Russian Federation, 2000, 770/1997, § 8.5).", "However, in Levinov v. Belarus (2011, 1812/2008, § 8.3) the HRC held that in the absence of any investigative measure during the period when the suspect had had no access to a lawyer Article 14 § 3 (b) of the Covenant had not been infringed by the authorities. 72. As regards the right to be informed of the right to a lawyer, in its concluding observations on the 4th periodic report concerning the Netherlands ((2009), UN doc. CCPR/C/NDL/CO/4, § 11), the HRC considered that States should give full effect to the right to contact counsel before police questioning and ensure that individuals suspected of criminal offences were informed, on their arrest, of their right to legal assistance. 73.", "Moreover, in a number of cases the HRC has found a violation of Article 14 § 3 (d) of the Covenant owing to the failure to inform the accused of his right to legal assistance (see Saidova v. Tajikistan, 2004, 964/2001, and Khoroshenko v. the Russian Federation, 2011, 1304/2004). B. European Union 74. Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings was adopted on 22 May 2012. The deadline for its transposition into the legislation of the European Union Member States was 2 June 2014. The relevant provisions of the Directive read as follows: Article 1Subject matter “This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them ...” Article 2Scope “1.", "This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings ...” Article 3Right to information about rights “1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively: (a) the right of access to a lawyer ... 2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.” Article 4Letter of Rights on arrest “1. Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty ...” 75.", "Directive 2013/48/EU of the European Parliament and of the Council on, inter alia, the right of access to a lawyer in criminal proceedings was adopted on 22 October 2013. The deadline for its transposition into the legislation of the European Union Member States was 27 November 2016. The relevant provisions of the Directive read as follows: Article 1Subject matter “This Directive lays down minimum rules concerning [the right] of suspects and accused persons in criminal proceedings ... to have access to a lawyer ...” Article 2Scope “1. This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings ...” Article 3The right of access to a lawyer in criminal proceedings “1.", "Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 3.", "The right of access to a lawyer shall entail the following: (a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; (b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; (c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime. 4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons.", "Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9. ...” Article 9Waiver “1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 and 10: (a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and (b) the waiver is given voluntarily and unequivocally. 2. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned.", "3. Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.” IV. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT) 76. The Burgas Investigation Detention Facility was visited in 1999 by a CPT delegation.", "The relevant part of the report published after that visit was quoted in paragraph 54 of the Chamber judgment. 77. Burgas Prison was visited by a CPT delegation in April 2002. The relevant part of the report published by the delegation was quoted in paragraph 55 of the Chamber judgment. 78.", "Sofia Prison was visited by a CPT delegation in September 2006, December 2008, March and April 2014 and February 2015. The four visit reports were published. The relevant parts of the reports on the first three visits were quoted in paragraphs 57-59 of the Chamber judgment. 79. The relevant part of the last report on a visit to this prison, in 2015, reads as follows: “3.", "Conditions of detention a. material conditions ... 39. At the time of the visit, the closed section of Sofia Prison was holding 816 prisoners for an official capacity of 650. The closed section of Varna Prison was accommodating 422 prisoners for an official capacity of 350. And as for Burgas Prison, at the time of the visit, there were 579 prisoners in the closed section for an official capacity of 371. In the three prisons, the overwhelming majority of the cells were extremely overcrowded ...", "The situation at Sofia and Varna prisons remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person. 40. The situation was aggravated even more by the fact that material conditions in all the three prisons visited in 2015 still demonstrated an ever-worsening advanced state of dilapidation and insalubrity, despite some last-minute cosmetic efforts observed. Most of the common sanitary facilities at Sofia, Burgas and Varna prisons were totally dilapidated and unhygienic. Moreover, they were accessible to prisoners only during the day; at night the majority of the inmates had to resort to buckets (one for each cell).", "The cells were mostly equipped with two-tier and three-tier bunk beds and access to natural light and ventilation was poor. Walls were covered with mould, floors were damaged, and ceilings leaking; cells were infested with cockroaches, bedbugs and other vermin. It should be noted in this regard that no cleaning materials were made available to the prisoners. Heating was functioning only a couple of hours a day (the delegation measured some 14o C in cells and 10o C in in-cell toilets at Sofia Prison ... It can thus be stated that most parts of these establishments were unfit for human accommodation and represented a serious health risk both for inmates and staff.", "Despite the repeated criticism, no progress was observed as regards the implementation of the CPT’s recommendations made after its visits in 2010, 2012 and 2014. To sum up, in the CPT’s opinion, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment. … b. Regime ... 43. Possibilities for purposeful activities in Sofia, Varna and Burgas prisons were very limited.", "The cells were unlocked during the day (with the exception of the high security and admission units) and most prisoners just roamed the corridors or stayed in their cells watching TV or playing board games with other inmates. All inmates had access to a library and a multi-faith area. The only activity for most prisoners was daily outdoor exercise, usually lasting one hour at Varna Prison, one-and-a-half hours at Sofia Prison and two hours at Burgas Prison. 44. As regards work, at Sofia Prison, 258 prisoners had jobs (but 120 of the work places were unpaid), most of them on general prison maintenance services.", "... Educational activities were offered to 78 prisoners at Sofia and 49 prisoners at Varna Prison. Other activities included language courses and IT classes (with 225 inmates attending at Sofia Prison) ...” 80. On 26 March 2015 the CPT issued a public statement on Bulgaria under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The statement reads as follows (footnotes omitted): “1. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has carried out ten visits to Bulgaria since 1995.", "In the course of those visits, delegations of the Committee have visited all but one prison, several investigation detention facilities (IDFs) and numerous police establishments in the country. 2. Major shortcomings have been identified during the above-mentioned visits, especially as concerns the police and penitentiary establishments. Repeated recommendations have been made over the last 20 years concerning these two areas. In its reports, the CPT has many times drawn the Bulgarian authorities’ attention to the fact that the principle of co-operation between State Parties and the CPT, as set out in Article 3 of the Convention establishing the Committee, is not limited to steps taken to facilitate the tasks of a visiting delegation.", "It also requires that decisive action be taken to improve the situation in the light of the CPT’s recommendations. The vast majority of these recommendations have remained unimplemented, or only partially implemented. In the course of the Committee’s visits to Bulgaria in 2010, 2012, 2014, and 2015, the CPT’s delegations witnessed a lack of decisive action by the authorities leading to a steady deterioration in the situation of persons deprived of their liberty. 3. In the report on its 2012 visit, the Committee expressed its extreme concern about the lack of progress observed in the Bulgarian prison system and stressed that this could oblige the CPT to consider having recourse to Article 10, paragraph 2, of the European Convention on the Prevention of Torture or Inhuman and Degrading Treatment or Punishment.", "This procedure was set in motion after the March/April 2014 visit; indeed, the Committee’s findings during that visit demonstrated a persistent failure by the Bulgarian authorities to address certain fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty. The visit report highlighted a number of long-standing concerns, some of them dating back to the very first periodic visit to Bulgaria in 1995, as regards the phenomenon of ill-treatment (both in the police and the prison context), inter-prisoner violence, prison overcrowding, poor material conditions of detention in IDFs and prisons, inadequate prison health-care services and low custodial staffing levels, as well as concerns related to discipline, segregation and contact with the outside world. 4. The responses of the Bulgarian authorities to the report on the CPT’s 2014 visit and to the letter by which the Committee has informed the authorities of the opening of the procedure set out in Article 10, paragraph 2, of the Convention have, to say the least, not alleviated the CPT’s concerns. In particular, the responses were succinct, contained very little new information and failed to address the majority of the Committee’s recommendations, usually merely quoting the existing legislation and/or explaining the lack of action by referring to budgetary constraints.", "Further, most of the information contained in the CPT’s report as concerns ill-treatment and inter-prisoner violence was simply dismissed. The 2015 visit was therefore an opportunity for the Committee to assess the progress in the implementation of its long-standing recommendations and to review, in particular, the treatment and detention conditions of persons held at Sofia, Burgas and Varna Prisons, as well as at Sofia IDF (located on G.M. Dimitrov Boulevard). Regrettably, the findings made during the aforementioned visit demonstrate that little or no progress has been achieved in the implementation of key recommendations repeatedly made by the CPT. For these reasons, the Committee has been left with no other choice but to make a public statement, pursuant to Article 10, paragraph 2, of the Convention; it took this decision at its 86th plenary meeting in March 2015.", "Police ill-treatment 5. In the course of the 2015 visit, the Committee’s delegation received a significant number of allegations of deliberate physical ill-treatment of persons detained by the police; the number of such allegations had not decreased since the 2014 visit but was even on the rise in Sofia and Burgas. The alleged ill-treatment generally consisted of slaps, kicks, and in some cases truncheon blows. The delegation concluded that men and women (including juveniles) in the custody of the police continued to run a significant risk of being ill-treated, both at the time of apprehension and during subsequent questioning. 6.", "Very little progress, if any, has been made as regards the legal safeguards against police ill-treatment, and the CPT’s key recommendations in this sphere are still to be implemented. In particular, access to a lawyer remained an exception during the initial 24 hours of police custody and the ex officio lawyers did not perform their function as a safeguard against ill-treatment. Further, persons in police custody were still rarely put in a position to notify promptly a person of their choice of their detention, and were not systematically informed of their rights from the outset of their custody. ... Detention in the Ministry of Justice’s establishments 8.", "The situation as regards physical ill-treatment of prisoners by staff remains alarming in the three prisons visited in 2015. Many allegations of deliberate physical ill-treatment (usually consisting of slaps, punches, kicks and truncheon blows) were again heard at Sofia and Burgas Prisons and, at Varna Prison, the Committee’s delegation was flooded with such allegations. In a number of cases, the delegation found medical evidence consistent with the allegations received. ... 12. Overcrowding remains a very problematic issue in the Bulgarian prison system.", "For example, at Burgas Prison, the vast majority of inmates had less than 2 m² of living space in multi-occupancy cells, with the notable exception of the remand section. The situation at Sofia Prison remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person. 13. The material conditions at Sofia, Burgas, and Varna Prisons remained characterised by an ever-worsening state of dilapidation. In particular, most of the sanitary facilities in these three prisons were totally decrepit and unhygienic, and the heating systems functioned for only a few hours per day.", "The majority of prisoners still did not benefit from ready access to a toilet during the night and had to resort to buckets or bottles to comply with the needs of nature. The kitchens at Burgas and Varna Prisons (and the dining hall at Varna Prison) remained filthy and unhygienic and infested with vermin, with leaking and over-flowing sewage pipes, and walls and ceilings covered in mould. Most parts of the establishments visited were unfit for human accommodation and represented a serious health risk for both inmates and staff. To sum up, in the Committee’s view, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment. 14.", "The vast majority of inmates (including almost all the remand prisoners) in the three prisons visited in the course of the 2015 visit still had no access to organised out-of-cell activities and were left in a state of idleness for up to 23 hours per day. ... Concluding remarks 17. In its previous reports, the Committee has taken due note of the repeated assurances given by the Bulgarian authorities that action would be taken to improve the situation of persons placed in the custody of the police, or held in establishments under the responsibility of the Ministry of Justice. However, the findings of the 2015 visit demonstrate again that little or nothing has been done as regards all the above‑mentioned long-standing problems.", "This state of affairs highlights a persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the Committee. The CPT is of the view that action in this respect is long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria should radically change. 18. The Committee fully acknowledges the challenges that the Bulgarian authorities are facing. In the CPT’s view, there is a real need to develop a comprehensive prison policy, instead of concentrating exclusively on material conditions (which, as should be stressed, have only improved to an extremely limited extent).", "Having in place a sound legislative framework is no doubt important. However, if laws are not backed by decisive, concrete and effective measures to implement them, they will remain a dead letter and the treatment and conditions of persons deprived of their liberty in Bulgaria will deteriorate even further. As regards the treatment of persons detained by law enforcement agencies, resolute action is required to ensure the practical and meaningful operation of fundamental safeguards against ill-treatment (including the notification of custody, access to a lawyer, access to a doctor, and information on rights). The Committee’s aim in making this public statement is to motivate and assist the Bulgarian authorities, and in particular the Ministries of the Interior and Justice, to take decisive action in line with the fundamental values to which Bulgaria, as a member state of the Council of Europe and the European Union, has subscribed. In this context, the CPT’s long-standing recommendations should be seen as a tool that helps the Bulgarian authorities to identify shortcomings and make the necessary changes.", "In furtherance of its mandate, the Committee is fully committed to continuing its dialogue with the Bulgarian authorities to this end.” THE LAW I. SCOPE OF THE GRAND CHAMBER’S JURISDICTION 81. In his memorial submitted to the Grand Chamber and in the course of the hearing, the applicant asked the Grand Chamber to reverse the decision given on 23 August 2011 by the Chamber declaring inadmissible his complaint under Article 3 of the Convention relating to his whole-life sentence. 82. The Government opposed that request.", "They submitted that it was contrary to the Court’s case-law to the effect that the case which was referred to the Grand Chamber was the application as declared admissible by the Chamber. 83. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility (see, in particular, K. and T. v. Finland [GC], no. 25702/94, §§ 140 and 141, ECHR 2001‑VII; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004‑III; Kurić and Others v. Slovenia [GC], no.", "26828/06, §§ 235 and 236, ECHR 2012 (extracts); and Murray v. the Netherlands [GC], no. 10511/10, § 86, ECHR 2016). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber. The Court sees no reason to depart from that principle in the present case. 84.", "Accordingly, in the framework of the present case, the Court has no jurisdiction to adjudicate on the complaint raised under Article 3 of the Convention concerning the imposition of a whole-life sentence on the applicant. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 85. The applicant complained of the physical conditions of his detention and of the prison regime in the Burgas Investigation Detention Facility and in Burgas and Sofia Prisons. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.", "The parties’ submissions 86. The applicant invited the Grand Chamber to endorse the Chamber’s conclusion that there had been a violation of Article 3 of the Convention. 87. The Government submitted no observations on this complaint before the Grand Chamber. However, they pointed out that a wide-ranging programme to reform the Bulgarian prison system was currently being implemented.", "The programme would ultimately facilitate the application of the European standards on prisoner treatment, including in terms of conditions of detention. B. The Court’s assessment 88. The Court notes that the Chamber found that there had been a violation of Article 3 of the Convention (see paragraphs 88-95 of the Chamber judgment). The Chamber stated in particular: “89.", "The applicant has been incarcerated since October 1999. Since that date he has been held in three different establishments: the Burgas Investigation Detention Facility, Burgas Prison and Sofia Prison. 90. The Court notes that the parties agree on the inadequacy of the material conditions which prevailed in the Burgas Investigation Detention Facility between October 1999 and April 2000, when the applicant was held there ... The report on the 1999 CPT visit corroborates this finding ... 91.", "The applicant was subsequently transferred to Burgas Prison, where he remained from 2000 to 2004 ... In the report on its 2002 visit the CPT delegation stated that the wing for life prisoners in Burgas Prison where the applicant’s cell was located had recently been refurbished, that the individual cells had an area of 6 m2 each and had adequate ventilation and lighting. The main problem noted by the CPT delegation had been the restricted access to the shared sanitary facilities and the use of buckets as toilets by the prisoners ... 92. On 25 February 2004 the applicant was transferred to Sofia Prison, where he continued to serve his sentence. According to the reports of the 2006, 2008 and 2014 CPT visits to that prison, all the cells in the prison’s high-security wing had in-cell sanitary facilities ...", "According to information presented by the Government, this section of the prison was renovated in 2005 and 2006, and the applicant benefited from a decent-sized individual cell ... However, the report of the CPT’s visit in 2014 once again singles out the general dilapidation of the area of Sofia Prison reserved for prisoners serving life sentences, and the lack of daylight and insufficient hygiene in the premises ... 93. The Court notes that throughout his years in prison the manner and method of executing the applicant’s life sentence, as determined by the prison regime assigned to him, were highly restrictive. The applicant had initially been assigned a so-called special prison regime: he had spent twenty-three hours a day locked up in his cell, mostly on his bed; his access to the prison library had been limited to the few minutes it took to choose and borrow a book; he had been allowed to attend the prison chapel twice a year, with a ban on meeting other prisoners ... In 2008 his prison regime was relaxed ...", "However, like all prisoners in his category, he was still kept separate from the rest of the prison population and his cell was kept locked during the day (ibid.). The successive CPT reports show that the prisoners in the high-security wing of Sofia Prison have very few out-of-cell activities and are kept separated from the other prisoners ... 94. In the light of the foregoing facts and as it noted in the recent judgment in the case of Harakchiev and Tolumov, cited above, §§ 203-214, the Court considers that the applicant’s poor conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term in question, subjected the applicant to an ordeal far exceeding the suffering inherent in the execution of a prison sentence. The Court therefore finds that the severity threshold required for the application of Article 3 of the Convention was exceeded in the present case. The applicant was placed in an ongoing situation of infringement of his right not to be subjected to inhuman and degrading treatment.", "95. There has therefore been a violation of Article 3 of the Convention.” 89. The Court sees no reason to depart from the Chamber’s conclusions. Moreover, it observes that the report of the CPT’s last visit to Bulgaria and its public statement of 2015 mention that the poor conditions of detention noted in Sofia Prison persist (see paragraphs 79 and 80 above). 90.", "Like the Chamber, the Court considers that the applicant’s conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term (since 1999), have subjected him to an ordeal exceeding the suffering inherent in the execution of a prison sentence and amount to inhuman and degrading treatment. 91. There was therefore a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 92.", "The applicant alleged that he had not been assisted by a lawyer for the first few days of his detention. He relied on Article 6 §§ 1 and 3 (c), which reads as follows: Article 6 “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...” 93. The Government contested that argument.", "A. The Chamber judgment 94. Having reiterated the principles emerging from the Court’s case-law concerning legal assistance, the Chamber considered that a distinction should be made between the present case and that of Dayanan v. Turkey (no. 7377/03, 13 October 2009) inasmuch as, unlike Turkish legislation at the material time, the relevant Bulgarian legislation did not restrict the right of detainees to be assisted by lawyers of their choosing from the time of their arrest. However, the Chamber noted that the applicant had not actually benefited from this legal safeguard for the first three days of his detention, but stated that it was unable to determine whether that situation had been due to the authorities’ acting mala fide or the applicant’s own passivity.", "95. The Chamber lastly concluded that the fairness of the proceedings had not been infringed, for the following reasons: (i) there was no indication in the file that the applicant had been questioned during the first three days of his detention; (ii) all his interrogations had taken place after he had been formally charged on 6 October 1999, in the presence of a lawyer; (iii) no other investigative measure involving the applicant had been implemented during that initial period of detention; (iv) the applicant had confessed to the offences a few days later, when he had been assisted by a lawyer of his choosing and had known that that confession could be used in evidence against him in support of a possible conviction; (v) his conviction had been based not solely on that confession but on a whole body of consistent evidence; (vi) the applicant had amply benefited from his right to defend himself with a lawyer’s assistance and the domestic courts had delivered reasoned judgments (see paragraphs 113-116 of the Chamber judgment). B. The parties’ submissions 1. The applicant 96.", "The applicant invited the Grand Chamber to conclude that there had been a violation of Article 6 on the grounds that he had not been assisted by a lawyer while in police custody from 3 to 6 October 1999 at noon. 97. He submitted that he had made several requests between 3 and 6 October 1999 to consult a lawyer but that the authorities had rejected them. He stated that he had been questioned during that time, and maintained that his allegations were not ill-founded. He alleged that it would have been quite illogical for the authorities not to attempt to question him during that time, and the lack of any written trace of those interrogations corroborated his allegation that he had been pressured by the investigators to confess.", "98. The applicant argued that the fact that he had remained silent when questioned on 6 and 12 October 1999 could not be deemed decisive. He explained that he had not had an opportunity to consult the lawyers before the questioning or to obtain guidance from them. That was also why the fact that he had been assisted by a lawyer of his choosing when he had confessed on 21 October 1999 could not be held against him. The lawyers’ presence during those interrogations did not mean that they had provided him with any effective assistance.", "99. Finally, the applicant affirmed that the right to legal assistance laid down in Article 6 § 3 (c) was autonomous from the requirement of a fair trial enshrined in Article 6 § 1. A finding of a violation or no violation of that autonomous right in the present case depended solely on the answer to the following question: were there any reasons justifying the restriction of his access to a lawyer while in police custody? If there were no such reasons, the fact that the conviction had not been exclusively based on the applicant’s confession and the fact that he had had the effective assistance of one or more lawyers for the rest of the criminal proceedings were of no consequence in relation to Article 6 § 3 (c). 2.", "The Government 100. The Government invited the Grand Chamber to follow the Chamber’s example by declaring that in the instant case there had been no violation of the relevant provisions of the Convention. 101. They observed that under domestic legislation the applicant had been entitled to legal assistance as of the time of his arrest, and that it had been the police officers’ legal duty to inform him of that right. The Government affirmed that in the absence of any proof to the contrary, that obligation had been honoured.", "In any event the applicant’s allegations themselves indicated that he had been aware that domestic legislation entitled him to legal assistance. 102. Moreover, there was no evidence to corroborate the applicant’s allegations that while in police custody he had asked to speak to a lawyer and his request had been refused by the authorities. Domestic legislation at the material time had not provided for the preparation of written documents recording the detainee’s wish to consult a lawyer or his waiver of that right. Furthermore, the applicant had not, at any stage in the criminal proceedings before the domestic courts, raised his complaint concerning the absence of a lawyer during his time in police custody.", "103. The Government further submitted that there was no evidence to support the applicant’s allegation that he had been questioned in police custody before being charged. At the hearing before the Grand Chamber the Government added that even supposing such a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings. At no stage in the proceedings had the authorities referred to any statements given by the applicant between 3 and 6 October 1999 at noon. Furthermore, his conduct during that period had not been taken into account in the ensuing criminal proceedings.", "During that time the applicant had been arrested, transferred to Burgas, taken to the Burgas detention facility and been subjected to medical examinations. At no stage in the domestic proceedings had he alleged that he had been questioned in police custody, and his observations on the subject before the Court had been inconsistent, contradictory and lacking in detail. 104. Lastly, the Government observed that the right to legal assistance as secured under Article 6 § 3 (c) was one of the aspects of the right to a fair criminal trial guaranteed by Article 6 § 1 of the Convention. They therefore submitted that the Court should seek to establish whether the overall fairness of the criminal proceedings in the present case had been affected by the fact that the applicant had not had the assistance of a lawyer while in police custody.", "The Government invited the Grand Chamber to uphold the Chamber’s finding that the criminal proceedings in the applicant’s case had generally been fair. He had been assisted by lawyers of his choosing, a body of evidence had been gathered and the case had been scrutinised by courts at three levels of jurisdiction, which had addressed the arguments put forward by the defence. No statement by the applicant or other piece of evidence that might have been used as a basis for his conviction had been gathered during his time in police custody without a lawyer. 3. Third-party submissions 105.", "In its observations to the Grand Chamber, the Association for the Prevention of Torture emphasised that making legal assistance available as soon as a suspect was detained was one of the fundamental safeguards for the fairness of criminal proceedings. In its case-law the Court had found violations of Article 6 §§ 1 and 3 (c) where confessions obtained during detention in the absence of a lawyer had subsequently been used to convict the person in question (citing Salduz v. Turkey [GC], no. 36391/02, ECHR 2008), but also where the detainees had opted to remain silent (citing Dayanan v. Turkey, cited above) or to deny their involvement in the offences with which they were charged (citing Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009). The bodies responsible for human rights protection within the United Nations system had also emphasised the importance of legal assistance from the first few hours of detention.", "106. Legal assistance at that early stage in criminal proceedings, even before the initial questioning, was essential in order to safeguard an arrested suspect’s right not to incriminate himself where he had not been informed of the charges against him. Legal assistance also helped guarantee the exercise of the other fundamental rights of the accused, such as those secured under Article 5 §§ 3 and 4 of the Convention. Thus, even if the detainee made no statement, the mere absence of a lawyer during the first few hours of detention was detrimental to the fairness of proceedings. That was particularly true in cases where the allegations were extremely serious and where the detainee was in a particularly vulnerable position.", "107. With reference to various European, national and international legal instruments, the third party pointed out that it was widely accepted that an effective right of access to a lawyer required the following: the accused had to be informed in advance of his right to speak to a defence lawyer; access to the lawyer had to be provided as soon as the person was arrested, and at all events before the initial police questioning; the lawyer had to be able to perform all the services necessary for his work, such as being able to hold private talks with his client, discuss all the facts of the case, be present during questioning, put questions and ask for clarifications. 108. The third party reminded the Grand Chamber of the approach used by the Chamber in the case of Leonid Lazarenko v. Ukraine (no. 22313/04, § 57, 28 October 2010), in which the right to a fair trial had been found to have been irretrievably prejudiced by the fact that a confession obtained without access to a lawyer had been used for a conviction, even if they had not been the sole basis for it.", "109. Lastly, the third party observed that even if a refusal by the authorities to allow the suspect to speak to a lawyer at the beginning of his detention had not impaired the overall fairness of the proceedings, such a situation could nevertheless amount to a violation of Article 6 § 3 (c). C. The Court’s assessment 1. General principles (a) Applicability of Article 6 in its criminal aspect 110. The protections afforded by Article 6 §§ 1 and 3 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term.", "A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016).", "111. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000‑XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no.", "4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999‑II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004‑XI) can all be regarded as being “charged with a criminal offence” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect. (b) The right to legal assistance and the overall fairness of the criminal proceedings 112.", "The Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz, cited above, § 51, and Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015). Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53‑54, and Ibrahim and Others, cited above, § 255). 113. Article 6 § 3 (c) does not therefore secure an autonomous right but must be read and interpreted in the light of the broader requirement of fairness of criminal proceedings, considered as a whole, as guaranteed by Article 6 § 1 of the Convention.", "In particular, compliance with the requirements of a fair trial must be examined in each case with regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others, cited above, §§ 250 and 251). Article 6 § 3 (c) leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial system, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Salduz, cited above, § 51). 114. Like the other guarantees of Article 6, the right to legal assistance is applicable from the moment that a “criminal charge” exists within the meaning of this Court’s case-law (see paragraphs 110 and 111 above) and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to observe it (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Dvorski, cited above, § 76; and Ibrahim and Others, cited above, § 253).", "(c) Waiver of the right to legal assistance 115. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance (see, among other authorities, Dvorski, cited above, §§ 100 and 101, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 90, 2 November 2010). However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.", "Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right (see Pishchalnikov v. Russia, no. 7025/04, § 77, 24 September 2009, and paragraph 119 below). Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (Pishchalnikov, cited above, § 77 in fine). Moreover, the waiver must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A, and Sejdovic v. Italy [GC], no.", "56581/00, § 86, ECHR 2006‑II). (d) Temporary restriction of the access to a lawyer for “compelling reasons” 116. The Court also reiterates that access to a lawyer during the investigation phase may be temporarily restricted where there are “compelling reasons” for doing so. In paragraph 55 of its Salduz judgment (cited above), the Court held as follows concerning the restriction of the access to a lawyer for “compelling reasons” during detention in police custody: “... the Court finds that in order for the right to a fair trial to remain sufficiently ‘practical and effective’ ... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.", "Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” 117. In its recent judgment in the case of Ibrahim and Others (cited above), the Court specified and fleshed out the criteria laid down in the Salduz judgment. It stated, in particular, that restrictions on access to legal advice were permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. Where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to compelling reasons to restrict access to legal advice for the purposes of Article 6 of the Convention.", "In such circumstances, there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2 and 3 and Article 5 § 1 of the Convention in particular. When assessing whether compelling reasons have been demonstrated, it is important to ascertain whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (ibid., §§ 258 and 259). 118. The Court went on to point out that the absence of “compelling reasons” for restricting access to a lawyer did not lead in itself to a finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention (ibid., § 262). In the absence of “compelling reasons”, the Court must apply a very strict scrutiny to its fairness assessment: the Government’s failure to point to any compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c).", "The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (ibid., § 265). Where, on the contrary, compelling reasons for restricting access to a lawyer have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 (ibid., § 264). (e) The right to be informed of the right to legal assistance 119. In Ibrahim and Others (ibid., §§ 272-273), the Court also found that it was inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person “charged with a criminal offence” for the purposes of Article 6 had the right to be notified of these rights. Consequently, Article 6 § 3 (c) of the Convention must be interpreted as also safeguarding the right of persons charged with an offence to be informed immediately of their right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing.", "Moreover, respect for that right may well influence the validity of any waiver of the right to legal assistance (see paragraph 115 above). (f) Relevant factors for the assessment of the overall fairness of proceedings 120. Since the fairness of criminal proceedings is assessed in each case with regard to the conduct of the proceedings as a whole, the Court set out a non-exhaustive list in Ibrahim and Others, cited above, § 274, of factors to be taken into account, where appropriate, in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings. Those factors are as follows: (a) whether the applicant was particularly vulnerable, for example by reason of his age or mental capacity; (b) the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair; (c) whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use; (d) the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion; (e) where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found; (f) in the case of a statement, the nature of the statement and whether it was promptly retracted or modified; (g) the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case; (h) whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions; (i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and (j) other relevant procedural safeguards afforded by domestic law and practice. 2.", "Application of those principles to the instant case (a) Starting-point for the application of Article 6 in the present case 121. Turning to the facts of the present case, the Court observes that the applicant had been wanted by the investigating authorities and the police since the beginning of July 1999, when his arrest had been ordered on the grounds that he was suspected of having committed armed robbery and two murders and that he had been on the run for almost three months (see paragraph 13 above). The Court, however, considers that the date of the applicant’s arrest by the police on 3 October 1999 should be taken as the starting-point for the application of the safeguards set out in Article 6 of the Convention. The arrest was based on suspicions that the applicant had committed criminal offences, and substantially affected the applicant’s situation by enabling the authorities to conduct investigative measures in which he participated. It was therefore on 3 October 1999 that the right to legal assistance provided for in Article 6 § 3 (c) became applicable in the present case.", "(b) Whether the applicant waived his right to legal assistance 122. The Court notes that the lack of legal assistance for the applicant while in police custody was a limitation which did not follow from domestic law, since Bulgarian legislation authorised him to have access to a lawyer as of the time of his arrest, on 3 October 1999 (see paragraph 59 above). Thus, if the applicant had asked for leave to speak to a lawyer on 3, 4, 5 and 6 October 1999 (before 12 noon), the authorities would have been under a legal obligation to grant that request. 123. The parties disagree on whether the applicant requested contact with a lawyer (see paragraphs 97 and 102 above).", "There is nothing in the file to corroborate the applicant’s assertion that he submitted such a request. At the material time Bulgarian legislation did not yet require a detainee’s request to consult a lawyer or his waiver of that right to be recorded in writing (see paragraphs 60-62 above). 124. The Court reiterates that in order to assess this evidence, it adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25).", "The Court finds it unfortunate that the applicant’s first three days of detention were not properly documented so as to avoid any doubts as to whether the applicant did ask for a lawyer or not (see, mutatis mutandis, Dvorski, cited above, § 105 in fine). Consequently, several years on from the events at issue and in the absence of any prima facie evidence, the Court is not in a position to ascertain whether the applicant did in fact request a consultation with a lawyer. 125. The Court must nevertheless seek to establish whether in the particular circumstances of the case, the lack of objective evidence that the applicant requested legal assistance while in police custody might point to an implicit waiver of that right. 126.", "In that regard the Court observes that in a legal system such as that which was in force in Bulgaria at the material time, in which the assistance of a lawyer during detention in police custody requires an express request from the suspect, it is essential that the latter be promptly informed of that right so as to enable him to rely on it (see paragraph 119 above). This is especially important where, as in the present case, the accused is suspected of serious offences and is liable to a heavy penalty. It is in the face of the heaviest penalties that respect for the right to a fair trial must be ensured to the highest possible degree by democratic societies (see Salduz, cited above, § 54). That raises the question whether the applicant was duly informed of his right to legal assistance as of the time of his arrest, as domestic law in fact provided (see paragraph 59 above). 127.", "In their observations and at the hearing, the Government, with reference to the relevant provisions of domestic law requiring the authorities to inform persons charged with a criminal offence of their rights (see paragraph 101 above), submitted that the applicant had received that information just after his arrest. Yet the case file contains no written trace of such a measure and the Government have not supported their allegation with any further evidence. The Court can only note that the order for the applicant’s detention, which mentioned his right to legal assistance, had not been signed by him and that there is no evidence to show that he was issued with a copy of the order after his arrest (see paragraphs 13 and 14 above). It must therefore be assumed that he was never properly served with the order. As a result, the applicant was not verifiably informed of his procedural rights before the date on which he was charged, that is to say 6 October 1999 (see paragraph 21 above).", "128. The Court reiterates that the receipt of such information by the accused person is one of the guarantees enabling him to exercise his defence rights and allowing the authorities to ensure, in particular, that any waiver by the accused of the right to legal assistance is voluntary, knowing and intelligent. That information therefore guarantees the effective possibility of exercising that right and – moreover – the validity of any waiver under the Convention (see paragraphs 115 and 119 above). Accordingly, even supposing that the applicant did not expressly request the assistance of a lawyer while in police custody, as provided in Bulgarian law at the material time, he cannot be deemed to have implicitly waived his right to legal assistance, since he had not promptly received such information after his arrest. His right to legal assistance was therefore restricted.", "(c) Whether there were “compelling reasons” to restrict access to a lawyer 129. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see paragraph 117 above). 130. However, the Government mentioned no such exceptional circumstances, and it is not the Court’s task to assess of its own motion whether they existed in the present case. It therefore sees no “compelling reason” which could have justified restricting the applicant’s access to a lawyer while he was in police custody: there were no allegations of imminent danger to the lives, physical integrity or security of other persons (see, to converse effect, Ibrahim and Others, cited above, § 276).", "Furthermore, domestic legislation on access to a lawyer during detention in police custody did not explicitly lay down any exceptions to the application of that right (see paragraphs 59 and 64 above). It would appear that the events in the instant case correspond to a practice on the part of the authorities which has also been severely criticised by the CPT (see the CPT’s 2015 public statement, paragraph 80 above). 131. The Court observes in that connection that such a practice on the part of the authorities would be difficult to reconcile with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in all its Articles (see Stafford v. the United Kingdom [GC], no. 46295/99, §63, ECHR 2002-IV).", "(d) Whether the overall fairness of the proceedings was ensured 132. The Court must seek to ascertain whether the absence of a lawyer while the applicant was in police custody had the effect of irretrievably prejudicing the overall fairness of the criminal proceedings against him. The lack of “compelling reasons” in the present case requires the Court to conduct a very strict scrutiny of the fairness of the proceedings. It is incumbent on the Government to demonstrate convincingly that the applicant nonetheless had a fair trial (see paragraph 118 above). 133.", "In that connection, the Government referred to the following circumstances: the applicant had not been formally questioned in the absence of a lawyer during his time in police custody; no statement that the applicant might have made during that time had been taken into account or subsequently used in evidence against him; his conduct while in police custody had not been taken into account by the prosecuting authorities or the relevant courts; he had at no stage complained to the authorities of having been forced to confess while in police custody; he had benefited from a wide range of procedural safeguards during criminal proceedings which had had all the attributes of a fair trial (see paragraph 103 above). 134. The Court notes that the parties disagree on whether the applicant was questioned in the absence of a lawyer over the period from 3 to 6 October 1999. Drawing on the absence of any document mentioning this point, the Government submitted that even supposing a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings (see paragraph 103 above). The applicant, for his part, stated before the Grand Chamber that he had been questioned and that it would have been illogical for the authorities to have missed such an opportunity to obtain further evidence (see paragraph 97 above).", "135. The Court notes in that connection that the version of events set out by the applicant during the proceedings before it has changed as the case had unfolded. In his application to the Court the applicant was very vague on this subject. It was not until he submitted his memorial before the Grand Chamber that he provided a number of more specific details, affirming, for example, that he had made statements while in police custody, and disclosing the content of those statements and the name of the lawyer whom he had asked to contact. The Court also observes that the applicant did not mention his lack of legal assistance while in police custody in the proceedings before the Burgas Court of Appeal (see paragraph 34 above) and that his appeal on points of law referred only marginally to the absence of a lawyer on 4 October 1999 in the context of a separate plea relating to the exclusion of evidence obtained in the presence of his officially assigned lawyer (see paragraph 42 above).", "Moreover, whereas the handwritten statement of his presumed accomplice, A.S., dated 3 October 1999, was included in the case file (see paragraph 20 above), there is no prima facie evidence for the Court to conclude that the applicant was formally or informally questioned while in police custody. 136. Be that as it may, the Court attaches decisive importance to the fact that during that period of about three days no evidence capable of being used against the applicant was obtained and included in the case file. No statement was taken from the applicant. No evidence in the file indicates that the applicant was involved in any other investigative measures over that period, such as an identification parade or biological sampling.", "Furthermore, the applicant did not personally allege before the Court that the domestic courts had possessed evidence presented during that period and used it at the trial in order to secure his conviction. 137. It should be emphasised here that the domestic law and the domestic courts’ case-law provided for the exclusion of evidence obtained in a manner incompatible with the rules of the Code of Criminal Procedure (see paragraph 68 above). In the applicant’s case, because he was liable to a life sentence, legal assistance during questioning was also a sine qua non for the admissibility in evidence at the trial of any statement on his part (see paragraph 65 above). 138.", "In addition, unlike in the cases of John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996‑I) and Averill v. the United Kingdom (no. 36408/97, ECHR 2000‑VI) the failure of the accused to make any statement would have had no impact on the ensuing stages of the criminal proceedings. The applicant could even have benefited from remaining silent if he had not opted to confess at a subsequent stage in the proceedings, when he had already secured the assistance of a lawyer of his choosing. 139. On 21 October 1999, two weeks after he had been formally charged, the applicant voluntarily confessed (see paragraphs 21 and 24 above).", "In assessing the voluntary nature of that confession, the Court has regard to the fact that the applicant had already been questioned on two occasions, on 6 and 12 October 1999, with the assistance of a lawyer, and that he had remained silent on both those occasions (see paragraphs 21 and 23 above). During both these interrogations, and when he confessed on 21 October 1999, he had already been informed of his procedural rights, particularly the right not to incriminate himself (see paragraph 21 above). At that time, moreover, he was in receipt of the advice and assistance of a lawyer of his choosing (see paragraphs 23 and 24 above). 140. It is not disputed that only the confession made by the applicant on 21 October 1999 was used in order to convict him.", "No causal link was ever posited, either before the domestic courts or before the Court, between the absence of a lawyer from 3 to 6 October 1999 and the applicant’s confession two weeks after the end of that period in the presence of a lawyer of his choosing (see, mutatis mutandis, Gäfgen v. Germany [GC], no. 22978/05, § 180, ECHR 2010). Consequently, the absence of a lawyer during the applicant’s time in police custody in no way prejudiced his right not to incriminate himself. 141. The Court further notes that the applicant actively participated at all stages in the criminal proceedings: he subsequently retracted his initial statements, presenting a different version of events, and his defence lawyers obtained exculpatory evidence and contested the incriminating evidence (see paragraphs 27, 29, 31, 35 and 42 above).", "142. Moreover, the applicant’s conviction was not based exclusively on his confession of 21 October 1999, which he made in the presence of the lawyer of his choosing, but on a whole body of consistent evidence, including the statements of a large number of witnesses who had been questioned during the assessment of the case, the results of ballistic, technical and accountants’ reports and medical and psychiatric opinions, and also on the physical and documentary evidence gathered (see paragraphs 26, 33, 36-41 and 43 above). 143. The case was examined at three levels of jurisdiction, by a regional court, a court of appeal and the Supreme Court of Cassation. All these courts gave due consideration to the evidence available, including the statements of the many witnesses questioned during the assessment of the case, the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, as well as the physical and documentary evidence gathered.", "Their decisions, which were properly reasoned in factual and legal terms, also duly assessed whether the applicant’s procedural rights had been respected (see paragraphs 31-44 above). 144. In the light of these findings, the Court considers that the Government provided relevant and sufficient evidence to demonstrate that the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the absence of legal assistance while he had been in police custody, from 3 to 6 October 1999. (e) Conclusion 145. In conclusion, there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.", "IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 146. The applicant invited the Court to indicate to the Government, as it had done in the case of Harakchiev and Tolumov (cited above, § 280), measures for the execution of a finding of violation of Article 3 of the Convention owing to the material conditions of detention and the regime applicable to life prisoners. 147. The Government did not state a position on that matter.", "148. The relevant part of Article 46 of the Convention reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ...” 149.", "Under Article 46 the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or the Protocols thereto imposes on the respondent State the legal obligation not just to pay those concerned the sums awarded by way of just satisfaction pursuant to Article 41 of the Convention but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures which it considers appropriate to incorporate into domestic law in order to put an end to the violation found by the Court and to redress as far as possible the effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used under its domestic law to comply with that obligation. However, with a view to helping the respondent State in that task, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, §§ 254-255, ECHR 2012).", "150. The Court reiterates that it set out the following recommendations in its Harakchiev and Tolumov judgment (cited above, § 280): “The breach of Article 3 of the Convention found in the present case in relation to the regime and conditions of the applicants’ detention flows in large part from the relevant provisions of the 2009 Execution of Punishments and Pre-Trial Detention Act and its implementing regulations ... It discloses a systemic problem that has already given rise to similar applications (see Chervenkov [v. Bulgaria, no. 45358/04], §§ 50 and 69-70[, 27 November 2012], and Sabev [v. Bulgaria, no. 27887/06], §§ 72 and 98‑99[, 28 May 2013]), and may give rise to more such applications.", "The nature of the breach suggests that to execute this judgment properly, the respondent State would be required to reform, preferably by means of legislation, the legal framework governing the prison regime applicable to persons sentenced to life imprisonment with or without parole. That reform, invariably recommended by the CPT since 1999 ..., should entail (a) removing the automatic application of the highly restrictive prison regime currently applicable to all life prisoners for an initial period of at least five years, and (b) putting in place provisions envisaging that a special security regime can only be imposed – and maintained – on the basis of an individual risk assessment of each life prisoner, and applied for no longer than strictly necessary.” 151. The Court observes that in the present case it found a violation of Article 3 of the Convention on account of the applicant’s conditions of detention taken in conjunction with his restrictive prison regime and the length of his period of imprisonment (see paragraphs 90 and 91 above). Those circumstances, as well as the applicable domestic legislation, are identical to those which led the Court to find a violation of Article 3 on account of the material conditions of detention and the prison regime in the Harakchiev and Tolumov judgment, cited above. It therefore considers it appropriate to reiterate the recommendations which it set out in paragraph 280 of that judgment concerning: (a) removing the automatic application of the special prison regime to life prisoners, and (b) putting in place provisions permitting the imposition of that regime on the basis of an individual risk assessment.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 152. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 153. The applicant clamed 10,000 euros (EUR) in respect of non‑pecuniary damage sustained owing to his prison regime and his conditions of detention. 154.", "The Government made no observations before the Grand Chamber on that matter. 155. In its judgment of 20 October 2015 the Chamber awarded the applicant EUR 8,000 under this head. 156. The Court considers that the applicant sustained non-pecuniary damage owing to the poor conditions to which he was exposed in the custodial facilities in which he was held and the restrictive prison regime to which he was subject.", "Like the Chamber, the Court considers that he should be awarded EUR 8,000 under this head. B. Costs and expenses 157. The applicant claimed EUR 2,160 in respect of lawyer’s fees and 767 Bulgarian levs (BGN) in respect of the other costs and expenses incurred during the proceedings before the Chamber, as well as EUR 6,420 in respect of lawyer’s fees, EUR 927.27 in respect of travel expenses and BGN 1,929 in respect of other costs and expenses incurred during the proceedings before the Grand Chamber. 158.", "The Government made no observations on that point. 159. In its judgment the Chamber awarded the applicant EUR 2,589.50 in respect of costs and expenses. 160. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sum of EUR 8,000 reasonable in respect of all the expenses incurred during the proceedings before the Chamber and the Grand Chamber, less EUR 2,952.52 received from the Council of Europe in respect of legal aid, and awards that sum to the applicant. C. Default interest 161. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Holds, unanimously, that there has been a violation of Article 3 of the Convention; 2.", "Holds, by twelve votes to five, that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention; 3. Holds, by fourteen votes to three, (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 8,000 (eight thousand euros), less EUR 2,952.52 (two thousand nine hundred and fifty-two euros and fifty-two cents) paid by the Council of Europe in respect of legal aid, plus any tax that may be chargeable to the applicant, in respect of costs and expenses incurred before the Convention institutions; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 May 2017. Johan CallewaertAndrás SajóDeputy to the RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) Partly dissenting opinion of Judges Sajó, Lazarova-Trajkovska and Vučinić, joined by Judge Turković; (b) Partly dissenting opinion of Judge Serghides.", "A.S.J.C. PARTLY DISSENTING OPINION OF JUDGES SAJÓ, LAZAROVA-TRAJKOVSKA AND VUČINIĆ JOINED BY JUDGE TURKOVIĆ To our regret, contrary to the majority, we cannot conclude that in the present case the Government have discharged the burden of proof imposed on it by virtue of the standards set out in Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016. While we join the majority in finding a violation in respect of Article 3, we respectfully dissent as regards Article 6 § 3 taken in conjunction with Article 6 § 1, and would find a violation. We are concerned about the implications of this judgment.", "Today the Court not only turns a blind eye to practices that target the very core of the rights of the criminally accused, but also grants police officers and prosecutors broad opportunities for undocumented, unregulated abuse. Under the reasoning of the majority, suspects can be detained, kept in isolation and potentially intimidated, provided that no written record of these events is left behind. This judgment also unwittingly projects the Ibrahim finding beyond the contours of that judgment. In that case, retrenchments on Article 6 § 3 defence rights could be justified exceptionally where “compelling reasons” existed for doing so. Here, by contrast, there are no exceptional facts or special circumstances, no reasons adduced by the Government to justify restrictions on the applicant’s rights, and a host of unexplained omissions in the Government’s submissions.", "The applicable standard for overall fairness of a criminal trial The applicable standard as determined in the recent Ibrahim and Others judgment is very clear: where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment. The respondent Government’s failure to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the scales in favour of finding a breach of Article 6 §§ 1 and 3 (c). Consequently, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Ibrahim and Others, cited above, § 265). The overarching purpose of Article 6 is to guarantee the procedural rights that secure a fair trial for each and every accused person. For Article 6 to remain both “practical and effective” (see, among many other authorities, Salduz v. Turkey [GC], no.", "36391/02, § 51, 27 November 2008, and Dvorski v. Croatia [GC], no. 25703/11, § 82, 20 October 2015), the minimum procedural rights guaranteed to each person cannot be restricted in the absence of compelling and convincing reasons. [1] The core issue in the present case is whether the Government have proved, in line with the standards of very strict scrutiny, that the overall fairness of the proceedings was not irretrievably prejudiced on account of the Bulgarian authorities’ failure to: (i) duly notify the applicant of his defence rights and of the charges against him on his arrest, (ii) keep adequate records of the applicant’s period of police custody from 3 to 6 October 1999; (iii) grant the applicant access to legal assistance during his detention in custody; (iv) grant the applicant an opportunity to appoint a lawyer of his own choice; and (v) protect the applicant’s privilege against self-incrimination in order to ensure that his confession was fully voluntary and informed and made with the benefit of adequate access to legal advice and services. Furthermore, in the light of the Bulgarian courts’ failure to assess whether these numerous procedural violations irretrievably prejudiced the case, we are unable to agree with the majority’s conclusion that the Government have proved that the overall fairness of the proceedings was not irretrievably prejudiced. Facts surrounding the applicant’s detention and pre-trial custody The applicant was arrested and detained on 6 October 1999.", "The Government have observed that the applicant was entitled to legal assistance as of the time of his arrest, and that it had been the police officers’ duty to inform him of that right (see judgment, § 101). However, the only arrest order of 9 July 1999 that referenced his right to legal assistance was not signed by the applicant; it must therefore be assumed that the applicant was never properly served with this order (see judgment, §§ 60, 128). Moreover, the applicant was not provided with a lawyer at the time of his arrest or detention. Thereafter, the applicant was kept in custody for three days. He was allegedly kept incommunicado during this time; the fact is that his parents were only informed about his arrest three days after he was taken into custody (see the applicant’s submissions, § 56).", "The applicant’s and the Government’s testimonies diverge as to whether the applicant was interrogated during this period. The applicant alleges that he was repeatedly questioned on the occasion of informal invitations into the investigator’s office to smoke. The Government allege that no “formal interrogation” took place, without expressly rejecting the allegation that “informal” questioning took place (see Oral Pleadings of the Government of Bulgaria, p. 6). A public defender was appointed for the applicant on 6 October 1999, notwithstanding the applicant’s claim that he had submitted four separate requests for a lawyer of his own choosing between 3 and 6 October 1999 which the authorities had ignored (see judgment, § 18). The applicant was officially charged and interrogated at noon on 6 October.", "He remained silent during this interrogation, as the interrogation record shows. On 7 October, the applicant’s co-accused confessed to having been an accessory to the double murder and robbery and that the applicant had killed both victims. On 8 October, the applicant engaged a private lawyer practising in Burgas. This lawyer had not met the applicant before a second interrogation which was conducted on 12 October, when in the presence of the lawyer of his choice, he again chose to remain silent. On 21 October, the applicant confessed in the presence of his lawyer, with whom he had had no opportunity to have confidential or other conversation.", "He alleged at that time that his co-accused had killed the victims. Subsequently, on 22 December, the applicant hired a second lawyer practicing in Sofia. On 4 January 2000, the applicant and the co‑accused, assisted by counsel, retracted their confessions, and their lawyers requested that their clients be questioned once again. This Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons injured while in custody, strong presumptions of fact will arise. The burden of proof then falls upon the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid v. Belgium [GC], no.", "23380/09, § 83, ECHR-2015; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; and Rivas v. France, no. 59584/00, § 38, 1 April 2004; see also, among other authorities, Turan Cakir v. Belgium, no. 44256/06, § 54, 10 March 2009; Mete and Others v. Turkey, no. 294/08, § 112, 4 October 2011; and El‑Masri v. the former Yugoslav Republic of Macedonia [GC], no.", "39630/09, § 152, ECHR‑ 2012). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El-Masri, cited above, § 152). Placing the evidentiary burden upon the Government is justified by various considerations. First, persons in custody are in a vulnerable position, as this Court has repeatedly acknowledged, and the authorities are under a duty to protect them (see, among other authorities, Salman, cited above, § 99). The investigation stage may be particularly decisive as regards the course to be taken by the ensuing criminal proceedings (see John Murray v. United Kingdom, 8 February 1996, § 63, Reports of Judgments and Decisions 1996 I; Martin v. Estonia, no.", "35985/09, § 79, 30 May 2013). The fact of isolating detainees and depriving them of information may be compounded by complex legislation on criminal procedure, notably with regard to the rules governing the gathering and use of evidence (see Salduz, cited above, §§ 52 and 54; Dvorski, cited above, § 77; and Ibrahim and Others, cited above, § 253). Detained persons cannot document evidence of their treatment short of what the State can provide (through medical examinations, written records, and so forth). Finally, because in this instance the applicant’s defence rights were restricted (see judgment, § 128) without compelling reasons, the onus is on the Government to demonstrate convincingly why the overall fairness of the trial was not prejudiced by the restriction on access to legal advice (see Ibrahim and Others, cited above, § 265). For these reasons, a proper application of the Ibrahim framework would compel the Bulgarian Government to prove that no coercion or compulsion was exerted upon the applicant during the three-day period that preceded his formal charging and interrogation.", "The defence rights of the applicant It is well established that Article 6 guarantees the individual the right to be notified of his defence rights once he is the subject of a “criminal charge”[2]; these rights include the right to remain silent and the right not to incriminate oneself (see Bykov v. Russia [GC], no. 4378/02, § 92, 10 March 2009; John Murray, cited above, § 45; and Serves v. France, 20 October 1997, § 47, Reports of Judgments and Decisions 1997‑VI). Secondly, he has the right to legal assistance once he is subject to a criminal charge (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; and McFarlane v. Ireland [GC], no.", "31333/06, § 143, 10 September 2010). These rights are echoed in European Union law[3] and the International Covenant on Civil and Political Rights. [4] The fairness of proceedings also generally requires that an accused be able to obtain the whole range of services specifically associated with legal assistance, which include, without restriction, the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention (see Dayanan v. Turkey, no. 7377/03, § 32, 13 October 2009, and Bogumil v. Portugal, no. 35228/03, §§ 48-49, 7 October 2008).", "The defence rights protected under Article 6 serve to preserve the equality of arms between the State and individuals accused of criminal offences (see Foucher v. France, 18 March 1997, § 34, Reports of Judgments and Decisions 1997‑II; Bulut v. Austria, 22 February 1996, § 47, Reports of Judgments and Decisions 1996‑II; Bobek v. Poland, no. 68761/01, § 56, 17 July 2007; and Klimentyev v. Russia, no. 46503/99, § 95, 16 November 2006). This Court has held that the vulnerability of detained persons during the investigative stage “can only be properly compensated by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself” (see Salduz, cited above, § 54). Where access to a lawyer is delayed, there is a greater need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and his privilege against self-incrimination.", "A fortiori, it is all the more important that persons in police custody be granted the assistance of a lawyer when they have not previously been informed by the authorities of their right to remain silent (see Brusco v. France, no. 1466/07, § 54, 14 October 2010, and Navone and Others v. Monaco, no. 62880/11 and two others, § 74, 24 October 2013). [5] Moreover, a failure to notify an applicant of his defence rights is considered a particularly significant defect (see Ibrahim, cited above, § 303) and will make it even more difficult for the Government to rebut the high threshold of the presumption of unfairness that arises where there are no compelling reasons for delaying access to legal advice (see Ibrahim and Others, cited above, §§ 273 and 311). In Bulgarian law legal assistance is a right from the time of arrest (see section 70 of the 1997 Ministry of the Interior Act and Articles 70 and 73 of the 1974 Code of Criminal Procedure).", "The right to legal counsel cannot be waived in cases involving offences carrying a sentence of over ten years imprisonment, as in the present case (see Article 70 of the 1974 Code of Criminal Procedure). Under the established case-law of the Bulgarian Supreme Court of Cassation, where the authorities have failed to formally charge a suspect in accordance with the requirements of the Code of Criminal Procedure, that omission amounts to a restriction of the rights of the defence and forces the court to refer the case back to the preliminary investigation stage (see judgment, § 66). Assessment of overall fairness of the trial We cannot agree with the majority’s conclusion that the overall fairness of the trial was convincingly established because the evidence on which the applicant was convicted was not affected by the absence of a lawyer when he was detained. The Government have provided little or no evidence concerning the applicant’s pre-trial detention, during which the Government have acknowledged violating the applicant’s rights under domestic and EU law and under this Convention (see judgment, §§ 59 and 101). The Government have not rebutted the applicant’s allegations that he was informally questioned in detention, which information could have been used to charge him in the first place.", "Nor have the Government proved that the procedural violations which they committed, in combination, did not affect the voluntariness of the accused’s confession, which he later retracted. Since the applicant has repeatedly alleged that he was questioned by the authorities when he was in custody, we cannot agree with the majority that no causal link was posited by the applicant before the domestic courts or this Court concerning the absence of a lawyer during his detention from 3 to 6 October and the confession he made on 21 October (see judgment, § 140). Nor can we agree with the majority’s conclusion that consequently, the absence of a lawyer during the applicant’s time in police custody in no way prejudiced his right against self-incrimination (see judgment, § 140). This Court has traditionally acknowledged that restricting access to legal advice during the investigative stage, when the applicant is at his most vulnerable, can affect the overall fairness of the proceedings. Neither subsequent legal assistance nor the adversarial process of the ensuing proceedings will necessarily cure defects which occur during the applicant’s pre-trial custody period (see Mehmet Şerif Öner v. Turkey, no.", "50356/08, § 21, 13 September 2011; Leonid Lazarenko v. Ukraine, no. 22313/04, § 57, 28 October 2010; Salduz, cited above, § 58; and Płonka v. Poland, no. 20310/02, §§ 39-41, 31 March 2009). [6] The approach of the majority concentrates solely on the evidence which was used to convict the applicant, which is inconsistent with the requirement to examine the proceedings as a whole and not on the basis of an isolated consideration (see Ibrahim, cited above, § 251). Moreover, such an approach permits the Government to focus only on evidence used to convict the applicant when discharging its burden to prove that overall fairness was maintained.", "This approach is, firstly, inconsistent with the requirements of Ibrahim, according to which the Court is required to take into account the cumulative effect of the procedural shortcomings when assessing whether or not the Government have proved that the overall fairness of the trial was not irretrievably prejudiced by the decision not to caution him and to restrict his access to legal advice (see Ibrahim, cited above, § 311). [7] Secondly, this approach risks rendering the procedural rights protected under Article 6 theoretical and illusory by conflating the issue of proving that the applicant received a fair trial with that of the applicant’s substantive guilt. According to the well-established case-law of this Court, the prosecution must prove a case without resort to evidence obtained through coercion or in defiance of the will of the accused (see, among many authorities, Saunders v. the United Kingdom, 17 December 1996, § 68, Case-law Reports 1996‑VI; Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-IX; and Schmid-Laffer v. Switzerland, no. 41269/08, § 38, 16 June 2015).", "The voluntariness and validity of the applicant’s ensuing confession are called into question when, as here, the procedural rights of the applicant are violated during pre-trial detention (see, mutatis mutandi, Bouyid, cited above, § 83; John Murray, cited above, § 45; Mehmet Şerif Öner, cited above, § 21; Lopata, cited above, §§ 137, 140‑44; and Averill, cited above, § 60). In this case, a number of the applicant’s rights under this Court’s case‑law and domestic law were violated by the Bulgarian investigating authorities, as the Court concedes (§ 122, 124, 127). The Government failed to present the applicant with his order of arrest and to inform him of his defence rights upon arrest (see judgment, § 127), to assign him a lawyer upon arrest (see judgment, § 101), to promptly notify his parents of his detention, and to keep proper records of his custody. [8] Failure by a State to keep proper records in relation to the events surrounding an accused’s detention, the reasons for it, and its duration, as well as regarding whether the accused was duly notified of his defence rights upon arrest has been held by this Court to constitute a violation of Article 5 (see Smolik v. Ukraine, no. 11778/05, § 45, 19 January 2012, and Menesheva v. Russia, no.", "59261/00, § 87, ECHR 2006‑III). [9] The applicant, furthermore, was also initially assigned a court-appointed lawyer not of his own choosing and questioned almost immediately thereafter, such that it was impossible for him at this stage to confer with his defence counsel in order to prepare his defence. In this connection, the applicant’s claim that he was unable to have confidential meetings with his lawyer, as an investigator always remained present during his legal consultations, is almost an afterthought. Without evidence from the Government to prove the contrary, these facts constitute a breach of the applicant’s right to effective assistance of counsel (see Bogumil, cited above, § 48; Dvorski, cited above, § 79; Dayanan, cited above, § 32; Bonzi v. Switzerland, Commission decision, no. 7854/77, 12 July 1978; and Can v. Austria, Commission report, § 52, no.", "9300/81, 30 September 1985). This Court has consistently held that the national authorities must have regard to the defendant’s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Dvorksi, cited above, § 79; see also Meftah and Others v. France [GC], no. 32911/96 and two others, § 45, ECHR 2002-VII; Mayzit v. Russia, no. 63378/00, § 66, 20 January 2005; Klimentyev, cited above, § 116; Vitan v. Romania, no. 42084/02, § 59, 25 March 2008; Pavlenko v. Russia, no.", "42371/02, § 98, 1 April 2010; Zagorodniy v. Ukraine, no. 27004/06, § 52, 24 November 2011; and Martin, cited above, § 90). Where such grounds are lacking, as in the present case, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 together with paragraph 3 (c) if it adversely affected the applicant’s defence, regard being had to the proceedings as a whole (Dvorski, cited above, § 79 see also Meftah and Others, cited above, §§ 46‑47; Vitan, cited above, §§ 58-64; Zagorodniy, cited above, §§ 53-55; and Martin, cited above, §§ 90-97). Taken together, these factors give reason to doubt that the applicant had effective access to legal counsel prior to his confession, especially as the applicant and his co-accused immediately retracted their confessions on engaging a different lawyer and obtaining access to their case files (judgment, § 27). Beyond these clear-cut violations, the Government’s own submissions are riddled with errors and omissions.", "The Government’s contention that no interrogations of the applicant took place between 3 to 6 October is contradicted, not only by the Chamber judgment (“During that time the officials ... questioned [the applicant] about the robbery and the two murders committed in Burgas” [see judgment, § 9]), but indeed, by their own pleadings (“Mr President, it is possible that a conversation, or even questioning, took place between the applicant and police officers or an investigator in Sofia. This questioning, however, was not objectified in any form.” (Oral Pleadings of the Government of Bulgaria, p. 6)). According to this Court, any conversation between a detained criminal suspect and the police must be treated as formal contact and cannot be characterised as “informal questioning,” even if the authorities claim not to have relied on information provided by such questioning (see Martin, cited above, §§ 95‑97, and Titarenko v. Ukraine, no. 31720/02, § 87, 20 September 2012). Other established facts in this case give reason to doubt that the applicant freely exercised his privilege against self-incrimination.", "First, during the three days in question, interrogations were conducted of a witness to the crime and the applicant’s co-accused, a signed confession from whom was entered into the case file on 3 October 1999 (see judgment, § 20). In the light of those interrogations, the applicant, who was being detained separately from his co-accused, would have been trapped in a classic Prisoner’s Dilemma – a situation expressly designed to apply pressure upon a detainee with the aim of eliciting a confession or another incriminating admission. In this situation, the applicant’s restricted access to legal representation was such as to leave him exposed to such pressure in a manner inconsistent with the right to be free from self-incrimination (see Brusco, cited above, § 54). The 1999 Report of the Committee for the Prevention of Torture (CPT) confirms that it was standard practice at the time for Bulgarian police officers to have an initial “talk” with a person taken to the police station, lasting up to 3 hours. [10] Detained persons were often not informed of their right of access to a lawyer, and such access “was rarely – if ever – granted to persons throughout their period of custody.”[11] In 2015, the CPT updated this report, expressing concern for “persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment” of detained persons.", "In particular, access to a lawyer during the initial phase of police custody was routinely denied prisoners (see judgment, § 79). This Court admits that “[i]t would appear that the events in the present case correspond to a practice on the part of the authorities which has been severely criticised” (see judgment, § 130). It observes, further, that “such a practice on the part of the authorities would be difficult to reconcile with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in all its Articles” (see judgment, § 131), but goes no further than these brief comments. The majority further relies on the contention that the applicant’s conviction was not based exclusively on the confession made on 21 October 1999, but on a whole body of evidence (see judgment, § 142). The Court concludes that it is “unfortunate that the applicant’s first three days in detention were not properly documented” (see judgment, § 124) so as to avoid the evidentiary gaps with which this Court contends in the present case, but it summarily concludes that “no causal link” (see judgment, § 140) exists between the absence of a lawyer and the applicant’s confession two weeks later.", "It is far from clear that there is no causal link between this wider body of evidence, the applicant’s confession, and the absence of a lawyer during the applicant’s time in police custody. As mentioned above, the police had obtained a confession from the co-accused and a witness while the applicant was held in custody. Further, the police only gathered a larger body of evidence after the applicant had confessed on 21 October (see judgment, § 26). The Government have not demonstrated that this evidence was gathered independently from whatever knowledge or insights the police had gained from the applicant’s confession. Given the inadequacy of the information presented by the Government and the failure of the domestic courts to address any of these points satisfactorily in their respective judgments, the Court cannot determine that the confession was not decisive in convicting the applicant.", "This Court has emphasised that in determining whether the proceedings as a whole were fair, regard must also be had as to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubts on its reliability or accuracy. In this connection, the Court further attaches weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (see Gäfgen v. Germany [GC], no. 22978/05, §§ 164 and 165, ECHR 2010, and Khan v. the United Kingdom, no.", "35394/97, §§ 35 and 37, ECHR 2005). Given that this Court has held that an accused’s right to silence and privilege against self‑incrimination are generally recognised international standards which lie at the heart of the notion of fair procedure under Article 6 (see Brusco, cited above, § 44; and John Murray, cited above, § 45), we cannot agree that the Government have proved the fairness of the trial, since they cannot prove that they did not violate the applicant’s rights under Article 6 in obtaining the confession and subsequent evidence. We emphasise that, notwithstanding serious doubts concerning the conduct of the investigation, we are not called upon to establish the bad faith of the investigative authorities. Yet in the light of the absence of reasons for delaying access to a lawyer, the Government’s reliance on the absence of proof of a violation of the applicant’s rights to effective counsel (see judgment, § 101) is insufficient to demonstrate that the applicant’s right to a fair trial was not irretrievably prejudiced. This Court has held that a Government’s failure to provide an explanation as to why an accused was denied legal assistance when being held in police custody constitutes a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 (see Galip Doğru v. Turkey, no.", "36001/06, §§ 83-85, 28 April 2015). [12] These omissions and equivocations are particularly serious in the light of the multiple procedural violations committed by the Bulgarian authorities during the applicant’s period of pre-trial detention, as recognised by this Court. The applicant’s right to a fair trial under Article 6 was also prejudiced by the review conducted by Bulgarian courts, which failed to identify and assess a number of procedural violations. Firstly, the defence had raised several breaches of procedural rules under domestic law before the Regional Court, but these do not appear to have been addressed in its judgment (see judgment, §§ 37-41). Furthermore, in his appeal before the Supreme Court of Cassation, the applicant alleged that his right to a lawyer under domestic law and the Constitution had been violated, but this argument was not considered either (see judgment §§ 43-44).", "The Supreme Court of Cassation considered that the facts had been well‑established and the relevant procedural legislation appropriately applied (see judgment, § 44). It is hard to conceive how it could have reasonably arrived at this conclusion given that the Government had provided no evidence to support the assertion that it had duly complied with all the procedure steps which it was legally obliged to conduct. Under Bulgarian law, where investigating authorities fail to comply with the obligation to inform the accused of the legal basis of the accusation in accordance with procedure, or fail to provide the accused with a defence lawyer, a trial court would have grounds to terminate the court proceedings and refer the case back to the investigation stage (see judgment, § 66). Thus, we cannot conclude with the majority that the domestic courts at all levels of jurisdiction duly assessed whether the applicant’s procedural rights had been respected (see judgment, § 143). Secondly, the Government offered no proof to rebut the applicant’s allegations that he had been questioned without a lawyer before the police charged him with murder.", "In Martin, cited above, the Court held that there was nothing to prevent the use of pre-trial statements as “general knowledge” to form the basis of the charge against an accused and the investigative measures that were subsequently carried out. Thus, the use of such statements to support a charge would necessarily compromise the overall fairness of the proceedings and render any subsequent evidence (such as the confession) inadmissible (see § 95). In light of the Government’s admission of “informal questioning”, supported by the CPT Report’s documentation of such systematic practices among investigators, we disagree with the majority that no evidence capable of being used against the applicant was obtained by the authorities during the three-day period at the start of the applicant’s detention, even if there was no decisive reliance on said evidence in the final judgment (see judgment, § 137). Thirdly, it is clear that the domestic courts did not deal with the matter of legal assistance in any meaningful sense, despite the fact that the applicant consistently raised this claim before the domestic courts, and both parties agree that the applicant was denied legal assistance during his time in custody. This Court has ruled, in similar factual circumstances, that where “the relevant [domestic] court decisions contain no meaningful ruling on the issue of legal assistance ... the Court is not satisfied that the applicant’s grievance received an appropriate response from the national courts and considers that fair procedures for making an assessment of the issue of legal assistance proved non-existent in the present case” (see Vanfuli v. Russia, no.", "24885/05, §§ 103-105, 3 November 2011, and Nechto v. Russia, no. 24893/05, §§ 111-113, 24 January 2012). Accordingly, we conclude that the domestic courts failed to conduct an adequate review of the applicant’s case under domestic law. Therefore, even in the absence of evidence from the Government that the confession was fully informed and voluntary, we maintain that they have failed to prove that the applicant’s treatment at the hands of the Bulgarian authorities did not irretrievably prejudice the overall fairness of the trial. Implications of the overall fairness framework in the context of Article 6 § 3 In a very recent decision, this Court stressed “the need to look beyond appearances and the language used and to concentrate on the realities of the situation” (see Blokhin v. Russia [GC], no.", "47152/06, § 180, ECHR 2016). Today’s judgment disregards the invitation to do just that, with deeply troubling implications. What, we might ask, are the incentives provided to police officers when, as today, this Court legitimates a potential legal black hole in which the applicant is detained for an unspecified length of time with no rights to information or legal counsel, so long as he is not officially questioned? This Court acknowledges that the right to access to legal counsel, a “fundamental safeguard against ill-treatment,” should be provided “as from the first interrogation of a suspect by the police” (see Salduz, cited above, §§ 54, 55). However, as Judge Bratza wrote in a prescient concurrence in Salduz, “[i]t would be regrettable if the impression were to be left by the judgment that no issue could arise under Article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that Article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect.”[13] To deny an accused person access to a lawyer from the beginning of their detention may irretrievably prejudice that person’s rights of defence, whether or not such prejudice stems from the interrogation of the suspect.", "The language of Article 6 § 3 is clear: everyone charged with a criminal offence has the right to be “informed promptly” of the charges against him and to have “adequate time and facilities” for the preparation of his defence. In Ibrahim, the UK government invoked “compelling reasons” for delaying access to legal counsel, namely “an urgent need to avert serious adverse consequences for life, liberty or physical integrity” (§§ 258-259). In that case, an “imminent” threat, documented by a member State Government, led to an “exceptional” relaxation of the right of four suspected terrorists to be questioned only in the presence of a lawyer. Here, we have no exceptional situation, no compelling public interest in limiting the applicant’s fair-trial rights, and no Government explanation for why this departure from procedure was justified. The overall fairness analysis as applied in this case runs the risk of replacing the evaluation of the fairness of a trial with that of a plausibility of a conviction.", "It is true, of course, that the absence of compelling reasons is not sufficient of itself to found a violation (see Heaney and McGuinness v. Ireland, no. 34720/97, § 47, ECHR 2000-XII; Weh v. Austria, no. 38544/97, § 46, 8 April 2004; O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 53, ECHR 2007-III; and Dvorski, cited above, § 79). However, as we have stated, the finding of a violation is over‑determined in the present case, in the light of the vitiation of the accused’s “practical and effective” rights to legal assistance and the clear statutory violations committed by the Bulgarian police which passed unnoticed by the domestic courts.", "In the present case, the applicant’s fundamental rights of defence were violated without compelling reason and without counterbalancing elements. Pre-trial prisoners find themselves in one of the most vulnerable situations an individual can face during criminal proceedings, especially when they are denied access to legal assistance and information on their rights. We regret that today’s judgment only serves to weaken that position further still. PARTLY DISSENTING OPINION OF JUDGE SERGHIDES 1. Like the rest of my colleagues, I consider that there has been a violation of Article 3 of the Convention in the present case, but to my regret, I am unable to agree with the majority in finding that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention, for the reasons explained below.", "A. Whether an overall fairness assessment is required where there are no compelling reasons for restricting the right of access to a lawyer 2. Though I agree with the majority that there were no compelling reasons for restricting the applicant’s right of access to a lawyer for three days, from 3 to 6 October 1999, I disagree, with all due respect to them, that the question of the need for an overall fairness assessment should be answered in the affirmative. 3. I will examine below the leading Grand Chamber judgments concerning this issue in chronological order.", "4. In John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996‑I) the accused was without a lawyer for two days (a shorter period than the time during which the applicant in the present case had no access to a lawyer) and chose to remain silent during his interrogation. The Court stated clearly (ibid., § 66, emphasis mine) that this was incompatible with the provisions of Article 6 of the Convention, “whatever the justification for such denial” – that is, irrespective of whether or not there were compelling reasons for the restriction on access to a lawyer: “To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6.” The Court added in the same judgment (ibid., § 68, emphasis mine): “However, it is not for the Court to speculate on what the applicant’s reaction, or his lawyer’s advice, would have been had access not been denied during this initial period. As matters stand, the applicant was undoubtedly directly affected by the denial of access and the ensuing interference with the rights of the defence. The Court’s conclusion as to the drawing of inferences does not alter that...” 5.", "In Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) the Court made it clear that it would proceed to evaluate the overall fairness only if the restriction was justified, or otherwise if there were compelling reasons for it. 6. The following passages from Salduz (ibid., §§ 52 and 55) are relevant, and in particular, the wording emphasised by me gives a clear illustration of what has been said above: “... The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances ...” “...the Court finds that in order for the right to a fair trial to remain sufficiently ‘practical and effective’ (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.", "Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ...” 7. The phrases “if so” (in the French text of the judgment “dans l’affirmative”) and “Even where compelling reasons ...” (in French “Même lorsque des raisons impérieuses ...”) in the above statements from Salduz leave no doubt in my view that an overall assessment is required only when there are compelling reasons for the restriction. The phrases in question indicate when the door opens for proceeding to examine the overall fairness, which occurs only when there are compelling reasons for the restriction. 8. At the end of paragraph 56 of its judgment in Salduz, under the subheading “(b) Application of the above principles to the present case”, the Court stated the following, which is fully consistent with the principle it enunciated in paragraph 52 and repeated in paragraph 55 (emphasis mine): “Thus, no other justification was given for denying the applicant access to a lawyer that the fact that this was provided for on a systematic basis by the relevant legal provisions.", "As such, this already falls short of the requirements of Article 6 in this respect, as set out at paragraph 52 above.” 9. However, instead of stopping at the end of paragraph 56 in view of the above – that is, after finding that there were no compelling reasons for the restriction and that this fell short of the requirements of Article 6 – the Court in Salduz nevertheless proceeded to examine the substance of the case. It is apparent that the very brief statements it made about the substance of the case were guided purely by excessive caution, ex abundanti cautela. This could be supported by the following arguments: (a) Paragraph 57 starts with the words “The Court further observes that” (emphasis mine), and from then until the end of the subsection, the Court made a number of observations, probably in my view (a) by way of underlining that in this particular case there had been a violation of the principle that the guarantees of Article 6 §§ 1 and 3 (c) of the Convention must be practical and effective, since the applicant was not provided with a lawyer, and (b) by way of showing that the facts of the case were able to support this finding. This is strengthened by what the Court said in paragraph 55 of its judgment: “Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently ‘practical and effective’ (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided ...” (emphasis mine) (b) It would not be reasonable to argue that the Court in Salduz intended to contradict itself, and more precisely to revoke the principle it had so clearly enunciated before.", "(c) Even though it dealt with the substance of the case, the Court made no mention of the need for an “overall fairness assessment”, and nor did it use any similar terminology. (d) The Court in Salduz made it clear that what it was saying could not change or affect its conclusion that there had been a violation owing to the lack of compelling reasons for the restriction. This is supported by the passage from paragraph 56 (already quoted), as well as from the following passage from paragraph 58: “However, it is not for the Court to speculate on the impact which the applicant’s access to a lawyer during police custody would have had on the ensuing proceedings.” 10. In Dvorski v. Croatia ([GC], no. 25703/11, ECHR 2015) the principle set forth in Salduz seems to have been reversed, without any explanation.", "11. The principle established in Dvorski is that the Court examines the overall fairness only if there were not sufficient grounds for the restriction, and this is supported by the following passage from paragraph 82 of Dvorski (emphasis mine): “... the Court considers that the first step should be to assess whether it has been demonstrated in the light of the particular circumstances of each case that there were relevant and sufficient grounds for overriding or obstructing the defendant’s wish as to his or her choice of legal representation. Where no such reasons exist, the Court should proceed to evaluate the overall fairness of the criminal proceedings. In making its assessment, the Court may have regard to a variety of factors, including the nature of the proceedings and the application of certain professional requirements ...” 12. Dvorski, however, differs from Salduz and the present case, since the issue arising in the former was not a restriction of the applicant’s right to a lawyer, but to a lawyer of his choosing.", "13. In Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 263-65 and 301, ECHR 2016) the principle set forth was different from those principles set forth in the previous three cases, respectively. According to Ibrahim and Others, the overall fairness test must be examined in every case, irrespective of whether or not there were compelling reasons for the restriction. The only difference between cases where there were and where there were not compelling reasons for the restriction lies in the standard of evidential proof and which of the parties has to meet it.", "14. The approach followed by the Court in Ibrahim and Others is clear from the following passages (emphasis mine): “256. However, it has long been recognised that there is scope for access to legal advice to be, exceptionally, delayed (see, for example, John Murray, cited above; O’Kane v. the United Kingdom (dec.), no. 30550/96, 6 July 1999; and Magee and Brennan, both cited above). After reviewing the existing case-law in this area, the Court in Salduz, cited above, § 55, said: ‘... [T]he Court finds that in order for the right to a fair trial to remain sufficiently ‘practical and effective’ ..., Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.", "Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.’ 257. The test set out in Salduz for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question.", "In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair. ... 262. The Court accordingly reiterates that in assessing whether there has been a breach of the right to a fair trial it is necessary to view the proceedings as a whole, and the Article 6 § 3 rights as specific aspects of the overall right to a fair trial rather than ends in themselves (see paragraphs 250-251 above). The absence of compelling reasons does not, therefore, lead in itself to a finding of a violation of Article 6 of the Convention. (iv) The impact on the fairness assessment of the presence or absence of compelling reasons 263.", "The fact that the absence of compelling reasons is not, in itself, sufficient for a finding of a violation of Article 6 of the Convention does not mean that the outcome of the ‘compelling reasons’ test is irrelevant to the assessment of overall fairness. 264. Where compelling reasons are found to have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were ‘fair’ for the purposes of Article 6 § 1 ... 265. Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c) (see, for a similar approach with respect to Article 6 §§ 1 and 3 (d), Schatschaschwili, cited above, § 113).", "The onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice.” 15. That the burden of proof is shifted to the respondent State in the absence of compelling reasons is clear from paragraph 301 of Ibrahim and Others (cited above): “It falls to the Court to examine the criminal proceedings in respect of the fourth applicant as a whole in order to determine whether they were fair, within the meaning of Article 6 § 1. However, as noted above (see paragraph 265), in the absence of compelling reasons for the restriction of the fourth applicant’s right to legal advice, the burden of proof shifts to the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice.” (emphasis mine) 16. Though the Court in Ibrahim and Others used neither the terminology of the standard of proof applied in civil cases, namely “on the balance of probabilities”, nor the terminology applied in criminal cases, namely “beyond reasonable doubt”, what it said, however, seems to be, to put it simply, that the former standard applies to the applicant when there were compelling reasons, and the latter standard to the respondent State where there were no compelling reasons. 17.", "With all due respect, however, the Court in Ibrahim and Others overlooked, inter alia, the clear literal meaning of the words “if so” and “Even where compelling reasons” in paragraphs 52 and 55 respectively of Salduz, as if this wording was not included in the relevant passages of that judgment. By bypassing this wording, it assuredly did not follow the Latin legal maxim of interpretation, namely “interpretatio fienda est ut res magis valeat quam pereat” (that interpretation is to be made that the thing may stand rather than fall – see Jenkins, Centuries or Reports, 198), which usually applies in interpreting statutes and contracts but is also one of the manifestations of the principle of effectiveness, and therefore applies in interpreting a treaty and is itself embodied in Article 31 § 1 of the 1969 Vienna Convention on the Law of Treaties (see The Vienna Convention on the Law of Treaties – Travaux Préparatoires, Frankfurt, 1978, at pp. 239‑40; see also, regarding the “règle de l’effet utile” and the “règle de l’efficacité”, Georges Berlia, “Contribution à l’interpretation des traités”, in Collected Courses of the Hague Academy of International Law, 114 (1965‑1), pp. 396 et seq.). What better principle could one apply in understanding or interpreting words in a judgment which are absolutely clear than this principle, which gives full weight and meaning to every word used?", "Also quite pertinent are the following legal maxims of interpretation, which are based on common sense and which leave no doubt on the point at issue: “interpretatio cessat in claris” (interpretation stops when the text is clear); “quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est” (when there is no ambiguity in the words, then no exposition contrary to the words is to be made – see Coke, On Littleton, 147 a); “absoluta sententia expositione non indiget” (an absolute sentence needs no exposition – see 2 Justinian, Institutes, 533, and Emer De Vattel, Law of Nations, Bk. 2, § 263: “it is not allowable to interpret what has no need of interpretation”); “expressio facit cessare tacitum” (to state a thing expressly ends the possibility that something inconsistent with it is implied – see Coke, On Littleton, 210 a, and F.A.R. Bennion, Bennion on Statutory Interpretation: A Code, fifth edition, London, 2008, section 389, pp. 1249-50). But it is not only the above wording in Salduz that is important: the Salduz judgment does not in any way say or suggest that the two stages of the test to which Ibrahim and Others refers are compulsory or indispensable in every case.", "18. In the judgment in the present case, under the heading “(d) Temporary restriction on the access to a lawyer for ‘compelling reasons’” (see paragraphs 116-18), the majority follow the approach adopted in Ibrahim and Others, by again citing (as that judgment does) the same passage from Salduz (§ 55), which, with all due respect, not only does not support the interpretation provided in Ibrahim and Others and followed in the present case, but in fact says something completely different. 19. The majority do not give any reason as to why they have departed from Salduz and this is probably because they simply followed Ibrahim and Others. With all due respect, they have repeated the incorrect reading of Salduz by referring to two compulsory stages of the assessment, whereas Salduz clearly indicates that stage two is required only if there are compelling reasons for the restriction.", "20. It is to be noted that both Ibrahim and Others and Salduz are Grand Chamber judgments. Ibrahim and Others is subsequent to Salduz. However, Salduz was adopted unanimously on the relevant issue, whereas Ibrahim and Others was adopted by an overwhelming majority (fifteen votes to two). 21.", "Indeed, judgments of the Grand Chamber have a highly persuasive value and force, and the Court cannot depart from a previous judgment, unless good reasons are given in a subsequent case before the Grand Chamber. In the present case, which is a new Grand Chamber case, the Court, with all due respect, should have, firstly, acknowledged that Ibrahim and Others was based on an incorrect reading of Salduz; secondly, acknowledged that the approach in the two cases was different; and lastly, decided which of them, if any, to follow, by giving good reasons. If the Ibrahim and Others judgment was reached as a result of an incorrect reading of Salduz or per incuriam, it would have sufficed for the Court in the present case to explain this and to depart from Ibrahim and Others by applying the correct reading of Salduz, unless, irrespective of the incorrect interpretation of Salduz, the Court were to find the approach in Ibrahim and Others – that is, the two compulsory stages – more justifiable and legally correct, and to follow it by giving further reasons why not to follow Salduz and by applying a new approach. 22. In addition, the Court could have differentiated the present case from Ibrahim and Others on the facts and followed the proper reading of Salduz.", "The present case is more similar to Salduz than to Ibrahim and Others, since the Court decided that there were no compelling reasons for the restriction. The same was decided in Salduz, but not in Ibrahim and Others, where the Court found in respect of the first three applicants that there were compelling reasons for the restriction. As regards the fourth applicant in Ibrahim and Others, although there were no compelling reasons for the restriction, the case was different from the present one, since that applicant had not initially been interviewed by the police as a suspect, but as a witness. So, since in Ibrahim and Others there were compelling reasons for the restriction, what the Court said in that case in interpreting and applying Salduz, as to whether it should proceed to assess the overall fairness even in the event of finding that there were no compelling reasons for the restriction, was not the ratio decidendi of the judgment but was simply an obiter dictum. Therefore, even if the Court were to follow the strict common-law approach of stare decisis in the present case, it would not be bound to follow its principle in Ibrahim and Others in a case where, as in the present case, there were no compelling reasons for the restriction.", "B. Whether the Ibrahim approach with two compulsory stages or tests in every case should be preferred as more justifiable or legally tenable or correct than the Salduz approach with only one compulsory stage or test 23. With all due respect, the answer to the above question, I believe, should be in the negative, for reasons which will be explained below. 24. If there are no compelling reasons for restricting a person’s right to defend himself through legal assistance of his own choosing, which is one of the minimum rights under Article 6 § 3 (c) of the Convention for everyone charged with a criminal offence, this amounts to a serious violation of the said provision by itself and runs counter to the rule of law, and there is no need to examine anything else.", "That was the logic of Salduz and that is why a situation where there were compelling reasons for such a restriction must be distinguished from a situation where there were no compelling reasons. On the other hand, the Ibrahim approach, by requiring an overall fairness assessment even in cases where there were no compelling reasons for the restriction, makes no substantial distinction between these cases and cases where there were compelling reasons. 25. The Ibrahim approach, with all due respect, does not take into consideration, as it should, the fact that not only was the right to have a lawyer denied, but also that the respondent State violated the rule of law, one of the most significant principles of the Convention and of a democratic society. The endeavour of the Court in Ibrahim and Others to find a way to distinguish between the consequences of restrictions with no compelling reasons and with compelling reasons, other than finding a violation in the former case and proceeding to assess the overall fairness in the latter case, shows the difficulty of proceeding in a different way from the Salduz approach, ultimately reducing the issue from a matter of substance to a matter of evidential proof.", "26. Though the right to be represented by a lawyer under Article 6 § 3 (c) of the Convention is a minimum right (and not just a relevant factor or consideration), being an intrinsic part or aspect of the right to a fair trial, which is an absolute right (apart from its aspect concerning the public delivery of judgments), and therefore should not be burdened by implied qualifications or restrictions, the case-law nevertheless considers that it is not an absolute right (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277‑A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). 27.", "However, and rightly so, the case-law considers the right to have a lawyer “one of the fundamental features of a fair trial”. In Poitrimol (cited above, § 34) the Court held that “[a]lthough not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial”. In Panovits v. Cyprus (no. 4268/04, §§ 65 and 66, 11 December 2008) the Court held that the right to be assisted by a lawyer should be available from the initial stages of proceedings and was an issue of particular importance in assessing matters such as the protection against self-incrimination. 28.", "The importance of the role of a lawyer for the defence of an applicant in a criminal case was highlighted by the Court in the following passage from Artico v. Italy (13 May 1980, § 33, Series A no. 37), which has been reproduced in many other cases (see, for example, Kamasinski v. Austria, 19 December 1989, § 65, Series A no. 168, and Luchaninova v. Ukraine, no. 16347/02, § 63, 9 June 2011): “The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive (see the Airey judgment of 9 October 1979, Series A no. 32, pp.", "12-13, par. 24, and paragraph 32 above). As the Commission’s Delegates correctly emphasised, Article 6 par. 3 (c) speaks of ‘assistance’ and not of ‘nomination’. Again, mere nomination does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties.", "If they are notified of the situation, the authorities must either replace him or cause him to fulfil his obligations. Adoption of the Government’s restrictive interpretation would lead to results that are unreasonable and incompatible with both the wording of sub‑paragraph (c) and the structure of Article 6 taken as a whole; in many instances free legal assistance might prove to be worthless.” 29. Furthermore, the necessity of having a lawyer from the initial stage of the preliminary investigation was highlighted by the former European Commission of Human Rights in Can v. Austria (no. 9300/81, Commission’s report of 12 July 1984, § 55), where it also enumerated the tasks a lawyer should have at this preliminary stage: “In order to find out whether Art 6 (3) (c) requires that the remand prisoner be given a right to communicate in private with his defence counsel at the initial stage of the preliminary investigations, it is important to consider the functions which the defence counsel has to perform during this stage of the proceedings. They include not only the preparation of the trial itself, but also the control of the lawfulness of any measures taken in the course of the investigation proceedings, the identification and presentation of any means of evidence at an early stage where it is still possible to trace new relevant facts and where the witnesses have a fresh memory, further assistance to the accused regarding any complaints which he might wish to make in relation to his detention concerning its justification, length and conditions, and generally to assist the accused who by his detention is removed from his normal environment.” Also, in A.T. v. Luxembourg (no.", "30460/13, § 64, 9 April 2015) the Court very pertinently held: “The fairness of criminal proceedings under Article 6 of the Convention requires that as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or otherwise remanded in custody, whether interrogations take place or not. The Court emphasises in that respect that the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance, pointing out that discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention were fundamental aspects of the defence which the lawyer must be able to exercise freely ...” 30. That it is paramount for an accused to have a lawyer from the initial stages of the police investigation is also clear from the passage quoted above from John Murray (§§ 66 and 68 – see paragraph 4 above). 31. A very good overview of the importance of the right to legal assistance, the purpose of legal assistance and the role of the accused’s lawyer is provided by Dr Stephanos Stavros in The Guarantees for Accused Persons Under Article 6 of the European Convention on Human Rights – An Analysis of the Application of the Convention and a Comparison with Other Instruments, Dordrecht/Boston/London, 1993 (International Studies in Human Rights, vol.", "24), at pp. 201-202: “The right to legal assistance is one of the most important rights guaranteed under the fair trial clause of the human rights instruments under examination. The purpose of legal assistance, as recognized by the European Commission in App. Nos. 7572/76.", "7586/76 and 7587 v. FRG, is to ensure ‘that both sides of the case are actually heard’. However, professional assistance does not only ensure that the defence of the accused is properly prepared and presented. It also guarantees respect of the latter’s procedural rights, which might be inadvertently, or even purposefully threatened. The role of the accused’s lawyer as the ‘watchdog of procedural regularity’ as acknowledged by the Commission in App. Nos.", "7572/76, 7586/76 and 7587/76, is invaluable.” 32. In view of the above, one should be very reluctant to alienate, or detract from the essence of, the right to have a lawyer. It is unfortunate, however, that, as emerges from the above analysis of Grand Chamber cases in chronological order, the level of protection of the right to have a lawyer has steadily declined. 33. Though Article 6 § 3 (c) of the Convention does not distinguish between compelling reasons and non-compelling reasons for restricting the right to be represented by a lawyer – and according to the Latin maxim ubi lex non distinguit, nec nos distinguere debemus (7 Coke’s Reports, 5), the guarantees of that right should be applied in every case unconditionally, as the Court said in John Murray (cited above) – the principle set out in Ibrahim and Others that the fairness assessment must be carried out in all cases, irrespective of whether the reasons for the restriction were compelling or not, amounts to a severe qualification, or indeed restriction, of a right which, though not absolute, “is one of the fundamental features of a fair trial”.", "As indicated above, this qualification is severe, firstly, because it ignores the fact that the respondent State may have violated the rule of law, and, secondly, because it places a burden on the applicant to prove that overall his case was not fair, overlooking the fact that he may have been deprived of his right to have a lawyer. 34. It must also be acknowledged that the Salduz approach, to the extent that it requires the examination of overall fairness in cases where there are compelling reasons for a restriction, is a qualification or restriction of the right to have a lawyer, since all that matters in terms of strict literal compliance with Article 6 § 3 (c) of the Convention is access to a lawyer, without any exception, “whatever the justification”, as the Court rightly decided in John Murray (cited above in paragraph 4). It is true that there is no provision in Article 6 requiring the public interest to be balanced against private interests. In particular, there is no wording such as “necessary in a democratic society in the interests of national security, public safety, ... for the prevention of disorder or crime, ... for the protection of the rights and freedoms of others”, as is found in Article 8 § 2 of the Convention and similarly in Articles 9 § 2, 10 § 2 and 11 § 2, to justify limiting on any grounds the right to have a lawyer.", "35. However, a judge alone cannot go back on the Salduz approach and follow John Murray, which is a relatively old case. Only the Grand Chamber could do so. But these are not just theoretical reflections. They may serve to explain and show that the right to be represented by a lawyer cannot be subject to another qualification.", "In Salduz the Court did not state who had the burden of proving the overall fairness – or otherwise – of proceedings where there were compelling reasons for the restriction. It could be argued that it is the applicant who has the general burden of proving his allegations, but it could also be argued that it is the respondent State which deprived the applicant of his right, irrespective of whether there were compelling reasons for such deprivation. In the case of deprivation of possessions, as in all property matters under Article 1 of Protocol No. 1, just satisfaction is required. It would run counter to the notion of fairness under Article 6 § 3 (c) of the Convention for an applicant who has been deprived of his right to have a lawyer for compelling reasons, instead of being in any way compensated for such deprivation, to have the burden of proving himself that the proceedings were not overall fair for him.", "36. The fairness test can logically only be applied to definite facts and not to guesses or hypotheses. Any other approach, with all due respect, would water down the right guaranteed by Article 6 § 3 (c) of the Convention. So the approach in Ibrahim and Others, by insisting on the examination of fairness in every case, even if the applicant was without a lawyer for a certain period of time without any compelling reasons, is, with all due respect, precarious and not compatible with the scope of the above provision. 37.", "The notion of overall fairness should not mean fairness in general but presupposes that all the constituent parts of the proceedings should be fair, starting, as will be seen below, from the arrest. The period of time from the arrest of an accused up to the final judgment of the Court should be compact in terms of the applicant’s protection, like the life of an embryo. Article 6 § 3 (c) of the Convention confers on an accused person the right to defend himself or herself with the assistance of a lawyer at all stages of proceedings from the time of the arrest, including the arrest itself, and, of course, the period of detention before interrogation, which forms a part of the proceedings by itself. If this protection stops for any time, the right ceases to have any life. Thus, the three days in detention during which the applicant was deprived of his right to have a lawyer should not be regarded simply as an independent moment or time or procedure and be detached from the rest of the time and procedure when the applicant did have a lawyer.", "During these three days, many things might have happened without a lawyer being present but cannot be proved, and many things should have happened if a lawyer had been present, but did not because of the lack of access to a lawyer. One cannot excuse the illegality of the lack of compelling reasons for the restriction by later adopting an overall fairness test ignoring the initial part of the proceedings. There is truth and wisdom in the Latin maxim “quod ab initio non valet, in tractu temporis non convalescet” (what is not good in the beginning cannot be rendered good by time – see Coke, On Littleton, 35 a) and it seems that this applies in the present case. The importance of the “beginning” is also depicted in the Latin maxims “quod non habet principium non habet finem” (that which has no beginning has no end – see Coke, On Littleton, 345 a) and “cujusque rei potissima pars principium est” (of everything the chief part is the beginning – see 10 Coke’s Reports, 49). Also of relevance may be the Latin maxims “parte quacunque integrante sublata tollitur totum” (an integral part being taken away, the whole is taken away – see 9 Coke’s Reports, 41) and “sublato fundamento cadit opus” (remove the foundation, the work falls – see Jenkins, Centuries or Reports, 106).", "Wisdom is also to be found in another Latin maxim which may apply in the present case, “quae mala sunt inchoata in principio vix bono peraguntur exitu” (things bad in the commencement seldom end well – see 4 Coke’s Reports 2). 38. As has been said above, the notion of fairness is associated with the rule of law, which is inherent in the Convention system, and it is also associated with the positive obligation of the respondent State to safeguard the right of the applicant not to be deprived of access to a lawyer without compelling reasons, an obligation which flows from the rule of law and from Article 1 and Article 6 § 3 (c) of the Convention. The idea of fairness and the rule of law must cover, and apply in, all the phases in which the safeguards set out in Article 6 of the Convention are applicable. In paragraph 121 of the judgment it is correctly stated that the date of the applicant’s arrest is the “starting-point for the application of the safeguards set out in Article 6 of the Convention”.", "In other words, it is the arrest which triggers the protection of the right to have legal assistance. Otherwise, this right would not have a practical and effective meaning if a person who had been arrested and taken into custody was without a lawyer. If the crucial point in time for the beginning of the exercise of the right to be assisted by a lawyer was not the time of arrest but some subsequent time – let us say the time of bringing the charge or carrying out a formal interrogation – there would be no need for the existence of rules of criminal procedure governing arrest, and the police would be free to do anything they wanted on the issue, disregarding the provisions of Articles 3 and 5 of the Convention. Consequently, it is not possible to disconnect the notion of fairness and the rule of law from the requirement for justifiable reasons restricting the right, or to apply the fairness principle from any point other than the birth of the safeguards of the right, without a devastating impact on the case. 39.", "Since the safeguards set out in Article 6 applied from the moment of the applicant’s arrest, it is apparent that his right to presumption of innocence also started from that moment, and it was therefore imperative for the applicant to have a lawyer to safeguard his presumption of innocence by advising him and determining his line of defence together with him. 40. The rules of criminal procedure apply to a suspect from the moment of his or her arrest. The applicant, who was without a lawyer for three whole days, was deprived of the opportunity to challenge the lawfulness of his detention, as provided for by Article 5 § 4 of the Convention. This point was also raised by the Association for the Prevention of Torture as a third party in the present case: “Legal assistance also helped guarantee the exercise of the other fundamental rights of the accused, such as those secured under Article 5 §§ 3 and 4 of the Convention” (see paragraph 106 of the judgment).", "41. The need to have a lawyer immediately after the arrest can also be understood in view of the fact that the proper preparation of the case is imperative for its success. Article 6 § 3 (b) of the Convention includes having adequate time for the preparation of one’s defence as one of the minimum rights for everyone charged with a criminal offence. Nobody can be sure that without the assistance of a lawyer for the first three days of his detention, the applicant would be able to prepare properly for the trial at a later stage. These three days could have been crucial for the future course of his defence if he had had a lawyer immediately from the time of his arrest.", "42. If the lack of compelling reasons for restricting this right does not by itself constitute a violation, this will encourage the authorities to restrict the right unjustifiably and to keep suspects in custody indefinitely without a lawyer. 43. The principle of effectiveness, which is inherent in the Convention system and underpins every provision of it, requires that the guarantees of Article 6 § 3 (c) of the Convention must be practical and effective and not theoretical and illusory. As stated above, in Salduz the Court referred to this manifestation of the principle of effectiveness, if I can describe it as such.", "The safeguards of the provision in question would not be practical and effective if, despite the lack of compelling reasons for the restriction, the Court nevertheless proceeded to examine the overall fairness of the proceedings. The effectiveness of Article 6 § 3 (c) of the Convention, as of any other provision of the Convention, is ensured by taking into account its object and purpose in good faith. As the International Law Commission pertinently explained in its 1966 report (Yearbook of the International Law Commission [YBILC], 1966, vol. II, p. 219, § 6): “... When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation be adopted.” 44.", "In my view, good faith and the objects and purposes of Article 6 § 3 (c) of the Convention require that any restrictions on the right in question should not be unjustifiable. Mention should also be made in this connection of the very profound words by Professor Rudolf Bernhardt, a former President of the Court, in his article entitled “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (German Yearbook of International Law, vol. 42 (1999), 11 at p. 14): “These articles [31 and 32] of the Vienna Convention [on the Law of Treaties] are remarkable in several respects. Firstly, one principle of treaty interpretation, which was often invoked in older text books, is not even mentioned. Namely, the principle that treaties should be interpreted restrictively and in favor of State sovereignty, in dubio mitius.", "This principle is no longer relevant, it is neither mentioned in the Vienna Convention nor has it ever been invoked in the recent jurisprudence of international courts and tribunals. Treaty obligations are in case of doubt and in principle not to be interpreted in favor of State sovereignty. It is obvious that this conclusion can have considerable consequences for human rights conventions. Every effective protection of individual freedoms restricts State sovereignty, and it is by no means State sovereignty which in case of doubt has priority. Quite to the contrary, the object and purpose of human rights treaties may often lead to a broader interpretation of individual rights on the one hand and restrictions on State activities on the other.” 45.", "So, even if, for the sake of hypothesis, one were to be faced with two equally valid or arguable interpretations of Article 6 § 3 (c) of the Convention, it would be preferable to opt for the one which favours the essence of the right (in dubio in favorem pro libertate) and, at the same time, does not limit its ambit and application. Any restrictive interpretation contradicts the principle of effectiveness and is not part of international law (see Hersch Lauterpacht, “Restrictive Interpretation and Effectiveness in the Interpretation of Treaties”, BYIL (1945), 48 at pp. 50‑51, 69, and Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law, Oxford, 2008, repr. 2013, at p. 414). In the present case, if the Salduz principle were applied in its proper meaning, there would be a violation of Article 6 § 3 (c) of the Convention per se, since there was a lack of compelling reasons for the restriction.", "This interpretation would favour preserving the essence of the applicant’s right. On the other hand, if the Ibrahim and Others approach were followed, with its incorrect reading of Salduz, the essence of the applicant’s right would not be preserved, as the lack of compelling reasons for the restriction would not entail a violation per se and a finding of no violation would eventually be reached, as did in fact happen. 46. It should be observed that in any event it would not be fair to apply the principle set forth in Ibrahim and Others in an old pending case, such as the present one, in which, the applicable principle at all material times, apart from the time of the delivery of the judgment, was that of Salduz, considering also, with all due respect, that the Court should have acknowledged that the understanding of Salduz in Ibrahim and Others was wrong, and that it had the chance to review it. 47.", "In the judgment, the principle of effectiveness was rightly used and applied as regards the waiver of the applicant’s right to a lawyer: “However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance.” (see paragraph 115 of the judgment) To be consistent all the way through the judgment, this principle of effectiveness should have also been used in finding a violation, given that there were no compelling reasons for the restriction of the right to have a lawyer, as the Court clearly held in Salduz. 48. Human dignity is behind almost every Convention right and the Court should take it into account when interpreting Convention provisions (see David Feldman, “Human Dignity as a Legal Value” – part II, Public Law, Spring 2000, p. 75). Taking into account human dignity in interpreting Article 6 § 3 (c) of the Convention, the deprivation of the applicant’s right for three whole days without compelling reasons would be considered a flagrant violation of the provision in question. 49.", "The Chamber judgment in the present case was delivered before the pronouncement on 13 September 2016 of the judgment in Ibrahim and Others. Also, the request for referral of the present case to the Grand Chamber and the written observations of all the parties, including the third party, were submitted before Ibrahim and Others was decided. Moreover, the oral hearing before the Grand Chamber in the present case on 6 July 2016 took place before the Ibrahim and Others judgment was delivered. As has already been explained, on the basis of Salduz the applicant would probably have won his case as regards his complaints of violations of Article 6 §§ 1 and 3 (c) of the Convention, whereas the majority decided, on the basis of Ibrahim and Others, to dismiss his complaints under those provisions. Of course, the Court usually applies its recent case-law which is applicable at the time of the delivery of the judgment.", "But, with all due respect, in the present case the following considerations make the application of this rule or practice unfair to the applicant: (a) a probable violation, by following Salduz in its proper interpretation, was – owing maybe to a delay in the processing of the case – eventually turned by the majority, following the Ibrahim approach, into a finding of no violation, without the principle of legal certainty being satisfied; (b) an interpretation of Salduz in a manner unfavourable to the applicant was followed by the majority in the light of Ibrahim and Others, without all parties having the chance to comment on Ibrahim and Others or even to urge a return to the proper interpretation of Salduz, by exercising their right under Article 6 of the Convention; and (c) consideration of all that has been said above regarding the contre-texte or per incuriam interpretation of Salduz in Ibrahim and Others. 50. By analogy with the above argument, which is based on the principle of legal certainty, Article 7 § 1 of the Convention, which provides that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed” (emphasis mine) and that “[n]or shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed” (emphasis mine), is also based on this principle of certainty, and is one of the most fundamental provisions of the Convention. It is to be noted that the dependence of the result of a case which concerned a criminal charge, and which led eventually to the sentencing of the applicant for life imprisonment, on whether there was a change in the case-law, with the effect that a probable violation was turned into to a finding of no violation of Article 6 §§ 1 and 3 (c) of the Convention, might not, in the final analysis, have very different repercussions from those prohibited by Article 7 of the Convention. 51.", "The preamble to the Convention states that the Council of Europe’s aim is “the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms”. This consideration embodies the requisite dynamism and cultivates the idea of advancing human rights. Any lowering of the level of protection of human rights, or any setback of the kind characterised as “devolution” (see Christian Djeffal, Static and Evolutive Treaty Interpretation – A Functional Reconstruction, Cambridge, 2016, p. 309), is not only undesirable but is, I believe, outside the scope of the Convention. Justice Oliver Wendell Holmes wisely said that “greatness is not where we stand but in what direction we are moving”. The same applies to the future of human rights.", "I believe that the Convention ship must move forward and not backwards and that every time a case comes before the Court, especially the Grand Chamber, such as the present case, a new voyage of the Convention ship begins, and the compass must always direct it effectively to its promised destination. C. Whether, even by following the Ibrahim approach, the overall fairness assessment would also have led to a violation of Article 6 § 3 (c) of the Convention 52. The Chamber and the majority of the Grand Chamber in this case gave a negative answer to the question as to whether an overall fairness assessment led to a violation of the above-mentioned provision. 53. In its judgment in the present case (Simeonovi v. Bulgaria, no.", "21980/04, § 116, 20 October 2015) the Chamber unanimously concluded: “The Court accordingly finds that the fact that the applicant was not assisted by a lawyer for the first three days of his detention did not diminish his right to defend himself effectively in the framework of the criminal proceedings. His right not to incriminate himself was respected and the fairness of the criminal proceedings was properly ensured. There was therefore no violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1 of the Convention.” 54. The majority in the present case concluded (see paragraph 144 of the judgment): “In the light of these findings, the Court considers that the Government provided relevant and sufficient evidence to demonstrate that the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the absence of legal assistance while he had been in police custody, from 3 to 6 October 1999.” 55. With all due respect, the answer to the above question should, in my view, have been in the affirmative.", "56. The applicant’s substantive and procedural rights cannot be said to have been respected when he was without a lawyer for three crucial days, as will be further explained later on. 57. May I emphasise at the outset that the overall fairness of a trial does not depend on its result. Otherwise, we would come to the unacceptable conclusion that there would be no violation of Article 6 § 3 (c) of the Convention in every case where an applicant was acquitted, even if he had been deprived of the right to have a lawyer during the whole of the pre-trial and trial proceedings.", "In such a hypothetical case, therefore, the fact that the prosecuting authority was unable to discharge its burden of proof effectively and the applicant was acquitted does not mean that the guarantees to which the applicant was entitled under Article 6 § 3 (c) of the Convention were satisfied. 58. The Court’s task is to judge according to the facts before it and not to imagine facts, as a novelist has the right to do to make his story better. On this task of a court, see the following relevant legal Latin maxims: “judicis est judicare, secundum allegata et probata” (it is the duty of a judge to decide according to the facts alleged and proved – Dyer’s Reports, 12); “judex debet judicare secundum allegata et probate” (the judge should decide according to the allegations and proofs – 2 Βouvier’s Law Dictionary, 133); “nihil habet forum ex scena” (the court has nothing to do with what is not before it – 2 Βοuvier’s Law Dictionary, 141). In the present case the Court was not in a position to make predictions as to how the result of the trial would have been affected if the applicant had had a lawyer during the first three days of his detention, because: (a) that was impossible; (b) that was not its role; and (c) that would amount in the abstract to negating or diminishing the role of every lawyer.", "That predictions of this sort are not within the role of the Court could not be put more clearly than in Salduz (cited above, § 58): “it is not for the Court to speculate on the impact which the applicant’s access to a lawyer during police custody would have had on the ensuing proceedings”. Similarly, in John Murray (cited above, § 68) the Court held: “it is not for the Court to speculate on what the applicant’s reaction, or his lawyer’s advice, would have been had access not been denied during this initial period”. 59. In my view, predictions of this kind are not like the unknown variable x in a simple mathematical exercise where in the end the variable x can be determined or proved. In the present case, however, the unknown “variable x” could not possibly be revealed or proved; so its unknown effect in itself must have had a certain negative impact on the assessment of the overall fairness of the trial.", "60. Every additional minute of detention after the moment of arrest makes such an ex post facto prognosis or speculation not only more uncertain, but in the end totally impossible. I consider it pertinent to note the persuasive arguments put forward by the applicant at paragraphs 72‑73 of his observations: “72. It may be that the assistance of a lawyer during the first three days of interrogation would not have resulted in the Applicant’s acquittal. However, this cannot be known for sure as the Applicant might have provided information which would have affected the course of the investigation or the approach adopted in the trial, which could have influenced the assessment of the evidence.", "73. The Applicant does not suggest that this would necessarily have occurred as he, no more than the Court, can predict what would have happened if he had had the assistance of a lawyer – which he repeatedly requested and which he had already made preparation to obtain – during the first three days of his detention.” 61. In a footnote relating to paragraph 73 of the applicant’s observations, reference is made to paragraph 29 of the observations, where it is stated: “When his interrogation of the Applicant began in the evening of 3 October, the Applicant asked Colonel X, who had been assigned to conduct the investigative actions of his case, to be allowed to contact a named lawyer working in private practice. This lawyer was Mr Victor Mihailov, who had agreed to defend the Applicant the previous July at his father’s request. The Applicant had given Colonel X. Mr Mihailov’s name and phone number but was simply told in response that he had seen too many movies and that this was not America.” 62.", "At paragraph 75 of his observations, the applicant rightly remarks in this connection that “... it is dangerous to link the question of whether or not there has been a violation of the right to the assistance of a lawyer during the initial interrogations to the ultimate conduct of the proceedings as this will encourage the disregard of the right to the assistance of a lawyer at this stage”. And he appropriately adds: “The resulting risk of this occurring has implications not only for the outcome of criminal proceedings but also for the effective protection of the right not to be subjected to torture and inhuman and degrading treatment”. 63. The judgment (see paragraphs 119 and 127-28, the first paragraph of which also refers to Ibrahim and Others, cited above, §§ 272-73) correctly highlights the importance of the right to be informed of the right to legal assistance. As is appropriately stated in paragraph 127 of the judgment: “... As a result, the applicant was not verifiably informed of his procedural rights before the date on which he was charged, that is to say 6 October 1999 ...” 64.", "The failure of the national authorities to keep a record regarding the first three days of the applicant’s detention, from 3 to 6 October 1999, and to prove, that, as they alleged, they had indeed informed him of his right to have a lawyer of his choosing, negatively affects the fairness test. This is so because the authorities had a positive obligation to keep such a record. As has been said above, this obligation is derived from the rule of law and from Article 1 and Article 6 § 3 (c) of the Convention. In Panovits (cited above, §§ 72-73) the Court said the following on this issue: “... The passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation.", "73. Accordingly, the Court finds that the lack of provision of sufficient information on the applicant’s right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant’s defence rights.” 65. It is clear that what was said above does not apply only to minors, but especially to minors, so it also applies to the applicant in the present case. 66. The applicant alleged that he had not been informed about his rights.", "Since the burden of proof was on the respondent State, which had the obligation to keep a record, the applicant’s version is more tenable than that of the Government. Hence, the omission of the national authorities to inform the applicant of his right to have a lawyer of his choosing meant that the fairness test was failed from the outset. By analogy, the absence of a detention record is considered to entail a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, securing the right to liberty and security. It discloses a most grave violation of that provision and is incompatible with the requirement of lawfulness and with the very purpose of Article 5 (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no.", "59261/00, § 87, ECHR 2006-III; Smolik v. Ukraine, no. 11778/05, § 45, 19 January 2012; and Kurt v. Turkey, 25 May 1998, § 125, Reports 1998-III). The lack of a proper record of an individual’s arrest and detention is thus sufficient for the Court to find that there has been a violation of Article 5 § 1 (see Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002‑IV, and Menesheva, cited above, §§ 87-89). If this formality of keeping an official record is indispensable for guaranteeing a non-absolute right, as it is for the right under Article 5 § 1 of the Convention, one may wonder why such a formality should not be all the more indispensable for guaranteeing an absolute right, namely the right to a fair trial under Article 6 of the Convention.", "67. When the authorities do not keep a record showing that they have informed the accused of his right to legal assistance, if they are not to be blamed for not doing so they must prove by other means, in accordance with the standard of proof beyond reasonable doubt, that they provided this information, but no such proof was forthcoming in the present case. 68. The fact that the applicant was without a lawyer for three days even though he allegedly asked to have one is a procedural defect. The national authorities denied that the applicant had asked for a lawyer.", "The judgment rightly supports the view that the applicant did not waive his right, and I absolutely agree with this finding. But I would proceed a step further and contend that since the respondent State did not keep a record despite having a positive obligation to do so, the applicant’s version should not be ignored, also taking into account the fact that he was not provided with the services of a lawyer for the first three whole days of his detention. 69. To put it differently, how is it possible to consider that the Government have discharged their strict burden of proving that the trial was fair overall, since they failed to comply with their positive obligation to inform the applicant of his right to have a lawyer of his choosing, and since they were unable to produce a record in support of their allegation that they did provide this information? 70.", "The applicant alleged that during the three days when he had not had access to a lawyer, he had been interrogated. This allegation was denied by the respondent Government. It should not be forgotten that the applicant was in a vulnerable situation. He could not have been expected to have the means to produce any evidence, other than his word, that during the first three days of his detention: (a) he had asked for a lawyer and not been given one; (b) he had been informed of his right to have a lawyer of his own choosing; and (c) he had been interrogated. Only the respondent Government, in whose hands all the relevant machinery and evidence lay, could disprove the applicant’s allegations and prove the opposite.", "As the Court held in Bouyid v. Belgium ([GC], no. 23380/09, § 83, ECHR 2015), referring also to its settled case-law on this issue: “... where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Salman, cited above, § 100; Rivas v. France, no. 59584/00, § 38, 1 April 2004; and also, among other authorities, Turan Çakır v. Belgium, no. 44256/06, § 54, 10 March 2009; Mete and Others v. Turkey, no.", "294/08, § 112, 4 October 2012; Gäfgen, cited above, § 92; and El-Masri, cited above, § 152). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El‑Masri, cited above, § 152). That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see, among other authorities, Salman, cited above, § 99).” 71. What was said in the above statement in relation to allegations of ill‑treatment violating Article 3 of the Convention could logically apply to all cases where an applicant is in detention and alleges a violation of any provision of the Convention – such as the applicant in the present case, who alleged a violation of Article 6 §§ 1 and 3 (c) of the Convention – and where the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities, who nevertheless have refrained from keeping a record of what happened, and thus are unable to disprove the applicant’s allegations. 72.", "As has been said, the life of the protection afforded by the guarantees of Article 6 § 3 (c) of the Convention starts from the moment of the arrest. The three days during which the applicant was without a lawyer deprived him of the legal assistance provided for in Article 6 § 3 (c) of the Convention for a substantial period of time, which was needed for the preparation of his defence. The preparation of the defence from the initial time of the arrest is extremely important for the determination of the line of defence and its future course and exercise. 73. Since the Government violated their obligation to keep a record informing the applicant of his right to have a lawyer, why would they be expected to have kept a record of whether they had interrogated the applicant, since the same lack of diligence would also have been expected in this matter?", "Most importantly, it is highly improbable that the police investigating a case of murder and armed robbery would have arrested the applicant as a suspect and not rushed to ask him even one question during the first three days following his arrest and instead displayed total apathy, whereas before the applicant’s arrest, as the Government alleged in paragraph 6 of their observations, they had carried out many interrogations and had collected evidence in a systematic matter: “... In the period from 2 July until 3 October 1999, when the applicant was arrested, the authorities conducted a series of investigative measures. They interviewed the applicant’s accomplice, witnesses, friends of the suspects and anyone who could in some manner relate to the events. Evidential material was gathered in a systematic manner ...” 74. Furthermore, the Government alleged at paragraph 11 of their observations that the applicant underwent two medical checks by two different doctors on 5 October 1999 and was subjected to a body search the same day, which indicates that it is very improbable that anything else was carried out in respect of the applicant and other witnesses, apart from asking him questions as to the robbery and the two killings.", "75. The version presented in the Government’s observations on the relevant issue is characterised by vagueness. Below are some examples: “No information was found as to when the applicant entered and left the detention facilities in Sofia” (paragraph 10 of the observations), and “There is no trace in the investigation file that the applicant was interviewed by the police or by the investigator in the period between 3 October and 12.10 p.m. on 6 October 1999 ...” (paragraph 13 of the observations). A State governed by the rule of law should know when an arrested person entered and left the detention facilities, and should be able to prove by means of evidence what happened during those three days, rather than simply referring to the absence of any trace of interrogation of the person in the investigation file. 76.", "From the analysis performed so far, the applicant’s version that he was interrogated is more tenable, or to be more accurate, the respondent State’s version is not tenable at all. The Government alleged in paragraph 7 of their observations that during the period from 2 July until 3 October 1999 the applicant “was at large and in hiding” and that he “was also declared wanted”. So it seems improbable and illogical that he was not subjected to any questioning following his arrest. The applicant alleged (see paragraph 64 of his observations) that Colonel X. had been assigned to conduct the investigative measures in his case on 3 October 1999. He also remarked (see paragraph 64 of his observations) that the approach taken by the authorities “does not seem consistent with normal police practice nor with the obligations arising under Article 5(3) of the Convention to ensure that there is still a reasonable suspicion justifying the continued deprivation of liberty following a person’s arrest”.", "He added (see paragraph 65 of his observations) that “the suggestion that there was a complete absence of any interrogation for a period of three days following the Applicant’s arrest does not reflect the general practice in Bulgaria, as has been documented in the rulings of the Bulgarian Supreme Court and also in reports by the CPT and others, in which interrogation without a suspect’s lawyer following his or her arrest has been found to be a frequent occurrence”. He further argued (see paragraph 66 of his observations) that “[t]he fact that there is no documentation of the interrogations in the case file is much more consistent with the exercise of pressure on a suspect to confess, as the Applicant has maintained was what occurred in his case, than with the absence of any interrogation”. And he concluded on this point (see paragraph 67 of his observations): “In these circumstances, the submission of the Applicant that he was questioned by Colonel X on 3 October 1999 and by other investigators on 4 and 5 October should be regarded as well-founded in the absence of any other cogent explanation for the failure to question him during his first three days of detention.” 77. One of the questions put by the Court to the parties (question 5) was: “Was the applicant questioned by the police and the investigating agencies over the period from 3 to 6 October 1999? If so, when?", "Did he remain silent or did he make any statements? What was their content? The Government are invited to provide a copy of any police or investigation file.” 78. The applicant’s answer to the above question was given in paragraphs 39-43 of his observations and is very important for the assessment of the overall fairness of the proceedings, if what he argues was true: “Question 5 – Interrogation during 3-6 October 1999 39. As has already indicated in response to the third question, the interrogation of the Applicant began on the evening of 3 October 1999 and continued over the following days.", "40. During his interrogation by Colonel X, the Applicant was told that nobody knew where he was and that he had no alternative but to confess. Indeed this was the situation in which he found himself as he was not allowed to contact his relatives or the lawyer that he wished to represent him. Moreover, his parents were only informed about his arrest 3 days after this occurred, when they learnt that he was in the detention facility of Burgas District Investigation Service. 41.", "During his interrogations in this period the Applicant gave explanations in response to some of the questions put to him in connection with the alleged offences. In particular, he admitted that he had participated in the robbery together with his co‑perpetrator but he denied having committed the murders. 42. As has already been indicated, the Applicant was never informed of his rights including the right to contact a lawyer of his own choosing. 43.", "No written minutes kept during the questioning during the period 3-6 October 1999 were ever provided to the Applicant and he never signed any document in connection with this questioning. Furthermore, the Applicant does not know whether the police file contained documents and other (video or recording) material but he believes that it is most likely that the investigator of the case from Burgas District Investigation Service would have been acquainted with his confession since he would tell him that, if he failed to give explanations, he would use the confession made in Sofia. Moreover, his familiarity with what he said in Sofia was evident from the questions he had asked.” 79. The Government’s reply to the same question, amounting to a simple rebuttal and denial of knowledge, is to found at page 10 of their observations: “Question No. 5: Based on the documents found in the police case-file and the criminal case-file, the Government maintain that the applicant was interviewed for the first time on 6 October 1999 at 12.10 in the presence of counsel.", "His allegations that he was interviewed before that are not supported by any document. Such documents were searched in the Ministry of Interior and were not found. The case-file from the criminal proceedings contains no documents referring to such an interview and statements made during that period. The documents related to the police detention are enclosed as enclosures no. 1 and 2.", "The case-file from the pre-trial criminal proceedings is enclosed as enclosure no. 4.” 80. The Chamber judgment (cited above, § 9) clearly states the applicant’s submission that he was questioned during the first three days of his detention: “The applicant submitted that despite his express requests he had not been assisted by a lawyer for the first three days of his detention. During that time the officials responsible for the investigation had questioned him about the robbery and the two murders committed in Burgas on 2 July 1999.” 81. At paragraphs 103 and 134 of the Grand Chamber judgment, reference is made to what the Government submitted at the oral hearing, namely that there was no evidence to support the applicant’s allegation that he had been questioned in police custody before being charged.", "Reference is also made to a hypothesis put forward by the Government: “even supposing such a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings” (see paragraph 103 of the judgment). 82. The Government’s oral argument as to whether the applicant was interviewed, as is apparent from the webcast of the hearing available on the Court’s Internet portal, is the following: “Having said that, however, the Government maintain that the rights of the applicant under Article 6 of the Convention were not violated for the following reasons: First, we maintain that judging from all documents in our possession and the applicant’s submissions, Mr Simeonov was not formally interrogated during the first three days of his detention. ... Even assuming that some questioning occurred, it was only oral, informal and had no bearing on the criminal proceedings against the applicant.", "... Our second submission is that the absence of a lawyer during the impugned period did not lead to arbitrary restrictions of the procedural rights of the applicant. The Government maintain that even assuming that some questioning indeed took place, as Mr Simeonov argues, it was only oral, informal with absolutely no bearing on the criminal proceedings.... Mr President, it is possible that a conversation, or even questioning, took place between the applicant and police officers or an investigator in Sofia. Such questioning, however, was not objectified in any form.” 83. From the last statement, it is clear that the Government eventually admitted that it was possible that the applicant was questioned, a significant admission which, however, is omitted from the judgment. 84.", "What the Government’s lawyer said, namely that “the questioning was not objectified in any form”, is totally immaterial and contrary to the case-law of the Court. In Titarenko v. Ukraine (no. 31720/02, § 87, 20 September 2012) the Court stated: “The Court considers that any conversation between a detained criminal suspect and the police must be treated as formal contact and cannot be characterised as ‘informal questioning’.” 85. And the above applies no matter whether the authorities claim not to have relied on information given through what they regarded as “informal questioning”. In Martin v. Estonia (no.", "35985/09, §§ 95-97, 30 May 2013) the Court stated: “95. The Court notes in this context that, despite excluding the applicant’s pre-trial statements, the Court of Appeal considered that there was nothing to prevent the use of such ‘general knowledge’. ... 96. The Court considers that the exclusion of the pre-trial statements from the body of evidence reveals the importance that the Court of Appeal attaches to securing a suspect’s defence rights from the early stages of the proceedings. Although tainted evidence as such can be left aside in the subsequent proceedings, in the present case the Court of Appeal’s decision nevertheless demonstrated that the consequences of the breach of defence rights had not been totally undone.", "97. In the light of the above considerations, the Court concludes that the applicant’s defence rights were irretrievably prejudiced owing to his inability to defend himself through legal assistance of his own choosing.” 86. There is no evidence that anything said by the applicant during the first three days was used at the trial and had an impact or influence on the result of it. Replying to question no. 6 put by the Court to the parties regarding the use made of the applicant’s statements, the applicant gave this answer (see paragraphs 44-45 of his observations): “44.", "The statements made by the Applicant to the police before charged could have been used in the pre-trial proceedings as he had the capacity of a ‘suspect’ within the meaning of Art. 206 of the Criminal Procedure Code, but they are not in the file of the investigation case No. 662/1990. 45. Furthermore, these statements formed the basis of the confession by the Applicant on 21 October 1999 ...” 87.", "According to the applicant’s version, he made statements implicating himself in respect of the crimes with which he was subsequently charged, and revealed information regarding these crimes, without being assisted by a lawyer. I am of the opinion that this, by itself, could have rendered the whole proceedings unfair. It was logical for him to think that these statements he made without a lawyer could be used later on during the trial proceedings. Probably having this in mind, he could not avoid making an official confession later on, even with his lawyer present. If the applicant’s version is true, there is no doubt that he was entrapped into making the confession.", "88. Consequently, the fact that the applicant was not assisted by a lawyer while in police custody for three days, starting from his arrest, and also that – if his allegations were true – he was interrogated, confessed to having participated in the robbery and gave other important information for the case, infected the whole procedure and therefore, undermined the fairness of the criminal proceedings. 89. As the Association for the Prevention of Torture, a third party in the present case, submitted: “Legal assistance at that early stage in criminal proceedings, even before the initial questioning, was essential in order to safeguard an arrested suspect’s right not to incriminate himself where he had not been informed of the charges against him” (see paragraph 106 of the judgment). 90.", "If it is true that, without a lawyer, the applicant gave, as he alleged, other information and details – besides his confession to having participated in the robbery – which might have assisted the police in building their case against him as regards the two killings as well, one could justifiably come to the opposite conclusion to the Chamber’s finding that the right of the applicant “not to incriminate himself was respected” and that “the fairness of the criminal proceedings was properly ensured” (see paragraph 116 of the Chamber judgment). It is to be noted that the concluding paragraph of the Grand Chamber’s judgment on the issue (paragraph 144) is phrased differently from the corresponding paragraph of the Chamber judgment, not stating specifically that the applicant’s right “not to incriminate himself was respected” as the Chamber did. 91. It should be made absolutely clear that what matters most, apart from the procedural guarantee of the applicant’s right to a lawyer, is whether the proceedings as a whole were likely to have been infected because no lawyer was present when the applicant was interrogated, confessed and gave information which the Government used artfully against him later on during the trial. This of course is distinct from the question whether the result of the trial would have been different if the applicant had had a lawyer, which is immaterial.", "92. In view of the above, one wonders whether the principle of equality of arms was respected and secured in the present case. The applicant was deprived of a substantial period for the preparation of his defence, and it is tenable to argue that a lot may have happened during that time, resulting in the use of material against him, as explained before. 93. Even if one assumes that no interrogations took place during the first three days of the applicant’s detention, the absence of interrogations would not be of any substantial support for the Government’s argument, since, according to the case-law of the Court, “whether interrogations take place or not” is immaterial for the fairness of criminal proceedings under Article 6 of the Convention (see A.T. v. Luxembourg, cited above, § 64, relevant passage cited in paragraph 29 above; and see, similarly, Dayanan v. Turkey, no.", "7377/03, § 32, 13 October 2009). 94. Almost all of the ten relevant factors listed in Ibrahim and Others for the assessment of the overall fairness of proceedings were either not taken into account or were not assessed properly by the majority in the present case. 95. Factor (a) of the Ibrahim list, concerning the vulnerability of an applicant, was not taken into account sufficiently.", "In Salduz (cited above, § 54) the Court clearly stated: “... At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings ...” The Court also stated in Salman v. Turkey ([GC], no. 21986/93, § 99, ECHR 2000-VII): “... Persons in custody are in a vulnerable position and the authorities are under a duty to protect them ...” Similarly, in Bouyid (cited above § 107) the Court held: “Moreover, persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning – as in the applicants’ case – and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability. The authorities are consequently under a duty to protect them ...” See also, on the vulnerability of detainees, Mehmet Şerif Öner v. Turkey no. 50356/08, 13 September 2011; Płonka v. Poland, no.", "20310/02, §§ 39‑41, 31 March 2009; and Leonid Lazarenko v. Ukraine, no. 22313/04, § 57, 28 October 2010. 96. Factor (b) of the Ibrahim list, concerning the legal framework governing the pre-trial proceedings, was also, with all due respect, not assessed and applied by the majority. With regard to this factor, serious consideration should have been given to the different reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (a recent one from 2015 was referred to by the applicant in paragraph 24 of his observations) showing that the realisation of the right of access to legal assistance during the interrogation phase remained problematic.", "Paragraph 130 of the judgment states that “... [i]t would appear that the events in the instant case correspond to a practice on the part of the authorities which has also been severely criticised by the CPT (see the CPT’s 2015 public statement, paragraph 80 above)”. But most importantly, it could easily have been ascertained that the Bulgarian authorities did not abide by the rule of law in violating section 70(4) of the Ministry of the Interior Act 1997, which provides that “Detained persons shall be entitled to legal assistance as of the time of their arrest” (see also paragraph 59 of the judgment for this provision and the relevant implementing regulations). 97. In addition, factor (d) of the Ibrahim list, namely “the quality of the evidence and whether the circumstance in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion”, if assessed and applied properly, would have led to a finding of a violation of Article 6 § 3 (c) of the Convention in the present case. 98.", "In assessing the overall fairness of the proceedings, the majority took into account the applicant’s confession (as the national courts did), but they did not take into account either the withdrawal or retraction of the confession or any of the above-mentioned procedural defects regarding the applicant’s defence during the first three days which might have influenced his confession in the first place. It may not be irrelevant in this respect to consider what the applicant said at paragraph 69 of his observations: “Indeed, any pressure that might have been applied on him by the investigators to confess could be expected to remain effective”. Although relevant factor (f) in the list drawn up by the Court in Ibrahim and Others for the assessment of the overall fairness of proceedings and adopted in the present judgment, namely “in the case of a statement, the nature of the statement and whether it was promptly retracted or modified”, should have been considered and applied in the present case by the Court, the majority did not do so. My view is that the applicant’s confession and its subsequent retraction in the suspicious circumstances of the present case should have been taken into consideration under factor (f) of the Ibrahim list. Another disagreement I have with the majority concerns the importance they attach to the applicant’s confession in assessing the overall fairness of the proceedings, overlooking the fact, however, that, quite apart from the applicant’s retraction of the confession: (a) he never confessed to having committed the two murders, his confession being confined to having committed the hold-up at the bureau de change; and (b) he was nevertheless found guilty of armed robbery resulting in the murder of two persons and was sentenced to life imprisonment.", "99. Factor (g) of the Ibrahim list, namely “the use to which the evidence was put ...”, is another factor which could have required a proper assessment, if one were to accept as tenable the applicant’s version as to what happened during the first three days while he was without a lawyer. In other words, looking beyond the official confession given by the applicant, factor (g) might be relevant. 100. Furthermore, factor (i) of the Ibrahim list, namely “the weight of the public interest in the investigation and punishment of the particular offence in issue”, was not assessed by the majority.", "I believe that the public interest does not favour a trial where there was a breach of the rule of law at the start of the proceedings. It cannot tolerate the detention of a person for three whole days without a lawyer, during which time he allegedly incriminated himself and gave information to the police, despite having asked to have the services of his lawyer and having had his request refused. 101. The list of the ten relevant factors for the assessment of the overall fairness of the proceedings is not exhaustive (see Ibrahim and Others, cited above, § 124). In my view, the facts of the present case could have justified adding another factor to the Ibrahim list without contravening its spirit, namely the long duration of a person’s detention without access to a lawyer, despite his or her wish to have one.", "It should be borne in mind that every minute in detention without legal assistance may make the defence poorer at a later stage, leading to unpredictable results. Of course, in the present case, this factor should have been taken into account together with the vulnerability of the applicant, which is one of the factors mentioned in the list, and the probability that he was interrogated during his detention without having a lawyer. 102. An applicant who did not have a lawyer for a substantial period starting from the time of his arrest, even though he later had one, may be regarded as an applicant with no defence at all. And proceedings concerning an applicant deprived of any defence at all, against his will, cannot result in a fair trial.", "This is why the overall fairness assessment may relate to all Article 6 issues, but not to the issue of depriving an applicant of his right to have a lawyer unless there are compelling reasons for the restriction (in accordance with the correct interpretation of Salduz). It should not be forgotten that the applicant’s detention without a lawyer lasted for three days, that is, one day longer than the detention of the applicant in John Murray (cited above), where the Court found a violation of Article 6 § 3 (c) of the Convention. 103. In this opinion, mention is repeatedly made of the fact that the Government violated the rule of law and their positive obligations. I cannot see the notion of “fairness” independently of the rule of law, and this is one major disagreement I have with the majority.", "“Fairness” and “breach of the rule of law” are contradictory issues. For me, the notion of “fairness” implies observance of the rule of law and fulfilment of all the obligations of the Government under the Convention to respect and secure human rights, which did not happen in the present case. 104. It is clear from all the above that the Government have not discharged the strict burden of proof required by Ibrahim and Others. D. Conclusion 105.", "In conclusion, in my view, the respondent State violated Article 6 §§ 1 and 3 (c) of the Convention, whatever approach we may follow: the Salduz approach (in its correct interpretation) involving the one compulsory test, or the Ibrahim approach with the two compulsory tests. E. Award in respect of non-pecuniary damage for the violations of Article 6 §§ 1 and 3 (c) of the Convention and legal costs 106. My findings set out above, to the effect that there have been violations of Article 6 §§ 1 and 3 (c) of the Convention, would have led to an increase in the amount of the award in respect of non-pecuniary damage and the legal costs, the determination of which, however, could only be theoretical, since I am in the minority. [1] We do not take a position on the question to what extent the rights under Article 6 § 3 are specific or stand-alone rights. However, in a number of cases, the lack of access to a lawyer during the initial period of police detention, regardless of whether the subject made self‑incriminating statements, was enough to find a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 (see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996‑I; Mehmet Şerif Öner v. Turkey, no.", "50356/08, § 21, 13 September 2011; Lopata v. Russia, no. 72250/01, §§ 137, 140-144, 13 July 2010; and Averill v. the United Kingdom, no. 36408/97, § 60, ECHR 2000-VI). [2] A “criminal charge” exists from the time when an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see judgment, §§ 110-111; and Ibrahim, cited above, § 249). [3] See, in particular, Directive 2012/13/EU on the right to information in criminal proceedings and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings (see judgment, §§ 74-75).", "[4] See, in particular, Article 14 and the decisions of the Human Rights Committee (see judgment, § 71). [5] Navone and Others, “74. [The Court] reiterates that it flows from its case-law cited above that an individual held in police custody has, first of all, the right not to incriminate himself and to remain silent, and secondly, the right to legal assistance during all questioning and interrogations. Accordingly, contrary to the Government’s submissions, these are two separate rights: any waiver of one of them does not, therefore, imply a waiver of the other. Moreover, the Court emphasises that this does not make those rights any less complementary, since it has already held that individuals held in custody must, a fortiori, benefit from the assistance of a lawyer where they have not been informed in advance by the authorities of their right to remain silent (see Brusco, cited above, § 54).” [6] In its observations to the Grand Chamber, the Association for the Prevention of Torture stated that in cases of pre-trial detention, even if the detainee made no statement, the mere absence of a lawyer during the first few hours of detention was detrimental to the fairness of proceedings.", "That was particularly true in cases where the allegations were extremely serious, and where the detainee was in a particularly vulnerable position (see judgment, § 106). [7] We note that a violation of Articles 6 §§ 1 and 3 (c) was found in respect of the fourth applicant in Ibrahim on the basis that the UK Government (i) had no compelling reasons to restrict his access to legal advice during his pre-trial detention, (ii) had not cautioned the applicant, (iii) had not informed him of his defence rights. The Government was therefore unable to rebut the presumption of unfairness or prove why overall fairness was not irretrievably prejudiced (see §§ 301 and 311). [8] According to the CPT Report of 1999, Bulgarian law in force at the time made no provision for the right to notification of police custody to relatives, which was often had been refused or significantly delayed (see §§ 29-30). Systematic failures by the police to keep custody records were also reported (see § 43).", "[9] We submit that the Bulgarian authorities’ failure to prove that the applicant was promptly notified of the reasons for his arrest and the charges against him constitutes in itself a violation of Article 5 § 2 (“Everyone who is arrested shall be informed promptly … of the reasons for his arrest and of any charge against him.”). Unfortunately, the applicant did not allege this violation in his pleadings before this Court. [10] CPT Report 1999, § 11. [11] Ibid, §§ 33-34. [12] “83.", "The Court reiterates that it has already had occasion to adjudicate a complaint concerning the absence of a lawyer during an applicant’s police custody, finding a violation of Article 6 § 1 and 3 (c) of the Convention on that head (see Salduz v. Turkey [GC], no. 36391/02, §§ 45-63, ECHR 2008). It also reiterates that it has held that the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance (see Dayanan v. Turkey, no. 7377/03, § 32, 13 October 2009). In that connection, the absence of a lawyer during the implementation of investigative measures amounts to a breach of the requirements of Article 6 of the Convention (see, in particular, İbrahim Öztürk v. Turkey, no.", "16500/04, §§ 48-49, 17 February 2009, and Karadağ v. Turkey, no. 12976/05, § 46, 29 June 2010). 84. In the circumstances of the present case, the Court notes that the applicant had an opportunity to consult a lawyer and to be assisted by him for some of his time in custody. That being the case, in the light of the evidence contained in the case file, it would appear that the applicant had no legal assistance during the implementation of certain procedural measures during his custody, such as his transport to the locations in question for a reconstruction of events and his statements to the police.", "Nor have the Government provided any explanation for that lack of assistance. 85. Having assessed the present case in the light of the principles set out in its case-law (see paragraph 83 above), the Court holds that the Government have failed to present any factual element or argument conducive to any other conclusion. It therefore finds a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention.” [13] Concurring opinion of Judge Bratza. See also the concurring opinion of Judge Zagrebelsky, joined by Judges Casadevall and Türmen." ]

[ "SECOND SECTION CASE OF TAYLAN v. TURKEY (Application no. 32051/09) JUDGMENT STRASBOURG 3 July 2012 FINAL 03/10/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Taylan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Isabelle Berro-Lefèvre,András Sajó,Işıl Karakaş,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 12 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "32051/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Tamer Taylan (“the applicant”), on 5 June 2009. 2. The applicant was represented by Ms G. Dede, a lawyer practising in Bursa. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 10 December 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1968 and lives in Bursa.", "A. The arrest and alleged ill-treatment of the applicant in police custody 5. On 8 March 2000 the applicant was arrested on suspicion of establishing a criminal organisation and committing fraud, threats and bribery. Approximately an hour after the arrest, he underwent a medical examination. The doctor who examined the applicant noted no sign of injury on his body.", "6. On the same day, the applicant was taken to the Department of Organised Crime of the Bursa Directorate of Security, where he was allegedly subjected to ill-treatment. More specifically, he was stripped naked, beaten, subjected to electric shocks, hung by the arms, forced to sit naked on cold ground bare and hosed with water. 7. On 10 March 2000 the applicant’s wife lodged a complaint with the Bursa Public Prosecutor, claiming that her husband was being tortured.", "8. Subsequently, on the same day the Bursa Public Prosecutor initiated an investigation into the matter. 9. On 12 March 2000, upon the request of the Bursa Directorate of Security, the Bursa Magistrates’ Court decided to prolong the applicant’s detention in police custody for three days. 10.", "On 14 March 2000 the applicant was heard by the Bursa Public Prosecutor. He was then transferred to the Bursa Branch of the Forensic Medicine Institute to be examined. The forensic medical report noted the applicant’s complaint as to his ill-treatment and indicated that he had two bruises measuring 8 x 3 cm and 8 x 1 cm on his left arm, a 6 x 5 cm light bruise in his right armpit, a blue-coloured bruise surrounding his left eye, several parallel scabbed lesions around his penis and a scratch measuring 2 x 1 cm below his right knee. 11. On the same day, following a request from the Department of Organised Crime, the applicant was examined once more by another doctor, who stated that the applicant had complained of headaches, dizziness and sensitivity at the tip of the big toe of his right foot.", "The report drawn up by that doctor indicated that the applicant’s general health condition was good and that he was conscious. It noted that he had bruises and hyperemia on his left and right sides, further hyperemia on both his arms, scabbed lesions of 2 x 3 cm on his penis (which would probably heal in three days) and a bruise around his eye (to heal in five days). The report concluded that the injuries would not keep the applicant from daily work. 12. On 20 March 2000 the Bursa Public Prosecutor requested the Forensic Medicine Institute to indicate, on the basis of its medical report dated 14 March 2000, whether the applicant was fit for work.", "On the same day, the Institute issued another report, reiterating the findings of the initial one and stating that the applicant would be unfit for routine activities for a period of three days. 13. Following the applicant’s detention on remand, the prison doctor transferred him to the Bursa State Hospital. On 22 March 2000 the applicant was diagnosed with acute lumbar strain and discopathy by a doctor at that hospital. The doctor also indicated that the applicant suffered from spondylosis and sciatica on his right side.", "The applicant was discharged from the hospital on 27 March 2000. 14. On 28 March 2000 the Bursa Public Prosecutor heard the applicant’s allegations of ill-treatment during his time in police custody. The applicant repeated before the Public Prosecutor that he had been stripped naked and subjected to electric shocks, hung by the arms, forced to sit on cold ground and hosed with cold water every one or two hours during the seven-day period of custody. He added that he had been blindfolded during his arrest and kept that way until he was brought before the Bursa Public Prosecutor for the first time.", "15. The next day, on 29 March 2000, the Bursa Public Prosecutor requested the Bursa Directorate of Security to list the names of the police officers who had been on duty and who had had any contact with the applicant during the time he had been held at the Department of Organised Crime. 16. In the meantime, the issue was brought to the attention of the Ministry of Justice by one of the Members of Parliament representing Bursa. 17.", "Following this event and the coverage of the issue in a local newspaper, on 6 April 2000 the Bursa Public Prosecutor submitted an information document to the Directorate of Criminal Affairs attached to the Ministry of Justice, stating that the medical reports about the applicant corroborated the allegations of ill-treatment and that he had already commenced an investigation into the matter on 10 March 2000. 18. Subsequently, on 18 April 2000 the Bursa Directorate of Security informed the Bursa Public Prosecutor of the names of thirteen police officers on duty during the period when the alleged events took place. B. Criminal proceedings against the police officers 19.", "On 26 April 2000 the Public Prosecutor filed an indictment with the Bursa Assize Court, accusing all thirteen police officers listed of torture, pursuant to Article 243 of the former Criminal Code (Law no. 765). He maintained that the complainants’ accounts of the events and witness statements confirmed the findings of the medical reports and concluded that the seven complainants, including the applicant, had been subjected to ill‑treatment in police custody. 20. At the first hearing on 29 June 2000, the Bursa Assize Court found that the investigation conducted by the Bursa Public Prosecutor had been inadequate.", "The court conducted a procedure whereby the complainants identified the police officers they had accused of torture. The applicant joined the proceedings as a civil party. 21. During the course of the ten hearings that followed, the court evaluated medical reports and documents from the Directorate of Security. It also heard statements from the accused police officers, the complainants and several witnesses.", "22. On 27 March 2003 the Bursa Assize Court acquitted ten of the officers, finding that none of the complainants, except for the applicant, had been ill-treated and that those ten officers had not been involved in the applicant’s ill-treatment in police custody. The court found the other three officers, who had been identified by the applicant during the hearings, guilty as charged, having regard to the consistency of the applicant’s account of events with the medical reports. It sentenced the said three officers to ten months’ imprisonment and banned them from public service for a period of two months and fifteen days. The court finally deferred the execution of their sentences pursuant to Section 6 of Law No.", "647 on the basis that the officers did not show any likelihood of reoffending. 23. On 14 June 2006 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the acquittal. It quashed the part concerning the sentences, stating that the court should evaluate the case again in the light of the recent Criminal Code (Law no. 5237) and the Code of Criminal Procedure (Law no.", "5271), both of which had entered into force in 2005. 24. On 1 February 2007 the Bursa Assize Court held that the former Criminal Code (Law no. 765) was more favourable for the accused police officers. The court once more sentenced them to ten months’ imprisonment and two months and fifteen days’ ban from public service.", "This time, the sentences were commuted into a fine of 900 Turkish liras[1] for each officer and were suspended again. 25. The Court of Cassation quashed that judgment on 2 July 2008, maintaining that the first-instance court should have considered whether the pronouncement of the judgment could have been suspended for a period of five years (hükmün açıklanmasının geri bırakılması), pursuant to Article 231 of the recent Code on Criminal Procedure (Law no. 5271). 26.", "On 5 November 2008 the Bursa Assize Court held that the officers concerned had beaten and cursed the applicant and administered electroshocks on him in order to a extract confession. The court sentenced the police officers once again to ten months’ imprisonment and banned them from public service for two months and fifteen days, pursuant to Article 243 of the former Criminal Code (Law no. 765). Finally, it suspended the pronouncement of the judgment, having regard to the officers’ lack of criminal records and finding it unlikely that they would reoffend. 27.", "The applicant objected to that decision. However, on 28 November 2008 Bursa Assize Court rejected his objection. The final decision was served on the applicant on 15 December 2008. C. Disciplinary proceedings against the police officers 28. On 12 May 2000 the Bursa Governorship assigned a chief officer to conduct a disciplinary investigation about the allegations of ill-treatment concerning thirteen police officers.", "29. The investigation began on 22 May 2000 and ended on 3 August 2000, on which date the superintendent officer drew up a report (fezleke). On the basis of two video recordings of the applicant during a search and when his statements were being taken and the statements of the police officers, the witnesses and the complainants, including the applicant, the superintendent indicated that the applicant seemed to be in good health and that the light ecchymoses indicated in the medical reports could have just as well been produced by the applicant himself. He concluded therefore that the police officers’ acts did not require disciplinary action. 30.", "On 9 January 2002, having reiterated the findings of the chief officer, the Central Disciplinary Board of the Directorate of Security held that there was no ground to take disciplinary measures against the thirteen police officers. II. RELEVANT DOMESTIC LAW 31. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts).", "32. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code on Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows: Article 231 ... (5) If the accused, who had been tried for the charges against him, was sentenced to a judicial fine or to imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment would not bear any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that; a) the offender has never been found guilty of a wilful offence, b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed, c) the damage caused to the victim or to the society is repaired by way of restitution or compensation.", "(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment, the pronouncement of which had been suspended, will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court imposes the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may as well suspend the execution of the imprisonment or commute it to other optional measures.", "(12) An objection may be filed against the decision to suspend the pronouncement of the judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 33. The applicant alleged under Article 3 of the Convention that he had been subjected to torture while in police custody. He also complained about the length of the criminal proceedings against the police officers and the suspension of the pronouncement of the judgment, which in his view had resulted in impunity.", "The applicant relied upon Articles 3 and 6 of the Convention. 34. The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The substantive aspect of Article 3 36. The Government did not challenge the applicant’s allegations of ill‑treatment and merely referred to the Bursa Assize Court’s judgment dated 5 November 2008.", "37. The Court recalls that where allegations are made under Article 3 of the Convention, it must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Gäfgen v. Germany [GC], no. 22978/05, § 93 , ECHR 2010-.... ). 38.", "The Court observes that, following the Court of Cassation’s decision quashing its previous judgment and after acquainting itself with the evidence and examining the facts of the case, on 5 November 2008 the Bursa Assize Court found that the applicant had been intentionally ill‑treated by three of the accused police officers during his time in police custody. The domestic court held that the officers concerned had beaten and cursed the applicant and had administered electroshocks on him in order to extract a confession. Accordingly, it found them guilty of inflicting torture, pursuant to Article 243 of the former Criminal Code (see paragraph 26 above). In the light of the foregoing, the Court concludes that the injuries observed on the applicant must be attributable to a form of ill-treatment for which the three police officers concerned bore responsibility. 39.", "As to the seriousness of the treatment in question, the Court reiterates that, under its case-law in this sphere (see, among other authorities, Selmouni v. France [GC], no. 25803/94, §§ 96-97, ECHR 1999‑V), in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. 40. In this connection, the Court considers that the treatment complained of by the applicant was inflicted intentionally by the police officers with the purpose of extracting a confession.", "As affirmed by the Bursa Assize Court’s judgment, the applicant was beaten and subjected to electroshocks while in police custody. In these circumstances, the Court finds that these acts were particularly serious and cruel and capable of causing severe pain and suffering. It therefore concludes that the ill-treatment in the present case amounted to torture within the meaning of Article 3 of the Convention. 41. There has therefore been a substantive violation of Article 3 of the Convention.", "2. The procedural aspect of Article 3 42. The Government argued that the suspension of the pronouncement of the judgment concerning the police officers was not in breach of Article 3 of the Convention and did not result in impunity for them as their sentences would be executed if they committed another wilful offence during the five-year period following the judgment. In this respect, the Government maintained that the police officers concerned had also been ordered to pay the legal costs and expenses incurred by the applicant during the proceedings. Finally, in terms of promptness, they submitted that the said proceedings had met the requirements of the Convention in that additional reports and medical evidence had been collected and witness statements had been heard during the entire period.", "43. The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). According to the established case-law, this means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished.", "This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006‑XII (extracts), and Derman v. Turkey, no. 21789/02, § 27, 31 May 2011). 44. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context.", "While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may also generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Batı and Others, cited above, § 136). 45. The Court also recalls that when an agent of the State is accused of crimes that violate Article 3, any ensuing criminal proceedings and sentencing must not be time-barred and the granting of an amnesty or pardon should not be permissible. It further reiterates that where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that he or she should be suspended from duty during the investigation and trial, and should be dismissed if convicted (see, mutatis mutandis, Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004; and Serdar Güzel v. Turkey, no.", "39414/06, § 42, 15 March 2011). 46. Turning to the facts of the present case, the Court observes that a prompt investigation was initiated into the applicant’s allegations of ill‑treatment, while the applicant was still being held in police custody. Nevertheless, although the Bursa Public Prosecutor filed an indictment with the Bursa Assize Court approximately one month after the applicant’s initial complaint, the ensuing criminal proceedings against the police officers concerned lasted for a period of eight years and six months, a delay that runs contrary to the promptness required to punish those responsible. There is no indication that the police officers were suspended from duty during that period, nor did the authorities take any disciplinary action against them (see paragraph 30 above).", "Furthermore, at the end of the criminal proceedings, the Bursa Assize Court suspended the pronouncement of the judgment whereby it had sentenced three police officers for the torture they had inflicted upon the applicant (see paragraph 26 above). According to the Court’s case-law, suspension of such sentences undeniably falls into the category of the “measures” which are unacceptable, as its effect is to render convictions ineffective (see Okkalı, cited above, §§ 73-78; and Zeynep Özcan v. Turkey, no. 45906/99, §§ 40-46, 20 February 2007). In this respect, the Court notes that the suspension of the pronouncement of the judgment, regulated by Article 231 of the Code on Criminal Procedure (Law no. 5271), has a more far-reaching effect than the deferral of the execution of a sentence and results in the impunity of the perpetrators.", "That is because the former’s application removes the judgment with all its legal consequences, including the sentence, provided that the offender abides by the suspension order (see paragraph 32 above), whereas in the latter, neither the sentence nor the judgment ceases to exist. The Court considers therefore that the impugned court decision suggests that the judges exercised their discretion more in order to minimise the consequences of an extremely serious unlawful act than to show that such acts could in no way be tolerated. 47. There has accordingly been a procedural violation of Article 3 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 49. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage. He did not submit any claim for costs and expenses. 50.", "The Government contested this claim, considering the requested amount excessive. 51. The Court finds that the applicant must have suffered pain and distress which cannot be compensated for solely by the Court’s finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 45,500 in respect of non‑pecuniary damage. 52.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a substantive violation of Article 3 of the Convention; 3. Holds that there has been a procedural violation of Article 3 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 45,500 (forty five thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident [1]. 493 euros at the time." ]

[ "SECOND SECTION CASE OF EVT COMPANY v. SERBIA (Application no. 3102/05) JUDGMENT STRASBOURG 21 June 2007 FINAL 21/09/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of EVT Company v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B.", "Baka,MrI. Cabral Barreto,MrV. Zagrebelsky,MrsA. Mularoni,MsD. Jočienė,MrD.", "Popović, judges,MrM. Ugrekhelidze, substitute judge,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 31 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 3102/05) against the State Union of Serbia and Montenegro, succeeded by Serbia on 3 June 2006 (see paragraph 32 below), lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the EVT Company (“the applicant”) on 31 December 2004. 2.", "The applicant, who had been granted legal aid, was represented before the Court by Mr M. Živković, a lawyer practising in Leskovac. The Government of the State Union of Serbia and Montenegro, initially, and the Government of Serbia, subsequently, (“the Government”) were represented by their Agent, Mr S. Carić. 3. On 24 November 2005 the Court decided to communicate the application to the Government. Under Article 29 § 3 of the Convention, it was also decided that the merits of the application would be examined together with its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 7 May 1996 the Commercial Court in Leskovac (Privredni sud u Leskovcu) ordered “Jedinstvo”, a company based in Lebane, to hand over 87,480 kilograms of common salt to the applicant, and pay its legal costs in the amount of 2,850 Yugoslav Dinars (“YUD”).", "6. This judgment became final by 8 June 1996. 7. On 21 June 1996 the applicant filed an enforcement request in respect of the judgment. 8.", "On 24 June 1996 the Commercial Court in Leskovac (“the Commercial Court”) issued an enforcement order against the respondent company (“the debtor”). 9. On 17 October 1996 the Commercial Court adopted a decision stating that the debtor could not deliver the specified amount of common salt and, instead, ordered it to pay to the applicant YUD 218,700. 10. In the meantime, the debtor was transformed into four separate companies - “Holding Jedinstvo”, “Caričin grad” and “8.", "novembar”, all based in Lebane, and “Agrar” based in Bošnjaca (“the debtors”). 11. On 21 December 1998 the Commercial Court ordered the debtors to pay the applicant YUD 218,700 with statutory interest as of 30 October 1996, plus another YUD 4,850 for legal costs, and ruled that they had jointly assumed the financial obligations of the initial debtor. 12. On 12 February 1999 and 17 September 1999, the Commercial Court and the High Commercial Court in Belgrade (Viši privredni sud u Beogradu), respectively, rejected the debtors' requests for a stay of the enforcement proceedings.", "13. On 23 December 1999 the applicant filed a submission with the Commercial Court, seeking the expedition of these proceedings. 14. Mr Marko Momčilović subsequently became the applicant's owner and authorised representative. 15.", "Throughout this time and during the years that followed, the applicant proposed different means of enforcement, including bank account seizures as well as the auctioning of the debtors' movable and, if needed, immovable assets. It emphasised that, where appropriate, police assistance should be sought. 16. On 11 July 2001, 25 March 2002 and 14 November 2002, respectively, the applicant filed requests to this effect with the Commercial Court and urged that the proceedings be expedited. 17.", "On 21 February 2004 the applicant sent a complaint, by post, to the Court of Serbia and Montenegro, stating, inter alia, that the debtors still had sufficient assets to pay their outstanding obligation, as the Commercial Court would have otherwise been “only too glad” to declare the enforcement impossible (“sud bi [inače] jedva [do]čekao da [to] konstatuje i obavesti nas kako je nemoguće sprovesti izvršenje”). This complaint, however, appears not to have reached the Court of Serbia and Montenegro. 18. By 18 March 2004 the debtors paid the applicant a total of 838,148.06 Serbian Dinars, the domestic currency having been renamed in the meantime. 19.", "On 22 November 2004 and 30 November 2004 the applicant complained to the Commercial Court, on 15 December 2004 to the High Commercial Court in Belgrade, and on 2 July 2001 and 15 December 2004 to the Supreme Court of Serbia (Vrhovni sud Srbije), respectively. 20. On 21 January 2005 the President of the Commercial Court informed the applicant that the enforcement proceedings had been hindered by the debtors' employees as well as the police. While the former physically prevented the bailiffs from conducting an inventory of the debtors' movable assets, on several separate occasions, the latter refused to assist the bailiffs in their subsequent attempts to seize those very assets. The President further noted that the most recent refusal of the police to assist the bailiffs occurred on 18 November 2004, which is why the enforcement had to be postponed.", "Finally, he stated that the proceedings would recommence as soon as the judge handling the case clarified the situation with the head of the local police, and concluded that the refusal of the police to assist the bailiffs in their duties was common in cases involving “discontented workers” engaged in the obstruction of judicial enforcement proceedings. II. RELEVANT DOMESTIC LAW A. Enforcement Procedure Act 2000 (Zakon o izvršnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - no. 28/00, 73/00 and 71/01) 21.", "Article 4 § 1 provides that the enforcement court is obliged to proceed urgently. 22. Under Article 47, if need be, bailiffs may request police assistance. Should the police fail to provide such assistance, the enforcement court shall inform the Minister of Internal Affairs, the Government, or the competent parliamentary body of this failure. B.", "Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in the Official Gazette of the Republic of Serbia - OG RS - no. 125/04) 23. This Act entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act 2000. In accordance with Article 304, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act 2000. C. Statutory Interest Act (Zakon o visini stope zatezne kamate; published in OG FRY no.", "9/01) 24. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement (which includes awards granted by final court judgments). 25. Article 2 states that such interest shall be calculated on the basis of the official retail price index (mesečna stopa rasta cena na malo) plus another 0.5% monthly (mesečna fiksna stopa). D. Insolvency Procedure Act (Zakon o stečajnom postupku; published in OG RS no.", "84/04) 26. Article 40 §§ 1-3 provides, inter alia, that judicial insolvency proceedings may be instituted by a company's creditor, providing that it can substantiate its claim and document that the debtor in question cannot otherwise cover its outstanding obligations. E. Financial Transactions Act (Zakon o platnom prometu; published in OG FRY nos. 3/02 and 5/03, and OG RS nos. 43/04 and 62/06) 27.", "Under Article 54 § 1, inter alia, the Serbian Central Bank (Narodna banka Srbije) shall monitor the solvency of all corporate entities and initiate judicial insolvency proceedings in respect of those whose bank accounts have been “blocked” due to outstanding debts for a period of 60 days consecutively, or for 60 days intermittently, within the last 75 days. F. Judges Act (Zakon o sudijama; published in OG RS nos. 63/01, 42/02, 60/02, 17/03, 25/03, 27/03, 29/04, 61/05 and 101/05) 28. The relevant provisions of this Act read as follows: Article 40a §§ 1 and 2 “The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”). This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.” Article 40b “In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases.", "Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.” G. Criminal Code 1977 (Krivični zakon Republike Srbije; published OG RS nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, 21/90, 16/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) 29. Articles 213, 242, 243 and 245 of this Code incriminate “obstruction of an official in the performance of his or her duties” (sprečavanje službenog lica u vršenju službene dužnosti), “abuse of office” (zloupotreba službenog položaja), “judicial malfeasance” (kršenje zakona od strane sudije) and “official malfeasance” (nesavestan rad u službi), respectively. H. Criminal Code 2005 (Krivični zakonik; published in OG RS nos. 85/05, 88/05 and 107/05) 30.", "Article 340 incriminates “non-enforcement of a court decision” (neizvršenje sudske odluke). 31. This Code entered into force on 1 January 2006, thereby repealing the Criminal Code 1977. I. Relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro 32.", "The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 33.", "The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the final judgment rendered in its favour on 7 May 1996. The relevant provisions of these Articles read as follows: Article 6 § 1 “In the determination of his [or her] civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his [or her] possessions. No one shall be deprived of his [or her] possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Arguments of the parties 34. The Government submitted that the applicant had not exhausted all available, effective domestic remedies. In particular, it had failed to lodge a complaint under Article 47 of the Enforcement Procedure Act 2000 and to complain about the delay in question to the Supreme Court's Supervisory Board (see paragraphs 22 and 28 above). Further, the applicant had not made use of the complaint procedure before the Court of Serbia and Montenegro, pursuant to the Constitutional Charter and the Charter on Human and Minority Rights and Civic Freedoms (see paragraph 32 above).", "Finally, the Government maintained that the applicant had failed to lodge a criminal complaint under Articles 213, 242, 243 and 245 of the Criminal Code 1977 or a complaint under Article 340 of the Criminal Code 2005 (see paragraphs 29-31 above). 35. The applicant stated that it had complied with the exhaustion requirement contained in Article 35 § 1 of the Convention. In particular, it had filed a complaint with the Court of Serbia and Montenegro on 21 February 2004, even though this court was never functional. Further, it had no right under law to directly lodge a complaint with the Supreme Court's Supervisory Board.", "Finally, as regards Article 47 of the Enforcement Procedure Act 2000, the applicant pointed out that it was up to the enforcement court and its bailiffs to seek police assistance and inform the Ministry of Internal Affairs about the difficulties encountered. 2. Relevant principles 36. The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those which are effective.", "It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11–12, § 27, and Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 87-88, § 38). Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no.", "40679/98, § 107, 29 April 2003). 37. The Court emphasises that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 69). It must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected in order to exhaust domestic remedies.", "38. Finally, the Court reiterates that the decisive question in assessing the effectiveness of a remedy concerning a complaint about procedural delay is whether or not there is a possibility for the applicant to be provided with direct and speedy redress, rather than an indirect protection of the rights guaranteed under Article 6 (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 195, ECHR 2006, and Sürmeli v. Germany [GC], no. 75529/01, § 101, 8 June 2006).", "In particular, a remedy of this sort shall be “effective” if it can be used either to expedite the proceedings at issue or to provide the litigant with adequate redress for delays which have already occurred (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, §§ 157-159, ECHR 2000-XI, Mifsud v. France (dec.), [GC], no. 57220/00, § 17, ECHR 2002-VIII, and Sürmeli v. Germany [GC], cited above, § 99). 3. The Court's assessment 39.", "The Court considers that a complaint with the Supreme Court's Supervisory Board to speed up the enforcement at issue, even if relevant and directly available to the applicant, would have amounted to no more than mere information submitted to a higher instance with full discretion to make use of its powers as it saw fit (see paragraph 28 above). In addition, even if this board had instituted proceedings in response to the applicant's complaint, they would have taken place exclusively between the board itself and the judge/court concerned. The applicant would not have been a party to such proceedings and would, at best, have only been informed of their outcome (see, mutatis mutandis, Horvat v. Croatia, no. 51585/99, § 47, ECHR 2001‑VIII). A complaint to the Supreme Court's Supervisory Board cannot therefore be considered effective within the meaning of Article 35 § 1 of the Convention.", "40. As to Article 47 of the Enforcement Procedure Act 2000, the Court considers that it was indeed up to the respondent State's authorities, and not the applicant personally, to seek police assistance and inform the Ministry of Internal Affairs about the difficulties encountered (see paragraph 22 above). In any event, for its part, the applicant had repeatedly complained about the lack of police assistance to various State bodies but obtained no redress (see paragraphs 15, 16 and 19 above). 41. The Court further considers that a criminal complaint (see paragraphs 29-31 above) would have been just as ineffective as it would have been no faster than any other “ordinary” criminal matter which could have lasted for years and gone through several instances (see paragraph 38 above).", "The Government certainly offered no evidence to the contrary. 42. Finally, concerning the Government's submission that the applicant should have filed a complaint with the Court of Serbia and Montenegro, the Court recalls that it has already held that this particular remedy was unavailable until 15 July 2005 and, further, that it remained ineffective until the break up of the State Union of Serbia and Montenegro (see Matijašević v. Serbia, cited above, §§ 34-37). The Court sees no reason to depart in the present case from this finding and concludes, therefore, that the applicant was not obliged to exhaust this particular avenue of redress. The issue of why the applicant's complaint apparently never reached the Court of Serbia and Montenegro is thus irrelevant.", "43. In view of the above, the Court concludes that the applicant's complaints cannot be declared inadmissible for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. Accordingly, the Government's objection in this respect must be dismissed. The Court also considers that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and finds no other ground to declare them inadmissible. The complaints must therefore be declared admissible.", "B. Merits 1. Arguments of the parties 44. The Government noted that the respondent State had ratified the Convention and Protocol No. 1 to the Convention on 3 March 2004 and that the impugned enforcement proceedings have therefore been within this Court's jurisdiction ratione temporis for a period of approximately three years only.", "The domestic courts were diligent and the proceedings complex given that they “involved workers” whose opposition to the enforcement of the final judgment in question could have easily led to a riot, had the police accepted to intervene. Further, the transformation of a single debtor into four separate companies had in itself contributed to the duration of the proceedings at issue. Finally, the applicant cannot be considered to have been “deprived of its possession” given that the alleged deprivation was “not definitive” and the final judgment had been partly enforced (see paragraph 18 above). 45. The applicant stated that the enforcement proceedings have been pending since 1996, more than three years of which elapsed following the respondent State's ratification of the Convention and Protocol No.", "1 to the Convention. They were not complex and the applicant's own conduct did not contribute to any delay. Further, the enforcement court itself did not take adequate steps to bring these proceedings to a successful and speedy conclusion. Finally, the applicant stressed that it has been deprived of its possessions as of 1996, when the Commercial Court's judgment became final and that this deprivation was thus “definitive”. 2.", "Relevant principles 46. The Court recalls that it would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by a court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 510, § 40). 47. A delay in the execution of a judgment may, however, be justified in particular circumstances but this delay may not be such as to impair the essence of the right protected under Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no.", "22774/93, § 74, ECHR 1999-V). 48. Further, irrespective of whether a debtor is a private or a State actor, it is up to the State to take all necessary steps to enforce a final court judgment as well as to, in so doing, ensure effective participation of its entire apparatus, including the police, failing which it will fall short of the requirements contained in Article 6 § 1 (see, mutatis mutandis, Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 174-189, ECHR 2004‑V (extracts); see also mutatis mutandis, Hornsby, cited above, p. 511, § 41). 49.", "Finally, in terms of Article 1 of Protocol No. 1, the Court notes that a “claim” can constitute a “possession” if it is sufficiently established to be enforceable (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III) and reiterates that it is under this provision, as well as Article 6 § 1 of the Convention, that the State is obliged to make use of all available legal means at its disposal in order to enforce a final judgment, even in cases involving litigation between private parties (see, mutatis mutandis, Fuklev v. Ukraine, no. 71186/01, §§ 89-91, 7 June 2005; see also Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002-VII).", "3. Period to be taken into account 50. The Court notes that the judgment of 7 May 1996, although final and enforceable as of June 1996, has yet to be fully executed. The impugned situation has thus already been ongoing for more than three years and two months since the ratification of the Convention and Protocol No. 1 by the respondent State on 3 March 2004 (the period which falls within this Court's jurisdiction ratione temporis).", "51. The Court further observes that, in order to determine the reasonableness of the delay in question, regard must also be had to the state of the case on the date of ratification (see, mutatis mutandis, Styranowski v. Poland, judgment of 30 October 1998, Reports 1998-VIII) and notes that on 3 March 2004 the enforcement proceedings complained of had already been pending for a period of almost eight years. 4. The Court's assessment 52. The Court reiterates that the State has an obligation to organise a system of enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see Fuklev v. Ukraine, no.", "71186/01, § 84, 7 June 2005, and Mužević v. Croatia, no. 39299/02, § 84, 16 November 2006). It must also make sure that the procedures provided for in the relevant domestic legislation are complied with (see Fuklev v. Ukraine, cited above, § 91). 53. The Court notes, as regards the present case, that the remaining part of the applicant's claim has not been enforced since 18 March 2004 and that the police expressly refused to assist the bailiffs on a number of occasions, including on 18 November 2004, a fact apparently tolerated by the domestic authorities at that time as well as by the Government in the present proceedings (see paragraphs 20 and 44 above).", "Further, it would appear that there were no attempts to enforce the final judgment from then on, even though there is no evidence that this delay could be attributed the debtors' lack of means (see paragraphs 17, 26, 27 above and paragraph 59 below). Finally, there is also nothing to suggest that the enforcement proceedings have been particularly complex or, indeed, that the transformation of a single debtor into four separate companies had contributed to the delay of which the applicant complained (see paragraphs 11 and 12 above). 54. In such circumstances and irrespective of whether any of the debtors are State-owned or State-controlled companies (see paragraphs 48 and 49 above), the Court considers that the respondent State has clearly failed to effectively conduct the enforcement proceedings at issue (see Fuklev v. Ukraine, cited above, § 86). It therefore finds that the Serbian authorities have impaired the essence of the applicant's “right to a court” and prevented it from receiving the money which it had legitimately expected to receive.", "There has accordingly been a violation of Article 6 § 1 of the Convention and a separate violation of Article 1 of Protocol No. 1 (see Kolyada v. Russia, no. 31276/02, § 25, 30 November 2006). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 56. The applicant claimed EUR 300,000 for the pecuniary and non-pecuniary damages sustained due to the failure of the domestic authorities to fully enforce the final judgment rendered in its favour, which amount included compensation for the severe disruption of its business operations as well as the mental distress suffered by the applicant's owner (see paragraph 14 above). The applicant further submitted that, as a result of the respondent State's protracted inactivity, the debtors no longer had sufficient assets to cover the remainder of their outstanding obligations. 57.", "The Government contested these claims. They added that the remaining amount to be enforced was equivalent to approximately EUR 65,000 in Serbian Dinars, which included the accrued statutory interest, and noted that any distress suffered by the applicant's owner was irrelevant given that he was not the applicant before the Court. 58. The Court accepts that the applicant has suffered some non-pecuniary damage which would not be sufficiently compensated by the finding of the violations alone (see, mutatis mutandis, Comingersoll v. Portugal [GC], no. 35382/97, §§ 35-37, ECHR 2000-IV, and Teltronic-CATV v. Poland, no.", "48140/99, §§ 67, 68 and 60, 10 January 2006). Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 2,500 under this head. 59. Concerning the pecuniary damage sought, the Court finds that there is no evidence that the debtors have insufficient assets to fully comply with the final judgment at issue (see paragraphs 17 and 53 above; see also, mutatis mutandis, Mužević v. Croatia, cited above, at § 85). Indeed, none of them appear to have been declared insolvent, either at the applicant's own initiative or by the State ex officio (see paragraphs 26 and 27 above).", "Finally, it is noted that statutory interest in Serbia covers inflation and contains an additional punitive element (see paragraphs 24 and 25 above). 60. The Court considers, therefore, that the applicant's claim for pecuniary damage must be met by the Government ensuring, by appropriate means, the full execution of the Commercial Court's final judgment of 7 May 1996, as modified by the enforcement orders of 17 October 1996 and 21 December 1998, respectively (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; see also Mužević v. Croatia, cited above, § 91). B.", "Costs and expenses 61. The applicant, who had received legal aid from the Council of Europe in connection with the presentation of his case, also claimed a total of EUR 9,489.84 for the costs and expenses incurred before the domestic courts as well as before this Court, and provided an itemised calculation in this respect. 62. The Government contested that claim. 63.", "According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were also reasonable as to their quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 64. Regard being had to all of the information in its possession and the above criteria, however, the Court considers it reasonable to award the applicant the sum of EUR 3,000 for the costs incurred domestically, in particular those undertaken with a view to expediting the proceedings complained of (see, mutatis mutandis, Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 18 October 1982 (Article 50), Series A no. 54, § 17; see also, argumentum a contrario, O'Reilly and Others v. Ireland, no.", "54725/00, § 44, 29 July 2004). 65. Finally, given the amount granted under the Council of Europe's legal aid scheme, the Court rejects the applicant's claim for the costs incurred in the proceedings before it. C. Default interest 66. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible. 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 3.", "Holds (a) that the respondent State shall ensure, by appropriate means, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the full execution of the Commercial Court's final judgment of 7 May 1996, as modified by the relevant enforcement orders; (b) that the respondent State is to pay the applicant, within the same three month period, EUR 2,500 (two thousand five hundred euros) in respect of the non-pecuniary damage suffered, and EUR 3,000 (three thousand euros) for the costs incurred domestically, which sums are to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléF. TULKENSRegistrarPresident" ]

[ "FIRST SECTION CASE OF CHUMAKOV v. RUSSIA (Application no. 41794/04) JUDGMENT STRASBOURG 24 April 2012 FINAL 24/09/2012 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Chumakov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 3 April 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "41794/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Aleksandrovich Chumakov (“the applicant”), on 19 September 2004. 2. The applicant was represented by Ms K. Kostromina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant complained, in particular, that he had been ill-treated by the police, that his detention on remand had been unlawful and lengthy, that the criminal proceedings against him had been unfair and that there had been no effective remedies in respect of the alleged violations of his rights. He referred to Articles 2, 3, 5, 6, 7, 8 and 13 of the Convention. 4. On 24 October 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1979 and lives in Pyatigorsk, the Stavropol Region. A. Administrative proceedings against the applicant and his alleged ill-treatment 6.", "On 29 September 2002 a certain Ms Sh. was murdered. On the next day the police initiated criminal proceedings in that connection. 7. On the same day a certain Mr M., who had been arrested for the administrative offence of public drunkenness, complained to the police that the day before the applicant had allegedly sworn at him and attempted to start a fight.", "8. On 2 October 2002 an administrative offence record was drawn up in respect of the applicant by police officers K. and B. The applicant denied Mr M.’s allegations. 9. On 3 October 2002 he was found guilty of disorderly conduct and sentenced to five days’ administrative detention by the Justice of the Peace of the 1st Circuit of the Kirovskiy District of the Stavropol Region.", "10. On 3 October 2002, pursuant to the aforementioned judgment of the same date, the applicant was placed in the temporary holding facility of the Kirovskiy District Police Department of the Stavropol Region (“the district police department”). 11. According to the applicant, between 3 and 6 October 2002 police officers forced him to confess to the murder of Ms Sh. by beating him up and threatening him with rape with a rubber truncheon.", "12. On 6 October 2002 the applicant signed a confession to the murder of Ms Sh. He stated, in particular, that he had strangled her with a TV power cable. 13. On 7 October 2002 the investigator in charge recorded the applicant’s arrest on suspicion of murder.", "14. The investigator also ordered a forensic medical examination of the applicant, which was carried out on 7 October 2002 by a medical expert with ten years’ experience, who certified that he had no injures (certificate no. 181). B. The applicant’s pre-trial detention 15.", "On 8 October 2002 the Kirovskiy District Court of the Stavropol Region (“the District Court”) ordered the applicant’s placement in custody as a preventive measure, stating that he was suspected of having committed a particularly serious criminal offence, might abscond from justice and had been given negative character references at the place of his residence. The applicant was then transferred to the remand centre “SIZO-26/2” of Pyatigorsk. 16. On 9 October 2002 the applicant was formally charged with murder. 17.", "On 6 December 2002 the District Court extended the term of the applicant’s pre-trial detention until 7 January 2003. The applicant’s counsel argued that there were no grounds to believe that the applicant might abscond, that he had a permanent place of residence and permanent work and had confessed to the crime. The fact that he was accused of a serious criminal offence could not, as such, be the basis for his continued pre-trial detention. The court decision read as follows: “Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the preventive measure [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime associated with a high risk to society, which does not exclude the possibility of him absconding from the investigating bodies and the court, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...” The applicant did not appeal against that decision. 18.", "On 27 December 2002 the applicant requested the investigator to exclude his self-incriminating statements of 6 October 2002 from the body of evidence, alleging that he had confessed to the murder under physical and psychological pressure by the police officers during his administrative detention. The applicant alleged that every night they had taken him out of his cell to their office and had psychologically pressurised him to confess. 19. On 30 December 2002 the District Court examined the investigator’s application for the extension of the applicant’s detention. The applicant stated that he had no intention of absconding or influencing witnesses and asked to be released.", "The court extended the term of his pre-trial detention until 7 February 2003 for the following reasons: “Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the measure of restraint [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime, and might impede a thorough, comprehensive and objective investigation or abscond from the investigating bodies, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...” It does not appear that the applicant appealed against this decision. 20. On 31 January 2003 the applicant was served with a copy of the bill of indictment for the murder. 21. On 6 February 2003 the case was sent to the District Court for trial.", "C. Court proceedings and the applicant’s detention pending trial 1. First round of court proceedings 22. Upon receipt of the case file, on 6 February 2003 the District Court scheduled a preliminary hearing for 17 February 2003. It also ordered that the preventive measure of detention should remain unchanged. It does not appear that the applicant appealed against this decision.", "23. On 19 May 2003 the District Court found the applicant guilty of murder and sentenced him to nine years’ imprisonment. It relied, in particular, on his self-incriminating statements. It took into account statements by the police officers, who denied ill-treating the applicant, and the medical expert report, according to which the applicant’s examination on 7 October 2002 had not revealed any injuries on him, and dismissed the applicant’s allegations of ill-treatment as unsubstantiated. 24.", "On 20 July 2003 the applicant’s counsel obtained written statements from a certain Mr I. Sh. who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department from 3 to 5 October 2002. He stated that the applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him up and that they had threatened him with rape with a rubber truncheon. 25.", "On 31 July 2003 the Regional Court examined the applicant’s appeal against his conviction. It found that the evidence on which the judgment was based contained a number of discrepancies which had not been resolved by the trial court and that the failure to summon witnesses for the applicant properly had undermined the adversarial nature of the trial. It also held that the applicant’s allegations that his self-incriminating statements had been obtained under duress had not been thoroughly examined; that the police officers’ statements did not constitute sufficient evidence of their proper conduct; and that the applicant’s counsel’s complaint to the prosecutor’s office of the Kirovskiy District (“the district prosecutor’s office”) about the unlawful acts of the police had been left unanswered and no inquiry in that connection had been conducted. The Regional Court thus quashed the judgment and remitted the case for a fresh examination by the first-instance court. It also ordered that the applicant remain in custody.", "2. Second round of court proceedings 26. On 11 August 2003 the case file arrived at the District Court. 27. On 12 August 2003 the District Court extended the term of the applicant’s detention until 6 November 2003, stating that the applicant was charged with a particularly serious criminal offence and that, if released, he might impede the criminal proceedings or evade trial.", "It also noted that the case had been before the courts for more than six months; that the initial term of the applicant’s detention established in Article 255 § 2 of the Russian Code of Criminal Procedure had expired and that it should be extended for the next three months. The applicant, who was neither present nor represented at the hearing, did not appeal against this decision. 28. On 12 September 2003 the applicant’s lawyer obtained further written statements from Mr I. Sh., who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department in October 2002.", "The applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him in the area of the kidneys and liver. Mr I. Sh. further stated that he had seen fresh scratches on the applicant’s left shoulder and elbow and that the applicant’s lower lip had been hurt. 29.", "On 6 November 2003 the District Court rejected the applicant’s request for release under an undertaking not to leave a specified place and, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, extended his detention for three months until 6 February 2004 on the same grounds as those given in its decision of 12 August 2003. The applicant’s lawyers referred to the length of detention, the applicant’s innocence and the deterioration of his health. The applicant appealed against the decision, arguing, in particular, that it was insufficiently reasoned. 30. On 10 December 2003 the Regional Court quashed the decision of 6 November 2003, referring to the absence of a transcript of that hearing in the materials of the case, and remitted the matter to the same court for a fresh examination.", "31. On 8 January 2004 the District Court ordered, under Article 255 § 3 of the Russian Code of Criminal Procedure, that the term of the applicant’s detention be extended until 6 February 2004. It relied on the same reasons as those which were set out in the decision of 12 August 2003. The applicant’s lawyers referred to the absence of reasons for the applicant’s continued detention, in particular the lack of grounds for the risk of him absconding, his permanent place of residence and work, positive references and the length of his detention. The court stated that at that stage it could not take into account the argument concerning the applicant’s innocence.", "It did not address any other arguments put forward by the applicant’s lawyers. The applicant did not appeal against that decision. 32. On 5 February 2004 the District Court again examined the question of the preventive measure applied to the applicant. The applicant asked to be released, referring to the deterioration of his health and stomach complaints.", "His lawyers referred to the excessive length of his detention, the absence of reasons to believe that he might abscond or otherwise impede the proceedings and the fact that he had received positive character references. The court dismissed their request for release and extended, on the basis of Article 255 § 3 of the Russian Code of Criminal Procedure, the applicant’s detention for a further three months, until 6 May 2004, for reasons identical to those cited in its previous decisions. It did not address the applicant’s lawyers’ arguments. It does not appear that the applicant appealed against that decision. 33.", "On 22 March 2004 the applicant’s father’s flat was searched. The applicant’s father’s complaints about the unlawfulness of the search were dismissed by the district prosecutor’s office on 13 April 2004 and by the District Court on 14 May 2004. 34. On 26 April 2004 the District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment. It examined, in particular, witness I. Sh.", "(see paragraphs 24 and 28 above) who stated before the court that the applicant had not complained about any ill-treatment by the police officers and that he had not seen any injures on the applicant. According to Mr I. Sh., his previous statements to the contrary had been false and had been given at the request of the applicant’s parents and defence counsel in order to help the applicant. Two other witnesses, Mr R. and Mr S., who had also been held in the applicant’s cell at some point in October 2002, also stated that they had neither heard from the applicant about any pressure by the police nor seen any injures on him. 35.", "On appeal, on 3 August 2004 the Regional Court found that the trial court had failed to assess the arguments put forward by the defence properly and that the applicant’s right to defend himself had been violated. It quashed the judgment of 26 April 2004 and remitted the case to the District Court for a fresh examination. The Regional Court also ordered that the applicant’s detention on remand as a preventive measure remain unchanged. 3. Third round of court proceedings 36.", "On 18 August 2004 the case file arrived at the District Court. 37. On 23 August 2004 the District Court scheduled a preliminary hearing in the case for 1 September 2004. It also ordered that the preventive measure applied to the applicant in the form of detention on remand remain unchanged. It does not appear that the applicant appealed against that decision.", "38. On 1 September 2004 the District Court extended, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, the term of the applicant’s detention for three months, to be calculated from 13 August 2004 until 13 November 2004. The court noted that the term of the applicant’s detention, as previously extended on 5 February 2004 (see paragraph 32 above), had expired on 13 August 2004, and that it had received the case file from the Regional Court only on 18 August 2004. The applicant requested the court to release him, referring to the deterioration of his state of health and his stomach ulcer. The court held as follows: “... the accused ... is charged with a particularly serious crime; the circumstances of the case were not ... established in detail ... in the course of the trial, the evidence which could have determined [his] guilt [or innocence] was not examined ...", "The positive character references of the accused ... do not constitute sufficient grounds to release him ... because, if released, he might abscond ... and hinder the establishment of the truth in the case. The court cannot take into account ... the claim that the accused is ill and needs medical treatment as he has not submitted any relevant documents. The court has not established any procedural violations in respect of his detention on remand.” 39. The applicant and his counsel appealed against the decision of 1 September 2004, arguing that the previously authorised term of the applicant’s detention had expired on 13 August 2004 and had not been extended by the court. According to them, the applicant had therefore been detained unlawfully for 18 days from 13 August to 1 September 2004.", "40. On 17 September 2004 the Regional Court upheld the decision of 1 September 2004 on appeal. It stated that the fact that the applicant was accused of a particularly serious criminal offence had rightly been taken into account by the first-instance court; that the applicant’s state of health did not preclude his being kept in custody and that there had, therefore, been sufficient reasons for extending his detention. 41. On 1 November 2004 and 26 January 2005 the District Court further extended the term of the applicant’s detention on remand until 13 February and 13 May 2005 respectively.", "In its similar decisions the court relied on the same reasons to justify the applicant’s continued detention as those set out in the decision of 1 September 2004. The applicant did not appeal against either of those two decisions. 42. On 25 April 2005 the District Court convicted the applicant of murder and sentenced him to nine years’ imprisonment. During the hearing witness I. Sh.", "(see paragraphs 24, 28 and 34 above) stated that the applicant had sometimes been taken out of his cell for interrogation after 10 p.m., that he had seen a scratch on the applicant’s lip and that the applicant had told him that he had been beaten up. According to Mr I. Sh., he did not remember whether there had been other injuries on the applicant. Mr I. Sh. also stated that he had lived at the applicant’s parents’ home for several days and had done some work for them and that the applicant’s family had supported him when he had been detained in the context of another criminal case.", "43. On 22 September 2005 the Regional Court quashed the judgment and remitted the case to the District Court for a fresh examination. It found, in particular, that the first-instance judgment was based on conflicting evidence. It also held that the preventive measure should remain in place as there were no grounds to release the applicant. 4.", "Fourth round of court proceedings 44. On 11 October 2005 the case file arrived at the District Court. 45. On 26 October 2005 the District Court held a preliminary hearing in the case for the purpose of taking a decision on the preventive measure to be applied in respect of the applicant. The applicant requested the court to replace his detention with any preventive measure other than deprivation of liberty.", "His counsel requested that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour, since the applicant had been held in custody for more than three years, had positive character references and did not intend to evade the trial. The prosecutor asked for the preventive measure to remain the same. 46. The District Court noted that the applicant’s criminal case had been pending before the court since 6 February 2003, and that from that date onwards his detention had been regulated by Article 255 § 3 of the Russian Code of Criminal Procedure, which allowed it to be extended beyond the initial six-month period for further periods of three months. It further noted that the term of the applicant’s detention had been extended on numerous occasions, and that the last time, on 26 January 2005, the District Court had authorised his detention until 13 May 2005.", "It also noted that before the expiry of that period, on 25 April 2005, the applicant had been convicted by the trial court. The court then noted that the term of the applicant’s detention, as extended on 26 January 2005, should be considered as having run out on 9 October 2005, provided that the period between 25 April 2005, the date of the conviction, and 22 September 2005, the date of its quashing on appeal, was excluded from the term of detention on remand, in accordance with paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004. The court thus held that the term of the applicant’s detention had not been extended in accordance with a procedure prescribed by law and that therefore, despite the seriousness of the charge against him, there were no legal grounds for his further detention on remand. It ordered that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour and that the applicant be released immediately.", "47. On 3 November 2005 the prosecutor appealed against that decision, arguing that the District Court had erred in its interpretation of paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004, since it followed from the meaning of Article 255 of the Russian Code of Criminal Procedure that the term of detention should run from the day of a criminal case’s arrival at a first-instance court and not from the day of delivery of an appellate court’s decision. Therefore, in the prosecutor’s opinion, the term of the applicant’s detention should have run out on 29 October 2005. The applicant disagreed, pointing out the fact that he was employed, that he did not intend to evade justice and that he simply wanted the trial to be concluded as soon as possible and his good name restored.", "48. On 30 November 2005 the Regional Court found that the District Court had violated Article 255 § 3 of the Russian Code of Criminal Procedure, as the term of detention of a person who had committed a serious or particularly serious criminal offence had to be extended by a court decision each time, and such extension could not be authorised for a period longer than three months at any one time. It went on to agree with the prosecutor’s submissions and stated that the term of the applicant’s detention should have started running on 11 October 2005, the date when the case file had been received by the District Court, and that therefore it should be regarded as having expired on 29 October 2005. The court then held that this procedural breach was grounds for the annulment of the decision of 26 October 2005, and ordered that the case be sent to the District Court for a new examination. According to the applicant, he attended the hearing of 30 November 2005 and was placed in detention immediately after that hearing.", "49. On 21 December 2005 the District Court ordered the applicant’s release on an undertaking not to leave his place of residence. It stated that the applicant had been held in detention on remand for more than three years, that after his release on 26 October 2005 he had immediately started working and that he had been given positive character references from his employers. The court held that there were no reasons to believe that he would evade the trial or put pressure on witnesses and thus obstruct the establishment of the truth, and therefore there were no grounds to keep him in detention. The applicant was released immediately.", "50. On 2 May 2006 the District Court examined the criminal case against the applicant for the fourth time. At the hearing, the applicant insisted that he was innocent and reiterated that he had made his confession at the pre-trial stage because he had been beaten and threatened by the police. 51. The District Court observed that the charge against the applicant had mainly been based on his self-incriminating statements and written confession made during the preliminary investigation, which he had later repudiated as having been made under duress.", "It further noted, as regards the applicant’s medical examination on 7 October 2002, which had not revealed any injuries on him, that the applicant had not been apprised of the investigator’s order to carry out that examination until it had been over. Therefore, in the District Court’s opinion, a note on the resulting expert report to the effect that the applicant had had no comments or questions for the expert, and had not wished to call into question the expert’s authority, was devoid of any legal meaning. 52. The court further stated that on 6 February 2006 the decision of 27 January 2003, by which the district prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment during his administrative detention in October 2002, had been quashed, and that on 15 February 2006 the district prosecutor’s office had again refused to institute criminal proceedings owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. In the District Court’s opinion, however, the applicant’s allegation that he had made self-incriminating statements and had signed his confession as a result of coercion by the police was corroborated by the evidence in the case.", "53. In particular, the court examined the register of detainees of the temporary holding facility where the applicant had been held and noted that the applicant had been taken out of his cell on 3 October 2002, from 7.30 p.m. to 8.30 p.m., and on 4 October 2002 from 6.25 p.m. to 6.50 p.m. and from 9.40 p.m. to 9.55 p.m. The court further observed that, according to the applicant’s written confession, it had been given on 6 October 2002 in office no. 36 of the temporary holding facility and not in his cell. However, the register did not contain any records confirming that he had been taken out of his cell on that day.", "Therefore, the District Court doubted the reliability of the official records. It found that the applicant’s confession could not be regarded as having been given voluntarily and was therefore inadmissible as evidence. 54. The District Court also noted that, when the applicant had been interviewed as a suspect on 7 and 9 October 2002, he had not been warned that his statements could be used as evidence, in breach of the domestic law. Having examined the body of evidence in the case, the District Court further stated that it had been contradictory in a number of aspects.", "In particular, a report on the medical forensic examination of Ms Sh.’s body had attested to the presence of numerous internal injuries. The investigating authorities, however, had never attempted to establish the circumstances in which the victim had sustained those injuries, and the applicant had never admitted inflicting any such injuries on the victim, simply having confessed to having strangled her (see paragraph 12 above). In this respect the District Court noted that, as was clear from the materials of the case, at the time when the applicant had made his self-incriminating statements and signed his confession, the aforementioned expert examination had not yet been carried out and the investigating authorities had not known of the existence of those injuries. 55. The court further listed a number of other shortcomings in the preliminary investigation and discrepancies in the adduced evidence.", "It found it unproven that the applicant had committed the imputed offence. The court thus acquitted the applicant and acknowledged his right to rehabilitation. 56. On 4 July 2006 the Regional Court upheld the judgment on appeal. It agreed with the trial court’s finding that the confession had been signed as a result of coercion by the police officers.", "The court noted in this respect that the very fact that the applicant had been taken out of his cell in breach of relevant regulations had been the proof of coercion, and therefore the arguments of the prosecuting party in the appeal submissions to the effect that the trial court had failed in its judgment to specify the methods of that coercion and to identify those responsible were unfounded. It also agreed with the trial court that the applicant’s self-incriminating statements, which he had later repudiated, had contradicted the other evidence in the case. D. Investigation into the applicant’s allegations of ill-treatment 57. On 24 January 2003 the applicant’s counsel lodged a complaint with the district prosecutor’s office about the applicant’s ill-treatment by the police officers from the district police department. An inquiry was carried out in connection with that complaint.", "Several police officers were questioned. They all denied the applicant’s allegations of ill-treatment. 58. On 27 January 2003 the district prosecutor’s office decided, relying on their statements and medical expert certificate no. 181 of 7 October 2002, to dispense with criminal proceedings in respect of the applicant’s allegations of ill-treatment owing to the absence of evidence that any crime had been committed.", "The applicant did not appeal against the decision in court. 59. On 4 December 2003 the district prosecutor’s office received a complaint from the applicant’s mother about alleged ill-treatment of the applicant by the officers of the district police department. 60. On 5 December 2003 a decision not to prosecute the police officers was taken.", "The Court has not been furnished with a copy of that decision. It does not appear that the applicant attempted to challenge the decision in question before a court. 61. On 11 August 2005 the district prosecutor’s office quashed the decision of 5 December 2003 and ordered an additional inquiry. 62.", "During that inquiry Mr A., the head of the investigation department, responsible for the investigation of Ms Sh.’s murder at the time of the events in question, and Mr Z., deputy head of the temporary holding facility of the district police department at the material time, were interviewed. They stated that no physical or psychological pressure had ever been exercised on the applicant and that the applicant had voluntarily confessed to the murder and later confirmed his self-incriminating statements during an interview in the presence of his lawyer. 63. On 18 August 2005 the district prosecutor’s office, with reference to the aforementioned statements of Mr A. and Mr Z., decided not to institute criminal proceedings in connection with the applicant’s allegations owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. The applicant did not appeal against that decision in court.", "64. On 6 February 2006 the prosecutor’s office of the Stavropol Region quashed the decisions of 27 January 2003 and 18 August 2005 as unlawful and unfounded in view of the investigating authorities’ failure to establish all the relevant facts. In particular, it pointed out that the applicant had not been questioned; that the materials of the inquiry lacked an extract from the official records of requests for medical aid in the period from 3 to 6 October 2002; that the register of detainees of the temporary holding facility, where the applicant had been held during the relevant period, had not been examined with a view to establishing when and by whom the applicant had been taken out of his cell(s) for interrogation and to identifying who had been in the cell(s) with him so that they could be questioned in respect of his allegations; that a police officer who had been present when the applicant had signed his confession had not been questioned in that connection; that another police officer who had drawn up the administrative offence record in respect of the applicant had not been questioned in that connection; and that Mr R. and Mr S., who had allegedly shared a cell with the applicant, had not been interviewed either. The district prosecutor’s office was thus ordered to eliminate those defects in the course of an additional inquiry. 65.", "In a decision of 15 February 2006 the district prosecutor’s office again refused to institute criminal proceedings against the police officers owing to the absence of the constituent elements of a crime in their actions. 66. According to the decision, when interviewed during an additional inquiry, the applicant had stated that on 2 October 2002 he had been taken from his home to a police station where he had met police officers G. and B. The latter had drawn up, on Mr G.’s instructions, an administrative offence record which stated that that the applicant had used obscene language in public. The applicant had been held at the police station from 4 p.m. to 10 p.m. and then transported to the district police department.", "On 3 October 2002 he had been placed under administrative arrest for five days and placed in the temporary holding facility of the district police department. Each night the officers of the Kirovskiy district police department, Mr A. and Mr G., had taken him to an office on the third floor in which they had subjected him to psychological pressure. On 6 October 2002, because of that pressure, he had been compelled to make a written confession to the murder of Ms Sh., which had been dictated to him by Mr G. 67. The decision went on to quote police officer A., who had stated that he had been present when his subordinates, Mr P. and Mr G., had interviewed the applicant. No physical or other form of coercion had been used on the applicant, who had voluntarily confessed to the murder and then confirmed his statements in the presence of his counsel.", "68. Mr Z., deputy head of the temporary holding facility of the district police department at the material time, had stated that no force had ever been applied to the applicant, who had made no complaints during his detention in that facility. Mr Z. also stated that the applicant, Mr R. and Mr S. had never been held in the same cell at the same time. 69. Mr G. had stated that on 6 October 2002 he had been told that the applicant wished to see him.", "He had met the applicant at the temporary holding facility. The applicant had told him that he had killed Ms Sh. and had voluntarily written out his confession. 70. Mr B. had stated that on 2 October 2002 Mr M. had complained to him that the applicant had sworn at him.", "He had drawn up an administrative offence record and sent it to the court. 71. Mr R., who had been detained in the temporary holding facility from 1 to 6 October 2002 for committing an administrative offence, had confirmed that he had shared a cell with the applicant and stated that the applicant had not made any complaints concerning the police officers who had questioned him. Mr S., another detainee during the relevant period, had also been interviewed but had not given any relevant information regarding the applicant’s allegations. 72.", "The decision then indicated that, according to the temporary holding facility records concerning medical aid, the applicant had never applied for medical assistance. Nor had he made any complaints concerning his health. 73. The decision further stated that, according to the temporary holding facility register of detainees, the applicant had been taken out of his cell on 4 October 2002 at 6.45 p.m. by Mr G. and brought back at 6.50 p.m.; on the same day he had been taken away at 9.40 p.m. by Mr P. and brought back at 9.55 p.m. On 7 October 2002 the applicant had been taken out of his cell from 9 a.m. until 6.15 p.m. for the examination of his statements on the scene of the crime. For the rest of the time the applicant had stayed in his cell.", "74. The decision thus concluded that during the inquiry the applicant’s allegations of ill-treatment had proved unfounded. The applicant did not appeal against that decision in court. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Code of Criminal Procedure 75. Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001, “the Code”). 1. Preventive measures 76.", "“Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (Article 112).", "2. Limits on the duration of detention (a) Two types of custody 77. The Code makes a distinction between two types of custody: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage. (b) Limits on the duration of detention “pending investigation” 78. A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108).", "The maximum length of detention pending investigation is two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). (c) Limits on the duration of detention “pending trial” 79.", "From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). B. Court practice 80.", "In its resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, as in force at the relevant time, the Supreme Court of Russia noted with regard to the provisions of Article 255 § 3 of the Code, that, when deciding whether to extend a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its maximum duration (paragraph 16). 81. It also stated that, within the meaning of Article 255 § 2 of the Code, the period after conviction by the first-instance court until such conviction became final, being upheld on appeal, could not be taken into account for the purpose of calculating the six-month period of an individual’s detention pending trial (paragraph 26). THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 82. The applicant complained that he had been ill-treated by the police in the period between 3 and 6 October 2002 and that there had been no adequate investigation into the matter. He relied on Articles 3 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Submissions by the parties 83. The applicant maintained that he had been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, during his detention in the temporary holding facility of the Kirovskiy District Police Department of the Stavropol Region. As regards the medical expert examination carried out on 7 October 2002, which had not established any injuries on him, the applicant referred to the findings of the District Court in its judgment of 2 May 2006, where it had established that the applicant and his lawyer had not been notified of the investigator’s order that such an examination be carried out until after it had been conducted, and therefore a note on the relevant expert report that the applicant had no comments, questions or objections regarding the experts had been devoid of any legal meaning.", "84. He also argued that in its judgment of 2 May 2006 the District Court had rejected his confession as inadmissible evidence, having stated that the applicant’s allegation that this confessions had been written under pressure by the police had been confirmed by the absence in the register of the temporary holding facility of a record to the effect that on the date when he had signed that confession he had been taken from his cell, whereas the confession, as had been established by the court, had been written in an office of the district police department. Therefore, according to the applicant, in its judgment of 2 May 2006 the District Court had acknowledged the fact that the police officers had exercised pressure on him. 85. The applicant further contended that the authorities had failed to investigate his allegations of ill-treatment adequately, and therefore he had been deprived of effective remedies in breach of Article 13 of the Convention.", "86. The Government argued that the applicant had had effective domestic remedies in respect of his complaint of ill-treatment under Article 3 of the Convention, as required by its Article 13, but he had not availed himself of those remedies. In particular, they argued that under Article 125 of the Russian Code of Criminal procedure the applicant could have appealed in court against the decisions of the district prosecutor’s office to dispense with criminal proceeding into his allegations, but he had never used that remedy. The Government argued therefore that the applicant had failed to exhaust domestic remedies in respect of his complaint under Article 3 of the Convention. 87.", "As to the merits of the applicant’s complaint, the Government insisted that the applicant’s allegations of ill-treatment had been duly investigated by the district prosecutor’s office and had proved unsubstantiated. They pointed out that the medical expert examination carried out 7 October 2002, that is, immediately after the period during which the applicant had allegedly been ill-treated, had not established any injuries on him. The Government further referred to the statements the police officers against whom the applicant’s allegations had been directed had made during the inquiry into those allegations, as well as their written statements they submitted to the Court, in which they denied ill-treating the applicant. 88. The Government furnished the Court with statements by officers of the temporary holding facility in which the applicant had been detained, as well as three detainees, Mr R., Mr S. and Mr M., who at various times had shared a cell with him, all of them denying seeing any injuries on the applicant.", "89. The Government also contended that the fact that, during the fourth round of court proceedings, the trial court had dismissed the applicant’s confession as inadmissible evidence did not prove that the applicant’s allegations of ill-treatment were reliable, as the trial court had merely referred to the absence in the register of the temporary holding facility for the relevant period of a record that on the date when he had made his confession the applicant had been taken out of his cell. B. The Court’s assessment 1. Admissibility 90.", "The Government argued that the applicant had failed to appeal to a court, under Article 125 of the Russian Code of Criminal Procedure, against procedural decisions by which the district prosecutor’s office had refused to institute criminal proceedings into his allegations of ill-treatment. 91. In this respect, the Court reiterates that, in principle, an appeal against a decision to discontinue criminal proceedings may offer a substantial safeguard against the arbitrary exercise of power by the investigating authority, given a court’s power to annul such a decision and indicate the defects to be addressed (see, mutatis mutandis, Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution has decided not to investigate the claims.", "The Court, however, has strong doubts that this remedy would have been effective in the present case. It observes that the district prosecutor’s office’s decisions to dispense with criminal proceedings in connection with the applicant’s allegations of ill-treatment were quashed on at least two occasions by supervising prosecutors, who instructed the investigating authorities to carry out an additional inquiry (see paragraphs 61 and 64 above). That inquiry also resulted in decisions not to institute criminal proceedings (see paragraphs 63 and 65 above). In these circumstances, the Court is not convinced that an appeal to a court, which could only have had the same effect, would have offered the applicant any redress. It considers, therefore, that such an appeal in the particular circumstances of the present case would be devoid of any purpose.", "The Court finds that the applicant was not obliged to pursue that remedy and holds that the Government’s objection should therefore be dismissed (see Khatsiyeva and Others v. Russia, no. 5108/02, § 151, 17 January 2008, or Esmukhambetov and Others v. Russia, no. 23445/03, § 128, 29 March 2011). 92. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Alleged ill-treatment of the applicant (i) General principles 93. The Court has observed on many occasions that Article 3 of the Convention enshrines one of the fundamental values of democratic societies and as such prohibits in absolute terms torture or inhuman or degrading treatment or punishment (see, for example, Aksoy v. Turkey, 18 December 1996, § 62, Reports of Judgments and Decisions 1996-VI, and Aydın v. Turkey, 25 September 1997, § 81, Reports 1997‑VI).", "94. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25, and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX).", "Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (see, for instance, Aksoy, cited above, § 64; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000‑XII; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004), as well as its context, such as an atmosphere of heightened tension and emotions (see, for instance, Selmouni v. France [GC], no. 25803/94, § 104, ECHR 1999‑V). 95.", "The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000‑IV, and Ramirez Sanchez v. France [GC], no. 59450/00, § 118, ECHR 2006‑IX). Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victim to act against his will or conscience (see, inter alia, Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III, and Jalloh, cited above, § 68).", "96. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, cited above, § 161). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 97. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no.", "269). Although the Court is not bound by the findings of the domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see, among other authorities, Vladimir Romanov v. Russia, no. 41461/02, § 59, 24 July 2008).", "(ii) Application of the above principles in the present case 98. In the present case, the parties agreed that in the period from 3 to 6 October 2002 the applicant had been detained in a temporary holding facility of the district police department in the context of administrative proceedings brought against him. The applicant alleged that throughout this period police officers had beaten him and threatened him with sexual abuse in an attempt to force him to confess to Ms Sh.’s murder. The Government denied those allegations with reference to medical expert report no. 181 of 7 October 2002 (see paragraph 14 above), according to which no injuries had been established on the applicant, as well as to the findings of the internal inquiry into the matter.", "99. The Court observes that on 7 October 2002, that is, immediately after the period during which the applicant was allegedly ill-treated by the police, he indeed underwent a medical examination which established that he had no injuries. It further observes that in its judgment of 2 May 2006 the District Court noted certain procedural shortcomings as regards that examination, in particular, the fact that the applicant and his lawyer had not been apprised of the investigator’s decision to order such an examination until after it had been over, with the result that the applicant was apparently unable to effectively make any objections regarding the expert appointed, ask any questions or make any comments concerning the examination (see paragraph 51 above). The domestic court, however, did not specify whether those shortcomings should be regarded as serious enough to cast doubt on the authenticity of the said report, or the validity of its conclusion regarding the absence of any injuries on the applicant. In such circumstances, the Court has no reason to consider the findings of the report of 7 October 2002 unreliable, as was suggested by the applicant.", "100. It further notes that in the proceedings before the national courts the applicant and his lawyers referred to statements by witness I. Sh., who had shared a cell with the applicant at some point between 3 and 6 October 2002 and who had allegedly seen injuries on the applicant and heard him complaining about beatings by the police. In this respect, the Court notes that throughout the trial Mr I. Sh. repeatedly changed his statements concerning the applicant’s allegations of ill-treatment (see paragraphs 24, 28, 34 and 42 above), which cannot but undermine their credibility.", "Moreover, the impartiality of that witness is also open to doubts given his statement to the effect that he had connections to the applicant’s family (see paragraph 42 above). Two other witnesses, Mr R. and Mr S., who shared cells with the applicant at various times during the relevant period, consistently stated both before the domestic authorities and in written statements adduced by the Government and submitted to the Court that they had not seen any injuries on the applicant or heard him complaining about beatings or any other pressure exercised on him by the police (see paragraphs 34, 71 and 88 above). 101. Against this background the Court is unable to conclude that the applicant was, indeed, beaten by the police as he alleged. 102.", "The Court does not overlook the applicant’s assertion that the police officers also subjected him to psychological pressure – a type of treatment which, for obvious reasons, does not leave any visible traces. He alleged, in particular, that he was threatened with rape with a rubber truncheon. The Court reiterates in this respect that a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision. Thus, threatening an individual with torture may constitute inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010).", "103. In the present case, the District Court in its judgment of 2 May 2006 accepted as well-founded the applicant’s allegation that he had confessed to Ms Sh.’s murder as a result of coercion by the police and thus rejected the applicant’s statement of confession made at the pre-trial stage as inadmissible evidence (see paragraphs 51-53 above). As can be ascertained from the aforementioned judgment, the trial court based its relevant finding on the conflict between the fact that the applicant’s confession had been written on 6 October 2002 in the investigator’s office and the absence of any record in the register of detainees of the temporary holding facility that the applicant had been taken out of his cell on that date. The domestic courts in the present case did not, however, consider it necessary to elaborate on that issue any further and, in particular, to establish what particular methods of coercion had been applied to the applicant (see, by contrast, Gäfgen, cited above, §§ 94-5). Indeed, when upholding the judgment of 2 May 2006 on appeal, in its decision of 4 July 2006 the Regional Court rejected the prosecuting party’s argument to that effect, stating that the very fact that the applicant had been taken out of his cell in breach of relevant regulations had been the proof of coercion (see paragraph 56 above).", "In the Court’s opinion, such form of coercion, however, cannot be said to have attained “a minimum level of severity” to fall within the scope of Article 3. In the absence of any other findings by the domestic courts in this respect, the Court is unable to assess whether the pressure put on the applicant by the police, as established by the domestic courts, constituted treatment in breach of Article 3 of the Convention. 104. In the light of the foregoing, the Court finds that it has little evidence to enable it to conclude “beyond reasonable doubt” that the applicant was subjected to any form of treatment prohibited by Article 3 of the Convention, as alleged by him. Accordingly, the Court finds that there has been no violation of Article 3 of the Convention in its substantive aspect.", "(b) Alleged ineffectiveness of the investigation 105. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions.", "They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many other authorities, Mikheyev v. Russia, no. 77617/01, §§ 107 et seq., 26 January 2006, and Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998‑VIII). 106. Turning to the circumstances of the present case, the Court observes that in his complaint of 27 December 2002, the applicant presented a description of ill-treatment to which he alleged to have been subjected during his administrative detention between 3 and 6 October 2002 (see paragraph 18 above).", "He then consistently maintained his allegations throughout the domestic proceedings, which were found to be not without foundation by the domestic courts in their decisions of 2 May and 4 July 2006 (see paragraphs 52, 53 and 56 above). The Court sees no reason to depart from these findings by the domestic courts and considers that the applicant’s complaint of ill-treatment was “arguable” for the purpose of Article 3, in its procedural aspect, and the domestic authorities were therefore under an obligation to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible. 107. The Court further observes that the authorities carried out an internal inquiry into the applicant’s allegations. It is not convinced, however, that the inquiry was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention.", "108. In this connection, the Court notes, first of all, that although the authorities started the inquiry in question promptly, during the first three years it appears to have been formalistic and superficial. It is clear from the facts of the case that the inquiry commenced in connection with the complaint of the applicant’s lawyer dated 24 January 2003 was terminated on 27 January 2003, that is, three days later (see paragraphs 57 and 58 above). Another inquiry commenced in respect of the complaint of the applicant’s mother of 4 December 2003 was terminated the next day, on 5 December 2003 (see paragraphs 59 and 60 above). The Court has strong doubts that any meaningful investigative actions could have been or were undertaken during such short periods.", "109. It further notes that from 2003 to 2005 the inquiry in question was limited to interviewing the police officers against whom the applicant had made his allegations. It comes as no surprise that these officials denied the applicant’s allegations of ill-treatment. Following a supervising prosecutor’s decision of 6 February 2006, which listed a number of shortcomings and ordered that they be eliminated, a more thorough inquiry was obviously conducted. In particular, it appears that for the first time, apart from the aforementioned officials, several other people, including the applicant and those detainees who had shared cells with him during the relevant period, were interviewed.", "Also, some documentary evidence was examined, in particular, medical records and a register of detainees of the temporary holding facility where the applicant had been held. However, even that inquiry can hardly be said to have been adequate, given, in particular, that, as the applicant pointed out, its findings were subsequently not accepted by the domestic courts as reliable. 110. The Court also notes that during that latter inquiry a number of essential steps were not taken. In particular, the medical expert who examined the applicant on 7 October 2002 was never interviewed, nor was the applicant given an opportunity, in the course of that inquiry, to question that expert concerning his medical examination.", "This step would appear the more appropriate, since, as was noted by the District Court, the medical examination had been tainted with certain shortcomings affecting the applicant’s procedural rights (see paragraph 51 above). 111. Moreover, as the Court has already mentioned above, in its judgment of 2 May 2006 the District Court made a number of findings which enabled it to conclude that the applicant’s allegations were not without foundation. It established, in particular, discrepancies between the fact that the applicant had signed his confession in the investigator’s office and the absence of any record in the register of detainees to the effect that the applicant had been taken out of his cell on that date. Also, the court referred to a contradiction between the description of Ms Sh.’s murder the applicant provided in his written confession and subsequent evidence obtained as a result of a medical examination of the victim’s body carried out after the applicant had confessed (see paragraph 54 above).", "The Court notes that all those discrepancies went unnoticed by the investigating authorities, whereas the District Court, on the basis of the same materials, was able to detect them. In the Court’s opinion, this suggests that the authorities did not, in fact, attempt to investigate the applicant’s allegations diligently and thoroughly. 112. In these circumstances, the Court concludes that the inquiry into the applicant’s allegations of ill-treatment was inadequate and ineffective. 113.", "Accordingly, there has been a violation of Article 3 of the Convention on that account. (c) Alleged lack of effective domestic remedies 114. The Court observes that, when alleging the absence of domestic remedies under Article 13, the applicant complained, in essence, that the investigation into his allegations of ill-treatment was ineffective. In view of its finding in paragraph 113 above, the Court does not consider it necessary to examine this complaint as it raises no separate issue in the circumstances of the present case. II.", "ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 115. The applicant complained that several periods of his detention on remand were not duly authorised, and therefore his detention during those periods was unlawful. In particular, he complained about the court order of 6 February 2003, which had merely stated that the preventive measure applied to him should remain unchanged, and about the court order of 12 August 2003, by which his continued detention had been authorised in his and his lawyer’s absence. The applicant further complained that on 3 August 2004 a domestic court had ordered that he remain in custody, without giving reasons or specifying for how long. He also complained that on 1 September 2004 a court had ordered his continued detention for three months, to be calculated from 13 August 2004, thus authorising his detention from 13 August to 1 September 2004 retroactively.", "Lastly, the applicant appears to have alleged that his detention from 13 November 2004 until 25 April 2005 was unlawful. These complaints fall to be examined under Article 5 § 1 (c) of the Convention which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Submissions by the parties 116. The applicant stated that his detention between 3 and 13 August 2004 had not been in accordance with a procedure established by law.", "In particular, when ordering, in its decision of 3 August 2004, that the preventive measure should remain unchanged, the Regional Court had failed to indicate any grounds for his continued detention. He argued that the quashing on appeal of a conviction did not entail by default application of a preventive measure in the form of a deprivation of liberty, and that when ordering that he remain in custody in its decision of 3 August 2004 the Regional Court should have provided relevant reasons based on concrete facts. 117. He also insisted that the period of his detention from 3 to 13 August 2004 could not have been covered by the court order of 5 February 2004, as this latter order had only authorised his detention from 6 February until 6 May 2004. It had had no legal force after 26 April 2004, when he had been convicted by the first-instance court, and, in any event, after 6 May 2004, when the period of detention authorised therein had expired.", "118. The applicant further argued that neither of the decisions of 3 and 23 August 2004 could be regarded as a sufficient legal basis for his detention in the period from 13 August to 1 September 2004, given the absence of any reasons to justify it in any of those two decisions. Moreover, the court order of 1 September 2004 could not be regarded as a legal basis for it either, as it had authorised the applicant’s detention pending trial during the aforementioned period retroactively, which had not been provided for in national law. 119. The Government insisted that throughout the entire period from 8 October 2002, when the applicant’s placement in custody had been ordered, until 26 October 2005, when he had been released, his detention on remand had been duly authorised, and had been in accordance with a procedure established by law, as required by Article 5 § 1 of the Convention.", "120. In particular, the Government argued that the applicant’s detention pending trial from 3 to 13 August 2004 had been lawful, as it was based on a decision of 3 August 2004 by which the Stavropol Regional Court had ordered that the preventive measure should remain unchanged. They also argued that the applicant could have challenged the decision of 3 August 2004 through a supervisory review procedure, but had failed to do so, and had therefore failed to exhaust domestic remedies in this respect. The Government further relied on a court order of 5 February 2004 by which the term of the applicant’s detention had been extended until 6 May 2004; they indicated that the applicant had been convicted by the first-instance court on 26 April 2004, that is, ten days before the expiry of the period of detention pending trial authorised by the order of 5 February 2004. The Government insisted, with reference to the resolution of the Supreme Court of 5 March 2004 (see paragraph 81 above), that that ten day period had continued running from 3 August 2004, after the judgment of 26 April 2004 had been quashed on appeal.", "Therefore, in the Government’s submission, the period of the applicant’s detention between 3 and 13 August 2004 had been covered by the court order of 5 February 2004 and that of 3 August 2004. 121. In so far as the period between 13 August and 1 September 2004 was concerned, the Government further referred to the decision of 23 August 2004 by which the District Court had scheduled a hearing in the applicant’s case and had ordered that the preventive measure remain in place, and to the decision of 1 September 2004 by which the District Court, in accordance with Article 255 § 3 of the Russian Code of Criminal Procedure, had extended the term of the applicant’s detention for three months, to be calculated from 13 September 2004. 122. Lastly, the Government submitted that during the period from 13 November 2004 to 25 April 2005 the applicant had been detained pursuant to court orders of 1 November 2004 and 26 January 2005.", "B. The Court’s assessment 1. The applicant’s detention in 2003 123. In so far as the applicant complained that his detention pursuant to court orders of 6 February 2003 and 12 August 2003 was unlawful, the Government submitted that he had not appealed against the latter detention order. The Court does not consider it necessary to address this argument as it notes that the period of the applicant’s detention authorised by the court order of 6 February 2003 ended on 19 May 2003, when the applicant was convicted in the first instance (see paragraphs 22 and 23 above), and the period of the applicant’s detention authorised by the court order of 12 August 2003 ran out on 6 November 2003, when another court order extending the applicant’s detention pending trial had been taken (see paragraphs 27 and 29 above).", "The present application was lodged on 19 September 2004, that is, more than six months after the expiry of the periods of detention complained of. 124. It follows therefore that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 2. The applicant’s detention between 3 August and 1 September 2004 (a) Admissibility 125.", "The Government argued that the applicant had not appealed by way of supervisory review against the decision of 3 August 2004, and therefore had failed to exhaust available domestic remedies. The Court reiterates that, according to its established case-law, an application for a supervisory review in the context of criminal proceedings in Russia has so far not been considered as a remedy to be exhausted under Article 35 § 1 (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR, 17 September 2003). It therefore rejects the Government’s argument. 126.", "The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 127. The Court reiterates that Article 5 § 1 of the Convention requires in the first place that detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law.", "The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely, to protect individuals from arbitrariness (see, as a recent authority, Medvedyev and Others v. France [GC], no. 3394/03, § 79, ECHR 2010). It is in the first place for the national authorities, and notably the courts, to interpret domestic law, and in particular, rules of a procedural nature, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. However, since under Article 5 § 1 of the Convention failure to comply with domestic law may entail a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Toshev v. Bulgaria, no. 56308/00, § 58, 10 August 2006, and Shteyn (Stein) v. Russia, no.", "23691/06, §§ 89 and 94, 18 June 2009). 128. The Court must, moreover, ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court has stressed that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among recent authorities, Savenkova v. Russia, no.", "30930/02, § 65, 4 March 2010). 129. In the present case, the Government argued that the applicant’s detention on remand during the period under examination had been duly authorised by the Stavropol Regional Court in its decision of 3 August 2004. In this respect, the Court observes that on 3 August 2004 the Stavropol Regional Court quashed the first-instance judgment of 26 April 2004 by which the applicant was convicted, remitted the case for a new consideration by the trial court and ordered that the applicant remain in detention. It gave no reasons for its decision to keep the applicant in custody, nor did it set a maximum time period for his continued detention.", "130. The Court has already found violations of Article 5 § 1 (c) of the Convention in a number of cases against Russia concerning a similar set of facts (see, for example, Solovyev v. Russia, no. 2708/02, §§ 95-100, 24 May 2007; Shukhardin v. Russia, no. 65734/01, §§ 65-70, 28 June 2007; and Belov v. Russia, no. 22053/02, §§ 79-82, 3 July 2008).", "In particular, the Court has held that the absence of any grounds given by judicial authorities in their decisions authorising detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1. Permitting a prisoner to languish in detention without a judicial decision based on concrete grounds and without setting a specific limit on the duration of that detention would be tantamount to overriding Article 5, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see also Avdeyev and Veryayev v. Russia, no. 2737/04, §§ 45-47, 9 July 2009; Bakhmutskiy v. Russia, no. 36932/02, §§ 112-14, 25 June 2009; Gubkin v. Russia, no. 36941/02, §§ 112-14, 23 April 2009; Ignatov v. Russia, no.", "27193/02, §§ 79-81, 24 May 2007; and Khudoyorov v. Russia, no. 6847/02, § 142, ECHR 2005‑X (extracts)). 131. The Court sees no reason to reach a different conclusion in the present case. It considers that the decision of 3 August 2004 did not comply with the requirements of clarity, foreseeability and protection from arbitrariness, and therefore that the applicant’s detention pursuant to that decision was not “lawful” for the purposes of Article 5 § 1 of the Convention (see, among others, Savenkova, cited above, § 68).", "132. The Government further argued that the period of the applicant’s detention from 3 to 13 August 2004 had also been covered by a court order of 5 February 2004, which had authorised the applicant’s detention from 6 February until 6 May 2004; they pointed out that the applicant was convicted by a judgment of 26 April 2004, that is, ten days before the expiry of that detention order, and argued that under resolution no. 1 of the Supreme Court of Russia of 5 March 2004 the remaining ten-day period had continued running from 3 August 2004, when the judgment of 26 April 2004 had been set aside on appeal. 133. The Court does not accept this argument.", "It observes that the resolution of the Supreme Court of Russia of 5 March 2004 relied on by the domestic courts and by the Government merely stated in its paragraph 26 that the period between an individual’s conviction by a first-instance court and an appellate court’s decision concerning that conviction was to be excluded from the six-month period provided for an individual’s detention “pending trial” under Article 255 § 2 of the Russian Code of Criminal Procedure (see paragraph 81 above). The resolution in question said nothing as to whether, in a situation such as the one in the present case where an individual was convicted by a trial court before the expiry of an authorised period of his detention, that “remaining” authorised period should automatically be applied to authorise an individual’s detention after the quashing of his conviction on appeal. No provision to that effect can be found in domestic law either. The Court is therefore of the opinion that the practice adopted by the domestic court was based on an unforeseeable application of domestic law, which was arbitrary. It thus cannot be said to have met the standard of “lawfulness” set by the Convention (see paragraph 128 above).", "134. With this in mind, the Court finds that the court order of 5 February 2004 cannot be regarded as a proper legal basis for the applicant’s detention between 3 and 13 August 2004 and cannot therefore enable it to conclude that this detention was “lawful” and “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. 135. As regards the period of the applicant’s detention from 13 August to 1 September 2004, the Government referred to a decision of 1 September 2004 by which the Kirovskiy District Court had authorised the applicant’s detention pending trial from 13 August to 13 November 2004. The Court notes that the said court order thus authorised the period of the applicant’s detention between 13 August and 1 September 2004 retroactively.", "The Government did not indicate any domestic legal provision that permitted a decision to be taken authorising a period of detention retroactively. It follows that the applicant’s detention, in so far as it had been authorised by a judicial decision issued in respect of the preceding period, was not “lawful” under domestic law. Furthermore, the Court reiterates that any ex post facto authorisation of detention on remand is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see Khudoyorov, cited above, § 142, and Solovyev, cited above, § 99). 136. Lastly, in so far as the Government relied on a decision of 23 August 2004 as authorising the applicant’s detention at least for a part of the period under examination, the Court observes that the said decision did not provide any grounds, or fix a maximum duration for the applicant’s continued detention (see paragraph 37 above).", "The Court therefore considers that the said decision did not comply with the requirements of Article 5 § 1 of the Convention for the same reasons as stated in paragraphs 129-131 above. 137. In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 3 August to 1 September 2004. 3. The applicant’s detention between 13 November 2004 and 25 April 2005 138.", "As regards the alleged unlawfulness of the applicant’s detention between 13 November 2004 and 25 April 2005, the Court observes that in its decisions of 1 November 2004 and 26 January 2005 the Kirovskiy District Court extended the term of the applicant’s detention until 13 February and 13 May 2005 respectively. It also provided certain grounds for those decisions, their sufficiency and relevance being analysed below in the context of compliance with Article 5 § 3 of the Convention. It has never been alleged by the applicant that the District Court acted in excess of its jurisdiction, or that there were any flaws in the relevant detention orders amounting to “a gross and obvious irregularity” so as to render the underlying periods of detention in breach of Article 5 § 1 of the Convention (see Mooren v. Germany [GC], no. 11364/03, § 84, 9 July 2009). 139.", "The Court is therefore satisfied that the period of the applicant’s detention from 13 November 2004 until 25 April 2005, when he was convicted by the trial court, was lawful within the meaning of Article 5 § 1. It finds that this complaint is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 140. The applicant complained that there had been no reasonable grounds for his continued pre-trial detention, which had been excessively long.", "He relied on Article 5 § 3 of the Convention, which provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial ...” A. Submissions by the parties 141. The applicant submitted that he had not appealed against a number of court orders extending his detention on remand, because he had been kept in custody and because, in this respect, he had counted on his lawyer who had represented him in the domestic proceedings. 142. He further maintained that the domestic courts had extended his detention using repetitive arguments, namely, that the applicant had been charged with a serious criminal offence and that he might abscond and obstruct the establishment of the truth in his case. He argued that they had not based their conclusions on any factual findings or evidence.", "According to the applicant, he and his defence counsel had stated before the domestic courts during the examination of a question concerning the extension of his detention on remand that the applicant had had no prior criminal record, that he had had positive references from work and the place of his residence, had had a permanent address and, prior to his placement in detention, had been employed, and that during the detention his health had deteriorated. However, all those arguments had been ignored by the domestic courts. 143. The applicant also pointed out that, on three occasions, an appellate court had set aside the first-instance judgments by which he had been convicted and sent the case for a new examination. In his opinion, after the first annulment, the courts’ argument that he should remain in custody in order not to obstruct the establishment of the truth had already lost its relevance, as all the witnesses had been questioned during the trial and all the evidence had been adduced, and therefore he could not possibly “obstruct the establishment of the truth”.", "144. The applicant argued, therefore, that there had been no relevant and sufficient grounds for his continued detention, which had lasted too long, in breach of the guarantees of Article 5 § 3 of the Convention. 145. The Government argued that the applicant had failed to exhaust available domestic remedies in respect of his complaint under Article 5 § 3 of the Convention, as he had not appealed against the District Court’s decisions of 6 December 2002, 12 August 2003, 8 January and 1 November 2004 and 26 January 2005 to a higher court, and had not challenged the Regional Court’s decisions of 31 July 2003 and 3 August 2004 in a supervisory review procedure. 146.", "They further submitted that every time a decision to extend the applicant’s detention on remand had been taken, the District Court had referred to the seriousness of the charge against the applicant and the fact that he might abscond or obstruct the establishment of the truth in the case. Also, in its decisions of 1 November 2004 and 26 January 2005 the District Court had duly addressed the applicant’s arguments concerning the state of his health, and rejected them in the absence of any recommendations by the doctors of the remand centre where was held at the time to release him. The Government thus insisted that there had been no breach of the applicant’s rights under Article 5 § 3 of the Convention. B. The Court’s assessment 1.", "Admissibility 147. As regards the Government’s argument concerning the applicant’s failure to challenge, by a supervisory review procedure, the decisions of 31 July 2003 and 3 August 2004, the Court has already rejected this argument in paragraph 125 above. 148. As to the Government’s argument concerning non-exhaustion of domestic remedies on account of the applicant’s failure to appeal against a number of extension orders (see paragraph 145 above), the Court reiterates that the purpose of the rule requiring domestic remedies to be exhausted is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before those allegations are submitted to the Court (see, among many other authorities, Selmouni, cited above, § 74). In the context of an alleged violation of Article 5 § 3 of the Convention, this rule requires that the domestic authorities be given an opportunity to consider whether an applicant’s right to trial within a reasonable time has been respected and whether there exist relevant and sufficient grounds continuing to justify the deprivation of liberty (see, for instance, Shcheglyuk v. Russia, no.", "7649/02, § 35, 14 December 2006, or Pshevecherskiy v. Russia, no. 28957/02, § 50, 24 May 2007). 149. In the present case, following his placement in pre-trial detention pursuant to a court order of 8 October 2002 the applicant remained in custody until 26 October 2005, when he was released by a decision of the Kirovskiy District Court of the same date. During that period the applicant challenged at least two court orders extending his detention, and, more specifically, he appealed to a higher court against the decision of 6 November 2003 (see paragraph 29 above) and against that of 1 September 2004 (see paragraph 39 above).", "The Court thus considers that, although the applicant did not lodge appeals against any other extension orders issued before September 2004, by lodging an appeal against the aforementioned two detention orders he gave the Stavropol Regional Court – acting as a court of appeal – the opportunity to consider whether his detention was compatible with his Convention right to trial within a reasonable time or release pending trial. Indeed, the Regional Court had to assess the necessity of further extensions in the light of the entire preceding period of detention, taking into account how much time the applicant had already spent in custody (see, for similar reasoning, Lyubimenko v. Russia, no. 6270/06, § 62, 19 March 2009; Polonskiy v. Russia, no. 30033/05, § 132, 19 March 2009; and Lamazhyk v. Russia, no. 20571/04, § 80, 30 July 2009).", "150. Moreover, the Regional Court also had an opportunity to review, on appeal by a prosecutor, the District Court’s decision of 26 October 2005 by which the applicant’s release was ordered. Similarly, in those proceedings nothing prevented the Regional Court from assessing the arguments relating to the necessity of extending the applicant’s custody, having regard to the overall period of his detention prior to that date. In other words, the Regional Court was given the opportunity to consider whether the applicant’s detention prior to 26 October 2005 was compatible with his Convention right to trial within a reasonable time or release pending trial. The Court considers that the fact that the appeal proceedings in respect of the decision of 26 October 2005 were initiated by a prosecutor rather than by the applicant has no bearing on this conclusion.", "151. In the light of the foregoing, the Court considers that the applicant cannot be said to have failed to exhaust domestic remedies in respect of his complaint under Article 5 § 3 of the Convention. It therefore rejects the Government’s objection. 152. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) Period to be taken into consideration 153. The Court observes that Article 5 § 3 applies solely in the situation envisaged in Article 5 § 1 (c) with which it forms a whole.", "It ceases to apply on the day when the charge is determined, even if only by a court of first instance, as from that day on the person is detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) (see Polonskiy, cited above, § 141). 154. In the present case, the applicant remained in detention from 8 October 2002, when his placement in custody was ordered by a court, until 26 October 2005, when he was released pending trial. During that period the applicant was convicted by judgments of the Kirovskiy District Court of 19 May 2003, 24 April 2004 and 25 April 2005, which were then quashed on appeal on 31 July 2003, 3 August 2004 and 22 September 2005 respectively. During the periods between the first-instance judgments and the appellate court’s decision setting them aside, the applicant was detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) of the Convention.", "These periods therefore cannot be taken into account for the purposes of Article 5 § 3 of the Convention. The Court further observes that after the court order of 26 October 2005 ordering the applicant’s release was quashed by an appellate court on 30 November 2005, the applicant was again detained, and remained so until 21 December 2005, when he was released pursuant to the court order of that date. 155. It follows therefore that the applicant spent a total of two years, two months and twenty-two days in detention on remand to be taken into consideration for the purpose of Article 5 § 3 of the Convention. (b) Reasonableness of the length of the period under consideration 156.", "According to the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention will be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. 157. The Court is prepared to accept that the applicant’s detention in the present case could have initially been warranted by a reasonable suspicion that he had been involved in the commission of a criminal offence.", "In this connection, it reiterates that the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita, cited above, §§ 152-53). 158.", "In the present case, the domestic courts authorised the extension of the applicant’s detention on remand on eleven occasions, relying mainly on the seriousness of the charge against him and his potential to abscond, or obstruct the course of the criminal proceedings, if at large (see paragraphs 17, 19, 22, 27, 29, 31, 32, 37, 38 and 41above). 159. As regards the courts’ reliance on the seriousness of charges as the decisive element, the Court has repeatedly held that this reason cannot by itself serve to justify long periods of detention (see, among other authorities, Khudoyorov, cited above, § 180). This is particularly true in cases, such as the present one, where the characterisation in law of the facts – and thus the sentence faced by the applicant – was determined by the prosecution without a judicial review of the issue of whether the evidence collected supported a reasonable suspicion that the applicant had committed the imputed offence (see Rokhlina v. Russia, no. 54071/00, § 66, 7 April 2005).", "160. It remains to be ascertained whether the domestic courts established and convincingly demonstrated the existence of concrete facts in support of their conclusions that the applicant could abscond, or obstruct justice. The Court reiterates that it is incumbent on the domestic authorities to establish the existence of concrete facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina, cited above, § 67, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001).", "161. The Court observes that the domestic authorities gauged the applicant’s potential to abscond or impede the criminal proceedings on the sole basis of the fact that he had been charged with serious criminal offences, which implied that he was facing a severe sentence. It reiterates in this connection that although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier v. France, 26 June 1991, § 51, Series A no. 207; Panchenko v. Russia, no.", "45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). 162. In the present case, at no point did the domestic authorities disclose any evidence, or mention any particular facts in the applicant’s case warranting his continued detention. The judiciary never specified why, notwithstanding the arguments put forward by the applicant and his lawyers in support of his requests for release, they considered the risk of his absconding or interfering with the course of justice to exist and to be decisive.", "Moreover, the preliminary investigation in the present case had ended by 6 February 2003, but the applicant remained in detention for more than another two years. The Court reiterates in this connection that whilst at the initial stages of the investigation the risk that an accused person might pervert the course of justice could justify keeping him or her in custody, after the evidence has been collected that ground becomes less strong (see Mamedova v. Russia, no. 7064/05, § 79, 1 June 2006). 163. The Court further emphasises that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at the trial (see Sulaoja v. Estonia, no.", "55939/00, § 64, 15 February 2005, and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). It does not appear that during the period under consideration the domestic courts once considered the possibility of ensuring the applicant’s attendance by the use of other “preventive measures” – such as a written undertaking not to leave a specified place or bail – which are expressly provided for by Russian law to secure the proper conduct of criminal proceedings, or, at the very least, that they sought to explain in their decisions why such alternatives would not have ensured that the trial would follow its proper course. 164. Having regard to the materials in its possession, the Court is not convinced that the domestic courts’ decisions were based on an analysis of all the relevant facts.", "The Court agrees with the applicant that the authorities took no notice of the arguments in favour of his release pending trial, such as, for instance, his permanent place of residence and work and positive references in his respect. While extending the applicant’s detention by means of identically or similarly worded detention orders, the domestic authorities had no proper regard to his individual circumstances. 165. Overall, the Court considers that by failing to refer to specific relevant matters or to consider alternative “preventive measures” and by relying essentially on the seriousness of the charge against the applicant, the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty.", "In such circumstances it is therefore not necessary to examine whether the case was complex or whether the proceedings were conducted with “special diligence”. 166. In the light of the foregoing consideration, the Court finds that there has been a violation of Article 5 § 3 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 167.", "The applicant complained under Article 2 of the Convention that during his detention his health had deteriorated. He complained under Article 6 of the Convention alleging overall unfairness of the criminal proceedings against him. The applicant also complained under Article 7 of the Convention that he had been charged with a crime which he had not committed. The applicant further complained under Article 8 of the Convention that the criminal prosecution and, in particular, searches at his father’s flat had adversely affected his private life. Lastly, the applicant complained under Article 13 of the Convention alleging ineffectiveness of the Russian legal system in general.", "168. The Court has examined the above complaints, as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 169.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 170. The applicant claimed 200,000 United States dollars (USD, approximately 150,000 euros, EUR) in respect of non-pecuniary damage. 171. The Government contested that amount, stating that no award should be made to the applicant in the absence of any violations of his Convention rights.", "They also suggested that should the Court find a violation of the applicant’s rights, the finding of a violation would suffice. 172. The Court observes that it has found a violation of Article 3 in its procedural aspect, a violation of Article 5 § 1 (c), on account of the applicant’s detention pending trial between 3 August and 1 September 2004, and a violation of Article 5 § 3 of the Convention. The applicant must have suffered anguish and distress on account of those infringements of his rights, which cannot be compensated by a mere finding of a violation. Having regard to these considerations and judging on an equitable basis, the Court finds it reasonable to award the applicant EUR 20,000 under this head, plus any tax that may be chargeable on this amount.", "B. Costs and expenses 173. The applicant did not submit any claim under this head. Accordingly, the Court considers that there is no call to award him any sum on that account. C. Default interest 174.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaints under Articles 3 and 5 § 1 (c), as regards the period of the applicant’s detention from 3 August to 1 September 2004, as well as the complaints under Articles 5 § 3 and 13, in conjunction with Article 3 of the Convention, admissible and the remainder of the application inadmissible; 2. Holds by six votes to one that there has been no violation of Article 3 of the Convention in its substantive aspect; 3. Holds unanimously that there has been a violation of Article 3 of the Convention in its procedural aspect; 4.", "Holds unanimously that there is no need to examine separately the applicant’s complaint under Article 13, in conjunction with Article 3 of the Convention; 5. Holds unanimously that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 3 August to 1 September 2004; 6. Holds unanimously that there has been a violation of Article 5 § 3 of the Convention; 7. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 24 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge A. Kovler is annexed to this judgment. N.A.V.S.N. PARTLY DISSENTING OPINION OF JUDGE KOVLER I cannot share the Court’s conclusion that it had little evidence to enable it to conclude “beyond reasonable doubt” that the applicant was subjected to any form of treatment prohibited by Article 3 of the Convention, as he alleged, and thus that there has been no violation of Article 3 of the Convention in its substantive aspect. During the final round of the hearings in his case, as during the proceedings as a whole, the applicant had insisted that he was innocent and reiterated that he had made his confession at the pre-trial stage because he had been beaten and threatened by the police (see paragraph 50).", "The applicant had been taken out of his cell during his administrative detention without the presence of his lawyer for the purpose of obtaining his confession. The fact that the so-called medical examination of the applicant on 7 October 2002 did not reveal any injuries on him is of no relevance in this case. The Court itself recognises that some forms of psychological and physical pressure do not leave any visible traces (see paragraph 102). Unfortunately, the Court has not paid enough attention to this fact. The logic behind my conclusions on this point is different from that of the majority.", "First of all, I am more inclined to agree with the applicant’s argument that the very fact that he had been taken out of his cell in breach of the relevant regulation was proof of coercion. I am afraid that the applicant was taken out of his cell several times and it was not for a tea-party with investigators. Secondly, as a result of the fourth round of court proceedings, the Kirovsk District Court judgment of 2 May 2006 stated that Mr Chumakov’s submission that he had given self–incriminating evidence and had written a “confession” under pressure from the police officers was confirmed by the register recording when administrative detainees were taken out of their cells. As an administrative detainee, the applicant was, according to the register, taken out of his cell three times on 2 and 4 October, which were the crucial dates of his “confession” to the crime. The District Court thus concluded that the “confession”, although written by Mr Chumakov, could not be considered a voluntary statement about the crime in question and consequently could not be considered admissible evidence.", "For me this is sufficient proof of psychological pressure as prohibited by Article 3 (see Gäfgen v. Germany [G.C. ], no. 22978/05, § 91, ECHR 2010). I would point out that the District Court ultimately acquitted the applicant and acknowledged his right to rehabilitation." ]

[ "FIFTH SECTION CASE OF RUDENKO v. UKRAINE (Application no. 19441/03) JUDGMENT STRASBOURG 12 July 2007 FINAL 12/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rudenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ. Borrego Borrego,MrsR.", "Jaeger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 19 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19441/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Vladimir and Mrs Valentina Rudenko (“the applicants”), on 14 March 2003. 2. The Ukrainian Government (“the Government”) were represented by Mr Y. Zaytsev, their Agent, and Mrs I. Shevchuk, Head of the Office of the Government Agent before the European Court of Human Rights.", "3. On 30 May 2006 the Court decided to communicate the complaints concerning non-enforcement of judgments to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants, husband and wife, live in Dniprodzerzhynsk. 5. In August 2000 the applicants instituted civil proceedings in the Zavodsky District Court of Dniprodzerzhynsk (Заводський районний суд м. Дніпродзержинська) against their employer, the municipally owned Public Transportation Company (“the PTC”; Комунальне експлуатаційне підприємство “Дніпродзержинськміськелектротранс”) for salary arrears and compensation for a delay in the payment of salary. 6. On 31 August 2000 the court awarded 4,004.55 hryvnyas (UAH)[1] to the first and UAH 3,323[2] to the second applicant in salary arrears and compensation.", "7. Subsequently the applicants lodged similar claims and on 4 April 2001 the court additionally awarded UAH 2,511.83[3] to the first and UAH 1,539.94[4] to the second applicant in salary arrears and compensation. 8. The judgments became final and the enforcement writs were transferred to the Zavodsky District Bailiffs' Service (“the Bailiffs”; Відділ Державної виконавчої служби Заводського районного управління юстиції в м. Дніпродзержинську) for enforcement. 9.", "On 29 October 2001 the Bailiffs informed the applicants that the PTC lacked funds and that no buyers were interested in acquiring its assets. 10. In January 2002 the Bailiffs proposed that the PTC's property (trams, technical equipment and an administrative building) be transferred to the creditors. 11. Having received no positive response from the applicants, on 26 June 2002 the Bailiffs returned the enforcement writs to them unenforced.", "12. On 17 June 2003 the Dnipropetrovsk Commercial Court (Господарський суд Дніпропетровської області) declared the PTC bankrupt and ordered its liquidation. 13. The PTC paid the salary arrears due to the applicants in several instalments. However, the compensations for a delay in the payment of salary awarded by all four judgments in the amounts of UAH 639.38[5] in favour of the first and UAH 673.94[6] in favour of the second applicant remain outstanding.", "II. RELEVANT DOMESTIC LAW 14. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19). THE LAW I.", "THE LENGTHY NON-ENFORCEMENT OF JUDGMENTS 15. The applicants complained about the State authorities' failure to enforce the judgments of the Zavodsky District Court of Dniprodzerzhynsk given in their favour. They invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” A. Admissibility 16. The Government raised objections, contested by the applicants, regarding the applicants' victim status and exhaustion of domestic remedies similar to those already dismissed in a number of the Court's judgments regarding non-enforcement of judgments against the State-owned companies (see e.g. among many others, Romashov v. Ukraine, no.", "67534/01, §§ 23-27, 27 July 2004 and Mykhaylenky and Others v. Ukraine, nos. 35091/02 and following, §§ 38-40, ECHR 2004-XII). The Court considers that these objections must be rejected for the same reasons. 17. The Court concludes that these complaints raise issues of fact and law under the Convention, the determination of which requires an examination on the merits.", "The Court finds no ground for declaring them inadmissible. The Court must therefore declare them admissible. 18. The applicants also relied on the European Social Charter, which is, however, outside the Court's competence (Kucherenko v. Ukraine, no. 27347/02, § 28, 15 December 2005).", "B. Merits 19. In their observations on the merits of the applicants' case, the Government contended that there had been no violation of the applicants' Convention rights. 20. The applicants disagreed.", "21. The Court notes that the delay in the enforcement has exceeded six years and eleven months in respect of the judgments of 31 August 2000 and six years and two months in respect of the judgments of 4 April 2001. 22. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in a number of similar cases, including the case concerning the same municipally-owned debtor - the PTC (see, Kucherenko v. Ukraine, cited above, § 27).", "23. Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 24. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "25. The Court does not find it necessary in the circumstances to examine under Article 13 of the Convention the same complaint as under Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 27. The applicants claimed the unsettled judgments debts and 3,000 euros (EUR) each in respect of pecuniary and non-pecuniary damage. 28. The Government submitted that these claims were unsubstantiated. 29.", "The Court notes that, as the judgments given in favour of the applicants remain unenforced, the Government should pay the applicants the outstanding debts in order to satisfy their claims for pecuniary damage. The Court further takes the view that the applicants have suffered some non-pecuniary damage as a result of the violations found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 2,600 in respect of non-pecuniary damage. B. Costs and expenses 30.", "The applicants did not submit any claim under this head. The Court therefore makes no award. C. Default interest 31. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints about the lengthy non-enforcement of judgments admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4. Holds that there is no need to examine the complaint under Article 13 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicants within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the unsettled debts still owed to them, as well as the sum of EUR 2,600 (two thousand six hundred euros) to each applicant in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 12 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. 824.43 euros (EUR).", "[2]. EUR 684.12. [3]. EUR 517.14. [4].", "EUR 317.04. [5]. EUR 96.75. [6]. EUR 101.98." ]

[ "FIRST SECTION CASE OF DARREN OMOREGIE AND OTHERS v. NORWAY (Application no. 265/07) JUDGMENT STRASBOURG 31 July 2008 FINAL 31/10/2008 This judgment may be subject to editorial revision. In the case of Darren Omoregie and Others v. Norway, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 8 July 2008, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an applications (nos. 265/07) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Louis Osaze Darren Omoregie, a Nigerian national; Mrs Elisabeth Skundberg Darren, a Norwegian national; and their daughter Selma, a Norwegian national (“the applicants”), on 13 December 2006.", "2. The applicants, who had been granted legal aid, were represented by Mr A. Humlen, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney-General's Office (Civil Matters). 3. The applicants alleged that the decision to expel the first applicant to Nigeria with a prohibition of re-entry into Norway for a period of five years constituted a violation of Article 8 of the Convention.", "4. By a decision of 22 November 2007, the Court declared the application admissible. 5. The applicants and the Government each filed further written observations (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The first applicant, Mr Louis Osaze Darren Omoregie, is a Nigerian national who was born in Sierra Leone in 1979. The second applicant is Mrs Elisabeth Skundberg Darren, a Norwegian national who was born in 1977. The third applicant is their daughter, Selma, who was born on 20 September 2006. The second and third applicants reside in Biri, Norway, as did the first applicant, before he was expelled to Nigeria on 7 March 2007.", "7. The first applicant lived in Nigeria as from the age of 6 months until he went to Norway, where he arrived on 25 August 2001, without passport or other identity document. On the same date he applied for asylum. 8. In October 2001 he met the second applicant.", "The couple started cohabiting in March 2002. A. Rejection of the first applicant's asylum application and related expulsion order and refusals 9. The first applicant's asylum application was rejected by the Directorate of Immigration on 22 May 2002. He appealed to the Immigration Appeals Board and, pending a decision of his appeal, he was granted a stay of execution of his expulsion and a temporary work permit.", "10. The first and second applicants got engaged on 10 September 2002. On 11 September 2002 the Immigration Appeals Board rejected the applicant's appeal, stating inter alia “This administrative decision means that the appellant is obliged to leave the country voluntarily. If the appellant does not leave the country voluntarily, the police shall implement the decision; see sections 40 and 41 of the Immigration Act.” 11. Shortly thereafter the Implementation Group of the Oslo Police District sent a notification of the decision to the first applicant's lawyer, giving the first applicant until 30 September 2002 to leave Norway.", "The notification further stated: “Your client must contact the Implementation Group for Administrative Decisions as soon as possible to make arrangements for his departure from Norway. If we have not been contacted by the time the deadline expires, the decision will be implemented in accordance with section 41 of the Immigration Act. This could result in his arrest without further notice.” 12. On 1 October 2002 the first applicant requested the Board to stay his expulsion, which the Board refused on 7 October 2002. 13.", "No judicial appeal was lodged against the above decisions, which became final. 14. On 2 February 2003 the first and second applicants got married. 15. On 14 February 2003 the first applicant applied for a work permit on the ground of family reunification.", "The Directorate of Immigration rejected the application on 26 April 2003 and ordered him to leave Norway while indicating that the decision could be appealed against and that the police could set a time-limit for asking for respite of the expulsion. The decision was notified to him by local police on 7 May 2003 with an order to leave the country by 4 June 2003. The Directorate considered that the first applicant fell within a group of persons who were granted work permit for the purpose of family reunification under section 9 of the Immigration Act (and Article 23(1)(a) of the Immigration Regulation (Utlendingsforskriften)) but rejected the application on the ground that it was not documented that he had fulfilled the condition of ensured means of subsistence (Article 25 of the Regulation). In the view of the Directorate, there were no particularly strong human considerations warranting an exception being made from this condition in the instant case (Article 25(3)). 16.", "On 14 May 2003 the first applicant again appealed and requested stay of execution. The Directorate of Immigration rejected the request and local police notified him thereof on 19 October 2003 with an order to leave Norway by 30 October 2003. B.Administrative sanction for failure to leave the country and ensuing judicial proceedings 17. Concurrently with the Immigration Appeals Board's examination of the first applicant's appeal of 14 May 2003, the Directorate of Immigration on 4 July 2003 warned him that it was contemplating to expel him pursuant to section 29(1)(a) of the Immigration Act. It referred to his registered gainful employment since 1 September 2002 and to his having worked in breach of section 6 of the Immigration Act since the rejection of his asylum application on 11 September 2002.", "Moreover, the Directorate referred to his defiance of his obligation to comply with the time-limit for leaving the country after the rejection of his asylum request. The Directorate considered that he had seriously contravened the provisions of the Act and had evaded implementation of the order to leave the country. 18. On 26 August 2003 the Directorate of Immigration decided to expel the applicant pursuant section 29(1)(a) of the Immigration Act. It found that the applicant's alleged ignorance of the unlawfulness of his gainful occupation was no excuse and that it would not be disproportionate to expel him despite his marriage with the second applicant.", "It decided to prohibit the first applicant from re-entry into Norway for five years, with a possibility of re-entry on application - normally only after two years. 19. On 21 July 2004 the Immigration Appeals Board upheld the Directorate of Immigration's rejection of his request for family reunification and its decision that the basic conditions for expelling the first applicant under section 29(1) of the Immigration Act were fulfilled; for more than a year he had been in gainful occupation without a work/residence permit. The Board also noted that he had avoided the implementation of the decision refusing him asylum and obliging him to leave the country. The Board found that his expulsion would not be disproportionate or otherwise contrary to Article 8 of the Convention.", "It also dismissed his appeal against the Directorate's rejection of his application for a work permit. 20. By a judgment of 15 February 2005 the Oslo City Court quashed the Immigration Appeals Board's decision of 21 July 2004 as being invalid. 21. In its judgment the City Court observed that it found it obvious that the basic condition for expelling the first applicant – that he had seriously or repeatedly violated the Immigration Act or had defied implementation of the decision that he should leave the country – had been fulfilled.", "The question then was whether expulsion would be a disproportionate measure vis-à-vis the first applicant and his close family. 22. In this regard the City Court observed that, although the first applicant had failed to comply with one of the conditions for contracting marriage in Norway, namely lawful residence in the country (sections 5(a) and 7 (k) of the Marriage Act 1991), he had had reason to believe (as from February 2003) that he had a right to stay and to apply for a work permit and a residence permit. While he had failed to respect two time-limits for leaving the country (30 September 2002 and 4 June 2003), he could not be criticised for having exceeded such deadlines after 26 April 2003 as the information furnished to him by the Directorate of Immigration had been unclear as to the time-limits set for his leaving the country compared to those set for asking respite and the replies given to his requests for respite. He had worked unlawfully for nine months and had resided unlawfully for four and a half months.", "This was, relatively speaking, not a very serious offence, which fact counterbalanced his relatively weak links to Norway. To impose a prohibition on re-entry for five years would constitute a disproportionate measure towards the applicant and his family in the sense of section 29 of the Immigration Act. It could easily lead to the dissolution of the family. The second applicant would presumably have great difficulties of adaptation in the first applicant's home country. Even if the first applicant could apply for re-entry after two years, he would most probably only be granted permission to come for shorter visits.", "The City Court found it unnecessary to examine whether the disputed decision violated Article 8 of the Convention. 23. On an appeal by the State against the City Court judgment, the High Court reached a different conclusion. By a judgment of 27 February 2006, it found that the first applicant's omission to leave the country voluntarily, although not the same as going under ground, meant that he had avoided compliance with the order to leave the country, meaning that the basic conditions for his expulsion under section 29 of the Immigration Act were fulfilled. 24.", "The High Court noted from the outset that the first applicant had acknowledged that he had seriously or repeatedly infringed the provisions of the Immigration Act and that the formal conditions for expulsion were fulfilled. The first applicant disputed that he had evaded a decision to leave the country and had only omitted to voluntarily comply with the decision. However, the High Court considered that also such an omission constituted evasion for the purposes of the act, although it was less serious than going under ground. 25. The High Court found it established that the applicant had stayed lawfully in Norway from 25 August 2001 to 30 September 2002.", "It was undisputed that his stay was unlawful from 30 September or 1 October 2002 until 14 February 2003 when he applied for family reunification. It was further undisputed that he had worked unlawfully without a work permit for 9 months, from 30 September/1 October 2002 until early July 2003, when the Directorate of Immigration warned him about expulsion. Thus the formal grounds for expulsion according to section 29 of the Immigration Act (as defined in Circular 03-25) were fulfilled. 26. The High Court observed that the central issue was the one of proportionality.", "In this regard it noted that the first applicant's links to Norway were very limited. He had arrived in Norway aged 22 years, without any links to the country. At the time of the impugned decision he had lived there for less than three years, parts of the time unlawfully. Already after less than two years he had been warned of expulsion. His stay in Norway had been very short and could not have given him any legitimate expectation of being able to live there.", "This was not significantly altered by his marriage to the second applicant, which had been entered into shortly before the disputed decision and in breach of the provisions on marriage. It was not uncommon for a person whose expulsion had been decided to marry a Norwegian citizen and use this as an argument to have the expulsion order invalidated. In such a situation expulsion would inevitably interfere with an established family situation. In this case there was no indication that expulsion would entail extra burdens of any kind beyond what followed from the separation. 27.", "The High Court also found that the first applicant's links to Nigeria were particularly strong and far more so than his links to Norway. In Nigeria he had lived from the age of six months until the age of 22, had studied at university for four years, and had three brothers with whom he was still in contact. Nor were there any concrete factors suggesting that, because he sought asylum in Norway, he would encounter particular problems with the Nigerian authorities upon return. 28. As regards the second applicant, the High Court observed that at the time that they married she must already have been aware of the uncertainty of the first applicant's stay in Norway.", "Moreover, she was used to living abroad, having lived for several periods in South Africa. English was also the official language of Nigeria. In the view of the High Court, she would not face insurmountable problems by settling in Nigeria for a shorter or longer period, should she so wish. 29. As to the first applicant's violations of the Immigration Act, the High Court found them to be of a certain degree of seriousness but did not find them particularly aggravated.", "However, having regard to the tenuous character of his links to Norway, the High Court considered that the balance of interest was not in his favour. Were it to be otherwise, expulsion would be possible only in very rare cases, with the consequence that this would have for the implementation of adopted immigration policies. The only countervailing consideration was his marriage to the second applicant. However, this could not be decisive; otherwise it would leave open a practice which would completely undermine the authorities' implementation of the Immigration Act. 30.", "Relying essentially on the same considerations as mentioned above, the High Court, taking into account the Strasbourg Court's case law, did not find that the disputed decision would be incompatible with Article 8 of the Convention. 31. On 14 June 2006 the Appeals Leave Committee of the Supreme Court refused the applicant leave to appeal, finding it obvious that the appeal had no prospects of success. 32. In the meantime, on 15 February 2005 the first applicant had submitted a new application for a work permit on the ground of family reunification with the second applicant.", "The Directorate of Immigration rejected his application on 21 July 2006. C. Birth of the third applicant and renewed requests by the first applicant 33. On 20 September 2006 the couple had a child, Selma, who is the third applicant. 34. On 31 October 2006 the Immigration Appeals Board rejected an appeal by the first applicant against the Directorate of Immigration's refusal of 21 July 2006.", "The Board found that quashing the refusal of re-entry was not required in the interest of the third applicant, inter alia noting that the child had been conceived after a final expulsion order and referring to the circumstances of the entry into marriage. It would be possible for the second and third applicants to live with the first applicant for shorter or longer periods in his home country. Although the fact that the first and second applicants had had a child together substantially altered the assessment of the proportionality of the prohibition of re-entry, the Board still did not find that the measure would be disproportionate. Neither Article 8 of the Convention nor the United Nations Children Convention could imply a different solution. 35.", "On 2 November 2006 the Directorate of Immigration refused to stay the applicant's expulsion. 36. On 13 December 2006 the applicants, represented by a lawyer, submitted an application under the Convention, which was received at the Registry on 3 January 2007. They complained that the first applicant's expulsion would entail a splitting of the family in breach of Article 8 of the Convention. It would not be possible for the second and third applicants to accompany him to Nigeria.", "They submitted that, having regard to the minor character of his breaches of the Immigration Act, the enforcement of the expulsion order would constitute a disproportionate interference with the applicant's family life. Any such enforcement should await a final decision by the Court. 37. On 5 January 2007 the President of the Section decided, in the circumstances, not to indicate to the Government of Norway, under Rule 39 of the Rules of Court, the interim measure requested. The circumstances underlying the application were not of the kind to which, in the Court's practice, Rule 39 was applied.", "On 19 January 2007 the applicants' lawyer informed the Court that they wished to maintain their application notwithstanding the refusal to apply Rule 39. 38. On 30 March 2007 the Immigration Appeals Board dismissed an appeal by the first applicant against a rejection by the Directorate of Immigration of 30 October 2006 of a renewed request by the first applicant for family reunion with the third applicant. The request had been made on the basis of a provision in the Immigration Regulation which was applicable to cases of unmarried parents and therefore did not cover the applicants' case. Nor did the Board see any other reason for altering its earlier decision in the case.", "D. Implementation of the first applicant's expulsion 39. In the meantime, on 7 March 2007 the Implementation Group of the Oslo Police District expelled the first applicant back to Nigeria. II. RELEVANT DOMESTIC LAW 40. The Immigration Act 1988 (Act of 24 June 1988 Nr 64, Lov om utlendingers adgang til riket og deres opphold her (utlendingsloven)) contained the following provisions of relevance to the present case: Section 6 Work permits and residence permits “Any foreign national who intends to take work with or without remuneration or who wishes to be self-employed in the realm must have a work permit.", "Any foreign national who intends to take up residence in the realm for more than 3 months without taking work must have a residence permit.” Section 8 When work and residence permits shall be granted Any foreign national has on application the right to a work permit or a residence permit in accordance with the following rules: [...] 3)There must not be circumstances which will give grounds for refusing the foreign national leave to enter the realm, to reside or work in accordance with other provisions of the Act.” Section 9 Work or residence permits for family members The closest members of the family of a Norwegian or Nordic national who is resident in the realm or of a foreign national who has or is granted lawful residence in the realm with a work permit or a residence permit without restrictions, have on application the right to a work permit or residence permit provided there are no such circumstances as mentioned in section 8 first paragraph, sub-paragraph 3. As a general rule subsistence must be ensured. The King may by regulations issue further rules.” Section 41 Procedure for the implementation of decisions “Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit. If the order is not complied with or it is highly probable that it will not lead to the foreign national's leaving the realm, the police may escort the foreign national out. When particular reasons so indicate, the foreign national may be conducted to another country than the one from which the foreign national came.", "Any decision which applies to implementation is not considered to be an individual decision, cf. section 2 first paragraph, sub-paragraph b, of the Public Administration Act.” 41. Moreover, section 29(1)(a) of the Immigration Act read: “Any foreign national may be expelled a)when the foreign national has seriously or repeatedly contravened one or more provisions of the present Act or evades the execution of any decision which means that the person concerned shall leave the realm” 42. According to section 29(4), an expulsion order may be accompanied by a prohibition of re-entry to Norway. However, the person expelled may, on application, be granted leave to enter Norway.", "Furthermore, according to well-established administrative practice, when considering an application for leave to enter under section 29(4), the Directorate of Immigration was under an obligation to consider the proportionality of its decision on prohibition of re-entry. The provision read: “Expulsion is an obstacle to subsequent leave to enter the realm. Prohibition of entry may be made permanent or of limited duration, but as a general rule not for a period of less than two years. On application the person expelled may be granted leave to enter the realm, but as a rule not until two years have elapsed since the date of exit.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 43. The applicants complained that the first applicant's expulsion to Nigeria would entail a violation of their right to respect for private and family life in violation of Article 8 of the Convention, which in so far as relevant, provides: “1.", "Everyone has the right to respect for his private and family life .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions by the parties 1.The applicants' arguments 44. The applicants maintained that the first and second applicants had had a relationship since the spring of 2001 and had been married since 2 February 2003. On 20 September 2006 a child had been born from their union, the third applicant. In the event of the first applicant's being expelled to Nigeria it would not be possible for the second and third applicants to follow him to settle there.", "The expulsion of the father would lead to the family being split, which would have particularly adverse consequences for the wife and the child and would amount to a disproportionate interference with the applicants' right to respect for private and family life. 45. The applicants pointed out that the reason why the authorities of the respondent State had found it necessary to expel the first applicant had been that he had omitted to leave Norway from 1 October 2002 to 2 February 2003, when he got married, and the fact that he had worked without a work permit from the former date until July 2003, when he had become aware that he no longer had a work permit as a result of the refusal notified to him on 30 September 2002. The first applicant had not gone under ground but had stayed at a permanent address that was known to the authorities all the time. Having regard to the trivial nature of his transgression of Norwegian law, an interference of such a far reaching character and its damaging effect for his spouse and newly born child would be disproportionate.", "46. The applicants disputed the Government's argument that their case fell outside the scope of protection of Article 8 of the right to respect for private and family life. They pointed out that the first and second applicants had been married during the period when a stay of execution had been granted in respect of the first applicant's expulsion and were thus lawfully residing in Norway. A marriage, even if entered into in breach of the criteria for contracting marriage, should be regarded as having been legally contracted and as implying the same rights as other marriages entered into in Norway. Spouses of Norwegian citizens who had applied for family reunion had a right to make such an application from Norway and to live with their spouse in the country pending final decision on their application.", "Thus the first applicant had established and enjoyed family life with a permission to reside in Norway, which was sufficient to trigger the protection of Article 8 of the Convention. Referring to the Court's case-law in this area (notably Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, ECHR 2006‑...; and Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, ECHR 2006‑...), the applicants argued that the Article 8 guarantees applied also where the person concerned did not hold a formal residence permit but nevertheless lived and had family life in the respondent State. 47.", "The applicants further disagreed with the Government's argument that there had been no justifiable expectation of married life in Norway. After having co-habited for a time, the first and second applicants had married, following which the first applicant had applied for family reunion with his spouse. As mentioned above, although the first applicant did not hold a formal residence permit, as a married couple they were nonetheless on an equal footing with married couples who had wedded in accordance with the Marriage Act. Under section 9 of the Immigration Act they were entitled to family reunion, as was also confirmed by the 26 April 2003 Decision of the Directorate of Immigration. The reason why the application for family reunion had been denied was that the subsistence requirement had not been fulfilled.", "With a view to comply with this requirement, the second applicant had interrupted her studies in order to take up gainful employment. Therefore, on the basis of the rights accorded to them under the relevant national laws and regulations, the first and second applicants had a legitimate expectation of being able to continue their married life in Norway. 48. The applicants moreover emphasised that at the time when the case had been pending before appellate courts the second applicant had been pregnant with the third applicant and that the first applicant was the father. It had thus been clearly predictable for those courts that a reestablishment of the marriage would have to take place at the time of the child's birth.", "This constituted an unacceptable requirement in view of the living conditions in Nigeria, from the point of view of health, culture and employment. At the time the second applicant was pursuing her studies in Norway. Her educational background would not have provided her with any basis for obtaining employment in Nigeria. Moreover, the cultural differences had been such that both she and the child would have encountered adaptation problems in Nigeria. The High Court's argument that she had previously sojourned in South Africa (seven months for study purposes) was simply unreasonable and unfair.", "Also, in view of the high infant mortality rate, the high crime rate and great risk of kidnapping of non-African children in Nigeria there were special circumstances to the effect that re-establishing family life in Nigeria would be contrary to the best interests of the child. 49. In light of the above, the applicants maintained that the expulsion of the first applicant would give rise to a violation of Article 8 of the Convention. 2.The Government's arguments 50. The Government submitted that Article 8 of the Convention was inapplicable in a case, where, as here, the relevant family link had been established at a time when the applicants could not have had any reasonable or legitimate expectations as to the prospects of establishing and continuing a family life in Norway, and where they had failed to show that there existed insurmountable obstacles for establishing a family life in the first applicant's home country.", "The period of married life that existed while the Immigration Authorities considered the first applicant's application for family reunification with the second applicant, could not have given the applicants any reasonable or legitimate expectations as to the prospects of establishing and continuing a family life in Norway. It was undisputed that the first applicant, at the time of his application for family reunification with the second applicant, had been residing and working unlawfully in Norway for several months, thus disregarding the order to leave the country notified to him on 11 September 2002. The first and second applicants had both been aware of this. 51. Although it was generally true that a spouse of a Norwegian citizen who applied for family reunification normally had a right to reside in the country until the Directorate of Immigration had processed the application, this had not been the case for the first applicant.", "He had applied for family reunification with the second applicant at a time when he was already unlawfully residing in the country. Thus, the first applicant's residence in Norway after the application for family reunification had in fact merely been tolerated by the authorities pending the Directorate of Immigration decision. The latter had rejected the application for family reunification as early as 26 April 2003, which measure had been followed up with a new order that he leave the country. In the view of the Government, this could not have given the applicants any reasonable or legitimate expectations as to the prospects of establishing or continuing a family life in Norway. 52.", "In the Government's view, the Convention case-law invoked by the applicants did not lend support to their argument. In any event, should the Court nevertheless find Article 8 applicable, the Government submitted that any interference with the applicants' private and family life resulting from the impugned measures was justified under Article 8 § 2. They referred to their arguments above contesting the applicability of Article 8. In the view of the Government, it transpired from the Court's case law that, where the family link had been established at a time when there could be no reasonable or legitimate expectations as to the possibilities for establishing a family life in the Contracting State, the threshold would be very high for finding an exclusion order or an expulsion disproportionate for the purposes of the necessity test under Article 8 § 2 of the Convention. The threshold had not been surpassed in the present case.", "The impugned expulsion and prohibition on re-entry had been based on the first applicant's aggravated and repeated violations of Norwegian immigration law. Moreover, his ties with Norway had been very limited at the time of the contested administrative decisions and he still had strong ties to Nigeria. There were no insurmountable obstacles preventing the applicants from enjoying family life in the first applicant's home country. The second applicant had had the experience of living in South Africa and the third applicant was of an adaptable age. B.", "The Court's assessment 53. At the outset the Court finds it clear that the relationships between the applicants constituted “family life” for the purposes of Article 8 of the Convention, which provision is therefore applicable to the instant case. 54. Turning to the issue of compliance, the Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997‑VI, p. 2264, § 42).", "The Convention does not guarantee the right of an alien to enter or to reside in a particular country. The applicant entered Norway on 25 August 2001 and was expelled to Nigeria on 7 March 2007. Pending his appeal to the Immigration Appeals Board against the Directorate of Immigration's rejection of his asylum request on 22 May 2002, he was granted a stay of execution of his expulsion and a temporary work permit but at no time was he granted lawful residence in Norway (cf. Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 43, ECHR 2006‑).", "As from 11 September 2002, when the Immigration Appeals Board rejected his appeal, he was under an obligation to leave the country and was given until 30 September 2002 to do so. His continued stay there beyond that time-limit was unlawful. As from February 2003 the first applicant applied for a right to stay in the country on a new ground, namely family reunification with the second applicant, but also this request was rejected and he was ordered to leave the country. The Court is not persuaded by the applicants' submission to the effect that, pending the latter decision, the first applicant's continued stay in Norway was not merely tolerated, as argued by the Government, but an entitlement. 55.", "However, it is to be noted that the first and the second applicants got married in Norway on 2 February 2003. The genuineness of their marriage has not been called into question and a child from the couple, the third applicant, was born on 20 September 2006. The family remained united and lived in Norway until the first applicant's expulsion on 7 March 2007. In these circumstances the Court considers that the impact of the impugned measures constituted an interference with the applicants' right to respect for family life under Article 8 § 1 of the Convention (cf. Rodrigues da Silva and Hoogkame, cited above, § 38).", "56. As to the further question whether the interference was justified under Article 8 § 2, the Court is satisfied that it had a legal basis in national law, namely section 29(1)(a) and (4) of the Immigration Act, and that it pursued the legitimate aims of preventing “disorder or crime” and protecting the “economic well-being of the country”. Indeed this seems undisputed. However, a question arises whether the interference was necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aims pursued (see, as a recent authority, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑...).", "57. In assessing the question of necessity, the Court will have regard to the various factors indicated in paragraphs 57 to 59 of the above-mentioned Üner judgment. The State must strike a fair balance between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gül v. Switzerland, judgment of 19 February 1996, Reports 1996-I, pp.", "174-75, § 38; and Rodrigues da Silva and Hoogkamer, cited above, § 39). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer, cited above, ibidem; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000). Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious (see Jerry Olajide Sarumi v. the United Kingdom (dec.), no.", "43279/98, 26 January 1999; Andrey Sheabashov c. la Lettonie (dec.), no. 50065/99, 22 May 1999). Where this is the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances (see Abdulaziz, Cabales and Balkandali, cited above, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998; and Ajayi and Others, cited above; Rodrigues da Silva and Hoogkamer, cited above, ibidem). 58.", "In this regard the Court first observes that when the first applicant arrived and applied for asylum in Norway on 25 August 2001, he was an adult and had no links to the country. His family links to the second and third applicants were formed at different stages during his stay in the country. 59. The first and second applicants met in October 2001 and started co-habiting in March 2002. Already from the beginning of their relationship it must have been clear to them both that their prospects of being able to settle as a couple in Norway were precarious.", "The first applicant's asylum request was rejected, first by the Directorate of Immigration on 22 May 2002, and then by the Immigration Appeals Board on 11 September 2002, giving him until 30 September 2002 to leave the country. No judicial appeal was lodged against these decisions, which became final. Nevertheless, the first applicant opted to evade his duty to leave and stayed in Norway unlawfully. 60. On 2 February 2003, while the first applicant was staying illegally in Norway, he got married to the second applicant.", "Because of his lack of residence status the marriage had not been contracted in accordance with domestic law, though this shortcoming did not deprive the marriage of its validity. 61. In the Court's view, at no stage prior to their marriage on 2 February 2003 could the first and the second applicants have reasonably held any expectation that he would be granted leave to remain in Norway. 62. This state of affairs was not changed, but was confirmed rather, by the developments in the case in the ensuing period.", "On 14 February 2003 the first applicant made a new request on the ground of family reunification with the second applicant, but again his request was rejected and he was ordered to leave the country, in a decision of 26 April 2003, notified to him on 7 May 2003. Therefore the applicant could not reasonably expect a right to reside in Norway based on these proceedings. 63. Moreover, on account of the first applicant's unlawful stay in Norway for four months and a half from September 2002 to February 2003 and for his having worked there unlawfully without a work permit for nine months from September 2002 to July 2003, the Directorate of Immigration decided on 26 August 2003 firstly that he should be expelled pursuant to section 29(1)(a) of the Immigration Act and secondly be prohibited to re-enter Norway for five years (with a possibility of re-entry on application- normally after two years). To the Court's understanding, the first part of the decision represented hardly anything new but was rather a renewed response to the first applicant's failure to comply with previous orders to leave the country.", "The decision of 26 August 2003 was upheld by the Immigration Appeals Board on 21 July 2004 and by the appellate courts respectively on 27 February and 14 June 2006. At each level (including the City Court which held in his favour on 15 February 2005) it was found established that the basic condition for expelling the first applicant – that he had seriously or repeatedly violated the Immigration Act or had defied implementation of the decision that he should leave the country – had been fulfilled. It is true that the City Court found the measure disproportionate but that finding was not final and was overturned by the High Court and leave to appeal was refused by the Appeals Leave Committee of the Supreme Court. 64. Against this background the Court does not consider that the first and second applicants, by confronting the Norwegian authorities with the first applicant's presence in the country as a fait accompli, were entitled to expect that any right of residence would be conferred upon him (see Roslina Chandra and Others v. the Netherlands (dec.), no.", "53102/99, 13 May 2003; Yash Priya v. Denmark (dec.) 13594/03; 6 July 2006; cf. Rodrigues da Silva and Hoogkamer, cited above, § 43). 65. In the Court's view, the same considerations apply to the third applicant's birth on 20 September 2006, which fact could not of itself give rise to any such entitlement. 66.", "It should further be noted that the first applicant had lived in Nigeria since he was six months old until he left the country at the age of 22, had studied at university for four years and had three brothers with whom he was still in contact. Whereas his links to Nigeria were particularly strong, his links to Norway were comparatively weak, apart from the family bounds he had formed there with the second and third applicants pending the proceedings. The third applicant was still of an adaptable age at the time when the disputed measures were decided and implemented (see Ajayi and Others, cited above; Sarumi, cited above; and Sezai Demir c. France (dec.), no. 33736/03, 30 May 2006). The second applicant would probably experience some difficulties and inconveniences in settling in Nigeria, despite her experience from a period spent in another African country, South Africa, and the fact that English was also the official language of Nigeria.", "However, the Court does not find that there were insurmountable obstacles in the way of the applicants' developing family life in the first applicant's country of origin. In any event, nothing should prevent the second and third applicants from coming to visit the first applicant for periods in Nigeria. 67. Finally, the Court notes that the decision prohibiting the first applicant re-entry for five years was imposed as an administrative sanction, the purpose of which was to ensure that resilient immigrants do not undermine the effective implementation of rules on immigration control. Moreover, it was open to the first applicant to apply for re-entry already after two years.", "68. Against this background, the Court does not find that the national authorities of the respondent State acted arbitrarily or otherwise transgressed their margin of appreciation when deciding to expel the first applicant and to prohibit his re-entry for five years. The Court is not only satisfied that the impugned interference was supported by relevant and sufficient reasons but also that in reaching the disputed decision the domestic authorities struck a fair balance between the personal interests of the applicants on the one hand and the public interest in ensuring an effective implementation of immigration control on the other hand. In view of the first applicant's immigration status, the present case disclosed no exceptional circumstances requiring the respondent State to grant him a right of residence in Norway so as to enable the applicants to maintain and develop family life in that country. In sum, the Court finds that the national authorities could reasonably consider that the interference was “necessary” within the meaning of Article 8 § 2 of the Convention.", "Accordingly, there has been no violation of Article 8 of the Convention. FOR THESE REASONS, THE COURT Holds by five votes to two that there has been no violation of Article 8 of the Convention; Done in English, and notified in writing on 31 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Jebens; (b) dissenting opinion of Judge Malinverni, joined by Judge Kovler. C.L.R.S.N. CONCURRING OPINION OF JUDGE JEBENS I agree with the majority that there has been no violation of Article 8.", "However, I do not agree with the majority's interpretation and application of that article. For the reasons set out below, I have concluded that there has been no interference with a protected right in Article 8 in the present case. The following factual elements concerning the first applicant's stay in Norway are in my opinion important for the evaluation of the case: He entered Norway on 25 August 2001, and applied for asylum. His application was rejected by the Directorate of Immigration on 22 May 2002. He appealed, and pending a decision of his appeal, he was granted a stay of execution of his expulsion and a temporary work permit.", "His appeal was rejected by the Immigration Appeals Board on 11 September 2002. Having been given until 30 September 2002 to leave Norway, he requested a stay of his expulsion, which was refused on 7 October 2002. The first applicant did not comply with the order to leave Norway. Having married the second applicant on 2 February 2003, he applied for a work permit on the ground of family reunification, which was rejected on 26 April 2003. He was ordered to leave Norway, but appealed and requested a stay of execution.", "After having rejected that request, the Directorate of Immigration ordered the first applicant to leave Norway by 30 October 2003. This account shows that the first applicant was at no time granted lawful residence in Norway, and that he was repeatedly ordered to leave the country. Furthermore, the decision to expel the first applicant, which was passed on 26 August 2003, was a reaction to his persistent defiance with the successive orders to leave Norway. The execution of the expulsion order was carried out as late as 7 March 2007, due to the fact that the first applicant instituted court proceedings. The Convention does not guarantee the right of a foreign national to enter or reside in a particular country.", "This is confirmed by the Court's case law, from which it follows that the State is entitled to control the entry and residence of foreign nationals in its territory. As a consequence, the Court's case law distinguishes between expulsion of a person who has been lawfully residing in a country, and expulsion of a person who has not been granted lawful residence. While in the former situation the Court has exercised a close scrutiny of the justification for the interference with the rights protected by Article 8 § 1, in the latter it has accorded States a wide margin of appreciation in their compliance with their positive obligations under this provision. This implies a limitation of the notion of right to “respect” for family life, which is necessary in order for the State to control entry and residence of foreign nationals in their territory. Reference is made to Abdulaziz, Cabales and Balkandali v. the United Kingdom, §§ 67-69; Boujlifa v. France, § 42; Rodrigues da Silva and Hoogkamer v. the Netherlands, § 43, all referred to in paragraph 54 of the judgment, and also to Mitchell v. the United Kingdom ((dec.) no.", "4047/98, 24 November 1998) and Gúl v. Switzerland (judgment 22 January 1996, Reports 1996-I). It follows from the above referred case law that the fact that the first and second applicant married and got a child in Norway cannot in itself bring the first applicant's case within the ambit of Article 8. Contrary to what seems to be the opinion of the majority, it is decisive so far that family life within the meaning of Article 8 was established during the first applicant's unlawful residence in Norway, and when neither of the applicants could have any reasonable or legitimate expectations that they could enjoy family life in Norway. Therefore, the decision to expel the first applicant did not, in my opinion, interfere with his right to “respect” for family life. The question of compliance with Article 8 § 1 must therefore refer to the State's positive obligations with regard to protecting the first applicant's family life.", "For the same reasons that the majority have discussed with regard to the “necessity test” I find it clear that there has been no breach of the State's positive obligations in this case. While I have arrived at the same conclusion as the majority, I think that the legal approach is important in such cases. This is so, because one can easily imagine situations where application of a necessity test on an alleged interference will lead to conclusions that are more favourable to an applicant than if one bases the discussion on the State's positive obligations. The legal reasoning is therefore of the utmost importance in such cases, namely in order to clarify the State's rights and duties vis-à-vis immigrants. DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KOVLER (Translation) 1.", "To my great regret I am unable to subscribe to the majority's conclusion that the first applicant's expulsion did not entail a violation of Article 8. 2. The main argument put forward by the majority in reaching that conclusion is that the first applicant was never granted a residence permit entitling him to reside lawfully within Norwegian territory. His presence was at best tolerated, and when he married a Norwegian national, he must have known that his right to remain in Norway was precarious and both he and his wife must have expected that he would be expelled. 3.", "The fact remains, however, that on 2 February 2003, while he was unlawfully resident in Norway, the first applicant got married. 4. I have difficulty in following the majority's reasoning to the effect that “because of his lack of residence status the marriage had not been contracted in accordance with domestic law” (see paragraph 60 of the judgment). 5. Although the Court adds that “this shortcoming did not deprive the marriage of its validity” (see paragraph 60), there is serious cause to wonder whether the registration authorities should not, in such circumstances, have refused to perform the marriage ceremony.", "The administrative authorities thus undoubtedly committed an error in agreeing to the marriage between the first and second applicant although the former did not satisfy the conditions for validly contracting marriage. 6. As the City Court observed, the consequence of this error was that “although the first applicant had failed to comply with one of the conditions for contracting marriage in Norway, namely lawful residence in the country (sections 5(a) and 7(k) of the Marriage Act 1991), he had had reason to believe (as from February 2003) that he had a right to stay and to apply for a work permit and a residence permit” (see paragraph 22 of the judgment). 7. The first applicant's marriage accordingly instilled in him the conviction that he could lawfully remain in Norway.", "8. I would observe in this connection that in several member States of the Council of Europe, marriage in itself entitles a foreign national to reside in the State of which his or her spouse is a national. 9. The decision to expel the first applicant thus constituted undeniable interference with his right to respect for his private and family life, all the more so as the first two applicants had in the meantime produced a child. 10.", "I do not dispute that the interference had a basis in law and pursued a legitimate aim. The point on which I differ from the majority is whether the expulsion complied with the proportionality principle. 11. Contrary to most expulsion cases which the Court has had to consider, in this case the first applicant had not committed any criminal offence. The only accusation against him was “that he had seriously violated the Immigration Act or had defied implementation of the decision that he should leave the country” (see paragraph 63).", "12. Seeing that the offence in question was purely administrative and in no sense criminal, I consider that the first applicant's Norwegian wife could hardly have been required to follow him to Nigeria so that they could pursue their family life there. It was likewise highly unrealistic to envisage that the first applicant would travel alone to his home country and return occasionally to visit his wife and son in Norway. Their family life would have been seriously impaired. 13.", "In conclusion, when the various competing interests were weighed up, the balance should have tipped towards granting the first applicant a residence permit entitling him to remain in Norway." ]

[ "FOURTH SECTION CASE OF MANGO v. ITALY (Application no. 38591/06) JUDGMENT STRASBOURG 5 May 2015 This judgment is final but it may be subject to editorial revision. In the case of Mango v. Italy, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Ledi Bianku, President,Paul Mahoney,Krzysztof Wojtyczek, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 14 April 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38591/06) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Giovanni Mango (“the applicant”), on 22 September 2006.", "2. The applicant was represented by Mr G. Romano and Mr. C. Mango, lawyers practising in Benevento. The Italian Government (“the Government”) were represented by their Agent, Mrs M.E. Spatafora, her former co-Agents, Mr N. Lettieri and Mr F. Crisafulli, and her co-Agent Mrs Paola Accardo. 3.", "On 17 September 2007 the application was communicated to the Government. 4. On 7 March 2013 Giovanni Mango died. His son, Francesco Mango and his daughter, Vincenzina Mango, expressed their wish to pursue the application. For ease of reference, the present judgment will continue to refer to Mr Mango as “the applicant”.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1929 and lived in Moiano. 6. The facts of the case may be summarised as follows.", "7. The applicant was the owner of a plot of land in Moiano. The land in issue was recorded on the land register as folio no. 11, parcels no. 392 and 396.", "8. On 18 June 1987, a decree authorising the Moiano Municipality to take possession of a portion of the applicants’ land was issued for a period of three years, through an expedited procedure and on the basis of a public-interest declaration, in order to begin the construction of a road. 9. On 14 July 1987 the authorities took physical possession of the land. 10.", "By a writ served on 1 October 1990, the applicant brought an action for damages against the Moiano Municipality before the Benevento District Court. He alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. He claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation. 11. On an unspecified date the court ordered an expert valuation of the land.", "In a report submitted in September 1992, the expert concluded that the occupied land covered a surface area of 109 square metres. The expert further concluded that the market value of the land on the date the land had been irreversibly transformed, which he identified as having occurred in May 1998, corresponded to 50,000 Italian lire (ITL) (EUR 25.80) per square metre. 12. By a judgment delivered on 9 March 2005 and filed with the court registry on 18 March 2005, the Benevento District Court declared that the possession of the land, which had been initially authorised, had become unlawful as of 14 July 1990. It found that the land had been irreversibly transformed by the public works.", "As a result, in accordance with the constructive-expropriation rule (occupazione acquisitiva or accessione invertita), the applicants had been deprived of their property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be lawful. In the light of those considerations, the court concluded that the applicant was entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation. 13. The court drew on the expert valuation and considered that the market value of the land, which in 1998 corresponded to ITL 50,000 (EUR 25.82) per square metre, corresponded to ITL 57,000 (EUR 29.43) per square metre on the date the occupation had become unlawful in 1990. 14.", "The court held that the applicant was entitled to compensation, calculated in accordance with Law no. 662 of 1996, which had entered into force in the meantime, in the sum of ITL 2,997,500 (equivalent to EUR 1,548.08), to be adjusted for inflation, plus statutory interest. 15. The court further awarded the applicant ITL 408,750 (equivalent to EUR 211.10) as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation (June 1987) until the date of loss of ownership (July 1990), as well as ITL 5,000,000 (EUR 2,582.28) for the damage caused by the building works and ITL 3,000,000 (EUR 1,549.37) as compensation for the decrease in the value of the adjoining land. 16.", "The judgment became final in May 2006. II. RELEVANT DOMESTIC LAW AND PRACTICE 17. The relevant domestic law and practice concerning constructive expropriation are to be found in the Guiso-Gallisay v. Italy judgment (just satisfaction) [GC], no. 58858/00, 22 December 2009).", "18. In judgments nos. 348 and 349 of 22 October 2007, the Italian Constitutional Court held that national legislation must be compatible with the Convention as interpreted by the Court’s case-law and, in consequence, declared unconstitutional section 5 bis of Legislative Decree no. 333 of 11 July 1992 as amended by Law no. 662 of 1996.", "19. In judgment no. 349, the Constitutional Court noted that the insufficient level of compensation provided for by the 1996 Law was contrary to Article 1 of Protocol No. 1 and also to Article 117 of the Italian Constitution, which provides for compliance with international obligations. Since that judgment, the provision in question may no longer be applied in the context of pending national proceedings.", "20. A number of changes occurred in domestic legislation following the Constitutional Court’s judgments. Section 2/89 (e) of the Finance Act (Law no. 244) of 24 December 2007 established that in cases of constructive expropriation the compensation payable must correspond to the market value of the property, with no possibility of a reduction. THE LAW I.", "THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION 21. By a letter dated 4 November 2014 the Government submitted a unilateral declaration with a view to resolving the issues raised by the present application and requested the Court to strike it out of its list of cases. 22. The Government informed the Court that they were ready to accept that there had been a violation of of Article 1 of Protocol No. 1.", "In respect of pecuniary damage, non-pecuniary damage, and costs and expenses, the Government proposed to award the applicant EUR 3,485. 23. The applicant did not take a position on the unilateral declaration. 24. The Court reiterates that in certain circumstances it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.", "Whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case will depend on the particular circumstances of the case (see, among many other authorities, Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003‑VI, and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006). 25. The Court has held that the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application in full or in part.", "The Court will have regard in this connection to whether the amount is commensurate with its own awards in similar cases (see Przemyk v. Poland, no. 22426/11, § 39, 17 September 2013). 26. Having studied the terms of the Government’s unilateral declaration, the Court is of the view that, in the instant case, the sum proposed in the declaration in respect of the pecuniary and non-pecuniary damage suffered by the applicants as a result of the constructive expropriation of their land does not bear a reasonable relation to the amounts awarded by the Court in similar cases against Italy (see, amongst others, Guiso-Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, 22 December 2009, and Macrì and Others v. Italy, no.", "14130/02, 12 July 2011). 27. Therefore, the Court considers that, in the particular circumstances of the applicant’s case, the proposed declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case. 28. This being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 29. The applicant complained that he had been deprived of his land in circumstances that were incompatible with the requirements of Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 30. The Government contested the applicant’s argument. A. Admissibility 31. In its observations of 11 December 2007 the Government submitted that the applicant had failed to exhaust domestic remedies in that he had not lodged an appeal against the judgment of the Benevento District Court.", "32. The applicant challenged the Government’s objection. 33. The Court reiterates that it has already rejected similar submissions in previous cases (see Colacrai v. Italy (no. 1), no.", "63296/00, 13 October 2005; Colacrai v. Italy (no. 2), no. 63868/00, 15 July 2005; Colazzo v. Italy, no. 63633/00, 13 October 2005; Pia Gloria Serrilli and Others v. Italy, nos. 77823/01, 77827/01 and 77829/01, 17 November 2005; Serrilli v. Italy, no.", "77822/01, 6 December 2005; Giacobbe and Others v. Italy, no. 16041/02, 15 December 2005; Sciarrotta and Others v. Italy, no. 14793/02, 12 January 2006; Izzo v. Italy, no. 20935/03, 2 March 2006; and Gianni and 8 Others v. Italy, no. 35941/03, 30 March 2006).", "The Court finds no reason to depart from its previous conclusions and considers that the objection must be dismissed. 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 35. The applicant submitted that he had been dispossessed of his property pursuant to the constructive-expropriation rule, whereby public authorities acquire land by taking advantage of their own unlawful conduct. The applicant maintained that the application of the constructive-expropriation rule to his case did not comply with the principle of the rule of law. 36.", "According to the Government, despite the absence of a formal expropriation order and although the irreversible alteration of the land following the construction of public works prevented its restitution, the occupation in issue had been carried out within the framework of an administrative procedure grounded on a declaration of public interest. 37. The Court observes that the parties agree that a “deprivation of property” has occurred for the purposes of Article 1 of Protocol No. 1. 38.", "With regard to constructive expropriation, the Court refers to its established case-law (see, amongst others, Belvedere Alberghiera S.r.l. v. Italy, no. 31524/96, ECHR 2000‑VI; Scordino v. Italy (no. 3), no. 43662/98, 17 May 2005; Velocci v. Italy, no.", "1717/03, 18 March 2008) for a summary of relevant principles and an overview of its case-law on the subject. 39. In the instant case, the Court notes that, pursuant to the constructive-expropriation rule, the Benevento District Court held that the applicants had been deprived of their land on 14 July 1990. The Court considers that that situation could not be regarded as “foreseeable” as it was only in the final decision in the proceedings under scrutiny that the constructive-expropriation rule could be regarded as being effectively applied. The Court consequently finds that the applicants did not become certain that they had been deprived of their land until May 2006, when the judgment of the Benevento District Court became final.", "40. In the light of the foregoing observations, the Court considers that the interference complained of was not compatible with the principle of lawfulness and that it therefore infringed the applicant’s right to the peaceful enjoyment of her possessions (see also paragraph 22 above). 41. It follows that there has been a violation of Article 1 of Protocol No.1. III.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 42. The applicant alleged that the enactment and application to his case of Law no. 662 of 1996 amounted to interference by the legislature in breach of his right to a fair hearing as guaranteed by Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 43. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. B.", "Merits 44. The Court has found that the interference with the applicant’s property rights was not compatible with the principle of lawfulness and that it therefore infringed the applicant’s right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 (see paragraphs 37-41 above). 45. Having regard to the foregoing conclusion, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 1 (see, among other authorities, Rivera and di Bonaventura v. Italy, no.", "63869/00, §§ 27-30, 14 June 2011; Macrì and Others v. Italy, no. 14130/02, §§ 46-50, 12 July 2011). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 47.", "With regard to pecuniary damage, the applicant claimed an amount corresponding to the market value of the land, readjusted for inflation and increased by the amount of interest due, as well as compensation for the damage caused to buildings and the destruction of crops present on the land. The applicant further sought compensation for the period of lawful occupation. In March 2008, the sum claimed amounted to EUR 84,380, readjusted for inflation and increased by the amount of interest due. 48. The Government contested that amount.", "49. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000‑XI). 50. The Court further observes that, in the Guiso-Gallisay v. Italy judgment (just satisfaction) [GC], cited above, the Grand Chamber considered it appropriate to adopt a new approach with regard to the criteria to be used in assessing damages in constructive expropriation cases.", "In particular, the Court decided to reject applicant’s claims in so far as they were based on the value of the land on the date of the Court’s judgment and, in assessing the pecuniary damage, to have no further regard to the construction costs of the buildings erected by the State on the land. 51. The Court held that the reparation of the pecuniary damage must be equal to the full market value of the property on the date the applicants had lost ownership of their property, that value being calculated on the basis of the court-ordered expert reports drawn up during the domestic proceedings. Once the amount obtained at the domestic level is deducted, and the difference with the market value of the land when the applicants lost ownership is obtained, that amount will have to be converted into the current value to offset the effects of inflation. Moreover, simple statutory interest (applied to the capital progressively adjusted) will have to be paid on this amount so as to offset, at least in part, the long period for which the applicants have been deprived of the land.", "52. In the present case, reference can be made to the Benevento District Court’s judgment, according to which the applicant lost his right of ownership of the land on 14 July 1990. On the basis of the court-ordered expert report drawn up during the domestic proceedings before the Benevento District Court, the market value of the land during that period corresponds to ITL 6,213,000 (EUR 3,209). 53. In light of the difference between the market value of the land when the applicants lost ownership and the amount obtained at the domestic level, increased by a sum reflecting inflation adjustment and interest, and ruling on an equitable basis, the Court considers it reasonable to award the applicant EUR 8,800 plus any tax that may be chargeable on that amount.", "B. Non-pecuniary damage 54. The applicant did not submit any claim for just satisfaction in respect of non-pecuniary damage. Accordingly, the Court considers that it is unnecessary to make an award under this head. C. Costs and expenses 55. The applicant submitted a bill of costs and expenses and sought the reimbursement of EUR 15,110.77 for the costs and expenses incurred before the present Court.", "56. The Government contested the amount. 57. According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were reasonable as to quantum (Can and Others v. Turkey, no. 29189/02, § 22, 24 January 2008).", "58. While it is not disputed that the applicant incurred certain expenses in order to obtain redress before the Court, it considers that the sum requested is excessive. 59. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court. D. Default interest 60.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Rejects the Government’s request to strike the application out of the list; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 4. Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months, the following amounts: (i) EUR 8,800 (eight thousand eight hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 5 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLedi Bianku Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF GORELOV v. RUSSIA (Application no. 49072/11) JUDGMENT STRASBOURG 9 January 2014 FINAL 09/04/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gorelov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Julia Laffranque,Linos-Alexandre Sicilianos,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 10 December 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "49072/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Viktor Leonidovich Gorelov (“the applicant”), on 7 June 2011. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged that he had contracted HIV in custody, that his complaints related to the HIV infection had not been investigated, and that he had not received adequate medical assistance in detention.", "4. On 8 October 2012 the application was communicated to the Government. Further to the applicant’s request, the Court granted priority to the application (Rule 41 of the Rules of Court) THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1965 and lived until his arrest in the village of Sushzavod, in the Novosibirsk Region.", "He is serving a sentence in a correctional colony in the town of Raisino, in the Novosibirsk Region. 6. Arrested in August 2007 on suspicion of aggravated robbery, the applicant was convicted on 28 January 2008 and sentenced to nine years and three months’ imprisonment. On 23 November 2011 the applicant was also convicted of aggravated fraud and sentenced to another three years. A.", "The applicant’s contraction of HIV 7. On 7 February 2011 a blood test revealed that the applicant had contracted HIV. Tests conducted on previous occasions, in particular in 2009 and 2010 when the applicant was transferred to correctional colony no. 13, medical penal facility no. 10 and a temporary detention facility in the town of Barnaul, were all negative.", "8. Believing that he had contracted the virus during medical procedures in detention facilities, the applicant lodged an action with the Berdsk Town Court, seeking compensation from the detention facility authorities for causing him to become HIV-positive. 9. On 16 June 2011 the Novosibirsk Regional Court, acting as a court of final instance, disallowed the action, having found that the applicant had not complied with the procedural requirements for lodging it. He did not name a public official who could have been responsible for his having contracted the virus, he did not indicate his home address, he did not pay a court fee, and so on.", "10. The applicant sent a complaint to the Investigations Department of the Novosibirsk Region, asking for criminal proceedings to be instituted against detention facility personnel. He argued that he had become HIV-positive as a result of negligence on the part of the prison medical staff. 11. On 5 July 2011 a deputy head of the Department readdressed the complaint to the Novosibirsk Regional Prosecutor.", "12. On 13 July 2011 the first deputy prosecutor of the Novosibirsk Region returned the applicant’s complaint to the Investigations Department of the Novosibirsk Region, informing it that there were indications of a possible criminal offence and that a thorough inquiry into the matter should be conducted. 13. Ten days later the Investigations Department redirected the applicant’s complaint to the head of the Novosibirsk regional police department, seeking an inquiry into the circumstances causing the applicant to become HIV-positive. 14.", "In March 2012 the applicant received a letter from a Berdsk deputy prosecutor, informing him that his request for institution of criminal proceedings against detention officers had been examined and refused on 18 June 2011. The applicant lodged a claim with the Berdsk Town Court, complaining that the investigating authorities had failed to look closely into what had caused him to contract the virus. On 2 October 2012 the Town Court discontinued the examination of the complaint, noting that on 2 October 2012 the decision of 18 June 2011 had been overturned by the investigation authorities as premature and a new inquiry had commenced. The outcome of those proceedings is unknown. 15.", "In December 2012 specialists from the Hygiene and Epidemics Centre of the Federal Service for Execution of Sentences conducted an inquiry for the purpose of establishing the transmission mode of the applicant’s HIV infection. They studied the applicant’s medical record and interviewed him. Having observed that the applicant had never travelled abroad, had not been a blood, tissue, organ or sperm donor or recipient, had not used drugs, had not had any sexual contacts in detention, and had not suffered from any sexually transmitted diseases apart from the HIV infection, the specialists stated that it was impossible to establish the exact way in which the applicant had contracted the virus. At the same time, they noted that in February 2009 and in 2010 the applicant had undergone invasive medical procedures in penal facilities. Those procedures were performed in response to the applicant’s self-harming.", "In addition, the large number of tattoos on the applicant’s body did not escape the attention of the specialists. They described the tattoos as “home-made”, and stated that the most recent one had been done in 2008. B. Quality of medical assistance 16. The applicant submitted that after he had been diagnosed as HIV-positive his treatment had been extremely erratic and insufficient.", "His antiretroviral therapy included two drugs, Combivir and Stocrin. When the treatment was amended with another drug the applicant’s condition deteriorated; he began to experience loss of consciousness, dizziness and nausea. The applicant submitted that the change in the treatment had been authorised by physicians from colony no. 10. An infectious diseases specialist had not been consulted.", "When he was transferred to colony no. 13 the applicant asked for his previous chemotherapy regime to be reinstated, given the extremely serious side effects he was experiencing following the change in the treatment regime; CD4 cell counts were showing rapid growth in the viral load. 17. The Government provided the Court with a copy of the applicant’s medical record drawn up after his detention at the police station in the town of Cherepanovo on 16 August 2007. On the following day a blood test taken for HIV infection was negative.", "HIV tests on 24 August and 14 December 2007, 25 September 2008 and 26 February 2009 all produced the same result. Each test was preceded by a consultation with a prison doctor. A report was drawn up as a result. The reports showed that the applicant had denied using drugs, having sexual relations, including homosexual sexual contacts, and had had no blood transfusions. 18.", "On 24 February 2009 the applicant complained to a prison surgeon of severe stomach pain. He explained that on 28 December 2008 he had swallowed a long nail. An X-ray examination of the applicant’s abdominal area showed two metal nails 11.6 and 8 centimetres long respectively. He was immediately admitted to the surgical department of the prison hospital. Subsequent examinations showed no urgent need for surgery; the applicant also refused surgical treatment.", "After examination and treatment in the hospital the applicant was released on 18 March 2009 with one nail remaining in his body. He was to stay under supervision in the colony medical unit. 19. The applicant underwent clinical blood tests in October 2009. No HIV test was carried out on that occasion.", "20. In January 2010 the applicant broke his arm and was treated in the colony medical unit with the assistance of a surgeon from the Ubinsk hospital. 21. On 16 March 2010 the applicant refused to have an HIV test. 22.", "In early February 2011 the applicant applied for medical assistance, complaining of coughing blood, stomach pain and dizziness. He explained that he had swallowed a ten-centimetre-long metal wire as a way of protesting against the internal rules of the colony. The applicant received treatment and was seen by a surgeon from the Iskitima town central hospital. An X-ray performed several days later showed that the wire had exited the applicant’s body. The applicant nevertheless stayed in the hospital for almost a month.", "A test performed in the hospital on 7 February 2011 showed that the applicant was HIV-positive. Another test on 18 February 2011 confirmed that result. 23. Following the tests the applicant consulted a psychiatrist, who explained to him the nature of the HIV infection and the methods for treating it, and warned him that knowingly transmitting it was a criminal offence. He was also told about the necessity to adhere to the antiretroviral treatment which he had not yet started receiving, and was informed of the negative consequences of stopping the treatment.", "The doctor also questioned the applicant about how he might have been infected with the virus. The applicant denied having sexual relations and using drugs. The doctor noted the large number of tattoos on his body. The final diagnosis given to the applicant on his release from the hospital on 15 March 2011 was HIV infection in the third stage and sub-clinical form. The doctor recommended clinical blood and urine tests, biochemical blood analysis, CD4 and CD6 cell counts, consultations with an infectious diseases specialist, and close medical outpatient supervision.", "24. On 20 April 2011 the applicant cut his left forearm. A prison nurse treated the wound and made an entry in the applicant’s medical record noting her suspicion that the applicant had actually bitten his forearm and had broken the vein with his teeth. The applicant continued receiving treatment in the medical unit until the beginning of May 2011. 25.", "On 30 June 2011 the applicant was seen by a prison doctor, who repeated the recommendations given on 15 March 2011. 26. On 20 July 2011 another blood test confirmed the HIV infection. The applicant also tested positive for hepatitis C. 27. Between July and December 2011 the applicant was seen six times by a prison doctor following complaints of severe headaches, dizziness and nausea.", "He was treated for arterial hypertension. 28. In December 2011 the applicant was subjected to a number of immunological tests, including a CD4 cell count which showed slightly over 320 cells/mm3. On 21 December 2011 an infectious diseases specialist examined the applicant. Noting a decrease in the CD4 cell count and rapid growth of the viral load, the doctor recommended commencing antiretroviral therapy with Combivir, a fixed-dose combination of the drugs zidovudin (Retrovir), lamivudine (Epivir), and Stocrin (Ephavirenz).", "Another round of immunological testing was to be performed in a month. The doctor gave extensive information on the treatment, its schedule and its side effects. The applicant was again reminded about the negative consequences of stopping the treatment. The applicant signed a statement recording the main details of that consultation. 29.", "On 21 December 2011 the applicant started antiretroviral treatment. An immunological test performed on 12 January 2012 showed an increase in the viral load. The Government provided a record of the daily schedule showing the medicines taken by the applicant under the supervision of the prison nurses. 30. In January and February 2012 the applicant was seen at least once every few days by a prison doctor or nurse.", "In the months that followed regular medical consultations were continued. 31. Between 5 October and 28 November 2012 the applicant was in the clinical treatment ward of the prison hospital. He was given clinical blood and urine tests, visual examinations, biochemical blood analysis, chest X-rays and an electrocardiogram. He continued his chemotherapy regime, comprising antiretroviral drugs, hepatoprotectors, vitamins and antispasmodics.", "He was released from the hospital under active supervision by doctors from the colony medical unit. Recommendations also included the addition of two drugs, Kaletara and Fosfogliv, to the antiretroviral treatment, and immunological testing every six months. 32. When he returned to the colony the applicant complained to a prison doctor about the side effects of the new drugs, and requested in writing to be placed back on the previous treatment regime. A certificate issued by the colony director on 19 December 2012 showed that the treatment had been and was continuing to be maintained without any interruptions.", "The certificate also indicated that the applicant’s health had improved as a result of the antiretroviral treatment. 33. It appears from the applicant’s submissions that the most recent CD4 cell count was performed in 2013. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND REPORTS 34.", "The relevant provisions of the domestic and international law on the health care of detainees, including those suffering from HIV, are set out in the following judgments: A.B. v. Russia, no. 1439/06, §§ 77-84, 14 October 2010; Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v. Russia, no. 44917/08, §§ 33-39 and 42-48, 30 September 2011.", "35. The Russian Criminal Code establishes criminal responsibility for intentional or negligent infliction of serious health damage, with negligent conduct being punishable by up to three years of limitation on liberty, and intentional actions by up to eight years’ imprisonment (Articles 111 and 118). However, the infliction of serious health damage by an official as a result of his or her failure to fulfil professional responsibilities constitutes a separate, aggravated criminal offence attracting an increased penalty, with the possibility of sentencing the defendant to imprisonment coupled with a prohibition on holding an official position or engaging in the practice of certain activities (Article 118 § 2). In addition, Article 122 of the Russian Criminal Code sets out responsibility for transmission of HIV infection, including by intentionally putting someone at the risk of contracting HIV (see § 1 of that provision) or by infecting someone with the virus in the course of performing professional duties (see § 2 of that provision). Such actions are punishable by, inter alia, up to three years of imprisonment.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S CONTRACTION OF HIV 36. The applicant complained under Articles 2, 3 and 13 of the Convention that he had been infected with HIV as a consequence of negligent actions by the medical staff of detention facilities, and that the authorities had failed to carry out an effective investigation of the incident. The Court will examine the present complaint under Article 2 of the Convention (see Shchebetov v. Russia, no. 21731/02, § 39, 10 April 2012, with further references).", "Article 2, in so far as relevant, reads as follows: “1. Everyone’s right to life shall be protected by law ...” A. The parties’ submissions 37. Relying on the report issued by the Centre of Hygiene and Epidemics of the Federal Service for Execution of Sentences (see paragraph 15 above), the Government insisted that the applicant’s allegation that he had contracted HIV as a consequence of negligence on the part of prison medical staff could not be proven. In particular, they drew the Court’s attention to the satisfactory epidemiological situation in the penal institutions of the Novosibirsk Region, where the applicant had been detained.", "Having listed the various means by which the virus could be transmitted, the Government noted the large number of prison tattoos on the applicant’s body, and also reminded the Court that the applicant had committed acts of self-mutilation on a number of occasions. The Government stressed that both the tattoos and the self-inflicted injuries could have been the cause of the infection with HIV. As regards the procedural aspect of Article 2 of the Convention, the Government observed that the applicant had never made a criminal-law complaint against medical staff of the detention facilities in connection with his infection with HIV. The Government therefore concluded that the applicant’s allegations that he had been infected by State officials could not be proven “beyond reasonable doubt” and that the authorities had fully complied with their obligation under Article 2 of the Convention to investigate the cause of the applicant’s HIV infection. 38.", "The applicant insisted that the State should bear responsibility for his infection with HIV, as he had remained HIV-negative for more than three years after his arrest. He had only been diagnosed with HIV after he had been subjected to invasive medical procedures in penal facilities. He insisted that he had not used drugs and cited his medical record in support of that statement. He also denied having sexual relations in custody. Having addressed the Government’s argument related to his tattoos, the applicant submitted that the tattoos had all been done between 1980 and 1985.", "He did not have any recent tattoos. He further stressed that that statement could be easily proven, because detention authorities kept a record of inmates’ tattoos. On admission to detention facilities inmates were examined and their tattoos were recorded. It would be easy to compare the tattoos which he had with those which had been recorded on his admission to the correctional colony. Moreover, the applicant pointed out that the ink in the tattoos he had was old and fading and that any expert could establish when the tattoos had been made.", "He finally stressed that he had never shared sharp objects, such as razors, with other inmates. 39. Relying on copies of letters from investigating and prosecuting authorities, the applicant further stressed that he had made a number of complaints about his infection with HIV. Those complaints had either been met with silence or the authorities had refused to take any steps to inquire into the cause of his infection. B.", "The Court’s assessment 1. Admissibility 40. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits (a) General principles 41. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Paul and Audrey Edwards v. the United Kingdom, no.", "46477/99, § 54, ECHR 2002‑II). 42. These principles also apply in the sphere of detention. Persons in custody are in a particularly vulnerable position, and the authorities are under an obligation to account for their treatment. The Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by adopting appropriate measures for the protection of their lives and providing them with the requisite medical assistance (see, inter alia, Keenan v. the United Kingdom, no.", "27229/95, § 111, ECHR 2001‑III; Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX; and McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003-V). The Court also reiterates that where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons under their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no.", "23657/94, § 85, ECHR 1999-IV, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 43. Finally, the Court observes that the aforementioned positive obligations also require an effective independent judicial system to be set up so that any infringement of the right to life or personal integrity can be identified and those responsible held accountable (see, for instance, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio v. Italy [GC], no.", "32967/96, § 49, ECHR 2002-I). The Court further reiterates that even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I), the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. Accordingly, the competent authorities must act with exemplary diligence and promptness, and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system, and, secondly, identifying the State officials or authorities involved.", "The requirement of public scrutiny is also relevant in this context (see Kats and Others v. Ukraine, no. 29971/04, § 116, 18 December 2008). (b) Application of the above principles to the present case (i) Alleged reckless infection with HIV: establishment of the facts 44. The Court observes that following two tests in February 2011 the applicant was diagnosed with HIV (see paragraph 22 above). Given that four previous HIV blood tests performed after his placement in custody in 2007 were negative, the Court finds, and there was no disagreement between the parties, that the infection was acquired in detention.", "The parties, however, disputed the exact way in which the virus had been transmitted. The Government indicated two possible routes for the HIV transmission: the applicant giving himself a large number of tattoos in detention, and the applicant committing self-mutilating acts which involved, inter alia, swallowing sharp objects and cutting his arm. The applicant insisted that the illness was the result of negligence on the part of prison medical staff during invasive medical procedures performed on him. He argued that infected materials or instruments could have been used in those procedures. 45.", "It appears to be a common point between the parties that the applicant could not have been infected through sexual intercourse or the use of drugs. Neither the applicant’s medical records nor any other documents submitted by the parties contained any reference to a history of intravenous drug use by the applicant. Similarly, there was no evidence of sexual contact between the applicant and other inmates. The Government identified the applicant’s tattoos as “home-made”, which, as follows from their submissions, meant that the tattoos could have been done in insanitary conditions with infected instruments; they also indicated that his self-inflicted injuries could have been the primary source of the infection. The Court cannot disregard the Government’s argument, given that tattooing and acts of self-mutilation both require the skin to be broken or contact with blood and bodily fluids using objects or instruments which may be multiply-used and unsterilised, which in its turn could carry health risks, not excluding infection with HIV.", "It also bears in mind the finding by the specialists from the Hygiene and Epidemics Centre that the most recent tattoo was done in 2008 (see paragraph 15 above). While the test performed in February 2009 showed that the applicant was HIV-negative, transmission of the virus by the tattooing in 2008 cannot be completely ruled out. The Court notes that a “window” period during which an infected person would not test positive runs from several days to up to six months, depending on the patient’s body and the HIV test used. The Court further observes that the applicant refused to have an HIV test in 2010, which could have narrowed the window of uncertainty as to the possible time of his infection. It also observes that the applicant committed two acts of self-mutilation between February 2009, when he still tested HIV-negative, and February 2011, when tests showed that he was infected.", "While infection on those occasions in the circumstances described by the parties is unlikely, the Court cannot entirely dismiss the Government’s argument. 46. At the same time, the Court does not overlook the applicant’s arguments that he had not had any tattoos since 1985, and that no infection could have come from his acts of self-mutilation, as he had not used any objects which had previously been in contact with an HIV-positive inmate. The Court also reiterates the applicant’s argument, which is unsupported by any evidence but not entirely lacking validity, that the Government did not produce any proof that any of his tattoos were recent. The Government could apparently have provided the Court with a list of the applicant’s tattoos, which would have been drawn up each time he was admitted to a detention facility, and compare it to those he has now.", "They could also have requested an expert opinion to show when the tattoos had been made, on the basis of the colour of the tattoo ink. 47. In this respect, the Court notes that the parties’ submissions created a situation of uncertainty. While the State’s compliance with its procedural obligation under Article 2 of the Convention will be examined below, the Court would like to stress at this juncture that its inability to draw any conclusion as to the source of the applicant’s infection flows primarily from the absence of any answers at the domestic level. In particular, it notes that the national authorities did not attempt to identify precisely how the applicant’s infection had been acquired.", "The authorities did not produce any findings which could have supported or disproved the parties’ versions of the routes by which the infection could have been transmitted. In these circumstances, the Court entertains doubts as to whether the Government can be said to have provided a satisfactory and convincing explanation of the way in which the applicant was infected with HIV, thus placing his life in danger. 48. While noting the Government’s failure to corroborate their allegations with any evidence, the Court is also mindful that the applicant’s version of events was unreliable and inconsistent. He could not point out any specific incident or identify the period when the infection could have been contracted by him.", "His complaints were vague and related to the entire period of his detention, as well as to every medical procedure to which he had been subjected by detention authorities. 49. Accordingly, in a situation where the materials in the case file do not provide a sufficient evidential basis to enable the Court to find “beyond reasonable doubt” that the Russian authorities were responsible for the applicant’s contraction of the HIV infection, the Court must conclude that there has been no violation of Article 2 of the Convention on account of the authorities’ alleged failure to protect the applicant’s right to life. (ii) Alleged inadequacy of the investigation 50. The Court once again reiterates that where lives have been lost or seriously endangered in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are terminated and punished (see Öneryıldız v. Turkey [GC], no.", "48939/99, § 91, ECHR 2004-XII). 51. Turning to the circumstances of the present case, the Court, in the light of the above principles, finds that a procedural obligation arose under Article 2 of the Convention to investigate the circumstances in which the applicant had contracted the HIV infection. Moreover, such an obligation is imposed by the Russian criminal law (see paragraph 35 above). 52.", "The Court has held on numerous occasions that an obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the applicant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation must be thorough. This means that the authorities must always make a serious attempt to find out what happened, and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998-VIII, and Mikheyev v. Russia, no.", "77617/01, §§ 107 et seq., 26 January 2006). 53. The Court notes that despite the Government’s arguments to the contrary it is convinced that the prosecuting authorities were made sufficiently aware of the applicant’s complaint that he had been infected with HIV in detention. The applicant provided the Court with copies of the authorities’ letters and decisions in response to his complaints (see paragraphs 10-14 above). It appears from these documents that the applicant’s complaint was either forwarded from one official to another or the response was a promise to conduct an inquiry, given that the complaint contained accusations of a criminal offence.", "In fact, one complaint did result in the opening of an inquiry into the matter. However, the applicant was not given any information on its fate following the overturning of the initial premature decision not to institute criminal proceedings (see paragraph 14 above). In the absence of any information on the steps taken by the Russian investigating authorities, as well as given the Government’s denial that such an inquiry had ever taken place, the Court cannot but conclude that the authorities did not carry out an effective, prompt and diligent investigation of the matter. 54. The Court is mindful of the Government’s argument that an inquiry into the applicant’s allegations was carried out in December 2012 by the Hygiene and Epidemics Centre.", "Apart from the fact that that inquiry did not produce any answers either, the Court finds that an examination of the applicant’s medical record and his questioning by the specialists of the Centre, which was done almost two years after he had been diagnosed with HIV, could not be a substitute for a full criminal-law inquiry into allegations of transmission of a life‑threatening infection, such as HIV, resulting from negligent or willful actions on the part of State agents. A criminal-law inquiry could have allowed the assembling of evidence necessary to corroborate the applicant’s allegation of negligence on the part of prison medical staff leading to his contracting the virus. The investigating authorities would have had broad legal powers to visit the detention facility, interview detainees, study documents including medical records, obtain statements from prison officials, collect forensic evidence, commission expert reports, and take all other essential steps for the purpose of ascertaining the veracity of the applicant’s account. The investigating authorities’ role was critical not only to the pursuit of criminal proceedings against the alleged perpetrators of the offence, but also to the pursuit by the applicant of other remedies to redress the harm he had suffered (see Shchebetov v. Russia, no. 21731/02, § 54, 10 April 2012, and Ismatullayev v. Russia (dec.), no.", "29687/09, §§ 21-29, 6 March 2012). 55. The Court has already indicated that the authorities’ failure to investigate the applicant’s complaints made it impossible for the Court to establish the facts of the case and to find “beyond reasonable doubt” whether the State should bear responsibility for the applicant’s infection. Given the fundamental nature of the right guaranteed by Article 2 of the Convention and the positive obligations and duties which the Convention imposes on the State, including the duty to take practical preventive measures necessary to protect the life and limb of persons who have been deprived of their liberty and to do everything that could reasonably be expected to prevent the occurrence of a foreseeable definite and immediate risk to a prisoner’s life and physical integrity, the Court finds that the Russian authorities’ failure to promptly and effectively respond to the applicant’s complaints runs contrary to the very purpose of the Article 2 guarantees. This is particularly true in a case stemming from a high-risk environment for the rapid spread of HIV infection, as detention facilities have long been considered to be.", "56. The Court concludes that the Russian authorities did not carry out a prompt, expeditious and thorough investigation of the applicant’s infection with HIV. It accordingly holds that there has been a violation of Article 2 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 57.", "The applicant complained under Article 3 of the Convention that the authorities had not taken steps to safeguard his health and well-being, having failed to provide him with adequate medical assistance for his HIV infection. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 58. The Government argued that the authorities fully complied with their obligation to provide the applicant with adequate medical assistance. He was under constant medical supervision, was duly tested, and received antiretroviral treatment, which was amended where necessary.", "59. Without providing any specific details, the applicant expressed disappointment with the quality of medical services. He argued that he had had to inflict injuries on himself to attract the authorities’ attention to his health problems and to force them to commence his treatment. He argued that his health had deteriorated rapidly, that he had not been placed on an enriched diet, and that he was not receiving vitamins. B.", "The Court’s assessment 1. General principles 60. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 61. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering.", "However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and may also fall within the prohibition contained in Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references). 62. In the context of deprivation of liberty, the Court has consistently stressed that to fall under Article 3 the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention (see, mutatis mutandis, Tyrer v. the United Kingdom, 25 April 1978, § 30, Series A no. 26, and Soering v. the United Kingdom, 7 July 1989, § 100, Series A no.", "161). 63. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).", "In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that even where Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)). 64.", "The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik , cited above, §§ 104-106; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at effectively treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109, 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211).", "65. On the whole, the Court reserves a fair degree of flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). 2.", "Application of the above principles to the present case 66. Turning to the facts of the present case, the Court reiterates that in February 2011 the applicant was diagnosed as HIV-positive. He was immediately placed under clinical supervision, which also included consultations with a psychiatrist. The Court observes that the applicant did not indicate any specific omissions on the part of the prison medical personnel which had rendered their services ineffective or inadequate. He limited his submissions to the general grievance that an HIV-positive inmate should not be treated in the way he had been treated.", "However, having assessed the evidence, the Court finds the quality of the medical care provided to the applicant to have been adequate. 67. In particular, the material available to the Court shows that the Russian authorities used available means for the correct diagnosis of the applicant’s condition, placed the applicant on an antiretroviral treatment regime to fight the HIV infection, and took the necessary steps to control the course of the illness by, inter alia, amending the treatment when necessary and admitting the applicant to medical institutions for in-depth examinations. While the Court is concerned that it took the Russian authorities ten months to perform the first CD4 cell count, which is considered one of the major instruments in identifying the proper time for the commencement of treatment, there is no evidence that the clinical staging and assessment of the applicant by prison medical staff were incorrect, or that they delayed the initiation of the antiretroviral treatment. The medical record produced by the Government does not show that the applicant’s clinical status called for his urgent placement on the chemotherapy regime before December 2011, when he started receiving the treatment.", "The CD4 count test performed in December 2011, which showed slightly over 320 cells/mm3, served as indirect evidence that no delay in the introduction of the antiretroviral treatment had occurred (see paragraph 28 above). The applicant received regular and systematic clinical assessment and monitoring, which formed part of the comprehensive treatment strategy aimed at preventing the deterioration of the applicant’s condition. The Court is unable to find any evidence, and the applicant did not argue otherwise, that the recommendations as to the frequency of testing or the permanent character of the antiretroviral treatment were disregarded by the medical staff of the detention facilities. 68. Furthermore, the Court attributes particular weight to the fact that the detention facility authorities not only ensured that the applicant was attended to by doctors, that his complaints were heard, and that he was prescribed courses of medication, but they also created the necessary conditions for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116).", "The schedule provided by the Government showed that the applicant received the treatment without any interruptions, with the daily intake of the drugs being carried out under the supervision of prison nurses. The Court is satisfied that the Government introduced psychological and control mechanisms, such as consultations with a psychiatrist and supervision by medical staff, to ensure the applicant’s adherence to the treatment and compliance with the prescribed drug regime. The Court notes, in particular, that the applicant was offered psychological support and attention and was provided with clear and complete explanations about medical procedures, the desired outcome of the treatment, and the negative effects of interrupting it. 69. The Court also notes that the authorities efficiently addressed any other health grievances that the applicant had.", "His treatment was adjusted to take account of his concomitant health problems, such as arterial hypertension and psychological issues, as well as his inability to bear the side effects of certain drugs. The Court is mindful that the applicant did not provide any description of his current condition, merely stating that he believed that his health was deteriorating. While the deterioration of health could, in certain cases, be an indication of ineffective medical treatment, in the present case the Court is unable to interpret it as anything but the unfortunate although natural manifestation of the applicant’s condition. 70. To sum up, the Court considers that the domestic authorities afforded the applicant comprehensive, effective and transparent medical assistance in detention.", "It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 71. Lastly, the Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73.", "The applicant claimed 10,000,000 Russian roubles (RUB, approximately 240,000 euros (EUR)) in compensation for non-pecuniary damage. 74. The Government submitted that the sum was excessive. They stressed that should the Court find a violation of the Convention, that finding would in itself be sufficient just satisfaction. 75.", "The Court reiterates, firstly, that the applicant cannot be required to furnish any proof of the non-pecuniary damage he has sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006). It further considers that the applicant’s suffering and frustration, caused by the authorities’ failure to effectively and diligently perform an investigation of his HIV infection, cannot be compensated for by a mere finding of a violation. However, the actual amount claimed appears excessive. Making its assessment on an equitable basis, it awards the applicant EUR 20,000 in compensation for non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 76. The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account. C. Default interest 77.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the applicant’s infection with HIV in detention and the authorities’ failure to effectively investigate the incident admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 2 of the Convention on account of the applicant’s contraction of the HIV virus in detention; 3. Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to carry out a thorough and expeditious investigation of the applicant’s complaint concerning his infection with HIV; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "SECOND SECTION CASE OF PELLEGRINI v. ITALY (Application no. 30882/96) JUDGMENT STRASBOURG 20 July 2001 FINAL 20/10/2001 In the case of Pellegrini v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrA.B. Baka,MrB. Conforti,MrG.", "Bonello,MrsM. Tsatsa-Nikolovska,MrE. Levits, MrA. Kovler, judges,and Mr E. Fribergh, Section Registrar, Having deliberated in private on 10 July 2001, delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "30882/96) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Maria Grazia Pellegrini (“the applicant”), on 15 December 1995. 2. The applicant was represented by Ms S. Mirabella, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, Head of the Diplomatic Legal Service at the Ministry of Foreign Affairs, assisted by Mr V. Esposito, co-Agent. 3.", "The applicant alleged that proceedings before the Italian courts for a declaration that a judgment of the Vatican courts was enforceable had been unfair (Article 6 § 1 of the Convention). 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 6 April 2000 the Chamber decided, in principle, to relinquish jurisdiction in favour of the Grand Chamber.", "7. On 12 April 2000 the applicant filed an objection to relinquishment under Rule 72 § 2. 8. By a decision of 29 June 2000, the Chamber declared the application admissible [Note by the Registry. The Court’s decision is obtainable from the Registry].", "9. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine). The applicant submitted written comments on the Government’s observations. 10. On 16 November 2000, in accordance with Rule 61 § 3, the President gave the Centre for Advice on Individual Rights in Europe (“the AIRE Centre”) leave to submit written comments on certain aspects of the case.", "Those comments were received on 18 December 2000. On 23 January 2001 the Government submitted observations in reply to those of the AIRE Centre. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11. On 29 April 1962 the applicant married Mr A. Gigliozzi in a religious ceremony which was also valid in the eyes of the law (matrimonio concordatario).", "1. Judicial separation proceedings 12. On 23 February 1987 the applicant petitioned the Rome District Court for judicial separation. 13. In a judgment dated 2 October 1990 the District Court granted her petition and also ordered Mr Gigliozzi to pay the applicant maintenance (mantenimento) of 300,000 Italian lira per month.", "2. Proceedings to have the marriage annulled 14. In the meantime, on 20 November 1987, the applicant was summoned to appear before the Lazio Regional Ecclesiastical Court of the Rome Vicariate on 1 December 1987 “to answer questions in the Gigliozzi-Pellegrini matrimonial case”. 15. On 1 December 1987 the applicant went alone to the Ecclesiastical Court without knowing why she had been summoned to appear.", "She was informed that on 6 November 1987 her husband had sought to have the marriage annulled on the ground of consanguinity (the applicant’s mother and Mr Gigliozzi’s father being cousins). She was questioned by the judge and stated that she had known of her consanguineous relationship with Mr Gigliozzi but did not know whether, at the time of her marriage, the priest had requested a special dispensation (dispensatio). 16. In a judgment delivered on 10 December 1987 and deposited with the registry on the same day, the Ecclesiastical Court annulled the marriage on the ground of consanguinity. The court had followed a summary procedure (praetermissis solemnitatibus processus ordinarii) under Article 1688 of the Code of Canon Law.", "That procedure is followed where, once the parties have been summoned to appear and the defensor vinculis (defender of the institution of marriage) has intervened, it is clear from an agreed document that there is a ground for annulling the marriage. 17. On 12 December 1987 the applicant was notified by the registry of the Ecclesiastical Court that on 6 November 1987 the court had annulled the marriage on the ground of consanguinity. 18. On 21 December 1987 the applicant lodged an appeal with the Roman Rota (Romana Rota) against the Ecclesiastical Court’s judgment.", "She submitted first that she had never received a copy of the judgment in question and complained that the court had not heard her submissions until 1 December 1987, which was after it had delivered its judgment of 6 November 1987. The applicant also alleged a breach of her defence rights and of the adversarial principle on account of the fact that she had been summoned to appear before the Ecclesiastical Court without being informed in advance either of the application to have the marriage annulled or the reasons for that application. She had therefore not prepared any defence and, furthermore, had not been assisted by a lawyer. 19. On 26 January 1988 the registry of the Ecclesiastical Court informed the applicant that there had been a clerical error in the notification sent to her on 12 December 1987 and that the judgment was dated 10 December 1987.", "20. On 3 February 1988 the defensor vinculis submitted observations to the effect that the applicant “had acted correctly in appealing against the judgment” (la convenuta aveva agito giustamente facendo appello contro la sentenza) of the Lazio Court. Accordingly, in a summons of 9 March 1988 the reporting judge of the Rota summoned the parties and the defensor vinculis to appear. 21. On 10 March 1988 the applicant was informed that the Rota would examine her appeal on 13 April 1988 and that she had twenty days in which to submit observations.", "On 29 March 1988 the applicant, who was still unassisted by a lawyer, submitted her observations, in which she complained, inter alia, that she had not had adequate time and facilities for the preparation of her defence. She gave details of the financial arrangements between herself and her ex-husband and stressed that the annulment of the marriage would have substantial repercussions on her ex-husband’s obligation to pay her maintenance, which was her only source of income. 22. In a judgment of 13 April 1988, which was deposited with the registry on 10 May 1988, the Rota upheld the decision annulling the marriage on the ground of consanguinity. The applicant received only the operative provisions of the judgment, her request for a full copy of it having been refused.", "23. On 23 November 1988 the Rota informed the applicant and her ex-husband that its judgment, which had become enforceable by a decision of the superior ecclesiastical review body, had been referred to the Florence Court of Appeal for a declaration that it could be enforced under Italian law (delibazione). 3. Proceedings to have the judgment declared enforceable 24. On 25 September 1989 the applicant’s ex-husband summoned her to appear before the Florence Court of Appeal.", "25. The applicant appeared before that court and requested it to set aside the Rota’s judgment for infringing her defence rights. She stated that she had not received a copy of the application to have the marriage annulled and had been unable to examine the documents filed in the proceedings, including the observations of the defensor vinculis. She requested the court to refuse to declare the Rota’s judgment enforceable, submitting that, in any event, the proceedings would have to be reopened in order to allow her to examine and reply to the documents filed in the proceedings under canon law. She requested, in the alternative, in the event that the court should declare the judgment enforceable, that her ex-husband be ordered to pay her monthly maintenance for the rest of her life.", "26. In a judgment of 8 November 1991, deposited with the registry on 10 March 1992, the Florence Court of Appeal declared the judgment of 13 April 1988 enforceable. The court found that the opportunity given to the applicant on 1 December 1987 to answer questions had been sufficient to ensure that the adversarial principle had been complied with and that, moreover, she had freely chosen to bring the proceedings before the Rota and had been able to exercise her defence rights in those proceedings “irrespective of the special features of proceedings under canon law”. The court went on to hold that it did not have jurisdiction to award her maintenance “for the rest of her life”; as far as a possible award of interim maintenance (assegno provvisorio) was concerned, which was a provisional arrangement, the court pointed out that the applicant had not in any event proved that she needed the money. 27.", "The applicant appealed on points of law, repeating her submission that her defence rights had been infringed in the proceedings before the ecclesiastical courts. She submitted, among other things, that the Court of Appeal had omitted to take account of the following features of the proceedings before the ecclesiastical courts: the parties cannot be represented by a lawyer; the respondent is not informed of the reasons relied on by the petitioner for having the marriage annulled until he or she is questioned; the defensor vinculis, who acts as the respondent’s guardian, is not obliged to lodge an appeal; an appeal must be lodged personally by the party in question and not by their lawyer; the ecclesiastical court is not particularly autonomous. She repeated that she had not been informed in detail of the application to have the marriage annulled or of the possibility of being assisted by a lawyer. Furthermore, the proceedings at first instance had been too quick. The applicant also criticised the fact that the Court of Appeal appeared to have omitted to examine the case file relating to the proceedings before the ecclesiastical courts, which might have yielded evidence in the applicant’s favour.", "Besides that, the applicant submitted that she had shown herself to be in financial need and was therefore entitled to maintenance. 28. During the proceedings the applicant had requested the registry of the Ecclesiastical Court to give her a copy of the documents filed in the annulment proceedings in order to produce them before the Court of Cassation, but the court clerk had refused to grant her request on the ground that the parties could receive only the operative provisions of the judgment, “which should be sufficient to allow them to exercise their defence rights”. 29. In a judgment of 10 March 1995, deposited with the registry on 21 June 1995, the Court of Cassation dismissed the appeal.", "It held, first of all, that the adversarial principle had been complied with in the proceedings before the ecclesiastical courts; moreover, there was case-law authority to support the view that while the assistance of a lawyer was not a requirement under canon law, it was not forbidden: the applicant could therefore have taken advantage of that possibility. The court also held that the fact that the applicant had had a very short time in which to prepare her defence in November 1987 did not amount to an infringement of her defence rights because she had not indicated why she had needed more time. With regard to the request for maintenance, the Court of Cassation held that the Court of Appeal could not have decided otherwise, given that the applicant had mistakenly referred to maintenance “for the rest of her life” and, furthermore, had failed to show that she was entitled to maintenance and needed it. The Court of Cassation did not rule on the fact that the case file relating to the proceedings under canon law had not been examined by the Court of Appeal. 4.", "Proceedings for payment of maintenance and for joint title to property 30. From June 1992 the applicant’s ex-husband ceased paying her maintenance. The applicant therefore began enforcement proceedings for payment of the maintenance by serving notice (precetto) on him to pay it. On 6 November 1994 her ex-husband lodged an objection with the Viterbo Court, which, in a judgment of 14 July 1999, upheld his objection and ruled that he no longer had to pay maintenance because the Florence Court of Appeal had declared that the decision annulling the marriage was enforceable. The applicant did not appeal against that judgment because on 19 June 2000 she reached an agreement with her ex-husband (under the terms of that agreement she also withdrew another set of proceedings that she had instituted in the Viterbo Court claiming joint title to property).", "II. RELEVANT DOMESTIC LAW 31. Under Article 8 § 2 of the Concordat between Italy and the Vatican, as amended by the Agreement of 18 February 1984 revising the Concordat, ratified by Italy under Law no. 121 of 25 March 1985, a judgment of the ecclesiastical courts annulling a marriage, which has become enforceable by a decision of the superior ecclesiastical review body, may be made enforceable in Italy at the request of one of the parties by a judgment of the relevant court of appeal. 32.", "The court of appeal must check: (a) that the judgment has been delivered by the correct court; (b) that in the nullity proceedings the defence rights of the parties have been recognised in a manner compatible with the fundamental principles of Italian law; and (c) that the other conditions for a declaration of enforceability of foreign judgments have been satisfied. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 33. The applicant complained of a violation of Article 6 of the Convention on the ground that the Italian courts declared the decision of the ecclesiastical courts annulling her marriage enforceable at the end of proceedings in which her defence rights had been breached. 34.", "The relevant part of Article 6 of the Convention provides: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing ... by [a]... court ...” 35. The applicant submitted that, in proceedings under canon law, the respondent is not informed before being questioned by the court either of the identity of the petitioner or of the grounds on which they allege that the marriage should be annulled. The respondent is not informed of the possibility of securing the assistance of a defence lawyer (a possibility which some legal writers, moreover, claim does not exist) or of requesting copies of the case file. Consequently, their defence rights are greatly reduced.", "In the instant case the applicant was not informed in advance of the reasons for summoning her to appear; nor was she informed of the possibility of instructing a lawyer, either on the summons to appear or when being questioned. She was thus prevented from making a properly considered answer to her ex-husband’s requests. She could, for example, have not attended for questioning or have chosen not to reply. Furthermore, without the assistance of a lawyer, she had been intimidated by the fact that the judge was a religious figure. 36.", "The applicant’s defence rights were therefore irremediably compromised after she had appeared before the Ecclesiastical Court and the Italian courts should have refused to ratify the result of such unfair proceedings instead of confining themselves to asserting – without examining the matter thoroughly – that the proceedings before the ecclesiastical courts had been adversarial and fair. 37. The applicant’s lawyer had tried to obtain a copy of the case file deposited with the registry of the Ecclesiastical Court when the applicant learnt that the court had heard evidence from three witnesses, but the request was refused. The applicant had therefore been unable to produce those documents in the proceedings before the Italian courts. 38.", "The applicant also pointed out that the Florence Court of Appeal had dismissed her claim for continued monthly maintenance payments from her ex-husband on the ground that she had failed to establish that she needed the money, although she had produced documents showing that there was such a need. The proceedings in the Italian courts had also, she alleged, been unfair in that regard. 39. The Government submitted that the applicant’s defence rights had not in any way been infringed in the present case. They pointed out that the Italian courts had carefully examined all the complaints raised by the applicant and had reached the conclusion, supported by logical argument, that there had not been any infringement of her defence rights.", "Furthermore, her marriage had been annulled on the basis of objective evidence, namely consanguinity, which had not been disputed by the applicant and had been proved by the documents produced in the proceedings. The fact that the applicant had not been informed of the reason for the summons to appear before the Lazio Regional Ecclesiastical Court and had not been assisted by a lawyer could not be deemed to have harmed her because she had confined herself on that occasion to admitting that she had been aware of the consanguinity. 40. The Court notes at the outset that the applicant’s marriage was annulled by a decision of the Vatican courts which was declared enforceable by the Italian courts. The Vatican has not ratified the Convention and, furthermore, the application was lodged against Italy.", "The Court’s task therefore consists not in examining whether the proceedings before the ecclesiastical courts complied with Article 6 of the Convention, but whether the Italian courts, before authorising enforcement of the decision annulling the marriage, duly satisfied themselves that the relevant proceedings fulfilled the guarantees of Article 6. A review of that kind is required where a decision in respect of which enforcement is requested emanates from the courts of a country which does not apply the Convention. Such a review is especially necessary where the implications of a declaration of enforceability are of capital importance for the parties. 41. The Court must examine the reasons given by the Florence Court of Appeal and the Court of Cassation for dismissing the applicant’s complaints about the proceedings before the ecclesiastical courts.", "42. The applicant had complained of an infringement of the adversarial principle. She had not been informed in detail of her ex-husband’s application to have the marriage annulled and had not had access to the case file. She was therefore unaware, in particular, of the contents of the statements made by the three witnesses who had apparently given evidence in favour of her ex-husband and of the observations of the defensor vinculis. Furthermore, she was not assisted by a lawyer.", "43. The Florence Court of Appeal held that the circumstances in which the applicant had appeared before the Ecclesiastical Court and the fact that she had subsequently lodged an appeal against that court’s judgment were sufficient to conclude that she had had the benefit of an adversarial trial. The Court of Cassation held that, in the main, ecclesiastical court proceedings complied with the adversarial principle. 44. The Court is not satisfied by these reasons.", "The Italian courts do not appear to have attached importance to the fact that the applicant had not had the possibility of examining the evidence produced by her ex-husband and by the “so-called witnesses”. However, the Court reiterates in that connection that the right to adversarial proceedings, which is one of the elements of a fair hearing within the meaning of Article 6 § 1, means that each party to a trial, be it criminal or civil, must in principle have the opportunity to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision (see, mutatis mutandis, Lobo Machado v. Portugal, and Vermeulen v. Belgium, judgments of 20 February 1996, Reports of Judgments and Decisions 1996-І, pp. 206-07, § 31, and p. 234, § 33, respectively, and Mantovanelli v. France, judgment of 18 March 1997, Reports 1997-П, p. 436, § 33). 45. It is irrelevant that, in the Government’s opinion, as the nullity of the marriage derived from an objective and undisputed fact the applicant would not in any event have been able to challenge it.", "It is for the parties to a dispute alone to decide whether a document produced by the other party or by witnesses calls for their comments. What is particularly at stake here is litigants’ confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file (see, mutatis mutandis, F.R. v. Switzerland, no. 37292/97, § 39, 28 June 2001, unreported). 46.", "The position is no different with regard to the assistance of a lawyer. Since such assistance was possible, according to the Court of Cassation, even in the context of the summary procedure before the Ecclesiastical Court, the applicant should have been put in a position enabling her to secure the assistance of a lawyer if she wished. The Court is not satisfied by the Court of Cassation’s argument that the applicant should have been familiar with the case-law on the subject: the ecclesiastical courts could have presumed that the applicant, who was not assisted by a lawyer, was unaware of that case-law. In the Court’s opinion, given that the applicant had been summoned to appear before the Ecclesiastical Court without knowing what the case was about, that court had a duty to inform her that she could seek the assistance of a lawyer before she attended for questioning. 47.", "In these circumstances the Court considers that the Italian courts breached their duty of satisfying themselves, before authorising enforcement of the Roman Rota’s judgment, that the applicant had had a fair trial in the proceedings under canon law. 48. There has therefore been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 41 OF THE CONVENTION 49.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 50. The applicant claimed, under the head of pecuniary damage, 40,884,715 Italian lire (ITL) for the maintenance which her ex-husband should have continued paying her from June 1992 until the end of 1999, as determined in the decree of judicial separation delivered by the Rome District Court on 2 October 1990 (see paragraph 13 above). She also alleged that she had sustained substantial non-pecuniary damage as a result of the violation of the Convention totalling, according to her calculations, ITL 160,000,000. 51.", "The Government pointed out that no evidence of the alleged pecuniary damage had been adduced and that there was no causal link with the alleged violation. They argued, in particular, that although the applicant’s ex-husband had admittedly stopped paying her maintenance following the declaration of enforceability of the decision annulling the marriage, the applicant had subsequently secured a friendly settlement of the issue (see paragraph 30 above): she had therefore already obtained, at least in part, payment of the maintenance due for the years 1992-99. The Government further maintained that a finding of a violation of Article 6 of the Convention would constitute sufficient just satisfaction for the non-pecuniary damage alleged. 52. The Court notes that the cessation of maintenance payments to the applicant was a direct consequence of the declaration that the judgment of the Roman Rota annulling the marriage was enforceable.", "It observes, however, that, as the Government pointed out, this issue was the subject of a friendly settlement between the applicant and her ex-husband. As the contents of the friendly settlement have not been specified, the Court does not have the evidence necessary to quantify any pecuniary damage which might have been sustained under this head by the applicant. Her request for pecuniary damage must accordingly be rejected. 53. The Court considers that the applicant sustained some non-pecuniary damage, which cannot be compensated simply by a finding of a violation.", "Ruling on an equitable basis, in accordance with Article 41 of the Convention, the Court decides to award her ITL 10,000,000. B. Costs and expenses 54. The applicant also claimed reimbursement of lawyer’s fees incurred in the various domestic proceedings (ITL 21,232,860, of which ITL 2,024,790 for the Court of Appeal proceedings and ITL 6,050,000 for the Court of Cassation proceedings) and before the Convention institutions (ITL 12,203,940), in respect of which she submitted supporting documentary evidence. 55.", "The Government left the matter to the Court’s discretion. 56. The Court reiterates that, according to its established case-law, an award of costs and expenses incurred by an applicant cannot be made unless they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, inter alia, Lucà v. Italy, no. 33354/96, § 50, ECHR 2001-II, and Zimmermann and Steiner v. Switzerland, judgment of 13 July 1983, Series A no. 66, p. 14, § 36).", "57. With regard to the costs incurred in the domestic proceedings, the Court notes that only the costs of the Court of Cassation proceedings stem directly from the violation found and the attempt to remedy it. Accordingly, it decides to award only ITL 6,050,000 under this head. 58. With regards to the costs incurred before the Strasbourg institutions, the Court awards the applicant the entire sum claimed of ITL 12,203,940.", "C. Default interest 59. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 3.5% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) ITL 10,000,000 (ten million Italian lire) in respect of non-pecuniary damage; (ii) ITL 18,253,940 (eighteen million two hundred and fifty-three thousand nine hundred and forty Italian lire) in respect of costs and expenses; and (b) that simple interest at an annual rate of 3.5% shall be payable from the expiry of the above-mentioned three months until settlement; 3.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in French, and notified in writing on 20 July 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KORABELNIKOV v. UKRAINE (Application no. 29860/05) JUDGMENT STRASBOURG 19 November 2009 FINAL 19/02/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Korabelnikov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Rait Maruste,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 20 October 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29860/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yevgen Illich Korabelnikov (“the applicant”), on 30 July 2005. 2. The applicant was represented by Mr V.P. Mokhnenko, a lawyer practising in Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.", "3. On 20 May 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1935 and lives in the town of Chasiv-Yar, Ukraine. 5. By judgments of 14 September 2000 and 14 May 2002 the Artemovsk Court awarded the applicant 2,736.90[1] Ukrainian hryvnias (UAH) and UAH 1,895.64[2] in disability allowance arrears and other payments, to be paid by the applicant's former employer, the State company Chasiv‑Yarskoye spechupravleniye po remontu oborudovaniya, zdaniy i sooruzheniy. 6. On 3 December 2003 the Donetsk Regional Commercial Court declared the company insolvent.", "Following this event, liquidation proceedings were instituted. 7. The applicant received UAH 525.72 in partial payment of the judgment debts. The judgments remain unenforced. II.", "RELEVANT DOMESTIC LAW 8. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 9. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgments given in his favour. The above provisions provide, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.....” A. Admissibility 10. The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In particular, they maintained that he had not availed himself of the opportunity to be registered as a creditor in the insolvency proceedings and had failed to apply to any domestic court against the Bailiffs' Service challenging the allegedly inadequate enforcement of the judgment. 11. The applicant made no comments.", "12. The Court notes that similar objections have already been rejected in a number of judgments adopted by the Court (see Sokur v. Ukraine (dec.), no. 29439/02, 16 December 2003; Sychev v. Ukraine, no. 4773/02, §§ 42-46, 11 October 2005; and Trykhlib v. Ukraine, no. 58312/00, §§ 38-43, 20 September 2005).", "The Court considers that this objection must be rejected in the instant case for the same reasons. 13. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 14. In their observations, the Government contended that there had been no violation of the provisions of the Convention in the applicant's respect. They further maintained that the State authorities had taken all necessary measures to enforce the judgments in question. 15.", "The applicant made no comments. 16. The Court observes that the judgments given in the applicant's favour remain unenforced. 17. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Convention in cases raising similar issues to the ones in the present case (see Romashov, cited above, § 46, and Voytenko v. Ukraine, no. 18966/02, §§ 43 and 55). 18. Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 19.", "There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF THE CONVENTION 20. The applicant finally invoked Article 1 of the Convention referring to the same facts. 21.", "The Court has found the respondent Government to be in breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention and does not consider it necessary to examine the complaint under Article 1, which is a framework provision that cannot be breached on its own (see Ireland v. the United Kingdom, 18 January 1978, § 238, Series A no. 25, p. 90). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses 23. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. 24.", "The Court, however, notes that it is undisputed that the State still has an outstanding obligation to enforce the judgments at issue. Accordingly, the applicant remains entitled to recover the principal amount of the debts awarded to him in the course of the domestic proceedings. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applicant's complaints under Article 6 § 1 and Article 1 of Protocol No. 1 about the non-enforcement of the judgments admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds that it is not necessary to examine whether there has been a violation of Article 1 of the Convention. Done in English, and notified in writing on 19 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsPeer LorenzenDeputy RegistrarPresident [1] Approximately EUR 586 [2] Approximately EUR 409" ]

[ "THIRD SECTION CASE OF SHAGABUTDINOV v. RUSSIA (Application no. 51389/07) JUDGMENT STRASBOURG 13 December 2016 This judgment is final but it may be subject to editorial revision. In the case of Shagabutdinov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 22 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 51389/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ildar Fatykhovich Shagabutdinov (“the applicant”), on 16 October 2007.", "2. The applicant was represented by Mr R. Karpinskiy, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights. 3. On 20 May 2009 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1976 and lives in Moscow. 5. On 13 October 2006 the Zamoskvoretskiy District Court in Moscow remanded the applicant in custody on the charge of fraud. Subsequently the District Court extended the applicant’s detention on 8 December 2006 and on 2 February, 10 April, 29 May and 18 September 2007.", "Each time the District Court attached preponderant weight to the gravity of the charges against the applicant. On 21 May and 4 July 2007 the Moscow City Court rejected the appeals against the detention orders of 10 April and 29 May 2007, respectively. 6. The City Court authorised further extensions of the applicant’s detention on 28 September and 26 December 2007. The Supreme Court rejected his appeals on 31 October 2007 and 15 February 2008, respectively.", "7. On 14 February 2008 the case was submitted for trial. On 20 February, 30 June and 17 December 2008 and 18 March and 18 June 2009 the District Courts in Moscow prolonged the applicant’s detention pending trial, referring mainly to the gravity of the charges. The most recent extension order was issued for the period until 19 September 2009. 8.", "Between 27 January 2007 and 16 May 2008 the applicant was detained in the IZ-77/1 remand prison in Moscow. The prison was filled beyond the design capacity and cells were severely overcrowded. He was later transferred to another remand prison in Moscow. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 5 § 4 OF THE CONVENTION 9.", "The applicant complained that the conditions of his detention in the IZ-77/1 prison had been inhuman and degrading in breach of Article 3 of the Convention and that the appeals against the detention orders had not been examined “speedily” in breach of Article 5 § 4. 10. On 26 September 2014 the Government submitted a unilateral declaration, inviting the Court to strike the case out of its list. They acknowledged that from 27 January 2007 to 16 May 2008 the applicant had been detained in conditions which did not comply with the requirements of Article 3 of the Convention, and that the appeals had not been examined “speedily” in breach of Article 5 § 4. They offered to pay the applicant 7,000 euros (EUR).", "The remainder of the declaration read: “The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.” 11. The applicant did not accept the Government’s offer. 12.", "The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if: “... for any other reason established by the Court, it is no longer justified to continue the examination of the application.” 13. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles established in its case-law, in particular, the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).", "14. Since its first judgment concerning the inhuman and degrading conditions of detention in Russian penitentiary facilities (see Kalashnikov v. Russia, no. 47095/99, ECHR 2002‑VI), the Court found similar violations in many cases against Russia which concerned the conditions of detention in remand prisons (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012). The complaint relating to substantial delays in examining the appeals against detention orders is also based on well‑established case-law of the Court (see Mamedova v. Russia, no.", "7064/05, § 96, 1 June 2006). 15. Turning next to the nature of the admissions contained in the Government’s declarations, the Court is satisfied that the Government did not dispute the allegations made by the applicant and acknowledged violations of Articles 3 and 5 § 4 of the Convention. 16. As to the intended redress to be provided to the applicant, the Court notes that proposed sum is not unreasonable both in absolute terms and in relation to awards in similar cases.", "The Government have committed themselves to effecting the payment of the sum within three months of the Court’s decision, with default interest to be payable in case of delay of settlement. 17. The Court therefore considers that it is no longer justified to continue the examination of the case in the part concerning the above‑mentioned complaints. As the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of the judgments concerning the same issues, the Court is also satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue the examination of this part of the case. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the applications to its list of cases, should the Government fail to comply with the terms of their unilateral declarations (see Josipović v. Serbia (dec.), no.", "18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006). 18. In view of the above, it is appropriate to strike the case out of the list in the part concerning the above-mentioned complaints. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUCTION WITH ARTICLE 3 19. The applicant further complained that he did not have an effective remedy for his complaint about the conditions of detention, in breach of the requirements of Article 13 of the Convention which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 20. The Court has on many occasions examined the effectiveness of the domestic remedies suggested by the Russian Government in cases concerning inadequate conditions of an applicant’s detention and found them to be lacking in many regards. The Court has held, in particular, that the Government were unable to show what redress could have been afforded to the applicant by a prosecutor, a court, or any other State agency, bearing in mind that the problems arising from inhuman conditions of detention were apparently of a structural nature and did not concern the applicant’s personal situation alone (see the authorities referred to in Ananyev and Others, cited above, § 99). 21.", "Having regard to its case-law on the subject, the Court declares this complaint admissible and finds that the applicant did not have at his disposal an effective remedy for his complaint about the conditions of detention in breach of Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 22. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had not been based on relevant and sufficient reasons. Article 5 § 3 provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” A. Admissibility 23. The Government referred to their objections as to the admissibility of the complaint which they formulated in the case of Kalinin v. Russia (no. 54749/12, § 12, 19 February 2015). 24. The Court reiterates that it rejected the Government’s objections in the Kalinin case (cited above, §§ 14-24) and it finds nothing in the circumstances of the present case to warrant a different conclusion.", "25. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 26. The Government submitted that the applicant’s detention had complied with the requirements of Article 5 § 3. 27. The Court notes that the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention lasted for two years and eleven months, from the applicant’s arrest on 13 October 2006 until 19 September 2009, the most recent date on which he was known to be in custody (see Pushchelenko and Others v. Russia, nos. 45392/11, 47671/11, 62205/11, 45312/13 and 53366/13, § 32, 12 March 2015).", "28. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the ground that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges (see, among many others, Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no.", "15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no.", "30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012). 29. The Court notes that the domestic courts relied essentially on the gravity of the charges to keep the applicant in custody.", "It finds that the reasons for extending the custodial measure cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”. 30. There has accordingly been a violation of Article 5 § 3 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 32. Making its assessment on an equitable basis, and taking into account the sum payable to the applicant under the unilateral declaration (see Urazov v. Russia, no. 42147/05, § 106, 14 June 2016), the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 33.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides, having regard to the terms of the Government’s declaration, and the arrangements for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaints under Articles 3 and 5 § 4 of the Convention; 2. Declares the remainder of the application admissible; 3. Holds that there has been a violation of Article 13 of the Convention read in conjunction with Article 3; 4.", "Holds that there has been a violation of Article 5 § 3 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF MARIA VIOLETA LĂZĂRESCU v. ROMANIA (Application no. 10636/06) JUDGMENT STRASBOURG 23 February 2010 FINAL 23/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. . In the case of Maria Violeta Lăzărescu v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura,Corneliu Bîrsan,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 2 February 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 10636/06) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Maria Violeta Lăzărescu (“the applicant”), on 8 March 2006. 2. The applicant was represented by Mr George Tudor Laurenţiu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.", "3. On 23 March 2007 the President of the Third Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1926 and lives in Bucharest. 5. In 1950 the State seized under Decree no. 92/1950 on nationalisation the building situated in Bucharest, Cobălcescu no. 36, property of the applicant's ancestor.", "6. On 1 June 1999 company R.V., a State-owned company responsible for the management of property belonging to the State, sold a 104,98 sq. m. flat of the building and the appurtenant land to the tenants, V.D and D.M., under Law no. 112/1995. 7.", "On 20 November 2002, the applicant sought annulment of the contract before the Bucharest Court of First Instance requesting the court to declare the nationalisation of her property unlawful and to order its return to her. 8. On 9 September 2005, the Bucharest Court of Appeal, in the operative part of a final decision, dismissed as groundless an appeal on points of law by the applicant. In the reasoning of the judgment the court considered that although the seizure was null and void the bona fide principle should apply to the tenants who bought the flat from the State, who at that time was its legal owner. 9.", "On an unknown date the applicant lodged an application with the administrative authorities for restitution in kind of the property under Law no. 10/2001 governing immovable property wrongfully seized by the State. Since she had not received any answer, she brought court proceedings against the Mayor of Bucharest seeking to have him ordered to issue a reasoned decision upon her request. She also claimed a daily pecuniary penalty until execution. 10.", "On 25 January 2007 the Bucharest County Court upheld in part her action and ordered the Mayor to issue a reasoned decision regarding the restitution of the building located in Bucharest, Cobălcescu no. 36 as the applicant requested. On 22 May 2007 the Bucharest Court of Appeal dismissed the Mayor appeal. There is no evidence in the file as to the course of the proceedings. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 11. The relevant legal provisions and jurisprudence are set forth in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999-VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005-VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, ECHR 2005-XII (extracts)); and Tudor v. Romania (no.", "29035/05, §§ 15‑20, 17 January 2008). 12. Measures in order to urge the award of compensation through the Proprietatea company have recently been adopted by the national authorities, especially in accordance with the Emergency Ordinance no. 81/2007. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 13. The applicant alleged that the sale by the State of her property to a third party entailed a breach of Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 14. The Government raised an objection of incompatibility ratione materiae in respect of this complaint. They considered that the applicant had not had the benefit of an irrevocable decision recognising her right of property. The Government submitted that in Romanian law the principle of res judicata applied only to the operative part of a judgment, which was also enforceable, but not to the reasoning part. Therefore the judgment of 9 September 2005 did not represent a “possession” within the meaning of Article 1 of Protocol No.", "1 as the courts had not settled the issue of the lawfulness of the seizure in an irrevocable manner in the operative part of a judgment. 15. The Court notes that a similar objection by the Government was dismissed in the Reichardt v. Romania (no. 6111/04, §§ 14-20, 13 November 2008), Popescu and Dimeca v. Romania (no. 17799/03, §§ 21-24, 9 December 2008), Filipescu v. Romania (no.", "34839/03, § 19, 30 September 2008) judgments and finds no reasons to depart from its conclusion in those cases. It therefore dismisses the Government's objection. 16. The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 17. The Government reiterated the arguments they had previously submitted in similar cases. 18.", "The applicant disagreed with those arguments. 19. The Court reiterates that, according to its case-law, the sale of another's possessions by the State, even before the question of ownership has been finally settled by the courts, amounts to a deprivation of possessions. Such deprivation, in combination with a total lack of compensation, is contrary to Article 1 of Protocol No. 1 (see Străin and Others, cited above, §§ 39, 43 and 59, and Porteanu, cited above, § 35).", "20. Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The sale by the State of the applicant's possessions still prevents her from enjoying her right of property as acknowledged by a final decision. The Court considers that such a situation amounts to a de facto deprivation of possessions, without any compensation having been paid. 21.", "The Court notes that at the material time there was no effective means in Romanian law capable of providing the applicant with compensation for this deprivation (see Străin and Others, cited above, §§ 23, 26-27 and 55-56, and Porteanu, cited above, §§ 23-24 and 34-35). Moreover, it observes that to date the Government have not demonstrated that the system of compensation set up in July 2005 by Law no. 247/2005 would allow the beneficiaries of this law to recover damage reflecting the commercial value of the possessions of which they were deprived, in accordance with a foreseeable procedure and timetable (see Reichard, cited above, § 26). 22. This conclusion does not prejudge upon any subsequent positive development of the financing mechanisms provided by the special law in order to provide compensation to those who, just like the applicant, had had their property right acknowledged by a final decision.", "23. Having regard to its case-law on the subject, the Court considers that in the instant case the deprivation of the applicant's possessions, together with the total lack of compensation, imposed on the applicant a disproportionate and excessive burden in breach of her right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1. There has accordingly been a violation of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 24. The applicant complained under Article 6 § 1 of the Convention that the outcome of the proceedings had been unfair and that the domestic courts had failed to assess the facts correctly and had misinterpreted the domestic law. 25. Having carefully considered the applicants' submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in Article 6 § 1 of the Convention.", "It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 46 OF THE CONVENTION 26. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 27. The Court notes that the above finding of a violation in respect of Article 1 of Protocol No. 1 discloses a widespread problem in the legal framework for recovery of nationalised properties which have been sold by the State to third parties. The Court considers therefore that the State should adjust as soon as possible the procedure set up by the restitution laws (currently Laws nos.", "10/2001 and 247/2005) in order to render it genuinely coherent, accessible, rapid and foreseeable (see Viaşu v. Romania, no. 75951/01, § 83, 9 December 2008, Faimblat v. Romania, no. 23066/02, §§ 48-54, 13 January 2009, Katz v. Romania, no. 29739/03, §§ 30-37, 20 January 2009). IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29. The applicant sought restitution in kind of the property, as the most appropriate manner for the State to provide redress. Should restitution not be granted, she claimed a sum equivalent to the current value of the property.", "She considered that the current value of the property amounted to 251,266 euros (EUR). She did not submit an expert report in this matter. She also claimed EUR 3,000 in respect of non-pecuniary damage. 30. The Government considered, in line with their own expert report based on a theoretical assessment of the value, that the current value of the property was EUR 104,229 without the VAT.", "Further, they considered that the finding of a violation would constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicant might have suffered. They considered that there is not a casual link between the alleged non-pecuniary damage and the breach of the Convention. 31. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation under the Convention to put an end to the breach and make reparation for its consequences. If the internal law allows only partial reparation to be made, Article 41 of the Convention gives the Court the power to award compensation to the party injured by the act or omission that has led to the finding of a violation of the Convention.", "The Court enjoys a certain discretion in the exercise of that power, as the adjective “just” and the phrase “if necessary” attest. 32. Among the matters which the Court takes into account when assessing compensation are pecuniary damage, that is the loss actually suffered as a direct result of the alleged violation, and non-pecuniary damage, that is reparation for the anxiety, inconvenience and uncertainty caused by the violation, and other non-pecuniary loss (see, among other authorities, Ernestina Zullo v. Italy, no. 64897/01, § 25, 10 November 2004). 33.", "The Court considers, in the circumstances of the case, that the return of the property in issue (the 104,98 sq. m. flat and the appurtenant land) would put the applicant as far as possible in a situation equivalent to the one in which she would have been if there had not been a breach of Article 1 of Protocol No. 1. 34. Failing such restitution by the respondent State, the Court holds that the respondent State is to pay the applicant, in respect of pecuniary damage, an amount corresponding to the current value of the property.", "Having regard to the information at its disposal concerning real estate prices on the local market and to the expert report submitted by the Government, the Court estimates the current market value of the property at EUR 104,229. 35. The Court considers that the serious interference with the applicants' right to the peaceful enjoyment of their possession could not be compensated in an adequate way by the simple finding of a violation of Article 1 of Protocol No. 1. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage.", "B. Costs and expenses 36. The applicant did not claim costs or expenses. C. Default interest 37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3.", "Holds (a) that the respondent State is to return to the applicant the flat and the appurtenant land situated in Bucharest, Cobălcescu no. 36, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention; (b) that, failing such restitution, the respondent State is to pay the applicant, within the same three months, the amount of EUR 104,229 (one hundred and four thousand two hundred twenty nine euros), plus any tax that may be chargeable, in respect of pecuniary damage; (c) that, in any event, the respondent State is to pay to the applicant and, within the same three months, the amount of EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (d) that the aforementioned amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (e) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 23 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "THIRD SECTION CASE OF SÚSANNA RÓS WESTLUND v. ICELAND (Application no. 42628/04) JUDGMENT STRASBOURG 6 December 2007 FINAL 07/07/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Súsanna Rós Westlund v. Iceland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrM. Zupančič, President,MrC.", "Bîrsan,MrsE. Fura-Sandström,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Berro-Lefèvre, judges,and Mr S. Quesada, Section Registrar, Having deliberated in private on 15 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 42628/04) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Icelandic national, Mrs Súsanna Rós Westlund (“the applicant”), on 19 November 2004. 2. The applicant was represented by Mr Valgeir Kristinsson, a lawyer practising in Kópavogur. The Icelandic Government (“the Government”) were represented by their Agent, Mr Thorsteinn Geirsson, of the Ministry of Justice and Ecclesiastical Affairs.", "3. The applicant complained that, in breach of Article 6 § 1 of the Convention, the Supreme Court had denied her the possibility to plead her appeal case in writing and orally at a public hearing. 4. On 27 June 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Mrs Súsanna Rós Westlund, was born in 1964 and lives in Hafnarfjördur. 6. The present case has its background in a real estate sale by the applicant to Mr G. in 1999, relating to a property at Grenimelur 36 in Reykjavik.", "The relevant sales agreement of 27 August 1999 referred to a summary report describing the property, which included the following statement: “The house has recently been renovated on the outside, except for windows and glass. New roof tiles. Garage renovated windows partly. Wooden parquet flooring in need of repair. Great location in the west part of Reykjavik.", "Leakage in cellar has not been remedied. Seller will have that done.” 7. In March 2000 G. complained to the real estate agent that he had discovered a leak from the roof of the house and that the repair which had previously been done to the roof had covered only parts of it. Many new or newly discovered flaws on the property could be traced back to the leak in the roof. Moreover, G. claimed compensation from the applicant.", "8. Following a report issued on 26 September 2001 by a court appointed expert, G. brought compensation proceedings before the Reykjavik District Court, claiming a discount on the purchase amount due to defects as well as compensation for the damage to the property. 9. After holding an oral hearing, at which the applicant was represented by a lawyer and both parties were heard and evidence was presented, including a report by a court appointed expert, the District Court, sitting with one professional judge and two expert judges, by a judgment of 16 April 2003, found in favour of G. and against the applicant. It ordered the applicant to pay G. 1,739,000 Icelandic krónur (ISK), plus default interest as from 26 September 2001, and ISK 600,000 for legal costs (value added tax included).", "The District Court’s judgment included, inter alia, the following reasons: “The plaintiff [G.] received the property in the summer of 1999. The plaintiff noticed a leak in the house in the beginning of the year 2000, after a winter with bad weather. The engineers report verified that there had been a leak on the roof. In accordance with the summary report for the sale of the house, where the property is described in writing, which also was available at the signing of the contract for sale, it is stated that there are new roof tiles on the roof. As has been verified throughout this process this was not the case.", "Furthermore it is not the understanding of the court that the plaintiff should have seen this fault during routine inspection of the house or should have seen whether the tiles were new. It has also been stated in the engineers report that the roof leaked and has caused damages to windows and window frames. It is therefore the understanding of the court that the defendant [Súsanna Rós Westlund] guaranteed that the roof tiles were new, and that the plaintiff should have been able to trust that the roof would not leak, even if the house is an old one. By selling the property without the proper qualities, the defendant is liable to the plaintiff in accordance with the general rule of 2. paragraph, chapter 42 of the laws then valid nr. 39/1922 regarding liquid assets.” 10.", "On 2 June 2003 the applicant lodged an appeal with the Supreme Court against the District Court’s judgment, challenging the latter’s conclusions that she was liable to pay G. compensation or, in any event, claiming that the amount be reduced. G. was then given until 16 July 2003 to notify the Supreme Court of whether he intended to submit any pleadings in the case, failing which it would be presumed that he would request confirmation of the District Court’s judgment and that the case would be adjudicated in accordance with Article 158 (3) of the Code of Civil Procedure (CIP), No. 91/1991. 11. Concurrently with her appeal, the applicant asked that a new expert be appointed by the District Court in order to evaluate especially the supporting surface under each tile and to evaluate the necessity of changing the supporting surface (roof cardboard) if tiles were to be changed on the roof.", "The District Court granted the request and appointed expert B. 12. The applicant submitted to the Supreme Court a writ of appeal dated 14 July 2003, which was deposited on 16 July 2003 together with the case-documents pursuant to Article 156(1). The writ reiterated the applicant’s claims, enclosing copies of her request to the District Court to appoint an expert and to take a statement from G. for use at a hearing before the Supreme Court. It moreover outlined the facts of the case and stated the applicant’s grounds for appeal.", "It referred to her claims, arguments and evidence submitted in the District Court proceedings. The applicant protested against the assessment made by the expert before the District Court. She maintained that G. had examined the house, including the roof, in detail before signing the acquisition offer. The offer of purchase had been issued on 6 June 1999 and G. had taken possession of the property on 25 June 1999, whereas the sales agreement had been issued on 27 August 1999. Thus, the applicant argued, when the sales agreement had been issued, G. had been in possession of the property for two months without ever mentioning that there had been a discrepancy between the retail accounts of the house and the state of the house with regard to roof tiles.", "It was unthinkable that G. had not known that the tiles were old at the time of the sales offer and certainly upon signature of the sales agreement. It was improbable that G., who was an active person of keen interest, would not have taken a look at the roof. The slope of the roof had been quite steep and could be seen from the side-walk. It was preposterous to claim that the wording of the retail could be stretched to mean something other than what could be seen in plain sight. This was the essence of the case.", "The applicant further maintained that not until 29 August 2000 had G. raised the matter in dispute and only then had he made an issue about the specific wording of the summary report describing the property with regard to new roof tiles. His indifference in this respect should lead to his forfeiting any right that he might have claimed. This indifference was further illustrated by the fact that he alleged to have discovered a leak shortly after taking possession of the property but had made no comments during the signing of the sales agreement or the deed. The applicant announced that she would make submissions about the confusing interpretation made by the District Court regarding the wording of the summary report describing the property and the alleged flaw on the roof. She would submit new documents to the Supreme Court when they were ready, notably a new assessment by a court appointed expert.", "In addition, the applicant requested the Supreme Court to take witness evidence from persons who had provided repair and restoration services to G. in order to enlighten the Supreme Court on whether they had noticed that G. himself had inspected and examined the roof during the summer of 1999. Finally the applicant stated that the case would be further presented and commented on in the course of an oral hearing. 13. As at 16 July 2003 G had not indicated that he would plead his case before the Supreme Court. 14.", "According to a letter of 3 September 2003 from the Supreme Court to the applicant’s lawyer, he was given until 24 September 2003 to complete her further collection of evidence under Article 158(3). The lawyer then requested an extension with reference to the need to await the completion of the assessment by the court-appointed expert, which the Supreme Court granted until 22 October 2003. On the same ground the Supreme Court granted a further extension until 5 November 2003. 15. On the latter date the applicant’s lawyer asked, by way of e-mail, for a further extension of two weeks.", "On the same date the Supreme Court’s registrar conveyed the following message to the lawyer by e-mail: “The possibility is still open that the respondent [G] will be allowed to present defences in the Supreme Court, although he did not make a notification to that effect. An essential requirement is a letter from the respondent to the Court, asking to be allowed to present his defences and explaining the reasons why no notification of defences was made. The letter must be accompanied by the appellant’s [the applicant’s] approval of this being allowed. This is assuming that judgment has not already been rendered on the basis of Article 158 (3) of Act No. 91/1991.” By return e-mail in the same day, the applicant’s lawyer declared that he would forward this information to the other side.", "He also asked whether an extension of two weeks would be granted. There is no record of any formal reply to this request. 16. In a letter of 12 November 2003 the applicant’s lawyer reiterated his request to be granted respite, until 26 November 2007, in order to present the awaited new expert appraisal. He also informed that G. had omitted to show up at a hearing and affirmed that it was now clear that G. would not make submissions.", "He further objected that the Supreme Court’s interpretation of Articles 158 and 161 of the CCP meant that the applicant was prevented from defending her case and stressed that a short summary of facts could not replace an oral hearing. 17. On 13 November 2003 G’s lawyer sent the office of the Supreme Court the following e-mail message: “Further to our conversation yesterday, I can confirm that my client’s [G’s] desire is not to take any action on account of [the applicant’s lawyer’s] request for a reopening of the case and to have the case adjudicated in the present form, without further collection of evidence or presentation in court. His requests were, or were to be, only an affirmation of the judgment appealed from.” 18. By a letter to the Supreme Court of 14 November 2003, the applicant’s lawyer protested against its interpretation of Article 158(3).", "It unduly restricted her possibilities of pleading her case in writing and orally. It meant that the case file from the District Court and her appeal to the Supreme Court would constitute the only basis for the Supreme Court’s adjudication. Therefore, she asked the Supreme Court to grant her leave to at least plead her case in writing, her observations submitted so far having only been a “skeleton” version of the submissions she had intended to make to the Supreme Court. So far she had had no opportunity to elaborate on her appeal with references to case-law, scientific research or writings, explanation of the factual aspects of this case or the documentary evidence. The lawyer stressed that in so far as he was concerned the case was not ready for examination.", "In the circumstances it was the adversary party who had been allowed to decide the fate of the case while the applicant had practically lost standing in the case. 19. At an oral hearing held by the District Court on 26 November 2003 expert B presented his report and answered questions from the applicant’s lawyer. 20. With a letter of 30 November 2003 the applicant’s lawyer transmitted to the Supreme Court the expert B.’s appraisal, the District Court’s decision of 26 November 2003 confirming the appraisal, two photographs of the house and some other documents.", "According to the applicant, the new appraisal showed that the District Court had overestimated the costs of repair, should the Supreme Court find that the applicant had promised that the roof had been completely renovated with new tiles at the time of sale. The applicant further commented on the photographs of the roof from 1993 and on the front page of expert B.’s report. She invited the members of the Supreme Court to carry out an on site visit to see that the state of the roof could be seen from the side walk. She also pointed out that her request to the District Court to hear persons who had worked on the house for G during the summer of 1999 had been denied by him, which the applicant had interpreted as an attempt to conceal information about the fact that G had thoroughly checked the roof and been aware of its state during the summer of 1999. 21.", "On 3 June 2004 the Supreme Court, adjudicating the case on the basis of the written case-file, rejected the applicant’s appeal and upheld the District Court’s judgment. The Supreme Court held inter alia: “The plaintiff appeared before the District Court and claimed that she knew there had been repairs on the roof in the year 1992 or so. She also claims that the repairs were only that some of the oldest tiles or cracked tiles were exchanged for others and only in certain areas of the roof. When asked, the plaintiff did not remember if this had been especially discussed in detail with the defendant, when he examined the house the first time. She did however tell the defendant that the roof had been repaired and that it no longer leaked.", "It is the court’s ruling that the plaintiff should have known that this description in the summary report for the sale of the house and the description of the current status of the roof, would give the defendant the wrong impression of the actual condition of the roof. The defendant should have reason to trust the description of the house in the summary report for the sale of the house and therefore have reason to believe the house had been renovated. Since the roof had not been fully renovated, the defendant has a right to compensation. In accordance with this and in other respects the Supreme Court of Iceland refers to the District Court ruling and proceedings and verifies the District Court ruling hereby.” In accordance with the above, the applicant paid ISK 3,607,067 (approximately 38,000 euros (EUR) to G. II. RELEVANT DOMESTIC LAW 22.", "The Icelandic Government drew particular attention to the following provisions of the Code of Civil Procedure (CIP), No. 91/1991: Article 155 “1. A party desiring to appeal against a judgment shall submit an appeal summons to the office of the Supreme Court, with a transcript of the judgment. The following shall be stated in the appeal summons: a. The district court’s designation and number of the case, the name of the district court that resolved the case, and the date of adjudication; b. the names of the parties, their National Registry numbers, their places of residence or stay, and, if applicable, the names of their representatives, their positions and their places of residence or stay; c. the person or persons representing the appellant in court; d. the purpose of appeal and the requests made by the appellant; e. the date when the respondent must, at the latest, notify the Supreme Court that he intends to bring forth defences in the case, which date the office of the Supreme Court shall determine when the summons is issued, and f. the consequences of failing to provide the notification provided for in subparagraph (e).", "...” Article 156 “1. Following the service of an appeal summons, but before the respondent’s period provided for in Article 155, the first paragraph, subparagraph (e), is over, the appellant shall deliver the summons to the Supreme Court with proof of its service, and written observations on his behalf. He shall also deliver the case file in the number of copies which the Supreme Court may decide, consisting of the already available case documents and any transcripts on which the appellant plans to base his case before the Supreme Court. This marks the filing of the case by the Supreme Court. 2.", "In the appellant’s written observations the following shall be stated: a. The purpose of appeal and the appellant’s exact requests to the Supreme Court, and whether appeal is also lodged in order to obtain a reversal of any particular order or decision of the district court. b. The facts invoked by the appellant before the Supreme Court. Their description shall be concise and so clear as to preclude any doubt as to on what basis appeal is lodged; the appellant may however, as applicable, refer to particular case documents in this regard.", "If the appellant can not agree with the district court’s description of other relevant facts, he shall likewise state in which manner he considers them correctly described. c. References to the principal rules of law on which the appellant bases his case before the Supreme Court. d. The documents submitted to the Supreme Court at that time, and the documents he deems necessary to obtain. ...” Article 158 “1. If the respondent desires to submit written observations, he shall notify the Supreme Court to that effect within the period granted him for this purpose in the appeal summons.", "When the case is filed the office of the Supreme Court shall grant the respondent a period of four to six weeks to submit his written observations, at the same time sending him a copy of the case file submitted by the appellant. The appellant shall be notified of the period granted the respondent. 2. Cross-appeal shall not make the respondent entitled to any additional period. 3.", "If the Supreme Court does not receive any notification in accordance with the first paragraph, or if the respondent does not submit his written observations within the period granted him, he shall be assumed to request affirmation of the district court’s judgment. The case shall then be received for adjudication; the appellant may however be granted a brief period to complete the collection of evidence he may have announced in his written observations. The Supreme Court shall render a judgment in the case on the basis of the submissions made, without an oral hearing. 4. If the respondent delivered written observations, but appearance was not made on his behalf at a later stage, the appellant may be granted an opportunity to reply to his defences in a written brief, and to complete his collection of evidence.", "The case shall then be received for adjudication and a judgment rendered on the basis of the requests and submissions made and the appellant’s brief, taking the respondent’s submissions into account. 5. If the respondent has not delivered written observations, the Supreme Court may nevertheless permit him to present his defences in the case, with or without the appellant’s approval, provided important interests are at stake for him and his negligence is deemed excusable. This may also be done if the respondent fails to make an appearance at a later stage of the procedure. ...” Article 161 “1.", "When collection of evidence has been completed in a case where the respondent has delivered written observations, the Supreme Court shall decide the time of an oral hearing and make this known to the parties at a suitable notice. ... 3. A case in which the respondent has submitted written observations shall be heard orally. The Supreme Court may nevertheless decide that a case shall be presented in writing if particular reasons recommend this. The Court may also grant the parties’ unanimous request for adjudication without particular case presentation.", "...” Article 162 “1. Before an oral hearing takes place during a court session, the conclusion of the district court shall be stated and the appeal summons described to the extent the President of the Court deems necessary for explanation of the case presentation. The parties shall subsequently deliver their speeches. 2. The appellant shall speak first and the respondent subsequently, if the President has not decided on a different order and notified this to the parties when called to appear for oral presentation.", "Following the original speeches, the parties shall be granted an opportunity to present brief replies in the same order. The President of the Court may permit a party represented by a representative in litigation to present his brief observations following the representative’s replies. 3. In their speeches, the parties shall explain their requests, the matters in dispute, the facts invoked, and any other arguments in support of the requests made. Wordiness shall be avoided and the argumentation shall be directed to the points in dispute or to matters that must be considered in order to clarify the issues.", "4. The President of the Court shall chair the proceedings. The President may demand that a speaker does not stray from the substance of the litigation and that consideration is not given matters that are not in dispute or that otherwise do not merit further explanation. The President may halt the case presentation if a speech is of excessively long duration, or specify a time limit, and halt the case presentation when that limit is reached. 5.", "Following the case presentation the Supreme Court shall receive the case for adjudication.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant complains that by having denied her, despite the great interests at stake for her, the possibility to plead her case, in writing or orally, the Supreme Court had violated Article 6 § 1 of the Convention. In so far as relevant this provision reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 24. The Government contested that argument.", "A. Admissibility 25. The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions of the parties (i) The applicant 26. In so far as the written proceedings were concerned the applicant submitted that the Supreme Court had not granted her any extension beyond 5 November 2003, despite the fact that the new appraisal made at her request by the court-appointed expert G. had only become available on 26 November 2003. While it appeared that the Supreme Court, nonetheless, had admitted for filing her observations of 30 November 2000 joining the new expert report, and commenting on it, together with other documents, it was unclear to what extent the Supreme Court had examined the documents submitted on that date. Moreover, as was clearly stated in her observations of 30 November 2003, these were by no means her final observations but only an outline of the principal facts of the case and disputing the previous appraisal on which the District Court had based its decision.", "She had further invited the members of the Supreme Court to do an on site visit to see that it was clearly visible from the side walk if the tiles were old or new. 27. In so far as the absence of an oral hearing was concerned, the applicant maintained that her intention, which ought to have been clear to the Supreme Court from her lawyer’s observations of 30 November 2003, had been to obtain witness statements from persons who had worked on repairs and improvements on the house in the summer of 1999. The purpose would have been to enlighten the Supreme Court about the fact that the purchaser had indeed known about the condition of the house upon purchasing it as he had inspected the roof himself. Besides, merely by looking at the roof from the sidewalk anyone could have seen that it was the original roof of the house, built 55 years ago, not a new roof.", "Such matters had been of great legal importance due to the 12 months time-limit for reclamation under the relevant national law. However, before the District Court the plaintiff had denied the applicant the possibility to summon the persons who had worked on the house as witnesses by refusing to disclose their names. In the applicant’s view, his behaviour revealed an attempt to conceal information about the fact that he as the purchaser had thoroughly checked and been aware of the conditions of the roof in the summer of 1999. This point would have been one of the main items for her oral pleadings before the Supreme Court had the latter granted her request to hold an oral hearing. However, the argument had not been made out in the appeal, due to constraints imposed by the Supreme Court, by virtue of its restrictive practice with regard to written appeal submissions generally, and its conduct of the proceedings in this case.", "Her written observations had simply consisted of outlines of the main facts of the case. Thus she had not adduced references to national case-law, other expert opinions in the relevant field, further evidence, arguments or exhibits of relevant facts. Nor had she submitted any claims that the buyer had seen and approved of the house in its state at the material time or that he had thereby forfeited his rights. (ii) The Government 28. The Government disputed the applicant’s allegations, arguing that all elements of a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention had been preserved in the relevant proceedings before the Icelandic courts.", "The Government stressed that applicant’s case had been argued orally at a public hearing in the District Court where the parties had enjoyed equal status in every respect and unlimited and equal access to the evidence adduced and the same possibilities to call witnesses. In the proceedings before the Supreme Court the defendant had waived his right to respond to the applicant’s appeal with written pleadings and additional evidence. As a consequence, under the relevant statutory rules on civil procedure, he was then assumed to adhere to the requests he had made to the District Court. This had not, however, entailed any restriction on the applicant’s right to submit her requests and new evidence to the Supreme Court. The statutory arrangement that her case would not be orally argued before the Supreme Court under these circumstances had been based on reasonable and justifiable grounds relating to the changed nature of the proceedings when the adversary party opted not to respond appellant’s submissions.", "29. The Government further stressed that written proceedings before the Supreme Court had been intended to allow the parties to plead their case but not submit new claims, legal arguments or evidence that had not been previously submitted to the District Court. 30. The rules governing the procedure in cases where the respondent to the appeal did not take part in the appeal proceedings had by no means hindered the applicant in submitting new written evidence to the Supreme Court and she had indeed availed herself of this right. The Supreme Court had granted her no less than three extensions of the time-limit for obtaining a new appraisal, totalling more than two months in excess of the original period granted.", "With a letter dated 30 November 2003, the applicant’s lawyer had submitted a new appraisal and other evidence to the Supreme Court, accompanied by particular observations containing his arguments and stating inferences that could be drawn from the new submissions. It was clear that both the new evidence and her arguments were carefully evaluated by the Supreme Court in its judgment of 3 June 2004. 31. The Government further emphasised in this context that no questions of fact or of law had been raised that could not be adequately resolved on the basis of the case file, which comprised the case-file of the District Court and the applicant’s additional written observations and evidence submitted to the Supreme Court. 32.", "When considering the applicant’s complaint that her case had not been afforded an oral hearing and the consequences thereof, the Government stressed that the purpose of oral argument before the Supreme Court would have been to serve the interests of adversarial proceedings, to enable an appellant to bring forth oral replies and arguments to the respondent’s written observations and additional evidence. Since the respondent had elected not to defend his case on appeal, the premises for hearing oral argument from the applicant and her lawyer were lacking. 2. The Court’s assessment 33. The Court reiterates that the admissibility of evidence is governed primarily by the rules of domestic law, and that it is normally for the national courts to assess the evidence before them.", "The task of the European Court under the Convention is to ascertain whether the proceedings in issue, considered as a whole, including the way in which the evidence was submitted, were fair as required by Article 6 § 1 (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, p. 21, § 66). It points out that one of the requirements of a “fair hearing” is “equality of arms”, which implies that each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (Hentrich v. France, judgment of 22 September 1994, Series A no. 296‑A, p. 22, § 56; Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, p. 19, § 38).", "A further element of a fair hearing within the meaning of Article 6 § 1 is the right to adversarial proceedings; each party must in principle have the opportunity not only to make known any evidence needed for his claims to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision (see, Mantovanelli v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997‑II, p. 436, § 33). Moreover, the procedure must be such as to allow the proper participation of the parties to the proceedings (Kerojärvi v. Finland, judgment of 19 July 1995, Series A no. 322, p. 16, § 42). 34. Moreover, the Court reiterates that, where, as in this case, a public hearing has been held at first instance, the absence of such a hearing at the appellate level may be justified by the special features of the proceedings at issue.", "Thus, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court. Regard must be had to the nature of the national appeal system, to the scope of the appellate court’s powers and to the manner in which the applicant’s interests are actually presented and protected in the appeal, particularly in the light of the nature of the issues to be decided by it, and whether these raise any questions of fact or questions of law which cannot be adequately resolved on the basis of the case-file (see for instance Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36; Miller v. Sweden, no. 55853/00, § 30, 8 February 2005). 35.", "In the present case the District Court, sitting with one professional judge and two expert judges, had held an adversarial hearing at which the applicant had been represented by a lawyer and at which both parties had been heard and evidence had been presented, including an assessment prepared by a court-appointed expert. Save for one exception, the applicant did not dispute the fairness of the proceedings before the District Court. 36. The exception relates to the applicant’s alleged inability to question as witnesses before the District Court persons who had worked for G. during the summer of 1999 and who the applicant considered could have enlightened the District Court about the extent to which G. ought to have been aware of the state of the roof at the time of the sale of the house. In her appeal submissions to the Supreme Court of 14 July 2003 the applicant, without making a specific complaint about the District Court procedure in this respect, asked the Supreme Court to hear such witnesses.", "Not until her observations of 30 November 2003, after the expiry on 16 July 2003 of the time-limit for specifying the grounds of appeal, did she point out that the lack of opportunity to have such witnesses heard at the District Court constituted a defect in the hearing of the case at first instance. The Court will not examine this as a separate matter under Article 6 of the Convention but will take it into account as a factor in its overall assessment of the fairness of the proceedings seen as a whole. 37. As regards the disputed limitations on the applicant’s possibilities to plead her case in writing before the Supreme Court, the Court notes that, pursuant to Article 156 (1) and 155(1)(e) of the CIP, she had full opportunity to do so until the expiry of the time-limit fixed for G.’s notification of his intention to plead his case before the Supreme Court, namely on 16 July 2003. Thereafter, in the absence of any notification pursuant to Article 158(3), the Supreme Court was to presume that G. would request it to confirm the District Court’s judgment and the applicant was then to be granted a brief period within which to complete the collection of evidence that she had announced in her written observations.", "The applicant was granted leave to submit the new assessment to be provided by the court-appointed expert and the time-limit fixed by the Supreme Court for this purpose was extended several times in order to allow the completion of the expert report and the District Court’s confirmation of the report. However, it does not appear from the relevant statutory rules or from the Supreme Court’s procedural decisions that the applicant was entitled or granted leave to submit additional observations on the case in light of this new evidence. Nor had she, despite repeated requests by her lawyer, been formally granted an extension for filing the report beyond 5 November 2003, whereas the report only became available for filing on 26 November 2003. In the Court’s view, these factors may be taken to indicate that the applicant was not in position to plead her case properly before the Supreme Court. 38.", "Nevertheless, the Court cannot but note that the applicant’s lawyer did submit the report with her supplementary observations of 30 November 2003 commenting on the report and on other matters. This material the Supreme Court accepted to join to the case-file and took into account in its decision. 39. Against this background, the Court is not convinced that G.’s non-participation in the proceedings before the Supreme Court had the effect of preventing her from submitting her written pleadings or placed her in a less favourable position than the adversary party at the written stage of the proceedings. 40.", "On the other hand, more problematic is that, in accordance with the relevant provisions in Article 158 § 3 of the CIP, a direct and automatic consequence of the adversary party’s opting not to take part in the proceedings was the impugned bar on the applicant’s possibilities to plead her case orally at a public hearing before the Supreme Court. In other words, the rules in question in effect conferred upon one of the parties, the respondent in the appeal, a de facto possibility to decide unilaterally that the Supreme Court should not hear oral argument at all, thereby obliging the latter to determine the case on the basis of the case file without it being able to exercise a discretion as to the need to hold an oral hearing in the interest of the fairness of the proceedings. Thus, there is an apparent discrepancy between the national standards applied and the Convention case-law (summarised in paragraphs 33 and 34 above), notably the requirement that regard must be had particularly to the nature of the issues to be decided by the appellate court, and whether these raise any questions of fact or questions of law which cannot be adequately resolved on the basis of the case-file. The Court considers that the respondent State should take appropriate measures to ensure that it is the Convention standard that applies. 41.", "The Court further observes that, in finding the applicant liable to pay compensation to G., the District Court took into consideration what G. knew or ought to have known about the state of the roof at the time of the transaction. The Supreme Court had full jurisdiction to entertain questions of fact and of law, albeit in the absence of G.’s participation it was to rely on the case-file from the District Court and the applicant’s appeal submissions. Moreover, in her appeal to the Supreme Court, the applicant disputed the District Court’s interpretation of the description of the property and presented a number of arguments challenging its findings to the effect that G. had been ignorant about the actual state of the roof at the time in point. With regard to this matter, which appears to have been an important issue of fact raised in the applicant’s appeal, it should also be noted that the applicant, as she had done unsuccessfully before the District Court, asked the Supreme Court to hear witnesses who had carried out work on the house for G. during the summer of 1999. In the light of this and bearing in mind what was at stake for the applicant, the Court finds that the question of her liability to pay compensation to G. could not, as a matter of fair trial, have been properly determined by the Supreme Court without a direct assessment of the evidence given by the parties in person (see, Ekbatani v. Sweden, judgment of 26 May 1988, Series A no.", "134, p. 14, § 32; Sigurþór Arnarsson v. Iceland, no. 44671/98, § 36, 15 July 2003). However, for the reasons highlighted in paragraph 40 above, the absence of an oral hearing was a direct consequence of the application of Article 158 § 3 of the CIP, which barred the Supreme Court from exercising any discretion as to the need to hold an oral hearing in the interest of the fairness of the proceedings. 42. Having regard to the proceedings as a whole, the role of the Supreme Court and the nature of the issues to be determined by it, the Court finds that there were no special features to justify the absence before the Supreme Court of a public hearing.", "There has accordingly been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 44.", "The applicant claimed compensation of the pecuniary damage incurred as a result of the domestic proceedings, namely the ISK 3,607,067 (corresponding approximately to EUR 41,000 on the date of payment, 25 June 2004) she had been ordered to pay G., plus interest to be calculated from 25 June 2004 (as at December 2006 ISK 2,115,225) until the date of the European Court’s judgment. The applicant stressed that a minor pecuniary award or the mere finding of a violation could not constitute adequate just satisfaction in her case. She further claimed ISK 1,500,000 (approximately EUR 17,000) on account of anxiety and distress caused by the procedure and the outcome of the national proceedings. 45. The Government invited the Court to reject the applicant’s claim for pecuniary damage, arguing that there was no causal connection between this and the alleged violation of Article of the Convention.", "As regards the applicant’s claim for non-pecuniary damage, the Government invited the Court to hold that the finding of a violation constituted adequate just satisfaction. In any event, the amount claimed was excessive and any award made under this heading should be substantially reduced. 46. The Court rejects the claim for pecuniary damage as it cannot speculate on the outcome had an oral hearing been held before to the Supreme Court. On the other hand, it accepts that some anxiety and distress must have been occasioned by the matter found to constitute a violation of the Convention.", "Deciding on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage. B. Costs and expenses 47. The applicant also claimed altogether ISK 3,175,817 (approximately EUR 35,000), plus certain interests, for the costs and expenses incurred, in respect of the following items: (a) ISK 860,250 plus interest (ISK 569,169 as at December 2006) for her lawyer’s legal fees before the District Court and the Supreme Court; (b) ISK 389,692 plus interest (ISK 197,285 as at December 2006) for certain appraisals; (c) ISK 21,300 for miscellaneous expenses (transcripts from the District Court and “secretarial fees for the secretary of the Supreme Court”; (d) ISK 1,363,275 (approximately 15,000 euros) for legal fees for her lawyer’s work (75 hours at ISK 15,000 per hour, value added tax included) before the European Court; (e) ISK 532,300 (approximately 5,900 euros) for translation costs 48. The Government maintained that the fees claimed by the applicant’s lawyer were unreasonably high.", "49. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that only a minor part of the fees incurred before the Supreme Court, referred to under item (a), should be taken into account and item (a) should be rejected for the remainder, as should items (b) and (c). As regards item (d), the Court considers the number of hours spent somewhat excessive. Item (e) should be awarded in its entirety.", "Against this background the Court considers it reasonable to award EUR 18,000 under this heading. C. Default interest 50. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declared the application admissible; 2.", "Held that there has been a violation of Article 6 § 1 of the Convention; 3. Held (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damages; (ii) EUR 18,000 (eighteen thousand euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that these sums are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismissed the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. Zupančič RegistrarPresident" ]

[ "THIRD SECTION CASE OF TSELOVALNIK AND OTHERS v. RUSSIA (Application no. 17957/09 and 7 others – see appended list) JUDGMENT STRASBOURG 6 July 2017 This judgment is final but it may be subject to editorial revision. In the case of Tselovalnik and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 15 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE GOVERNMENT’S REQUEST TO STRIKE OUT SOME OF THE APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION 6.", "The Government submitted unilateral declarations in some of the applications which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of these cases (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the merits of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI). III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 7.", "The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 8. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no.", "30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005). 9.", "In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.", "11. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. In applications nos.", "33355/15, 20554/16 and 43651/16, the applicants submitted complaints under the Article 13 Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin, cited above, §§ 38-45. V. REMAINING COMPLAINTS 13.", "In application no. 17957/09, the applicant also raised a complaint under Article 6 of the Convention. 14. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014 and Mozharov and Others v. Russia, no.", "16401/12 and 9 others, 21 March 2017), the Court considers it reasonable to award the sums indicated in the appended table. 17. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Rejects the Government’s request to strike the applications out of its list of cases under Article 37 of the Convention on the basis of the unilateral declarations which they submitted; 3. Declares the complaints concerning the inadequate conditions of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the applications no. 17957/09 inadmissible; 4. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 5. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table); 6.", "Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 6 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López GuerraActing Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention(inadequate conditions of detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Number of inmates per brigade Sq. m. per inmate Number of toilets per brigade Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 17957/09 03/03/2009 Sergey Vitalyevich Tselovalnik 25/07/1977 Radnayeva Nadezhda Valeryevna Moscow IK-43 the Kemerovo Region (УН-1612/43) 02/04/2009 to 05/02/2010 10 month(s) and 4 day(s) 100 inmate(s) 1.9 m² 8 toilet(s) overcrowding, no or restricted access to toilet 4,650 33355/15 26/09/2015 Konstantin Vasilyevich Bastrakov 26/09/1983 IK-46 Sverdlovsk Region 16/07/2011 to 05/11/2016 5 year(s) and 3 month(s) and 21 day(s) IZ-66/1 Ekaterinburg 17/06/2015 to 16/07/2015 1 month(s) 148 inmate(s) 1.6 m² 5 toilet(s) 0.6 m² 5 sinks for 148 inmates, poor lighting, no ventilation, high humidity, tuberculosis-infected inmates in the cell, insects Insufficient sleeping places.", "Lack of light and ventilation. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 8,500 20554/16 07/04/2016 Konrad Bełdycki 12/05/1991 Zielinska-Turek Anna Aleksandra Olsztyn IK-13 Slavyanovka Kaliningrad Region 15/07/2013 to 18/12/2015 2 year(s) and 5 month(s) and 4 day(s) 94 inmate(s) 1.6 m² 5 toilet(s) overcrowding, infestation of cell with insects/rodents, inadequate temperature, no or restricted access to warm water, sharing cells with inmates infected with contagious disease, poor quality of food, lack or insufficient quantity of food Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,000 43651/16 15/07/2016 Ruslan Ravilyevich Zaripov 10/08/1979 IK-3 Sverdlovsk Region (УЩ-349/3) 01/01/2005 to 31/05/2010 5 year(s) and 5 month(s) IK-46 Sverdlovsk Region (УЩ-349/46) 10/06/2010 to 15/06/2016 6 year(s) and 6 day(s) 200 inmate(s) 1.1 m² 3 toilet(s) 110 inmate(s) 1.6 m² lack of or inadequate hygienic facilities, insufficient number of sleeping places, no or restricted access to toilet, power outage lack of or insufficient natural light, lack of fresh air, lack or inadequate furniture, no or restricted access to toilet Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 5,000 44739/16 21/07/2016 Sergey Mikhaylovich Lysenko 21/03/1959 IK-11 B or Nizhniy Novgorod Region 03/07/2012 pending More than 4 year(s) and 10 month(s) and 21 day(s) 140 inmate(s) 2.2 m² 6 toilet(s) no or restricted access to warm water, poor quality of food, lack of or restricted access to leisure or educational activities, overcrowding 7,800 44871/16 19/07/2016 Olga Anatolyevna Tikhomirova 27/09/1956 Vinogradov Aleksandr Vladimirovich Kostroma IK-3 Kostroma Region 29/11/2013 to 20/05/2016 2 year(s) and 5 month(s) and 22 day(s) 2 m² 2 toilet(s) lack of fresh air, lack of privacy for toilet, no or restricted access to shower, infestation of cell with insects/rodents, poor quality of potable water, poor quality of food, lack of requisite medical assistance 5,000 60559/16 02/10/2016 Denis Vladimirovich Pronozin 31/08/1988 IK-11 Nizhniy Novgorod Region 16/04/2012 pending More than 5 year(s) and 1 month(s) and 8 day(s) 140 inmate(s) 2 m² no or restricted access to warm water, poor quality of food, overcrowding 7,000 60702/16 08/10/2016 Vadim Vladislavovich Gorbulya 05/03/1973 IK-56 Sverdlovsk Region 06/03/2014 13/02/2017 More than 2 year(s) and 11 month(s) and 8 day(s) lack of or insufficient natural light, lack of fresh air, no or restricted access to potable water, lack of or inadequate hygienic facilities, no or restricted access to toilet, no or restricted access to shower, no or restricted access to running water, lack of or insufficient physical exercise in fresh air, no ventilation, uses bucket as a lavatory pan and then empties it daily, no sewage system in the colony, no centralised water-supply system 6,300 [1].", "Plus any tax that may be chargeable to the applicants." ]

[ "FOURTH SECTION CASE OF DAVIS AND OTHERS v. THE UNITED KINGDOM (Applications nos. 60946/00, 60978/00, 61399/00 and 61408/00) JUDGMENT (Friendly settlement) STRASBOURG 6 February 2007 This judgment is final but it may be subject to editorial revision. In the case of Davis and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrJ. Casadevall, President,SirNicolas Bratza,MrG. Bonello,MrK.", "Traja,MrS. Pavlovschi,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L. Early, Section Registrar, Having deliberated in private on 16 January 2007 Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in four applications (nos. 60946/00, 60978/00, 61399/00 and 61408/00) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Paul Davis, Mr Kevin P Hutton, Mr Dennis Thomas and Mr Grahame D Rourke, respectively on 25 August 2000, 10 June 2000 respectively and 15 September 2000 in the case of the last two applicants. 2. The applicants were all represented before the Court by Pierce Glynn Solicitors, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.", "3. The applicants complained under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 that, because they were men, they were denied social security benefits equivalent to those received by widows. 4 By partial decision of 10 October 2001 the Court decided to communicate these applications. On 8 April 2003, after obtaining the parties’ observations, the Court declared these applications admissible in so far as the complaints concerned Widowed Mother’s Allowance and declared the remainder of each application inadmissible.", "THE FACTS A.THE CIRCUMSTANCES OF THE CASE A.Mr Davis 5. Mr Davis was born in 1953 and lives in North Somerset. 6. His wife died on 18 September 1998. His claim for widows’ benefits was made on 16 May 2000 and was rejected on 19 May 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman.", "A formal decision was made by the Benefits Agency on 7 August 2000. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no security benefits were payable to widowers under United Kingdom Law. B.Mr Hutton 7. The applicant was born in 1960 and lives in Berkshire. 8.", "His wife died on 7 July 1999. His claim for widows’ benefits was made on 12 January 2000 and was rejected later in January 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no security benefits were payable to widowers under United Kingdom Law. C.Mr Thomas 9. The applicant was born in 1947 and lives in Somerset.", "10. His wife died on 14 January 1991. His claim for widows’ benefits was made on 12 May 2000 and was rejected on 13 June 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no security benefits were payable to widowers under United Kingdom Law. D.Mr Rourke 11.", "The applicant was born in 1949 and lives in Herefordshire. 12. His wife died on 4 August 1999. His claim for widows’ benefits was made in mid-April 2000 and was rejected on 1 June 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no security benefits were payable to widowers under United Kingdom Law.", "B.RELEVANT DOMESTIC LAW AND PRACTICE 13. The relevant domestic law and practice are described in the Court’s judgment in Willis v. the United Kingdom, no. 36042/97, §§ 14‑26, ECHR 2002-IV. THE LAW 14. By a letter of 11 May 2005 the respondent Government informed the Court that the House of Lords had decided, in relation to the claims for Widowed Mother’s Allowance (WMA) and Widow’s Payment (WPt), that there was in principle no objective justification at the relevant time for not paying these benefits to widowers as well as widows, but that the Government had a defence under section 6 of the Human Rights Act 1998 (the HRA).", "It noted that, in view of this, the multitude of cases before the Court and the fact that the HRA defence was only applicable in the domestic arena, the Government were prepared, in principle, to settle all claims made by widowers against the United Kingdom arising out of the arrangements applicable prior to April 2001 for the payment of WMA and WPt. 15. On the 15 May 2006 the applicants’ representatives notified the Court that Mr Davis had been offered GBP 9,383.79, Mr Hutton had been offered GBP 12,017.6, Mr Thomas had been offered GBP 6,759.66 and Mr Rourke had been offered GBP 4,180.22 and they had accepted payment. The representatives were sent a letter on 13 October 2006 requesting confirmation that no aspects of the applicants’ claims were ongoing and informing them that the Court would now consider striking out each case from its list in its entirety. By a letter of 9 November 2006 the representatives confirmed that there were no outstanding claims and that the proceedings could be concluded.", "16. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 17. Accordingly, the applications should be struck out of the list.", "FOR THESE REASONS, THE COURT UNANIMOUSLY Decides to strike the applications out of the list. Done in English, and notified in writing on 6 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyJosep CasadevallRegistrarPresident" ]

[ "SECOND SECTION CASE OF MEHMET ALİ ÇELİK v. TURKEY (Application no. 42296/07) JUDGMENT STRASBOURG 27 January 2009 FINAL 27/04/2009 This judgment may be subject to editorial revision. In the case of Mehmet Ali Çelik v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 6 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 42296/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Ali Çelik (“the applicant”), on 13 September 2007.", "2. The applicant was represented by Mr M. Özbekli, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3. On 21 January 2008 the President of the Second Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1972 and is remanded in custody in Diyarbakır prison. 5.", "On 12 October 1998 the applicant was taken into police custody on suspicion of membership of Hizbullah, an illegal organisation. 6. On 19 October 1998 a single judge at the Batman Magistrates’ Court remanded him in custody. 7. On 11 November 1998 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and three other persons.", "The applicant was charged with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. According to the information in the case file, the proceedings against the applicant are still pending at first instance, which is now the Diyarbakır Assize Court, and the applicant remains in detention on remand. 8. During the proceedings, the first-instance courts have examined the applicant’s continued detention at the end of every hearing, either on their own motion or at the applicant’s request. The courts ordered the applicant’s continued detention, having regard to the nature of the offence, the state of evidence and the content of the file on each occasion.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 9. The applicant complained under Article 6 § 1 of the Convention that the length of his detention during judicial proceedings was excessive. He further complained under Article 13 of the Convention that there was no remedy in domestic law by which he could challenge the lawfulness of his detention. 10.", "The Court considers that these complaints should be examined from the standpoint of Article 5 §§ 3 and 4 of the Convention alone. 11. The Government raised various objections to the admissibility of these matters. However, the Court has rejected similar objections in many previous cases (see, for example, Koşti and Others v. Turkey, no. 74321/01, §§ 19-24, 3 May 2007; Mehmet Şah Çelik v. Turkey, no.", "48545/99, §§ 22‑31, 24 July 2007; Tamamboğa and Gül v. Turkey, no. 1636/02, §§ 27‑29, 29 November 2007; Acunbay v. Turkey, nos. 61442/00 and 61445/00, § 48, 31 May 2005). 12. The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence.", "It therefore finds that these complaints are admissible. 13. As regards the applicant’s complaint about the unreasonable length of pre-trial detention, the Court notes that, ,the period to be taken into consideration began on 12 October 1998, when the applicant was taken into police custody, and, according to the information in the case file, it was still pending on the date of the adoption of the present judgment. It has thus lasted almost ten years and three months. 14.", "The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Çarkçı v. Turkey, no. 7940/05, § 21, 26 June 2007; Dereci v. Turkey, no. 77845/01, § 21, 24 May 2005; Taciroğlu v. Turkey, no. 25324/02, § 24, 2 February 2006). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case‑law on the subject, the Court considers that the length of the applicant’s detention was excessive, in breach of Article 5 § 3 of the Convention. 15. As regards the applicant’s complaint of an absence of an effective remedy under Article 5 § 4 of the Convention, again the Court refers to its constant case-law that the Turkish legal system did not offer a remedy which was genuinely adversarial or which could offer reasonable prospects of success (see Koşti and Others, cited above, § 22; Bağrıyanık v. Turkey, no. 43256/04, §§ 50 and 51, 5 June 2007; Doğan Yalçın v. Turkey, no. 15041/03, § 43, 19 February 2008).", "It finds no reason to depart from that conclusion in the present case. Consequently, the Court concludes that there has also been a violation of this provision. II. ALLEGED VIOLATION OF ARTICLES 6 and 13 OF THE CONVENTION 16. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings brought against him had not been determined within a reasonable time, and that he had no domestic remedy, as required by Article 13 of the Convention, to challenge this fact.", "The Government contested these claims. 17. The Court finds the complaints admissible, no ground for declaring them inadmissible having been established. 18. The period to be taken into consideration is, to date, the same as the aforementioned remand term - ten years and three months- before one level of jurisdiction.", "(see paragraph 13 above). 19. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, for example, Sertkaya v. Turkey, no. 77113/01, § 21, 22 June 2006; Hasan Döner v. Turkey, no. 53546/99, § 54, 20 November 2007; Uysal and Osal v. Turkey, no.", "1206/03, § 33, 13 December 2007). It finds no reason to depart from such a conclusion in the present case. Consequently, there has been a breach of Article 6 § 1 of the Convention due to the excessive length of the criminal proceedings against the applicant. 20. Moreover, the Court has previously found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby applicants could have contested the length of the proceedings at issue (see Bahçeyaka v. Turkey, no.", "74463/01, §§ 26-30, 13 July 2006; Tendik and Others, no. 23188/02, §§ 34-39, 22 December 2005). It finds no reason to hold otherwise in the present case. 21. There has accordingly been a violation of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage and left it to the Court to assess an award for costs. 23. The Government contested the applicant’s claim.", "24. The Court notes that it has found violations of Article 5 §§ 3 and 4 and Articles 6 § 1 and 13 of the Convention. The Court considers, on the one hand, that the finding of a violation in respect of Article 5 § 4 and 13 of the Convention constitutes in itself sufficient just satisfaction for any non‑pecuniary damage suffered by the applicant. On the other hand, the Court accepts that non-pecuniary damage suffered on account of the violations of Articles 5 § 3 and 6 § 1 of the Convention cannot be compensated solely by the findings of violations. Making its assessment on an equitable basis, the Court awards the applicant EUR 12,500 under this head, with default interest being based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "25. In the absence of substantiation, no award is required for the applicant’s costs. 26. Furthermore, according to the information submitted by the parties, the criminal proceedings against the applicant are still pending and the applicant is still detained. In these circumstances, the Court considers that an appropriate means for putting an end to the violations found would be to conclude the criminal proceedings against the applicant as speedily as possible, while taking into account the requirements of the proper administration of justice, and/or to release the applicant pending the outcome of these proceedings (see Yakışan v. Turkey, no.", "11339/03, § 49, 6 March 2007; Batmaz v. Turkey (dec.), no. 34497/06, 1 April 2008). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 5 §§ 3 and 4 of the Convention; 3.", "Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent Government at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]

[ "THIRD SECTION CASE OF LUČIĆ v. SERBIA (Application no. 13344/11) JUDGMENT STRASBOURG 24 February 2015 This judgment is final but it may be subject to editorial revision. In the case of Lučić v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Ján Šikuta, President,Dragoljub Popović,Iulia Antoanella Motoc, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 3 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13344/11) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Radiša Lučić (“the applicant”), on 30 December 2010.", "2. The applicant was represented by Ms R. Garibović, a lawyer practising in Novi Pazar. The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić. 3. On 20 December 2012 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Introduction 4. The applicant was born in 1958 and lives in Karan. 5.", "He was employed by Raketa-Putnički Saobraćaj AD, a company based in Užice (hereinafter “the debtor”). 6. Since the debtor had failed to fulfil its obligations toward its employees, the applicant brought three separate civil claims, seeking payment of salary arrears and various social security contributions. B. First and second sets of civil proceedings brought by the applicant 7.", "On 31 August 2007 and 19 September 2007, respectively, the Municipal Court (Opštinski sud) in Užice rendered decisions ordering the debtor to pay the applicant certain sums. Both decisions became final on 9 October 2007. 8. Due to the debtor’s failure to fulfil its obligations from these decisions, the applicant submitted an enforcement request. On 15 May 2009 the Municipal Court (Opštinski sud) in Požega issued an enforcement order to that effect.", "C. Third set of civil proceedings brought by the applicant 9. On 23 July 2009 the Municipal Court in Užice rendered a decision in the third set of civil proceedings brought by the applicant ordering the debtor to pay him an additional sum from the outstanding debt. On 2 September 2009 this decision became final. 10. Due to the debtor’s failure to fulfil its obligations from this decision, the applicant submitted an enforcement request.", "On 29 September 2009 the Municipal Court in Požega issued an enforcement order to that effect. D. Insolvency proceedings 11. On 12 July 2010 the Commercial Court (Privredni sud) in Užice opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were terminated. 12.", "The applicant duly reported his claim based on the above-mentioned court decisions to the insolvency administration. 13. On 8 June 2011 the court accepted the applicant’s claim. 14. The insolvency proceedings in respect of the debtor are still ongoing.", "E. The debtor’s status 15. The debtor, which operated as a socially-owned company, was privatised on 27 December 2002. 16. On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations. 17.", "Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company. 18. On 11 December 2008 the State sold its shares to a private company. II. RELEVANT DOMESTIC LAW AND PRACTICE 19.", "The relevant domestic law concerning the status of socially-owned companies, enforcement and insolvency proceedings is outlined in the cases of R. Kačapor and Others v. Serbia, nos. 2269/06 et al., §§ 57-64 and §§ 71-76, 15 January 2008 and Jovičić and Others v. Serbia (dec.), no. 37270/11, §§ 88-93, 15 October 2013. Furthermore, the case-law of the Constitutional Court in respect of socially-owned companies, together with the relevant provisions concerning constitutional appeals and the privatisation of socially-owned companies, are outlined in the admissibility decision in Marinković v. Serbia (dec.), no. 5353/11, §§ 26-29 and §§ 31-44, 29 January 2013; and the judgment in Marinković v. Serbia, no.", "5353/11, §§ 29-32, 22 October 2013. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 20. The applicant complained of the respondent State’s failure to enforce final court decisions rendered in his favour against the debtor and of the lack of an effective remedy in that connection.", "The relevant provisions of Articles 6 § 1 and 13 of the Convention, as well as Article 1 of Protocol No. 1 read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.", "As regards the third set of proceedings 21. The Government argued that the application in this part was inadmissible on non-exhaustion grounds. In particular, it argued that the applicant failed to lodge a constitutional appeal against the non-enforcement of the above decision. 22. The applicant disagreed.", "23. The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV). 24. The Court has consistently held that a constitutional appeal should, in principle, be considered as an effective domestic remedy in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, § 51, 1 December 2009).", "25. There is no reason to depart from that jurisprudence in the present case with respect to the non-enforcement of the decision of 23 July 2009 (contrast Milunović and Čekrlić v. Serbia (dec.), nos. 3716/09 and 38051/09, 17 May 2011, which concerns the non-enforcement of final court decisions rendered against socially/State-owned companies). 26. As the applicant failed to lodge a constitutional appeal against the non-enforcement of the decision of 23 July 2009, the application in this part must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "B. As regards the first and second sets of proceedings 1. Admissibility 27. The Government argued that the application in this part was incompatible ratione personae with the provisions of the Convention and/or that it was inadmissible on non-exhaustion grounds. 28.", "The Court recalls that it has already considered similar arguments and rejected them (see, for example, the judgments in R. Kačapor and Others, § 114, and Marinković, § 39, both cited above; and the decisions in Marinković, § 59, and Jovičić and Others, § 102, both cited above). It sees no reason to depart from this approach in the present case, as regards the non-enforcement of the decisions of 31 August 2007 and 19 September 2007. Therefore, the Court decides to reject the Government’s admissibility objections in this part. 29. As the application in this part is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible.", "2. Merits 30. The Court notes that the final court decisions rendered in the applicant’s favour remain unenforced to the present date. 31. The Court observes that it has frequently found violations of Article 6 of the Convention and/or Article 1 of Protocol No.", "1 to the Convention in cases raising issues similar to those raised in the present case (see R. Kačapor and Others, cited above, §§ 115-116 and § 120; Marčić and Others v. Serbia, no. 17556/05, § 60, 30 October 2007; Crnišanin and Others v. Serbia, nos. 35835/05, 43548/05, 43569/05 and 36986/06, §§ 123-124 and §§ 133-134, 13 January 2009; Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, § 74 and § 79, 31 May 2011; and Adamović v. Serbia, no. 41703/06, § 41, 2 October 2012).", "32. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 33.", "Having reached this conclusion, the Court does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage, costs and expenses 35. The applicant requested that the State be ordered to pay, from its own funds, the sums awarded by the final court decisions rendered in his favour, as well as the costs of the enforcement proceedings, plus 2,500 euros (EUR) in respect of non-pecuniary damage. 36. The Government considered the claims excessive and unjustified. 37.", "Having regard to the violations found in the present case and its own case-law (R. Kačapor and Others, §§ 123-26, and Crnišanin and Others, § 139, both cited above), the Court finds that the Government should pay the applicant the sums awarded in the court decisions of 31 August 2007 and 19 September 2007, less any amount which may have already been paid in this regard. 38. As regards non-pecuniary damage, the Court considers that the applicant sustained some non-pecuniary loss arising from the breaches of the Convention found in this case. The particular amount claimed, however, is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable and equitable to award the applicant EUR 2,000 to cover any non-pecuniary damage, as well as costs and expenses (see Stošić v. Serbia, no.", "64931/10, §§ 66 and 67, 1 October 2013). B. Default interest 39. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint about the non-enforcement of the decision of 23 July 2009 inadmissible; 2. Declares the complaints about the non-enforcement of the judgments of 31 August 2007 and 19 September 2007 admissible; 3. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention; 4. Holds that there is no need to examine the complaint under Article 13 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months, the sums awarded in the final domestic judgments of 31 August 2007 and 19 September 2007 rendered in his favour, as well as the established costs of the enforcement proceedings related to these judgments, less any amounts which may have already been paid on this basis; (b) that the respondent State is to pay the applicant, within the same period, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliJán ŠikutaDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF BERTUZZI v. FRANCE (Application no. 36378/97) JUDGMENT STRASBOURG 13 February 2003 FINAL 21/05/2003 In the case of Bertuzzi v. France, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrA.B. Baka, President,MrJ.-P. Costa,MrGaukur Jörundsson,MrL. Loucaides,MrC. Bîrsan,MrM.", "Ugrekhelidze,MrsA. Mularoni, judges,and Mr T.L. Early, Deputy Section Registrar, Having deliberated in private on 16 April 2002 and 28 January 2003, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 36378/97) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Rémi Bertuzzi (“the applicant”), on 10 February 1997.", "2. The applicant, who was granted legal aid, was represented before the Court by Ms C. Boye, of the Nancy Bar. The French Government (“the Government”) were represented by Mrs M. Dubrocard, Head of the Human Rights Section, Ministry of Foreign Affairs. 3. The applicant alleged, in particular, a violation of Article 6 §§ 1 and 3 of the Convention in that he had been unable to obtain legal representation under the legal-aid scheme to bring proceedings against a lawyer.", "4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.", "It was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber which would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).", "7. By a decision of 16 April 2002 the Chamber declared the application partly admissible. 8. The applicant and the Government each filed written observations on the merits of the case (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 9. The applicant, Mr Rémi Bertuzzi, was born in 1951 and lives in Saint-Laurent (département of Vosges). 10. He applied to the Metz tribunal de grande instance for legal aid to bring an action in damages against Mr T., a lawyer, for failing to represent him properly in court proceedings. He was granted full legal aid on 1 June 1995.", "11. Three lawyers were assigned in turn by the president of the bar council to represent the applicant under the legal-aid scheme, but they applied for permission to withdraw from the case, owing to personal links with the lawyer the applicant wished to sue. The last of them withdrew from the case in late October or early November 1995. 12. On 23 November 1995 the applicant asked the president of the legal-aid office to assign a fourth lawyer.", "On 27 November 1995 he made a like request to the president of the bar council. The registry of the legal-aid office forwarded the applicant's letter to a lawyer who had been delegated by the bar council to the legal-aid office. 13. On 12 December 1995 that lawyer wrote to the president of the bar council in Metz to request the appointment of a fourth lawyer. The latter took no immediate action on the request, other than to seek information about the nature of the applicant's case, which he was given.", "14. In the absence of a reply, the applicant wrote to the Minister of Justice on 14 June 1996. All he received in reply was a letter which arrived on 21 June 1996 informing him that his request had been transferred to the Director of the Civil Affairs Department. The applicant pointed this out in a letter to the minister dated 23 November 1996. 15.", "In March 1997 the applicant received a reply from the president of the bar council informing him that the grant of legal aid dated 1 June 1995 had lapsed. Consequently, he was advised to make a fresh application if he wished to pursue his claim against Mr T. The applicant did not reply to that letter. II. RELEVANT DOMESTIC LAW 16. Legal Aid Act (Law no.", "91-647 of 10 July 1991): Section 2 “Natural persons with insufficient means to enable them to assert their rights in the courts shall be eligible for legal aid. Such aid may be full or partial. ...” Section 24 “The costs which a recipient of legal aid would have had to bear if he or she had not been granted legal aid shall be borne by the State. ...” Section 25 “Recipients of legal aid shall be entitled to the assistance of a lawyer and of any other member of the legal profession whose services are required in the proceedings. The lawyers and other members of the legal profession shall be chosen by the recipient of legal aid.", "They may also be chosen by the officer of the court initially chosen or assigned to the case. If the recipient of legal aid fails to make a choice or if an officer of the court who has been chosen refuses to act, the lawyer or other member of the legal profession shall be assigned to the case by the president of the bar council or the president of his or her professional regulatory body, without prejudice to the rules governing official appointments or assignments. An officer of the court who was acting for the recipient of legal aid before such aid was granted must continue to do so. He or she may only be released from acting in exceptional circumstances and under the conditions laid down by the president of the bar council or the president of his or her professional regulatory body.” Decree no. 91-1266 of 19 December 1991 implementing the Legal Aid Act: Article 33(as amended by Article 8 of Decree no.", "2001-512 of 14 June 2001,Official Gazette of 15 June 2001) “Applications for legal aid shall be lodged with or sent by the applicant or his or her representative to the legal-aid office. They shall contain the following information: (1) the last name, first names, occupation, nationality and domicile of the applicant or, if the applicant is a juristic person, its name, form, object and registered office; (2) as applicable: (i) the nature of the claim and a brief summary of the grounds; (ii) a summary of the existing dispute, the identity of the parties and the nature of the proposed settlement before action; ...” Article 35 “The statement of means referred to in Article 34 shall contain: (1) details of the applicant's family and professional situation; (2) a full detailed list of all means of any kind directly or indirectly available to or at the free disposal of the applicant during the past calendar year and, if applicable, the year in which the application is made, other than the family benefits and social benefits referred to in Article 2, and of the means of his or her spouse and, if applicable, other people habitually living in his or her home and any dependants; (3) the nature and value of his or her movable and immovable assets, including non-income producing assets; (4) details of the outward signs of his or her lifestyle. Unless the applicant is not habitually resident in France, the statement shall be made on a printed form conforming to the models specified in a joint order of the Minister of Justice and the Minister for the Budget. It shall contain a statement of the criminal-law provisions set out in paragraph II of section 22 of Law no. 68-690 of 31 July 1968.” Article 54 “A grant of legal aid shall lapse if the applicant fails to bring the court proceedings for which it was granted within one year after being notified of the grant.” Article 76 “If the applicant for legal aid fails to produce a document establishing that a lawyer or other member of the legal profession chosen by him or her has agreed to act, the duly appointed member of the office or section representing the relevant profession may proceed to assign an officer of the court to the case.” Article 77 “For the purposes of the preceding Article, a lawyer appointed as a member of the office or section must be in possession of an authority issued by the president of his or her bar.", "...” Article 79(as amended by Article 24 of Decree no. 2001-512 of 14 June 2001,Official Gazette of 15 June 2001) “If no lawyer or other member of the legal profession has been chosen by the recipient of legal aid or assigned in accordance with Articles 76 to 78, the secretary of the legal-aid office or section shall, immediately after the decision to grant legal aid has been taken, send a copy to the president of the bar council and, if appropriate, the president of each of the professional regulatory bodies of the various officers of the court qualified to represent the recipient of legal aid, to assist him or her and to perform such acts and take such steps as may be necessary in the substantive proceedings, or in any interlocutory application or enforcement proceedings for which the legal aid was granted. If it appears necessary to instruct a new lawyer or other member of the legal profession after legal aid has been granted, the secretary of the legal-aid office or section shall, on an application by the recipient of legal aid, send a copy of the decision to the president of the bar council and the president of each of the professional regulatory bodies referred to in the preceding sub-paragraph.” Article 82(as amended by the Article 25 of Decree no. 2001-512 of 14 June 2001,Official Gazette of 15 June 2001) “The president of the bar council or of the professional regulatory body or his or her representative shall appoint the lawyer or other member of the legal profession who will act for the recipient of legal aid. He or she shall notify the following of his or her appointment: (1) the lawyer or other member of the legal profession concerned, to whom he or she will forward a copy of the legal-aid office's decision with a reminder of the provisions of Article 54; (2) the secretary of the legal-aid office, who will immediately inform the recipient of legal aid and invite him or her to contact the officer of the court concerned, and the senior clerk or secretary of any court or tribunal before which the litigation is pending; the name of the officer of the court shall then be recorded in the case file; ...” Article 83 “If the officer of the court who was acting for the recipient of legal aid before legal aid was granted applies for permission to withdraw from the case, the president of the bar council or of the relevant professional regulatory body shall decide that application in a reasoned decision in accordance with the provisions set out in the fourth sub-paragraph of section 25 of the aforementioned Law of 10 July 1991.", "The decision will be served on the recipient of legal aid, the officer or officers of the court and the secretary of the legal-aid office.” Article 84 “In any case in which an officer of the court who was acting for the recipient of legal aid is released from his duty to act, a replacement shall be appointed immediately.” Judicature Code (legislative section): Article L781-1 “The State shall be under an obligation to compensate for damage caused by any malfunctioning of the system of justice. This liability shall be incurred only in respect of gross negligence or a denial of justice. ...” THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 17. In observations sent to the Court after the adoption of the admissibility decision, the Government renewed their objection of a failure to exhaust domestic remedies which the Court had dismissed in these terms: “The applicant, who of course did not have the benefit of legal advice, cannot be expected to be know all the finer points of judicial or disciplinary proceedings against a president of the bar council.” The Government said that the Legal Aid Act of 10 July 1991 contained a number of provisions on “aids to making the law accessible”, which included “aid for advice and assistance in non-judicial proceedings”, adding that legal advice was available from practitioners.", "They submitted in conclusion that it would have been perfectly possible for the applicant to find out what legal remedies were available to him. 18. The Court notes that the Government have renewed the preliminary objection which the Court examined and dismissed in its admissibility decision of 16 April 2002. It finds that there are no new factors that would warrant a re-examination of that objection. 19.", "It consequently dismisses the Government's preliminary objection. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 20. The applicant maintained that there had been a violation of Article 6 §§ 1 and 3 of the Convention because he had been unable to obtain representation by a lawyer under the legal-aid scheme. 21.", "The Government referred primarily to Airey v. Ireland (judgment of 9 October 1979, Series A no. 32). They said that contrary to what the Court had found to be the position in that case, the proceedings the applicant wished to take were straightforward and no legal representation was required. The applicant could have represented himself unaided. They added that the applicant could have lodged a fresh application on being informed that the grant of legal aid had lapsed.", "22. The Court notes at the outset that the applicant in the instant case wished to bring an action in damages against a lawyer. He was not, therefore, a person charged with a criminal offence. Consequently, the Court will examine his complaint solely under Article 6 § 1, the relevant parts of which read as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 23. The Court reiterates that there is no obligation under the Convention to provide legal aid for all civil disputes (see Del Sol v. France, no.", "46800/99, § 20, ECHR 2002-II, and Essaadi v. France, no. 49384/99, § 30, 26 February 2002). There is a clear distinction between the terms of Article 6 § 3 (c), which guarantees the right to free legal aid under certain conditions in criminal proceedings, and of Article 6 § 1, which does not contain any reference to legal aid. 24. However, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.", "This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Airey, cited above, pp. 12-13, § 24). 25. It is therefore for the Contracting States to decide how they will comply with the obligations arising under the Convention and legal-aid systems cannot function unless there is a means of selecting the cases that should qualify for legal aid. 26.", "The Court notes that, in the present case, the applicant, who satisfied the means test for eligibility, was immediately granted legal aid, even though legal representation was not compulsory for the proceedings he wished to bring. 27. However, that decision remained a dead letter because the three lawyers successively assigned to his case sought permission to withdraw because of personal links with the lawyer the applicant wished to sue. In spite of his efforts, the applicant failed to get the president of the legal-aid office to assign a new lawyer to his case and was therefore unable to issue the proceedings. 28.", "The Government have argued that the applicant could have presented his case himself, as the proceedings did not require compulsory representation by a lawyer and were oral. They added that he ought to have made a fresh application for legal aid after being informed that the original grant had lapsed. 29. However, the Court notes in this connection that the legal-aid office had granted the applicant legal aid despite the fact that legal representation was not compulsory. This indicates that it considered it essential for the applicant to be assisted by a qualified practitioner in the proceedings, as the proposed defendant was a lawyer.", "30. As matters transpired, the applicant saw three lawyers withdraw from his case in turn and was unsuccessful in his attempts to get a lawyer assigned to his case who would actually represent him. On being advised of the lawyers' withdrawal, the relevant authorities, the president of the bar council or his or her representative, should have arranged for a replacement who would provide the applicant with proper assistance (see, mutatis mutandis, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 15, § 33; the fact that Artico concerned proceedings of a criminal nature does not prevent the reasoning followed in that case being transposed to the present case in view of the observation made by the Court in paragraph 29 above). In view of the stance taken by the president of the bar council and the members of the local bar, the Court considers that the applicant cannot be called to task for failing to lodge a fresh application after being informed that the grant of legal aid had lapsed.", "31. It considers that permitting the applicant to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions that would secure him the effective enjoyment of equality of arms that is inherent in the concept of a fair trial (see, mutatis mutandis, Airey, cited above, pp. 12-13, § 24). 32. In conclusion, the Court finds that the applicant did not have effective access to a court.", "There has accordingly been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34.", "The applicant claimed 90,000 euros (EUR) for non-pecuniary damage, alleging that he had been wrongly sentenced to an immediate prison term and a fine of 4,000 French francs. He added that he had not been able to carry on his profession as a commercial representative for ten years, owing to the presence of the conviction on his criminal record. The Government observed that the sole judgment to which the applicant had referred was one dated 31 January 1995, which stated that he had been assisted by Mr Halvalek, of the Briey Bar. Accordingly, they submitted that the applicant had not established a link between the failure to assign a lawyer to his case that had prevented him from bringing an action against Mr T. and that criminal judgment. Accordingly, the sole damage he could claim to have sustained was the loss of an opportunity to benefit from legal assistance in bringing the action.", "The Government proposed the sum of EUR 1,000 euros for that damage. The Court finds no causal link between the violation it has found and the damage alleged by the applicant. However, it considers that the applicant's inability to secure legal representation to bring his action caused him definite non-pecuniary damage. Accordingly, ruling on an equitable basis, it awards EUR 5,000 under this head. B.", "Costs and expenses 35. The applicant, who was legally aided before the Court, made no claim for costs and expenses. C. Default interest 36. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Dismisses the Government's preliminary objection; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) for non-pecuniary damage plus any value-added tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claims for just satisfaction. Done in French, and notified in writing on 13 February 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Lawrence EarlyAndrás Baka Deputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF PALANCI v. SWITZERLAND (Application no. 2607/08) JUDGMENT STRASBOURG 25 March 2014 FINAL 25/06/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Palanci v. Switzerland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Peer Lorenzen,András Sajó,Helen Keller,Paul Lemmens,Robert Spano, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 18 February 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "2607/08) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Erol Palanci (“the applicant”), on 11 January 2008. 2. The applicant was represented by Dr. iur. D. Thommen, a lawyer practising in Basel. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice.", "3. The applicant, who had lived in Switzerland for many years and had a family there, alleged that his expulsion to Turkey was in breach of his right to respect for family life under Article 8 of the Convention. Pending the proceedings before the Court, the applicant requested that Rule 39 of the Rules of Court be applied. 4. On 16 January 2008 the President of the First Section, to which the case had been allocated, decided not to apply Rule 39.", "5. On 27 May 2010 the application was communicated to the Government. 6. On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).", "On 1 February 2014 the Court changed again the composition of its Sections (Rule 25 § 1). This case remained with the Second Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant, Mr Erol Palanci, is a Turkish national, who was born in 1971 and lives in Basel, Canton of Basel-Stadt (Basle Urban).", "8. In 1989 he entered Switzerland for the first time and applied for asylum. He lived there, working in the gastronomic sector, until 1993, when his asylum request was dismissed. On 19 November 1993 he left Switzerland for Germany. On 10 February 1994 he married his current wife, a Turkish national with a residence permit for Switzerland, in Germany.", "9. Because his wife had a residence permit for Switzerland, the applicant was able to re-enter the country on 15 July 1994, and he was given a residence permit on 28 July 1994. Three daughters were born to the couple in Switzerland in 1995, 1997 and 2000. Additionally, the wife’s eldest daughter from her first marriage, born in 1985, was also living with the couple. 10.", "In 1995 a criminal charge was brought against the applicant because he had been working without the requisite work permit. Furthermore, in 1997, having falsified his wife’s signature on an official document, he was warned for the first time by the Directorate for Residence Services of the Department for Security of the Canton of Basel-Stadt (Sicherheitsdepartement des Kantons Basel-Stadt, Dienste Aufenthalte - hereinafter “the cantonal immigration authorities”) that he would have to expect immigration measures to be taken if he did not improve his behaviour. 11. In August 1999 the applicant and his wife separated. The children remained with the applicant’s wife and he was ordered to pay maintenance by the Cantonal Civil Court of the Canton of Basel-Stadt.", "12. On 1 December 1999 the applicant was sentenced by the Criminal Court of Basel-Stadt to a suspended custodial sentence of three months for multiple bodily assaults on his wife, in part committed with a dangerous object. 13. In view of his conviction, his considerable accumulation of debts and his dependence on social welfare, the cantonal immigration authorities issued a further warning to the applicant on 22 December 1999. 14.", "In March 2001 his wife filed for divorce. In September 2001 the cantonal immigration authorities again warned the applicant, since his debts had grown further and his entire family was living on social welfare. 15. Despite those warnings, the applicant’s debts grew further. In May 2002 they amounted to approximately 177,850 Swiss francs (CHF) (approximately 145,609 euros (EUR)).", "Additionally, he had failed to comply with his duty to pay maintenance for his family in the amount of CHF 46,150 (approximately EUR 37,783). In August 2002 the cantonal immigration authorities decided to extend the applicant’s residence permit for another six months. However, he was firmly advised to take steps to improve his financial situation. 16. In November 2002 the applicant’s wife withdrew her divorce petition.", "However, she did not wish to seek a reconciliation and the applicant was obliged to continue paying maintenance. 17. In March 2003 the applicant was sentenced to sixty days’ imprisonment for wilful neglect of his obligation to pay maintenance. 18. In December 2003 the cantonal immigration authorities warned the applicant for the last time that he must expect implementation of the most serious immigration measures if his situation did not improve and his debts grew further.", "They gave him until June 2004 to prove that his financial and professional situation had stabilised and that he had complied with his obligation to pay maintenance. 19. In March 2004 the applicant’s wife filed for divorce for the second time. She also brought another criminal charge against him for acts of aggression and threatening behaviour. 20.", "In August 2004 the applicant’s wife withdrew her criminal complaint against the applicant for domestic violence. 21. By letter dated 11 October 2004 the immigration authorities informed the applicant of their intention to expel him from Swiss territory and granted him a period of grace in which to make his submissions. 22. On 22 October 2004 the applicant’s wife withdrew her divorce action and from 25 October 2004 onwards the couple lived together again.", "23. On 7 February 2005 the cantonal immigration authorities decided that the applicant’s residence permit would not be extended and that he had to leave Switzerland for an indeterminate period of time. They held that over the preceding years, owing to the applicant’s continuously accumulating debts and his failure to pay maintenance, his family had been dependent to a considerable degree on social welfare, and he had not proved that he was capable of observing public order and safety in Switzerland. In accordance with section 10 § 1 (b) and (d) of the Federal Act on the Temporary and Permanent Residence of Foreigners (hereinafter “the Foreigners’ Residence Act” - see paragraph 29 below) and section 16 of its Implementing Ordinance (see paragraph 30 below), he could therefore be expelled. They reasoned that since 1994, when the applicant had entered Switzerland for the second time, he had repeatedly been convicted of offences.", "Furthermore, despite the immigration authorities’ repeated warnings, his financial situation was serious and had continuously deteriorated. As at the date of the decision, his debts amounted to about CHF 352,890 (approximately EUR 288,918) and the outstanding maintenance payments to CHF 74,710 (EUR 61,166). In addition, from June 2004, he had worked as an associate of a company in the gastronomic sector without having previously applied for the necessary work permit. Although he had never paid maintenance or complied with the debt repayment agreements, he had invested capital of CHF 20,000 (approximately EUR 16,374) in that company. The cantonal immigration authorities therefore concluded that the applicant had not complied with the conditions previously set out by them for renewal of his residence permit.", "Furthermore, the fact that the applicant had resumed matrimonial life with his wife on 25 October 2004 did not alter those findings, since his wife had already filed for divorce twice and there had been incidents of domestic violence in the past. The applicant had, moreover, registered his residence at the family home only after he had been informed by the immigration authorities in October 2004 of their intention to expel him. However, he had spent many months between September 2004 and March 2005 in Turkey and it could therefore hardly be assumed that he had actually re-established family life. The applicant’s return to his country of origin – Turkey – was also feasible, because he had spent most of his life there and maintained close social and family ties with that country, as evidenced by his regular visits there. Additionally, even though he claimed that his relationship with his children was close, he had not paid maintenance for them since the separation from his wife.", "Lastly, the children were not prevented from visiting him in Turkey and the contact could be maintained at a distance. The applicant’s expulsion was therefore proportionate and he was required to leave Switzerland by 7 May 2005. 24. On 14 September 2005 the applicant was sentenced for the second time to a suspended custodial sentence of forty-five days for wilful neglect of his obligation to pay maintenance. 25.", "The applicant lodged an appeal against the decision of the cantonal immigration authorities with the director of the Department for Security of the Canton of Basel-Stadt (Vorsteher des Sicherheitsdepartement des Kantons Basel-Stadt – hereinafter “the director”), who dismissed the appeal on 16 January 2006. The director established that the applicant had met the criteria for expulsion under domestic law in several respects. To begin with, the applicant had been logged in the criminal register nineteen times since 1995. While the majority of the sentences had been for minor offences – mainly against the Road Traffic Act – three of them were serious convictions. These were: one for domestic violence in 1999, resulting in a suspended custodial sentence of three months’ imprisonment, and two others for wilful negligence of his obligation to pay maintenance, warranting sixty days’ imprisonment in 2003 and a suspended custodial sentence of forty-five days in 2005.", "Since the applicant had thus been found guilty of imprisonable offences (see paragraph 31 below), he fulfilled the criterion for expulsion as provided in section 10 § 1 (a) of the Foreigners’ Residence Act (see paragraph 29 below). Secondly, despite repeated warnings by the cantonal immigration authorities, the applicant’s financial situation had continuously deteriorated. In this regard the director held that, despite having had several jobs in the gastronomic sector, the applicant had repeatedly tried to start his own business and had frivolously invested money in projects with poor prospects. His debts were therefore self-imposed and, from an overall perspective, he had, continuously throughout the years, failed to show any willingness to observe public order and to integrate into the Swiss system. He therefore additionally fulfilled the condition for expulsion according to section 10 § 1 (b) of the Foreigners’ Residence Act (see paragraph 29 below) and section 16 of its Implementing Ordinance (see paragraph 30 below).", "By contrast, despite still not having paid back to the State all the maintenance received for his family, after 30 September 2004 the applicant’s family had no longer been dependent on social welfare. Therefore, section 10 § 1 (d) of the Foreigners’ Residence Act (see paragraph 29 below) no longer applied to the applicant. With regard to Article 8 of the Convention, the director further established that the applicant’s expulsion was a proportionate interference with his right to respect for family life. The applicant had maintained close ties with his home country, which he had visited on many occasions. The applicant’s wife had lived in her home country until the age of nineteen and she had visited Turkey, together with the children, on many occasions.", "Moreover, she had also accumulated debts amounting to CHF 134,830 (approximately EUR 110,388) and was receiving an invalidity pension. Lastly, the children were still relatively young (the oldest daughter being ten years old at the time of the decision) and they would therefore not encounter any serious difficulties if they returned to Turkey with the applicant. The public interest in expelling the applicant to Turkey therefore outweighed his personal interest in remaining in Switzerland. 26. On 21 March 2007 the Administrative Court of the Canton of Basel-Stadt (Appellationsgericht des Kantons Basel-Stadt – hereinafter “the Administrative Court”) dismissed the applicant’s appeal, a decision that was upheld by the Federal Supreme Court (hereinafter “the FSC”) on 24 October 2007.", "With particular regard to the applicant’s rights under Article 8 of the Convention, both courts held that, considered as a whole, his expulsion was proportionate. Even though the applicant had been living together with his wife again since October 2004, his matrimonial situation had not proved to be very stable in the past. Furthermore, despite having maintained a close relationship with his children, for many years ‒ until September 2004 ‒ he had completely neglected his obligation to pay them maintenance. Moreover, it would be possible to maintain a relationship with them at a distance without serious difficulty. The courts also found that the family would not encounter any major obstacles if they returned to Turkey with the applicant.", "The children were still at an age where they could easily adapt to a new environment and the Turkish language was their mother tongue. Furthermore, his wife had not proved to be particularly well integrated in Switzerland and was receiving an invalidity pension. The expulsion order against the applicant was therefore upheld. 27. The cantonal immigration authorities gave the applicant a deadline of 22 January 2008 for leaving Switzerland.", "The applicant left Switzerland alone. 28. In letters of 7 June 2013 and 28 June 2013, the applicant’s representative informed the Court that the applicant had been issued with a residence permit for Switzerland on 10 February 2013. He nevertheless wanted to maintain his application because between 2008 and 2013 he had been obliged to live in Turkey while his wife and children had remained in Switzerland. During this period he had not been able to support them financially but had visited them, at least once, in Switzerland.", "II. RELEVANT DOMESTIC LAW 29. Section 10 of the Federal Act on the Temporary and Permanent Residence of Foreigners of 16 March 1931, as in force at the material time, read as follows: Section 10 “1 A foreign national can be expelled from Switzerland or one of its cantons only if: (a) he or she has been convicted by a judicial authority of a serious punishable offence [Verbrechen] or a less serious punishable offence [Vergehen]; (b) his or her behaviour, in its entirety, or his actions demonstrate an unwillingness to adapt to the order established in the country that offers him hospitality or he is not capable of so adapting; ... (d) if he or she, or a person he or she has to care for, is reliant on social welfare continuously and to a considerable degree... ” 30. Section 16 of the Implementing Ordinance to the Federal Act on the Temporary and Permanent Residence of Foreigners of 1 March 1949, as in force at the material time, read as follows: Section 16 “ ... 2 An expulsion pursuant to section 10 § 1 (b) of the Foreign Nationals Act is in particular justified where there are serious and repeated infringements of norms or official orders; ... continuously malicious or dissolute non-observance of obligations under public or private law; other continued dissoluteness or work-shy behaviour ...” 31. Section 9 of the Swiss Criminal Code of 21 December 1937, as in force at the material time, read as follows: Section 9 “1 Serious punishable offences [Verbrechen] are offences for which the custodial sentence is imprisonment in a penal institution [Zuchthaus].", "2 Less serious punishable offences [Vergehen] are offences for which the most severe sentence is detention in prison [Gefängnis]. “ THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 32. The applicant complained that the refusal of the Swiss authorities to prolong his residence permit and the decision to expel him breached his right to respect for family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 33. The Government contested that argument. A. Admissibility 34. The Government observed that in his application of 11 January 2008, the applicant referred to circumstances and developments that had arisen only after the Administrative Court’s decision of 21 March 2007.", "It was this decision which had established the facts on the basis of which the FSC had delivered its judgment on 24 October 2007. The FSC had not yet had the opportunity to consider the following new facts, based on which the applicant’s request for reconsideration at domestic level had a good chance of success: he had once again been leading a family life within the meaning of Article 8 of the Convention and was fulfilling his financial duties towards them; he had not had any convictions, and no incidents of domestic violence had occurred since 2005; he had found a stable job with a regular income and had not accumulated further debts; and his wife was in need of support in relation to the education of the children since she was suffering from serious depression. The Government therefore proposed that the application be struck out pursuant to Article 37 § 1 c) of the Convention. 35. The applicant contested that the above-mentioned facts were new and stated that they had been taken into account by the FSC in its judgment of 24 October 2007.", "A request for reconsideration at domestic level in his view therefore had no chance of success. Furthermore, if the Government had taken the view that a request for reconsideration would be successful, they could have agreed to a friendly settlement before the Court. However, the Government had declined that possibility in a letter of 21 September 2010. Therefore, there were no grounds for striking the case out. 36.", "The Court notes that the final domestic decision dated 24 October 2007 had been enforced in the meantime and the applicant had left Switzerland for some years. The question whether a request for reconsideration would have been successful at the domestic level is thus no longer pertinent. In addition, the Court agrees with the applicant that the domestic courts had in their judgments already taken into account the fact that since October 2004 the applicant was again living together with his wife and that his family no longer depended on social welfare (see paragraphs 23 and 25-26 above). The Court therefore dismisses the Government’s request to strike out the application pursuant to Article 37 § 1 (c) of the Convention. It further notes that the application is not inadmissible on any of the grounds set out in Article 35 of the Convention.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 37. In his observations dated 11 November 2010, the applicant alleged that the Swiss authorities’ decision not to extend his residence permit and to expel him to his home country of Turkey had disproportionately interfered with his right to respect for family life under Article 8 of the Convention.", "38. With regard to the crimes of which he had been found guilty, the applicant alleged that none of them had endangered public safety. He regretted deeply that he had assaulted his wife. However, it had not involved third parties, and, in Swiss case-law, a suspended custodial sentence of three months was deemed a “minor case”. Furthermore, he had been sentenced for that offence in 1999, more than eight years before the final domestic decision.", "In addition he claimed that it was due to his financial difficulties that he had not been able to pay the maintenance, and his behaviour could therefore not be considered criminal sensu stricto. He had not thereby endangered public safety or public order or the economic wellbeing of Switzerland. It had also been the social security department, and not his wife, who had brought a criminal complaint against him in that respect. Lastly, the applicant argued that the rest of his offences had been minor ones: most of them concerned breaches of the Road Traffic Act which dated back ten to fifteen years. Hence, the applicant’s convictions were not of a kind that would lead to the conclusion that he did not have the will or capacity to adapt to public order.", "39. The applicant further stated that he had arrived in Switzerland for the first time in 1989, when he had been less than eighteen years old. At the time of his application to the Court, he had been living in Switzerland for more than eighteen years, apart from a short interruption in 1993-94. He also maintained that he spoke German fluently and that he had established close social ties with Switzerland. By contrast, his ties with his home country Turkey had been reduced to occasional holidays and visits to his mother, who was ill.", "If he were to return, he would therefore encounter serious difficulties. 40. Regarding his financial situation the applicant claimed that he had not accumulated debts because he had been unwilling to work, lazy or idle. On the contrary, apart from short periods of unemployment, he had always worked while in Switzerland. He had also repeatedly tried, through the acquisition or management of companies in the gastronomic sector, to establish a business of his own as a means of existence for his family but had not been successful owing to lack of knowledge and experience, and also through the fault of third parties.", "This was the reason why he had been unable to pay maintenance and his family had been dependent on social welfare. Nevertheless, neither the Canton of Basel-Stadt nor Switzerland had been damaged by his behaviour. Moreover, from mid-2004 until 2008, when he had had to leave Switzerland, he had been in a job with a regular income and his family had no longer had to live on social welfare. 41. The applicant also stated that his wife had entered Switzerland at the age of nineteen and, at the time of his application to the Court, had lived in that country for more than twenty-four years.", "She was suffering from a major depressive disorder and was receiving an invalidity pension. Owing to that illness, she was in need of her husband’s support. Lastly, with regard to the marital problems he had had with his wife in previous years, the applicant claimed that the couple had been able to overcome them and they had been living together again since September 2004. Subsequently his wife had also withdrawn the criminal complaint and the divorce petition against him. 42.", "The applicant further claimed that even during the separation from his wife, he had stayed in daily contact with his children, with whom he maintained a close relationship. Moreover, between September 2004 and 2008, he had played an important part in the children’s upbringing as his wife had not been able to raise them on her own. The children were born in Switzerland, had grown up there and went to school there. They had established close social ties with that country and would encounter major obstacles if they attended school in Turkey because they had knowledge only of spoken Turkish. Their relocation would therefore lead to a considerable upheaval.", "In this context the applicant also alleged that the Swiss authorities had never conducted a hearing with the rest of his family and the Swiss authorities had thus not taken the children’s best interests sufficiently into account. (b) The Government 43. In their observations dated 21 September 2010 and 14 December 2010, the Government submitted that, in view of the applicant’s numerous criminal convictions, his expulsion from Swiss territory served the legitimate aim of maintaining public order and safety as provided in Article 8 § 2 of the Convention and was a proportionate interference with his right to respect for family life. The applicant had been sentenced repeatedly for criminal offences between 1995 and 2005. His convictions in 1999, 2003 and 2005 were particularly serious, not only because they included custodial sentences but also because they had been directed against members of his own family.", "Furthermore, during the criminal proceedings in 1999, his wife had stated that he used to hit her on a regular basis. Moreover, even his conviction in 1999 had not prevented him from refraining from further domestic violence: in May 2004 the police had had to intervene again because he had become violent towards his wife. 44. Neither of the warnings from the cantonal immigration authorities had had any effect on the applicant. He had continuously breached public order and even during the domestic proceedings regarding his residence permit had accumulated further debts.", "By 6 July 2007, sixty-four certificates of unpaid debts (Verlustscheine) amounting to CHF 362,537 (approximately EUR 296,816) had been issued against him and fifty-four debt enforcement proceedings (Betreibungen) involving a total amount of CHF 317,500 (approximately EUR 259,943) were pending. As established by the domestic courts, his situation was self-inflicted and ultimately obliged him and his family to live off social welfare for many years. In the view of the Government, all this illustrated that the applicant had not been willing to adapt his conduct to comply with the rules governing public order in Switzerland. 45. With regard to the duration of the applicant’s stay in Switzerland, the Government found that his situation had to be distinguished from that of persons who were born or had arrived as small children in Switzerland because the applicant was already an adult when he entered that country.", "Moreover, the purpose of his first stay in Switzerland, between 1989 and 1993, had been his request for asylum and not the reunification of the family. The Government also found that after the first warning from the cantonal immigration authorities in 1997, the applicant could no longer rely on the fact that his residence permit would be continuously extended so that he would be able to remain in Switzerland. Moreover, after 3 June 2004 he had no longer been in possession of a valid residence permit and his presence in Switzerland was reliant solely on the tolerance of the Swiss authorities. Additionally, the applicant had maintained close ties with his home country, which he had visited almost every year since 1999. Between 2003 and 2007 the applicant had even spent a minimum of a couple of months each year in Turkey visiting his parents.", "46. As demonstrated by the separation, the discontinued divorce proceedings, and the incidents of domestic violence, the applicant’s married life had not been particularly stable between 1999 and 2004. During that period it had, moreover, been principally the applicant’s wife who had cared for the children, which – according to the Government – demonstrated that she was able to do so despite her illness. 47. In any case, the Government found that there were no major obstacles preventing the family’s return to Turkey.", "His wife had grown up and lived there until the age of nineteen and it had not been demonstrated that she was particularly well integrated in Switzerland. Furthermore, the children were of an age where they could easily adapt to a new environment, especially since they were familiar with the language and culture of Turkey, a country they knew from their holidays and from relatives who were still living there. The applicant also originated from Ankara, a city with a high standard of living and a good education system. It had ultimately not been necessary to hold a hearing with the children because it was not disputed in the applicant’s or his wife’s submissions that he had maintained a close relationship with them. 48.", "Given all those circumstances, the Government concluded that the applicant had not become integrated in Switzerland in such a way that his expulsion breached his right to respect for family life. His expulsion to Turkey had therefore been a proportionate immigration measure according to Article 8 of the Convention. 2. The Court’s assessment (a) General principles 49. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no.", "94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuit of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v. France, 19 February 1998, § 52, Reports 1998-I; Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001‑IX; and Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X).", "50. The Court observes in this context that not all migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy “family life” there within the meaning of Article 8. However, Article 8 also protects the right to establish and develop relationships with other human beings and the outside world (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III) and can sometimes embrace aspects of an individual’s social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I).", "It must therefore be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. The expulsion of a settled migrant can therefore constitute an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the “family life” rather than the “private life” aspect (see Üner v. the Netherlands, no. 46410/99, § 59, 5 July 2005). 51.", "In order to assess whether an expulsion order and the refusal of a residence permit were necessary in a democratic society and proportionate to the legitimate aim pursued under Article 8 of the Convention, the Court has laid down the relevant criteria in its case-law (see Üner, cited above, § 56; Maslov v. Austria [GC], no. 1638/03, § 68-76, ECHR 2008; and Emre v. Switzerland, no. 42034/04, §§ 65-71, 22 May 2008). In Üner, the Court summarised those criteria as follows: – the nature and seriousness of the offence committed by the applicant; – the length of the applicant’s stay in the country from which he or she is to be expelled; – the time elapsed since the offence was committed and the applicant’s conduct during that period; – the nationalities of the various persons concerned; – the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; – whether the spouse knew about the offence at the time when he or she entered into a family relationship; – whether there are children from the marriage and, if so, their age; – the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled; – the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and – the solidity of social, cultural and family ties with the host country and with the country of destination. 52.", "Lastly, the Court has also consistently held that the Contracting States have a certain margin of appreciation in assessing the need for an interference, but it goes hand in hand with European supervision. The Court’s task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other (see Slivenko and Others, cited above, § 113, and Boultif, cited above). b) Application of the above principles in the instant case (i)Interference with the rights established in Article 8 of the Convention 53. The applicant resided in Switzerland between 1989 and 2008, that is to say for more than eighteen years – with a short interruption in 1993-94 – and he worked and raised his family there. The Court has therefore no reason to doubt that the applicant had established social, professional and family ties in the respondent State.", "The immigration measures taken by the domestic authorities therefore clearly interfered with his rights under Article 8 of the Convention. This has also been acknowledged by the Swiss Government. (ii)Justification of the interference 54. The Court has no difficulty in accepting that the interference with the applicant’s right to respect for his private and family life was based on domestic law. As established by the domestic authorities (see, in particular, paragraph 25 above), the immigration measures taken by the Swiss authorities were based on the Foreigners’ Residence Act (see paragraph 29 above) and its implementing ordinance (see paragraph 30 above).", "55. The Court also considers that the interference with the applicant’s right to respect for his private and family life was in pursuit of legitimate aims provided for in Article 8 § 2 of the Convention, that is to say, in the interests of public order and safety. 56. The current case therefore hinges on the question of whether or not the expulsion order against the applicant and the refusal of a residence permit were necessary in a democratic society. In order to assess whether the respondent State struck a fair balance between the applicant’s interests and its own interests in safeguarding public safety and order, the Court will apply the criteria established in its case-law (see paragraph 51 above).", "The Court also reiterates that in cases like the present one - where an applicant has been expelled but some years later was granted a fresh residence permit for the respondent State - it looks at whether the alleged violation took place during the period in which the applicant was separated from his family. 57. With regard to the applicant’s criminal record the Court finds that although most of the offences were minor ones, their number – nineteen in total between 1995 and 2005 – is considerable and indicates to a certain extent that, during this period at least, the applicant was not always willing to respect public order in Switzerland. While the Court agrees with the applicant that his convictions for failing to pay maintenance do not reveal strong criminal intentions, it considers that his conviction for domestic violence in 1999 was a serious one, especially since it was based on not only one but multiple incidents of domestic violence which were in part committed with a dangerous object. The Court further notes that the applicant had received repeated warnings from the immigration authorities and he must therefore have been aware that, under the Foreigners’ Residence Act, he could be expelled if he committed an offence punishable with imprisonment (see paragraph 29 above).", "The Court has therefore no reason to doubt that those convictions, especially when considered in the context of the applicant’s behaviour on a whole, were valid reasons for expulsion. However, the Court also takes into account that between September 2005 and January 2008 the applicant was not convicted again. 58. Apart from his criminal convictions, the Court observes that the applicant’s continuously growing debts and his failure to pay his family maintenance were pertinent for the domestic authorities’ decision when deciding on the immigration measures. In this regard they had considered that despite the immigration authorities’ repeated warnings, the applicant’s financial situation had continuously deteriorated because of his unsuccessful attempts to establish a business of his own.", "The Court therefore agrees with the domestic authorities that the applicant lacked the necessary diligence and responsibility in financial and professional matters, with the result that the number of debts increased and he and his family were dependent on social welfare until September 2004. Since the applicant, furthermore, only changed his behaviour in financial matters once he had been informed by the immigration authorities in October 2004 that his expulsion was imminent, the Court takes the view that the domestic authorities rightly assumed that the applicant’s behaviour had been a threat to public order. 59. Regarding the duration of the applicant’s stay in Switzerland, the Court considers that eighteen years was certainly a long enough period for the applicant to have established strong ties with Switzerland, especially since he was working in that country and was raising his children there. However, the Court cannot overlook the fact that the applicant’s residence status remained uncertain between 1989 and 1993, when he was awaiting the outcome of his asylum request, and also between September 2004 and October 2007, when the domestic proceedings regarding his residence permit were pending.", "The Court is therefore not willing to attribute the same weight to the duration of the applicant’s stay in Switzerland as it would do if he had lived there with a valid residence permit throughout that period. Moreover, after 1997 the applicant was repeatedly cautioned by the immigration authorities and he must therefore have been aware that immigration measures were imminent if his situation and behaviour did not improve. 60. The Court further points out that the applicant arrived in Switzerland at the age of almost eighteen. Unlike the case of Emre (cited above, § 77), he had spent his childhood in his home country, Turkey, where he had received a school education.", "Furthermore, his parents still lived there and, as stated by the Government, between 2003 and 2007 he had regularly returned to Turkey for periods as long as several months. While the Court is prepared to accept that in 2008, at the time he returned to Turkey, the applicant’s ties with his country of origin might have weakened after all the years spent in Switzerland, it regards it as sufficiently established that the applicant had retained some social and cultural – including linguistic – ties in addition to family ties. 61. With regard to the applicant’s family situation, the Court reiterates that he lived apart from his wife between 1999 and 2004 but maintained a close relationship with his children during those years. In financial matters, however, he grossly neglected his duties towards them.", "Furthermore, from 2004 until 2008 he once again lived with his wife and helped her with the upbringing of the children. The separation from his family between 2008 and 2013 therefore certainly affected all family members. Contrary to the applicant’s submissions, the Court however considers that his expulsion to Turkey had not impeded him to maintain a family life. On the one hand, the Court holds that, it had been possible for the applicant to stay in contact with his family even from a distance without difficulties. It thereby takes into account that between 2008 and 2013, the applicant had been allowed to visit his family once in Switzerland and that his family also had the possibility to visit him in Turkey.", "On the other hand, the Court also takes the view that no major obstacles existed in 2008 for the applicant’s family to accompany him to Turkey. In this regard it reiterates that the applicant’s wife also originates from Turkey, where she lived until the age of nineteen and where she had regularly returned, together with her children, for holidays. It therefore seems clear to the Court that she had maintained social and linguistic ties with her country of origin. Furthermore, the Court agrees with the domestic authorities that at the time of the final domestic decision on 24 October 2007 the children were still of an age where they would be able to adapt to a new environment without serious difficulties, not least because Turkish was their mother tongue, they knew Turkey from their holidays when they were visiting relatives, and they were to return to Ankara, a city with a well-established education system. Therefore, the Court holds that even if their relocation would have led to a certain uprooting since they had spent all their previous life in Switzerland, it cannot be said that their interests as children were not duly taken into account.", "62. Lastly, in order to assess the proportionality of the impugned immigration measures, the Court must also take into account the fact that – despite the indefinite duration of the entry ban against the applicant – he was able to visit his family at least once in Switzerland between 2008 and 2013, and the entry ban was permanently lifted on 10 February 2013, when he received a new residence permit for Switzerland. Based on those particular facts, the Court therefore holds that the entry ban was not overly intrusive as regards the applicant’s rights under Article 8 of the Convention (see, by contrast, Emre, cited above, § 85, and the case-law referred to therein). 63. Taking into account the foregoing, the Court emphasises that all of the above factors were referred to and discussed, with reference to the relevant facts at the material time, by the domestic authorities involved at all four levels of jurisdiction (see paragraphs 23 and 25-26 above).", "The Court also reiterates that the domestic authorities had in their judgment already noted the fact that the applicant had resumed matrimonial life and had been fulfilling his financial duties towards his family from October 2004 onwards. The Swiss authorities decided at that time, however, that the public interest in favour of deportation prevailed. The Court considers that, having identified the relevant factors, the domestic authorities’ assessment of the weight to be accorded to each of these factors was within their margin of appreciation according to Article 8 of the Convention. 64. In conclusion, the Court holds that a fair balance was struck in that the refusal of the applicant’s residence permit and his expulsion from Switzerland were proportionate to the aims pursued and could therefore be regarded as necessary in a democratic society.", "There has accordingly been no violation of Article 8 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 8 of the Convention. Done in English, and notified in writing on 25 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithGuido Raimondi RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Raimondi, Sajó and Spano is annexed to this judgment. G.R.A.S.H.N. JOINT CONCURRING OPINION OF JUDGES RAIMONDI, SAJÓ AND SPANO 1. We agree with the Court’s resolution of this case. However, we write separately to express disagreement with the way in which the Court categorises the aim, in Convention terms, of the domestic authorities’ reference to the applicant’s financial situation and its effect on the decision to expel him from Switzerland in 2004.", "2. The Court has previously held that one of the legitimate aims that a Contracting state may pursue under Article 8 § 2, when deciding whether to expel a foreigner, is whether the interference with the foreigner’s right to family and private life is justified on the basis of the “economic well-being of the country” (see Hasanbasic v. Switzerland, no. 52166/09, § 52, 11 June 2013). In our view, the financial conduct of the applicant in the present case was an element that the domestic authorities were justified in taking into account on this basis. 3.", "However, in paragraph 58, in fine, of the Court’s judgment, it is stated that the domestic authorities “rightly assumed that the applicant’s [financial] behaviour had been a threat to public order”. 4. In this regard, we note, that “public order”, as such, is not listed as one of the legitimate aims under the limitation clause of Article 8 § 2 justifying a restriction on the rights afforded in paragraph 1 of that Article. However, the limitation clause does contain the synonymous aims of “public safety” and “the prevention of disorder or crime”. 5.", "In our view, it is clear that a foreigner’s financial disarray, provided no criminal offence is involved, and in particular, the extent to which he or she has had to rely on material support from the State, cannot be equated with conduct that is capable, in principle, of constituting a threat to “public safety” within that term’s autonomous meaning under the Convention. It is furthermore self-evident that an expulsion order on the basis of a foreigner’s financial conduct, if it does not contravene domestic law, cannot be justified by the aim of “the prevention of disorder or crime”. 6. It is true that the respondent Government did not directly plead before this Court that the expulsion order in the applicant’s case was based on the legitimate aim of securing the economic well-being of the country and thus only referred to the aim of securing public order. This is, in our view, immaterial for the resolution of this case and the way in which the Court must examine the facts under Article 8.", "It may well be that domestic legislation, including a concept such as “public order”, can be applied by domestic authorities to a foreigner’s financial situation, as seems to have been the case here. However, this does not mean that the same conclusion obtains when the Court is engaged in interpreting and applying the autonomous concepts under Article 8 to the facts of an application lodged with the Court." ]

[ "THIRD SECTION CASE OF HILAL v. THE UNITED KINGDOM (Application no. 45276/99) JUDGMENT STRASBOURG 6 March 2001 FINAL 06/06/2001 In the case of Hilal v. the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrW. Fuhrmann,MrsF. Tulkens,MrK. Jungwiert,SirNicolas Bratza,MrK.", "Traja,MrM. Ugrekhelidze, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 8 February 2000 and 13 February 2001, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 45276/99) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tanzanian national, Mr Said Mohammed Hilal (“the applicant”), on 5 January 1999. 2.", "The applicant, who had been granted legal aid, was represented by Sen & Co., solicitors in Wembley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Mandal, of the Foreign and Commonwealth Office. 3. The applicant alleged that his expulsion to Tanzania placed him at risk of torture or inhuman or degrading treatment, that he would not receive a fair trial if he were returned to Tanzania and that he had no effective remedy available to him in respect of these matters. He relied on Articles 3, 6, 8 and 13 of the Convention.", "4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. The President of the Chamber and subsequently the Chamber decided to apply Rule 39, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Tanzania pending the Court’s decision.", "6. By a decision of 8 February 2000, the Chamber declared the application admissible [Note by the Registry. The Court’s decision is obtainable from the Registry]. 7. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in Pemba, one of the Zanzibar islands, in 1968. Zanzibar is part of the United Republic of Tanzania.", "It has its own President, parliament and government and enjoys considerable autonomy. 9. According to the applicant, in 1992 he joined the Civic United Front (“the CUF”), an opposition party in Zanzibar. He was an active member, attending meetings and contributing money to the party funds. In August 1994 the applicant was arrested by Chama Cha Mapinduzi (“the CCM”, the ruling party) officers because of his involvement with the CUF.", "He was detained at Madema police station in Zanzibar for three months, where he was tortured. He was repeatedly locked in a cell full of water for days at a time so he was unable to lie down. He was hung upside down with his feet tied together until he bled through the nose, and he was also subjected to electric shocks. 10. In November 1994 the applicant stated that he was released from detention following pressure from CUF leaders on the Tanzanian government.", "He was admitted to hospital, where a medical officer recorded that the applicant was haemorrhaging severely through the nose as a result of his treatment and had been subjected to harm endangering life. 11. The applicant stated that his brother had been taken into detention shortly before he was. He had been ill-treated and died in January 1995 in hospital where he had been taken from prison. 12.", "Following his release, the applicant stated that he only contributed funds to the CUF. In January 1995 the police came looking for him while he was out. The police detained his wife overnight and questioned his friends. He decided to leave his home and Tanzania, fearing for his safety. 13.", "On 9 February 1995 the applicant arrived in the United Kingdom and claimed asylum. That day a pro forma interview was held with an immigration officer, where the applicant was assisted by an interpreter. According to the form, the purpose of the interview was to enable the immigration officer to take down the initial details of the asylum application. When asked what the basis of his asylum claim was, the applicant was noted as having said: “Because of the problems in the country and my safety. I have been threatened a lot by the ruling party so I decided to leave the country.” The applicant stated that he had been a member of the CUF since 1992.", "14. At the full asylum interview held on 15 March 1995, the applicant was recorded as stating that he had had no problem in obtaining a passport as he was a businessman, and that he had organised his passage to the United Kingdom himself. When asked what the basis for his asylum claim was, he stated that he had been taken away and detained for three months, from August to November 1994, at Madema police station, where he had been tortured. He had been locked in a room with a very low ceiling, where he could not stand up, and then placed for one and a half days in a room filled with water up to the chest, where he could not lie down. He was taken out and returned there twice a week.", "A few days before he was released he was hung upside down and given electric shocks. He had been arrested because he gave money to the CUF. He was told that he had been released because the CUF leaders had approached the authorities in Dar es Salaam. After his release, he was treated in a private clinic. He produced his CUF card.", "He had been an ordinary member, doing nothing more than give money. He had not taken part in the demonstration which had been allowed. He mentioned that his brother had been arrested in January 1995 and died after being in police custody. His brother had been badly beaten and was vomiting blood, so they had released him to hospital on 20 January 1995 as they knew he was going to die. His uncle had helped him to leave, obtaining an income-tax clearance and an airline ticket.", "His uncle checked in with the ticket for him and he was able to board the plane. 15. On 29 June 1995 the Secretary of State refused asylum, finding the applicant’s account implausible and noting inconsistencies in his answers. The applicant’s appeal to a special adjudicator was dismissed on 8 November 1996. During the proceedings the applicant had claimed that the Tanzanian authorities intercepted the letters he was sending home, knew that he had claimed asylum, and had summoned his parents to explain “about [their] son who [was] in a foreign country to abuse the government which [was] in power ...” He provided correspondence from the Royal Mail concerning his enquiries about money which had gone missing from a registered letter dated 27 November 1995 which he had sent to his parents in Tanzania.", "16. In his decision the special adjudicator noted inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews. He placed considerable weight on the fact that the applicant had not mentioned his arrest and torture at his first asylum interview and did not accept the applicant’s explanation that the interviewing officer told him that it was not necessary to give details at this stage or that he was having difficulties with the interpreter. He also noted that the evidence concerning his brother’s arrest was contradictory and that no documentary evidence such as a death certificate had been produced. He therefore did not accept that the applicant’s brother was arrested, tortured or killed.", "He also observed that the applicant had not provided documentary evidence that the Zanzibar authorities were accusing him of tarnishing Tanzania’s good name, and therefore did not accept that it existed. Looking at the evidence as a whole, he concluded that there was no well-founded fear of persecution for a Convention reason established to the required standard. 17. Leave to appeal to the Immigration Appeal Tribunal was refused on 10 January 1997. 18.", "The applicant obtained a copy of his brother’s death certificate and a medical report which recorded that his brother died on 20 January 1995, after being brought to hospital from prison with a history of severe chest pain and general body weakness associated with a fever. He also obtained the summons from the Pemba police headquarters to his parents dated 25 November 1995 requesting their attendance to explain the applicant’s unlawful conduct in embarrassing the government and country. He made representations to the Secretary of State dated 30 January 1997, providing copies and requesting that his letter be considered as a fresh asylum application. 19. By letter dated 4 February 1997 the Secretary of State expressed the view that the police summons was self-serving and not significant, while the death certificate did not disclose proof that his brother, who died of a fever, had been murdered by the authorities.", "He had, accordingly, decided not to treat the representations as a fresh application for asylum, but to reconsider the original asylum application on all the evidence available to him. He refused on that basis to reverse his decision. 20. By letter dated 4 February 1997 the applicant’s representatives requested, alternatively, that the new material be referred to the special adjudicator under section 21 of the Immigration Act 1971. By letter dated 5 February 1997 the Secretary of State informed them that he had decided not to refer the material in question.", "21. By letter dated 29 April 1997 the applicant’s representatives submitted to the Secretary of State a medical report about the applicant’s treatment following detention in Zanzibar, and requested that the new materials be submitted to the special adjudicator under section 21. They submitted further representations on 26 March 1998. The hospital medical report, dated 8 November 1994, from a medical officer recorded that the applicant had suffered a severe nasal haemorrhage, that this was of a “dangerous harm” degree and that the injury had been inflicted by hanging upside down. 22.", "By letter dated 23 April 1998 the Secretary of State informed the applicant that he had considered the new material, but that this evidence did not cause him to reverse his decision to refuse asylum. He noted that the documents would have been available to the applicant at the time of his appeal hearing but were not produced, which cast doubt on their authenticity. Even if the medical certificate and police summons were authentic, however, he saw no reason why the applicant could not return to live safely and without harassment in mainland Tanzania. He refused to make a reference under section 21. 23.", "The applicant applied for leave to apply for judicial review of the Secretary of State’s refusal to refer the new material to the special adjudicator. He submitted an expert opinion confirming that the documents were genuine. The Secretary of State submitted that the documents were irrelevant because the applicant could live safely in mainland Tanzania. He relied on a letter from the British High Commission in Tanzania dated 8 April 1998 which stated that in general there was no evidence of politically motivated detentions on the mainland, although there were “more general human rights problems such as arbitrary detentions and poor penal conditions” on the mainland. 24.", "On 1 July 1998 the application for leave was rejected by the High Court. Mr Justice Jowitt stated: “The Secretary of State’s decision [is] that things have changed and that as matters now stand, whatever was or was not the case in November 1996 and whatever ought or ought not to have been the outcome of the appeal heard then, the applicant can safely return to his home country, provided he goes to the mainland. Having looked at the letter [from the British High Commission], I can see no arguable grounds for saying that the Secretary of State has acted with Wednesbury unreasonableness in concluding that in the light of this new material he has no need to refer the matter to the Special Adjudicator and this application must be refused.” 25. The applicant appealed to the Court of Appeal arguing that the Secretary of State’s refusal was wrong in law and “Wednesbury unreasonable” and that, in claiming that the applicant could live safely on the mainland, he was not complying with international obligations by failing to take into account the applicant’s specific case or documentation. 26.", "On 1 December 1998 the Court of Appeal refused leave to apply for judicial review. In its judgment it noted that the hospital records showed that his brother had died of fever and did not support the applicant’s evidence that his brother had been tortured. Even assuming that the medical report on the applicant and the summons by the police to his parents were genuine, there was no evidence to suggest that the conclusion reached by the Secretary of State that the applicant could live without harassment on the mainland was wrong. 27. On 23 December 1998 the applicant was notified that he would be removed to Zanzibar on 11 January 1999.", "28. On 22 February 1999 the applicant’s wife arrived in the United Kingdom and claimed asylum shortly afterwards. It was recorded that she stated in her interview that the police had harassed her due to her husband’s involvement with the CUF. She had been detained for one day in April 1995 and questioned about her husband’s whereabouts. The police came to her house on 12 February 1999, wanting to know if her husband was back in Zanzibar as there was a rumour that the United Kingdom had sent back most of the asylum-seekers from Zanzibar.", "They were angry because he had claimed asylum and tarnished the name of the President. They threatened to arrest her instead. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Immigration legislation and rules 29.", "Asylum applications are determined by the Secretary of State, pursuant to paragraph 328 of the Immigration Rules and section 3 of the Immigration Act 1971 (“the 1971 Act”). Where leave to enter is refused by the Secretary of State pursuant to section 4 of the 1971 Act, the person may appeal against the refusal to a special adjudicator on the grounds that the removal would be contrary to the United Kingdom’s obligations under the Geneva Convention (section 8 of the 1971 Act). 30. An appeal lies from the special adjudicator to the Immigration Appeal Tribunal (section 20 of the 1971 Act). 31.", "Section 21 of the 1971 Act provides: “(1) Where in any case: (a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the tribunal has dismissed an appeal made to them ...; or (b) the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal ... the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal ...” 32. Rule 346 of the Immigration Rules provides that the Secretary of State will treat representations as a fresh application if the claim advanced is sufficiently different from the earlier claim. He disregards, in considering whether to treat the representations as a fresh claim, material which is not significant, or is not credible, or was available to the applicant at the time when the previous application was refused or when any appeal was determined. B. Domestic immigration decisions on Tanzania 33.", "There have been a number of domestic cases where special adjudicators have rejected “internal flight” possibilities for CUF members from Zanzibar. In Masoud Mussa v. the Secretary of State (30 July 1998), the Government pointed out that the Secretary of State’s counsel had not been present to argue the point. In Omar Machano Omar v. the Secretary of State (24 June 1998), the asylum claimant was an escaped prisoner from Zanzibar and a target for internal extradition proceedings. In Salim Saleh Salim v. the Secretary of State (15 January 1998), the adjudicator found that there was no evidence before him to show that the claimant would be any safer on the mainland than in Zanzibar. 34.", "In the case of Adam Houiji Foum v. the Secretary of State (10 January 2000), the Immigration Appeal Tribunal allowed the appeal of a Tanzanian asylum-seeker who had been involved in CUF activities, on the basis that, as he had suffered torture in Zanzibar and a summons had been issued against him in Tanzania generally, there was a very reasonable prospect that he would be picked up by the police and undergo ill-treatment similar to that previously received in Zanzibar, either at the hands of the Zanzibar authorities or of the police in mainland Tanzania who also exercised brutality on prisoners in their custody. It therefore rejected the “internal flight” option. C. Judicial review in immigration cases 35. Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law. 36.", "These principles do not permit the courts to make findings of fact on matters within the jurisdiction of the Secretary of State or to substitute their discretion for the minister’s. The courts may quash his decision only if he has failed to interpret or apply English law correctly, if he has failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223). 37. In the recent case of R. v. Home Secretary, ex parte Turgut (28 January 2000), concerning the Secretary of State’s refusal of asylum to a young male Turkish Kurd draft evader, Lord Justice Simon Brown, in the Court of Appeal’s judgment, stated as follows: “I therefore conclude that the domestic court’s obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State’s decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.", "All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State’s conclusion on the facts. In the first place, the human right involved here – the right not to be exposed to a real risk of Article 3 treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is before it. Thirdly, whilst I would reject the applicant’s contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the ‘discretionary area of judgment’ – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant’s removal ... – is decidedly a narrow one.” III.", "RELEVANT INTERNATIONAL MATERIAL 38. In January 1997 the US Department of State released the Tanzania Country Report on Human Rights Practices for 1996. It stated: “The Government’s human rights record did not improve and problems persisted. Although the 1995 multiparty elections represented an important development, citizens’ right to change their government in Zanzibar is severely circumscribed. Although new opposition parties were competitive in many 1995 races and won in some constituencies, police often harassed and intimidated members and supporters of the opposition.", "Other human rights problems included police beatings and mistreatment of suspects, which sometimes resulted in death. Soldiers attacked civilians, and police in Zanzibar used torture, including beatings and floggings. Prison conditions remained harsh and life threatening. Arbitrary arrest and prolonged detention continued and the inefficient and corrupt judicial system often did not provide expeditious and fair trials ... Since the 1995 election, police in Zanzibar, particularly on Pemba, have regularly detained, arrested and harassed CUF members, and suspected supporters.", "Despite orders from the Union Government’s Inspector General of Police, officers in Zanzibar continue these activities ... The Wairoba Commission found that pervasive corruption affected the judiciary from clerks to magistrates. Clerks took bribes to decide whether or not to open cases and to hide or misdirect the files of those accused of crimes. Magistrates often accept bribes to determine guilt or innocence, pass sentence, withdraw charges or decide appeals ... There are reports of prisoners waiting several years for trial because they could not pay bribes to police and court officials.", "Authorities acknowledge that some cases have been pending since 1988. The Government initiated efforts as early as 1991 to highlight judicial corruption and increased its oversight ... In the 2 years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both of the two main Zanzibar islands, Pemba and Ugunja. Because CUF won all 20 seats on Pemba, Pembans living on Ugunja were regarded as CUF supporters and as a result were harassed. CUF members accused police of detaining dozens of its members ... Safety is not ensured in Pemba, where security forces dispersed gatherings, intimidated and roughed up individuals ...” 39.", "In the Amnesty International Annual Report 1997, it was stated: “Prisoners of conscience were among scores of government opponents arrested and briefly detained on the islands of Zanzibar and Pemba. Many were held without charge or trial; others faced criminal charges and were denied bail. Scores of political prisoners were tortured and ill-treated on the islands ... Criminal charges such as sedition, vagrancy and involvement in acts of violence, often accompanied by the denial of bail for periods of two weeks or more, were also used as a method of intimidating government critics or opponents.” 40. In their 1998 report, Amnesty International stated: “In December [1997], 14 possible prisoners of conscience on Zanzibar were charged with treason and refused bail. The men, supporters of the CUF, were arrested and initially charged with sedition in November and December, during the week the CUF won a by-election to the Zanzibar House of Representatives.” 41.", "On 8 July 1998 Amnesty International issued a press release expressing concern that the vice-chairperson of the CUF might be arrested on a fabricated treason charge. In Tanzania it noted treason carried a mandatory death penalty. On 24 July 1998 Amnesty called for the immediate release of eighteen leading CUF members or supporters, most of them imprisoned since November 1997 on fabricated treason charges. It expressed concern about their deteriorating health and a denial of adequate medical treatment. 42.", "The 1998 US State Department report on Tanzania noted that serious problems remained in that government’s human rights record. “... the police regularly threaten, mistreat or beat suspected criminals during and after their apprehension and interrogation. Police also use the same means to obtain information about suspects from family members not in custody ... Police in Zanzibar use torture ... Repeated reports from credible sources indicate that the police use torture, including beatings and floggings in Zanzibar, notably on Pemba Island. Both the Zanzibar and Union Governments have denied these charges.", "Police have not yet explained the deaths of six detainees in the town of Morogoro who were electrocuted at the end of 1997 ... Prison conditions remained harsh and life-threatening. Government officials acknowledge that prisons are overcrowded and living conditions are poor. Prisons are authorised to hold 21,000 persons but the actual prison population is estimated at 47,000 ... The daily amount of food allotted to prisoners is insufficient to meet their nutritional needs and even this amount is not always provided ... Earlier the Commissioner of Prisons stated that his department received inadequate funds for medicine and medical supplies.", "Prison dispensaries only offer limited treatment, and friends and family members of prisoners generally must provide medication or the funds with which to purchase it. Serious diseases, such as dysentery, malaria and cholera are common and result in numerous deaths. Guards continued to beat and abuse prisoners. ... There were no reports of political prisoners on the mainland.", "At the year’s end, there were 18 political prisoners in Zanzibar.” 43. The report noted that in January 1998 the police had searched the offices of the CUF party in Tanzania and removed files. In the three years since the election in 1995, government security forces and CCM gangs harassed and intimidated CUF members on both the main Zanzibar islands of Pemba and Ugunja. 44. The Amnesty International 1999 Report for Tanzania stated that: “Eighteen prisoners of conscience, including three arrested during the year, were facing trial for treason on the island of Zanzibar, an offence that carries the death penalty.", "Scores of other opposition supporters in Zanzibar were imprisoned for short periods; some were possible prisoners of conscience. More than 300 demonstrators arrested on the mainland in the capital Dar es Salaam were held for several weeks and reportedly tortured. Conditions in some prisons were harsh ...” The eighteen prisoners, CUF members, included fifteen arrested in 1997 and three arrested in Zanzibar in May 1998, and many had reportedly fallen ill due to a denial of access to medical treatment. According to the report, the conditions in some mainland prisons amounted to cruel, inhuman and degrading treatment, which in the case of Mbeya Prison led to forty-seven deaths in the first half of the year. 45.", "In its press release of 27 January 2000 Amnesty International, reporting on the imminent trial of the eighteen CUF members, referred to them “as prisoners of conscience who are imprisoned solely on account of their non-violent opinions and peaceful political activities”. It described how between the 1995 and the 1998 elections, numerous CUF supporters had been arrested on trumped-up criminal charges, tortured in custody and imprisoned. On more recent events, it commented: “Following lengthy attempts by the Secretary General of the Commonwealth and the United Nations Secretary General to settle the political crisis in Zanzibar, an agreement was finally reached between the CCM and CUF in April 1999. Far-reaching reforms for democratisation, human rights and fair elections were set out in the Commonwealth Agreement, but few have yet been implemented. Although the CUF is allowed to operate more freely, the Zanzibar government continues to press ahead with the trial, intent on convictions and death sentences.” 46.", "In the 1999 US State Department report on Tanzania, issued on 25 February 2000, it was reported, inter alia, that the authorities had been responsible for a number of extrajudicial killings and that several prisoners had died as a result of harsh prison conditions, including inadequate nutrition, medical care and sanitation: “... the police regularly threaten, mistreat or occasionally beat suspected criminals during and after their apprehension and interrogation ... Repeated reports indicate that the police use torture, including beatings and floggings, in Zanzibar, notably on Pemba island.” The situation in Zanzibar was less favourable in a number of respects. It was stated that, except in Zanzibar, Tanzanian citizens generally enjoyed the right to discuss political alternatives freely and opposition party members openly criticised the government, although the government had used the provision prohibiting “abusive language” against the leadership to detain some opposition figures. Opposition parties had generally been more able to hold rallies, although CUF meetings in Zanzibar had been far more restricted than those of other parties. Police continued to break up meetings attended by persons thought to be opposed to the Zanzibar government.", "In Pemba the security forces broke up gatherings and intimidated opposition party officials and the government continued to arrest opposition politicians for holding meetings. “In the four years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both main Zanzibar islands, Pemba and Ugunja ... The CUF accused police of detaining dozens of its members including several local leaders ... citizen’s safety is not assured in Pemba, where security forces dispersed gatherings and intimidated persons ... Almost all international donors have suspended direct assistance to Zanzibar in response to the authorities’ human rights abuses. Under pressure from the international community, the ruling CCM party and the main opposition party, the CUF, signed a political agreement in June to make the political process in Zanzibar fairer; however the provisions of the agreement were not fully implemented by the year’s end and observers believe that the Government did not act in good faith in the period following the signing of the agreement.” IV.", "REPORTS ON THE SITUATION IN TANZANIA PROVIDED BY THE PARTIES 47. In a letter dated 8 April 1998 the British High Commission in Dar es Salaam commented that there were concerns about the situation in Zanzibar but that on the mainland there had been no evidence of political killings, disappearances or politically motivated arrests. There were more general human rights problems, such as arbitrary detentions and poor penal conditions, which were systemic and not related to political activity. 48. In a letter dated 25 May 1998 Michael Hodd of the University of Westminster commented that there was evidence of human rights violations in Zanzibar, including a list of sixty-six missing persons.", "Although there was a good human rights record in mainland Tanzania, it was possible for the Zanzibar government to demand extradition, which had been successful in the case of Abdallah Kassim Hanga, whom a well-informed source reported as having been beheaded. 49. According to a report dated 16 March 1999 obtained by the applicant, Professor Parkin, professor of social anthropology at All Souls College, Oxford, an expert on Uganda, Kenya and Tanzania, stated that while there was less likelihood of persecution in mainland Tanzania than on Zanzibar, he observed a deteriorating situation also affecting the mainland. He referred to particular members of the Zanzibari CCM visiting the mainland and harassing and persecuting CUF dissidents who had taken refuge there. The Zanzibari CUF leader was living in Dar es Salaam but only ever moved out of his flat surrounded by CUF party aides able to protect him.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 50. The applicant complained that he would be placed at risk of torture or inhuman or degrading treatment contrary to Article 3 if he were expelled from the United Kingdom to Tanzania. 51. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.", "The parties’ submissions 1. The applicant 52. The applicant submitted that he faced a real and immediate risk of ill-treatment if he were to be returned to Tanzania. He had been badly treated in detention before he left, suffering ill-treatment which included being kept in a room full of cold water. His feet were tied together and he was hung upside down, until he bled through the nose.", "His brother had also died on being released from detention, in circumstances in which it can properly be deduced that this resulted from his ill-treatment in detention. Both he and his brother had been detained on account of their involvement with the CUF. The reports on the situation in Tanzania showed that there was still active persecution of CUF members, that the government’s human rights record remained poor, that police committed extra-judicial killings and mistreated suspects, that throughout the country prison conditions remained harsh and life-threatening, and that arbitrary and prolonged detentions remained a problem. 53. The applicant submitted that the Tanzanian authorities continued to demonstrate an active interest in his whereabouts, as shown by the police summons which indicated disapproval of the fact that he had claimed asylum in the United Kingdom.", "This was further substantiated by the experiences of his wife, who stated that on 12 February 1999 the police had come to her house enquiring if he had returned to Zanzibar. 54. The applicant disputed the Government’s arguments that his account of events lacked credibility. In particular, the reason that he did not give details of the ill-treatment suffered at the first interview with an immigration officer was that he understood that it was only to draw a rough outline. No inference could be drawn from his failure to mention specific details.", "He had been consistent in his account of torture since and had provided independent and verified evidence of his ill-treatment, corroborating his account. He disputed that there was any sustainable option of “internal flight” as he was still at risk of ill-treatment in mainland Tanzania. He referred to the decisions of special adjudicators in other cases which had also rejected this possibility for even low-level CUF members. There would in any event be the possibility that Zanzibar would demand his extradition from the mainland. 55.", "The applicant in addition argued that Article 3 imposed a positive obligation on the respondent State to investigate properly, in the light of all the evidence, his assertion that he would be exposed to a real risk of treatment contrary to Article 3 if removed to Tanzania. 2. The Government 56. The Government submitted that there were significant factual inconsistencies in the applicant’s account and that he had been found to lack credibility by the special adjudicator. This cast overwhelming doubt upon the applicant’s claim that he had been tortured.", "For example, the applicant was asked directly by the immigration officer at the first interview on 9 February 1995 to identify the basis of his asylum claim in response to which he did not refer to being tortured during detention. He did not mention torture until over a month later. His explanation for this – that the officer failed to record his answer or that the interpreter did not translate it – was rejected by the adjudicator, who had the opportunity to evaluate the applicant’s oral evidence and demeanour. His accounts also showed a confusion relating to the date of his brother’s detention and there was no support in the death certificate for the assertion that his brother had been tortured. 57.", "The Government rejected the applicant’s claim that he would be at risk of ill-treatment if he were returned to Tanzania. They pointed to his low level of involvement in the CUF, the absence of any evidence to suggest that the authorities had shown any interest in him, his family or friends since November 1995, and to the fact that he would not be at risk in mainland Tanzania, which had a good human rights record. They submitted that it was clear from the documentation, such as the Amnesty International press release of 24 July 1998, that an individual with minor CUF involvement would face no significant difficulties in mainland Tanzania. There was no evidence that the Tanzanian authorities would return the applicant to Zanzibar or that he would be detained as a person wanted by the authorities for the offence of bringing the country into disrepute. There was only one recorded incident of extradition to Zanzibar and no indication that grounds existed for the applicant to be so removed.", "In addition, there was no evidence to support the contention that the authorities were aware that the applicant was in the United Kingdom. While the applicant stated that a summons was issued following the interception of a letter from his parents, it may be noted that the summons was dated 25 November 1995 and the letter posted on 27 November 1995. 58. They submitted that there was therefore no basis on which to infer that the applicant was of interest to the Zanzibar or mainland authorities. Accordingly, his expulsion would not violate Article 3 of the Convention.", "B. The Court’s assessment 59. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies. The expulsion of an alien may give rise to an issue under this provision where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.", "In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see, for example, Ahmed v. Austria, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, §§ 38-39, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1853, §§ 73-74). 60. In determining whether it has been shown that the applicant runs a real risk, if deported to Tanzania, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu (see the following judgments: Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A no. 215, p. 36, § 107, and H.L.R. v. France, 29 April 1997, Reports 1997-III, p. 758, § 37).", "Ill-treatment must also attain a minimum level of severity if it is to fall within the scope of Article 3, which assessment is relative, depending on all the circumstances of the case. 61. The Court recalls that the applicant arrived in the United Kingdom from Tanzania on 9 February 1995, where he claimed asylum. In the domestic procedures concerning his asylum application, his claim was based on his membership of the CUF, an opposition party in Tanzania, and the fact that he had been detained and tortured in Zanzibar prior to his departure. He also claimed that his brother had been detained and had died due to ill-treatment and that the authorities were accusing him of tarnishing Tanzania’s good name, increasing the risk that he would be detained and ill-treated on his return.", "62. The Government have urged the Court to be cautious in taking a different view of the applicant’s claims than the special adjudicator who heard him give evidence and found him lacking in credibility. The Court notes however that the special adjudicator’s decision relied, inter alia, on a lack of substantiating evidence. Since that decision, the applicant has produced further documentation. Furthermore, while this material was looked at by the Secretary of State and by the courts in the judicial review proceedings, they did not reach any findings of fact in that regard but arrived at their decisions on a different basis – namely, that even if the allegations were true, the applicant could live safely in mainland Tanzania (the “internal flight” solution).", "63. The Court has examined the materials provided by the applicant and the assessment of them by the various domestic authorities. It finds no basis to reject them as forged or fabricated. The applicant has provided an opinion from the professor of social anthropology at All Souls College, Oxford, that they are genuine. Though the Government have expressed doubts on the authenticity of the medical report, they have not provided any evidence to substantiate these doubts or to contradict the opinion provided by the applicant.", "Nor did they provide an opportunity for the report and the way in which the applicant obtained it to be tested in a procedure before the special adjudicator. 64. The Court accepts that the applicant was arrested and detained because he was a member of the CUF opposition party and had provided them with financial support. It also finds that he was ill-treated during that detention by, inter alia, being suspended upside down, which caused him severe haemorrhaging through the nose. In the light of the medical record of the hospital which treated him, the apparent failure of the applicant to mention torture at his first immigration interview becomes less significant and his explanation to the special adjudicator – that he did not think he had to give all the details until the full interview a month later – becomes far less incredible.", "While it is correct that the medical notes and death certificate of his brother do not indicate that torture or ill-treatment was a contributory factor in his death, they did give further corroboration to the applicant’s account which the special adjudicator had found so lacking in substantiation. They showed that his brother, who was also a CUF supporter, had been detained in prison and that he had been taken from the prison to hospital, where he died. This is not inconsistent with the applicant’s allegation that his brother had been ill-treated in prison. 65. The question remains whether, having sought asylum abroad, the applicant is at risk of ill-treatment if he returns home.", "The Government have queried the authenticity of the police summons, pointing out that it was dated 25 November 1995, while the package to his parents intercepted by the authorities was sent on 27 November 1995. It may be observed however that the special adjudicator’s summary of the applicant’s evidence referred to his claim that his parents had not been receiving any of his letters. Nevertheless, his only proof of postage related to a registered package with money concerning which he had entered into correspondence with the Royal Mail. He provided this correspondence to prove that his mail had been interfered with; it does not appear from the documents that he claimed that it was from interception of this particular item that the police first knew that he was in the United Kingdom. His account is therefore not inconsistent on this point.", "66. The Court recalls that the applicant’s wife, who has now also claimed asylum in the United Kingdom, informed the immigration officer in her interview that the police came to her house on a number of occasions looking for her husband and making threats. This is consistent with the information provided about the situation in Pemba and Zanzibar, where CUF members have in the past suffered serious harassment, arbitrary detention, torture and ill-treatment by the authorities (see paragraphs 38-46 above). This involves ordinary members of the CUF and not only its leaders or high-profile activists. The situation has improved to some extent, but the latest reports cast doubt on the seriousness of reform efforts and refer to continued problems faced by CUF members (see paragraph 46 above).", "The Court concludes that the applicant would be at risk of being arrested and detained, and of suffering a recurrence of ill-treatment if returned to Zanzibar. 67. The Government relied on the “internal flight” option, arguing that even assuming that the applicant was at risk in Zanzibar, the situation in mainland Tanzania was more secure. The documents provided by the parties indicate that human rights infringements were more prevalent in Zanzibar and that CUF members there suffered more serious persecution (see paragraphs 47-49 above). It nonetheless appears that the situation in mainland Tanzania is far from satisfactory and discloses a long-term, endemic situation of human rights problems.", "Reports refer in general terms to police in Tanzania ill-treating and beating detainees (see paragraph 46 above) and to members of the Zanzibari CCM visiting the mainland to harass CUF supporters sheltering there (see paragraph 49 above). Conditions in the prisons on the mainland are described as inhuman and degrading, with inadequate food and medical treatment leading to life-threatening conditions (see paragraphs 44 and 46 above). The police in mainland Tanzania may be regarded as linked institutionally to the police in Zanzibar as part of the Union and cannot be relied on as a safeguard against arbitrary action (see Chahal, cited above, p. 1861, § 104, where the applicant, of Sikh origin, was at particular risk of ill-treatment within the Punjab province but could not be considered as safe elsewhere in India as the police in other areas were also reported to be involved in serious human rights violations). There is also the possibility of extradition between Tanzania and Zanzibar (see the special adjudicator’s decision cited at paragraph 33 and the report cited at paragraph 49 above). 68.", "The Court is not persuaded, therefore, that the “internal flight” option offers a reliable guarantee against the risk of ill-treatment. It concludes that the applicant’s deportation to Tanzania would breach Article 3 as he would face a serious risk of being subjected to torture or inhuman or degrading treatment there. 69. The applicant’s complaints concerning the remedies available to him in respect of the breach of Article 3 fall, in the circumstances of this case, to be examined under Article 13 of the Convention (see İlhan v. Turkey [GC], no. 22277/93, ECHR 2000-VII).", "II. ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION 70. The applicant relied on Article 6 (right to a fair trial) and Article 8 (right to respect for private life), alleging that the expulsion to Tanzania would place him at risk of arbitrary and unfair criminal proceedings if he was arrested, and would threaten his physical and moral integrity. 71. In the light of its conclusion above, the Court finds that no separate issue arises under these provisions.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 72. The applicant complained that he did not have an effective remedy against the proposed expulsion. He relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 73.", "The applicant submitted that he had no effective remedy available to him by which he could challenge the decision of the Secretary of State to deport him to Tanzania. He obtained the supporting documentation for his claims after the hearing before the independent adjudicator. However, the Secretary of State took the view that this material was irrelevant and refused to accede to the applicant’s request that the documents be made available to the adjudicator to examine whether it altered his view. The application for judicial review did not, in his view, provide an opportunity to have his claim assessed by an independent judicial body on the basis of all the evidence. The application only challenged the decision not to refer the material back to the adjudicator.", "Neither the High Court nor the Court of Appeal undertook any form of review of the claim in the light of all the evidence, assessing neither his veracity nor the risks existing if he were returned. The courts’ review was limited in its scope to an examination of the rationality of the decision and the question whether the refusal was so unreasonable that no reasonable Secretary of State could have reached it. The test of irrationality was extremely high. He argued, however, that where evidence was prima facie genuine and went to the heart of his claim, he should have had the opportunity to have the risks reviewed in the light of that evidence. This inability to determine the substance of his Convention complaint deprived the procedure of effectiveness for the purposes of Article 13 of the Convention.", "74. The Government submitted that judicial review furnished an effective remedy, and referred to previous findings of the Court to that effect in expulsion cases (see, for example, Vilvarajah and Others, cited above, pp. 39-40, §§ 123-25; D. v. the United Kingdom, judgment of 2 May 1997, Reports 1997-III; and T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III).", "The domestic case-law demonstrated that the courts considered carefully the evidence before them in such cases. While the domestic court would not form its own independent view of the facts which would then necessarily prevail over whatever view had been formed by the Secretary of State, it was clear that in cases involving extradition and expulsion the domestic court would conduct a thorough examination of the available evidence and, if appropriate, would not be slow in forming, or reluctant to form, the view that the Secretary of State’s decision was unlawful and should be set aside. B. The Court’s assessment 75. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.", "The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the following judgments: Aksoy v. Turkey, 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and Kaya v. Turkey, 19 February 1998, Reports 1998-I, pp.", "329-30, § 106). 76. On the basis of the evidence adduced in the present case, the Court finds that the applicant’s claim that he risked inhuman or degrading treatment contrary to Article 3 of the Convention if expelled to Tanzania is “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52, and Kaya, cited above, p. 330, § 107). The Court has therefore examined whether he had available to him an effective remedy against the threatened expulsion.", "77. In Vilvarajah and Others (cited above, p. 39, § 123) and Soering v. the United Kingdom (judgment of 7 July 1989, Series A no. 161, pp. 47-48, §§ 121-24), the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate.", "It was also accepted that a court effecting judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. This view was followed more recently in D. v. the United Kingdom (cited above, pp. 797-98, §§ 70-71). 78. While the applicant argued that in judicial review applications, the courts will not reach findings of fact for themselves on disputed issues, the Court is satisfied that the domestic courts give careful scrutiny to claims that an expulsion would expose an applicant to the risk of inhuman or degrading treatment.", "The Court is not convinced that the fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely, rationality and perverseness, deprives the procedure of its effectiveness. The substance of the applicant’s complaint was examined by the Court of Appeal, and it had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration since the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Vilvarajah and Others, cited above, p. 39, § 122). 79. The Court concludes, therefore, that the applicant had available to him an effective remedy in relation to his complaints under Article 3 of the Convention concerning the risk of ill-treatment on expulsion to Tanzania.", "Accordingly, there has been no breach of Article 13. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 81.", "The applicant claimed the sum of 2,000 pounds sterling (GBP) in respect of non-pecuniary damage for the failure to investigate properly the risks on return to Tanzania in violation of Article 3 of the Convention and the failure to provide an effective remedy. 82. The Government submitted that no award of damages was appropriate in the circumstances. 83. The Court recalls that it has found no procedural violations concerning the alleged lack of investigation.", "As regards its finding of a violation of Article 3 – that the proposed expulsion to Tanzania would place the applicant at risk of ill-treatment contrary to this provision – the Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained. B. Costs and expenses 84. The applicant claimed a total of GBP 12,583.87, exclusive of value-added tax (VAT), for legal costs and expenses. This sum included a sum of GBP 5,000 for counsel’s advice, GBP 280 for an expert report and GBP 6,935.63 for solicitors’ fees in preparing and submitting the Rule 39 request, the application and two sets of observations.", "85. The Government considered that the amounts claimed were excessive, in particular regarding the claim of eighty-seven hours’ work for counsel and the hourly rate claimed by the solicitor. They proposed the figure of GBP 7,000 as being appropriate. 86. The Court finds that the sums claimed are reasonable.", "It awards the amount claimed in full, together with any VAT that may be chargeable, less the 5,100 French francs received by way of legal aid from the Council of Europe. C. Default interest 87. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that the expulsion of the applicant to Tanzania would violate Article 3 of the Convention; 2.", "Holds that no separate issues arise under Articles 6 and 8 of the Convention; 3. Holds that there has been no violation of Article 13 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, for costs and expenses, GBP 12,583.87 (twelve thousand five hundred and eighty-three pounds sterling eighty-seven pence), together with any value-added tax that may be chargeable, less FRF 5,100 (five thousand one hundred French francs) to be converted into pounds sterling at the exchange rate applicable at the date of delivery of the judgment; (b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 6 March 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. Costa RegistrarPresident" ]

[ "THIRD SECTION CASE OF ALATULKKILA AND OTHERS v. FINLAND (Application no. 33538/96) JUDGMENT STRASBOURG 28 July 2005 FINAL 28/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Alatulkkila and Others v. Finland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrL. Caflisch,MrC. Bîrsan,MrsA. Gyulumyan,MsR. Jaeger, judges,MrE.-J.", "Taipale, ad hoc judge, and Mr V. Berger, Section Registrar, Having deliberated in private on 5 July 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33538/96) against the Republic of Finland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Paavo Alatulkkila and other Finnish applicants and associations (“the applicants” set out in full at paragraph 9 below), on 17 October 1996. 2. The applicants, who had been granted legal aid, were represented by Mr Veikko Hyvönen, professor emeritus in land and water law at the University of Helsinki and resident in Espoo.", "The respondent Government were represented by their Agent, Mr Holger Rotkirch, then Director-General for Legal Affairs in the Ministry for Foreign Affairs, and subsequently by Mr Arto Kosonen, Agent and Director in the same Ministry. 3. The applicants complained, in particular, that a fishing restriction imposed and maintained by governmental decree had violated their right to peaceful enjoyment of their possessions, which allegedly comprised a right to fish certain waters. They also complained of having had no access to a tribunal, or any other effective remedy, in order to challenge the fishing restriction. 4.", "The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr Pellonpää, the judge elected in respect of Finland, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr E.-J. Taipale to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1). 6.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 7. By a decision of 27 March 2003, the Court declared the application admissible in so far as lodged by the applicants listed below (paragraph 10). 8.", "The applicants and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations. 9. On 1 November 2004, the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicants, all Finnish nationals, are: (i.) Mr Paavo Alatulkkila, born in 1935 and resident in Ylitornio, both as the owner of the real properties Harju 15:124 and Töysä 16:43 in Alkkula and as Chairman of the Alkkula fishing association; (ii.) Mr Toivo Honkaniemi, born in 1954 and resident in Ylitornio, both as the owner of the real property Mattila 2:5 in Armassaari and as Chairman of the Armassaari fishing association; (iii.)", "Mr Aatos Korpi, born in 1957 and resident in Kainuunkylä, both as owner of the real property Marjala 19:43 in Kainuunkylä and as Chairman of the Kainuunkylä fishing association; (iv.) Mr Lauri Rousu, born in 1945 and resident in Karunki, both as owner of the real properties Koivuranta 9:33 and Kaivosoja 27:53 in Karunki and as Secretary to the Karunki fishing association; (v.) Mr Matti Kanninen, born in 1934 and resident in Kukkola, both as owner of the real property Niskala 15:42 in Kukkola and as Chairman of the Siikala whitefish fishing association; (vi.) Mr Kaarlo Lampinen, born in 1934 and resident in Tornio, both as owner of the real property Kaishannu 25:33 and as Chairman of the Nuotioranta fishing association; (vii.) Mr Pekka Mäkinen, born in 1954 and resident in Tornio, both as owner of the real properties Luotola 1:47, Hanhisaari 1:51, Viheriälä 1:79 and Paavola 1:103 in Pirkkiö and as Chairman of the Pirkkiö association for joint ownership; (viii.) Mr Timo Kanniainen, born in 1949 and resident in Tornio, both as owner of the real property Kanniainen 8:21 and as Chairman of the Alaraumo association for joint ownership; (ix.)", "Mr Ville Alakuijala, born in 1941 and resident in Tornio, both as owner of the real property Rantalahti 29:36 in Laivaniemi and as Chairman of the Laivaniemi association for joint ownership; (x.) Mr Antti Stark, born in 1944 and resident in Lautiosaari, both as owner of the real property Stark 33:14 in Kaakamo and as Chairman of the Kaakamo fishing association and the Kaakamo association for joint ownership. The applicants are owners of water areas, or are fishermen, in the Gulf of Bothnia. They are also elected representatives of their respective local fishing co-operative (kalastuskunta, fiskelag) or association for joint ownership (jakokunta, osakaskunta; samfällighet, delägarlag). 11.", "By decision of 26 April 1996 and in application of the Fishing Regulation (kalastussääntö, fiskestadgan) for the Tornio River (Torniojoki/Torne älv) Area, the Finnish-Swedish Frontier Rivers Commission (suomalais-ruotsalainen rajajokikomissio, finsk-svenska gränsälvskommissionen) prohibited inter alia all fishing of salmon and sea trout in the relevant waters in the open sea during 1996 and 1997. Fishing other species in the relevant sea area with fixed equipment was prohibited during the periods 1 May-5 July 1996 and 1 May-5 July 1997. The Commission further prohibited all fishing of salmon and sea trout in the river area, except for fishing with hand-held equipment which was authorised on certain days of the week during the period 1 May-15 August 1996 and 1 May-15 August 1997. With some minor exceptions, all fishing in the river area was prohibited during the periods 15 September-15 November 1996 and 15 September-15 November 1997. 12.", "The Commission's decision was announced publicly on 29 April 1996. 13. The Fishing Regulation was issued following the enactment of Act no. 902/1971 incorporating the Finnish-Swedish Frontier Rivers Agreement (as far as Finland was concerned). A subsequent agreement to amend Annex B of the Agreement was incorporated into Finnish law by Decree no.", "67/1987, entitling the Frontier Rivers Commission to decide on the protection of a particular fish species or on the prohibition or restriction of fishing with equipment which had proved harmful for the species either in the entire fishing area or in a specific part thereof, provided such a measure was deemed necessary for the preservation of the species in question for a maximum period of two years at a time (section 22, subsection 2 of the Regulation). 14. The applicants indicated at paragraph 10(x.) above received FIM 14,183.75 (EUR 2,385.54) in compensation paid out of the supplementary State budget for 1996 with a view to covering economic losses which they suffered during the 1996 fishing season due to the restrictions imposed by the Frontier Rivers Commission. The relevant Government decision (no.", "328/1996) was applicable to professional fishermen fishing in the sea area adjacent to the Tornio river. 15. Meanwhile, on 13 June 1996 the Supreme Court of Sweden (högsta domstolen) dismissed charges concerning fishing in violation of the prohibition which the Frontier Rivers Commission had imposed on fishing with certain equipment. The Supreme Court held that the Commission's order issued by virtue of section 22, subsection 2 of the Fishing Regulation could not be applied, since the Agreement and the Regulation had not been brought into force and implemented as required by the Swedish Constitution, namely by an Act of Parliament (decision No. DB 118; NJA 1996 p. 370).", "16. At the beginning of 1997 Finland and Sweden declared that certain provisions of the Fishing Regulation, including section 22, subsection 2 of the Regulation, should not be applied. 17. Thereafter Finland enacted the Act on Fishing in the Tornio River Fishing Area (494/1997) which entered into force on 5 June 1997. The Act entitles the Ministry of Agriculture and Forestry to issue rules concerning fishing on the Finnish side of the Tornio river.", "A decision to that effect (496/1997) entered into force at the same time as the Act. The decision was essentially identical to the Frontier Rivers Commission's decision of 26 April 1996. In 1998 the Ministry issued a new decision (319/1998). 18. Meanwhile, on 5 August 1997 the Rovaniemi Court of Appeal (Finland) found that the sections of the Fishing Regulation concerning prohibited fishing equipment and applicable sanctions fell within the scope of the legislation.", "As Annex B (containing the Fishing Regulation) had been brought into force by a Decree, the Court of Appeal decided not to apply certain sections of the Regulation by virtue of section 92, subsection 2 of the Constitution Act of Finland (Suomen hallitusmuoto, Regeringsformen för Finland, 94/1919) which was in force at the material time (decisions nos. 625-628). 19. On 31 December 1998 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dismissed a request lodged by, among others, the associations represented by applicants listed at paragraph 10(vii.)-(x.) above, and whereby they sought to have the Frontier Rivers Commission's decision of 26 April 1996 annulled.", "The associations had argued that the decision was contrary to the Constitution and ordinary law (including Article 6 of the Convention and Article 1 of Protocol No. 1 as incorporated). Furthermore, the Commission had allegedly failed to hear the associations in a matter affecting the civil rights both of individual owners of fishing waters and of fishermen entitled to the continued enjoyment of the compensation in natura which had been awarded by the Water Court of Northern Finland in 1979. The applicants did not request an oral hearing before the Supreme Administrative Court. 20.", "In its submissions to the Supreme Administrative Court the Frontier Rivers Commission had stated, inter alia, that it was hardly for an organ established by a bilateral agreement to examine whether the Fishing Regulation contravened the Finnish Constitution. The fishing restriction addressed in the annulment request had been imposed of the Rivers Commission's own motion after it had afforded the known parties an opportunity to comment in writing on the fishing restrictions proposed by the Finnish and the Swedish expert whom the Rivers Commission was regularly consulting. According to the dispatching list, all those who had sought an annulment – except for the Laivaniemi association for joint ownership (the applicants at paragraph 10(ix.) above) – had been so consulted and had also commented on the proposal. The nature of the matter had not been such that an oral hearing could have been expected to further the examination thereof.", "The Rivers Commission further opined that the prohibition in question had only concerned salmon and trout and had been consistent with the restriction imposed simultaneously in respect of the Swedish coastal waters. Moreover, as the Commission's decision of 26 April 1996 was to be considered administrative in nature, the Fishing Agreement did not provide for any ordinary appeal against it, nor for any extraordinary remedy. 21. The Supreme Administrative Court had also obtained opinions on the annulment request from the Ministry for Foreign Affairs and the Ministry for Agriculture and Forestry. The applicants had commented on the aforementioned three opinions.", "22. In its decision the Supreme Administrative Court held: \"The Frontier Rivers Agreement between Finland and Sweden, annex B of it being the Fishing Regulation for the Tornio River fishing area, has been incorporated by law no 902/1971. Article 8 of chapter 1 of the Frontier Rivers Agreement ordains that, unless there are other special provisions in the Agreement, the applicable law in each State is the law in force in that State. With regard to the above, the national Fishing Act is applicable where the Frontier Rivers Agreement does not contain special provisions on fishing. According to paragraph 116, subsection 1 of the Fishing Act, the Act and the Decree issued on the basis of the Act are applied also to waters located at the frontier of a State, unless there are provisions stating otherwise that are based on a contract with another State.", "Paragraph 116, subsection 2 ordains, that when an international agreement binding on Finland or the preservation of fish stocks so requires, a decree can be used to bring into force provisions regarding the fishing or catching of seafood by Finnish nationals outside Finnish waters. On the basis of subsection 3 of the same paragraph the decree may also, if an agreement referred to in subsection 2 so requires or for another reason, contain provisions regarding restrictions on catching within or outside Finnish waters. A subsection 2 has been added to paragraph 22 of the Fishing Regulation for the Tornio River area on the basis of an agreement with Sweden, incorporated with decree no 667/1987, amending annex B of the Frontier Rivers Agreement. According to subsection 2, the Frontier Rivers Commission may protect by law a species of fish or limit the use of a trap that has proven harmful, either for the entire fishing area or a part of it, if this is necessary for preserving the species in question, for at most two years at a time. With regard to the above-mentioned paragraph 116 of the Fishing Act, the said addition of subsection 2 to paragraph 2 of the Fishing Regulation could be brought into force with a decree.", "It appears from the documents that a reply to the proposal by the Frontier Rivers Commission concerning fishing restrictions for 1996 and 1997 was submitted in writing on 12 April 1996 by inter alia the Kaakamo fishing association, the Alaraumo fishing association, the Laivaniemi fishing association, which on the basis of paragraph 6 of the Common Land Act acts as legal representative in matters concerning the Laivaniemi area and the common special prerogative, as well as by the Pirkkiö fishing association and certain other associations. Considering the fact that the decision of the Frontier Rivers Commission was issued on 26 April 1996, all the applicants for annulment have been aware of the pending project and have had the opportunity to make known their opinions on the matter before it was decided. Chapter 2, paragraph 22, subsection 2 of the Water Act ordains, that if building in the waterways causes the fish or fishing apparent harm, the permit-holder should be charged with the duty to take action to prevent or reduce damage to the fish and fishing as well as, if needed, to monitor the results of his action in the water area where damage has also been done (fish preservation duty). Such action may consist, according to the nature of the building and its effects, inter alia of planting fish stocks. According to chapter 10, paragraph 24a subsection 3 the same duty may be imposed on the holder of a permit.", "The purpose of the above-mentioned fish preservation duty is not primarily to ensure certain amounts of catch, but to ensure the preservation of stocks of fish, which has also been the aim of the decision by the Frontier Rivers Commission concerning the prohibition on the fishing of salmon and trout. The decision of the Frontier Rivers Commission does not invalidate the aim of restocking obligations in the way presented in the annulment application. The purpose of the decision is to strengthen fish stocks and thus ensure fishing opportunities in the future. The decision of the Frontier Rivers Commission cannot on the grounds specified in the annulment application be held to be contrary to Article 6 of the European Convention of Human Rights or paragraphs 5 and 12 of the 1919 Constitution. On the basis of the above, the decision sought to be annulled is not based on manifestly incorrect application of the law or a (procedural) error that might have fundamentally affected the decision.", "Neither does the application contain any other annulment ground mentioned in paragraph 63 of the Administrative Procedure Act. \" 23. Informal negotiations between Finland and Sweden on further amendments to the Agreement began in June 1999. 24. In a judgment of 6 April 2001 the Swedish Supreme Court ordered the State to compensate fishermen for economic losses suffered as a result of the fishing restrictions imposed in the Tornio river area on the basis of the Frontier Rivers Agreement at the time when it had been implemented by a Government Decree delegating to the Rivers Commission, without a basis in an Act of Parliament, the power to restrict fishing (case no.", "T 3310-00). II. RELEVANT DOMESTIC LAW AND PRACTICE 25. According to the 1919 Constitution, as in force up to 1 March 2000, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 6). A judge or other official was under an obligation not to apply a provision in a Decree which conflicted with constitutional or other laws of Parliament (section 92, subsection 2).", "The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law (438/1990). 26. Under the 1919 Constitution anyone who had suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant was entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the 1919 Constitution was amended by Act no.", "969/1995 which entered into force on 1 August 1995. The new Chapter 2 includes, inter alia, the right to property (section 12; as from 1 March 2000 section 15) and has been incorporated as such into the Constitution of 2000. Under the current Constitution a court of law shall give primacy to a provision therein, if the application of a provision of ordinary law would be in evident conflict with the Constitution. If a provision in a Decree or any other statute of lower rank than an Act of Parliament is in conflict with the Constitution or ordinary law, that provision shall not be applied by a court of law or any other public authority (sections 106-107). 27.", "Under the Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings for damages may be initiated against the State on the basis of its vicarious liability for mistakes or omissions in the exercise of public authority. The State's vicarious liability comes into play only if the responsible official fails in his or her duty to take a measure or perform a task that could reasonably be required in the light of the nature and purpose of the activity in question (Chapters 3 and 4). The claim for damages must be made within ten years from the date when the damage occurred, unless a shorter limitation period applies (Chapter 7, section 2). According to section 63, subsection 1 of the Administrative Judicial Procedure Act, a decision may be annulled if a procedural error which may have had a relevant effect on the decision has been committed, if the decision is based on a manifestly erroneous application of law or on an error which may have had a fundamental effect on the decision, or if new evidence which could have had a relevant effect on the decision appears and it is not the fault of the applicant that the evidence was not presented in time. 28.", "According to the Water Act, the holder of a construction permit relating to a water area may, if the construction would clearly damage the fish stocks, be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters (chapter 2, section 22, subsection 1). 29. A claim concerning a measure alleged to be in violation of the Water Act and whereby it is sought to have such a measure prohibited, the previous conditions re-established or damage compensated, may be lodged with the competent water court (chapter 16, section 33, subsection 1). 30. The general right to fish in public water areas and within the Finnish fishing zone does not include the right to fish salmon and sea trout (see, for example, section 6, subsection 3, and section 12 of the Fishing Act).", "Restrictions on fishing within or outside the territorial waters of Finland may be imposed by decree for the purpose of fulfilling obligations set in an international agreement binding on Finland, for safeguarding fish stocks or for any other comparable special reason. Domestic law applies to watercourses located in frontier areas, unless otherwise agreed on in an agreement between Finland and another State (section 116 of the Fishing Act). Non-compliance with a fishing restriction may be subject to prosecution (sections 107-109). 31. A State Committee Report concerning fishing legislation (no.", "1977:47) suggested, in 1977, that limited rights in rem be abolished. However, in the Government Bill for a new Fishing Act (no. 214/1980), it was suggested that these rights of the State be maintained as being relevant for the protection of the salmon stocks. The provisions concerning the State's fishing waters and fishing rights can now be found in chapter 5 of the Fishing Decree (1116/1982). 32.", "In a judgment of 9 June 1982 (no. 33/1982) the Supreme Water Court (vesiylioikeus, vattenöverdomstolen) found that since time immemorial the owners of fishing waters in the Kemi river (Kemijoki) and its estuary had been engaged in the fishing of salmon and sea trout without any state interference and with its de facto consent. Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area, provided they had been using legal fishing gear. The Supreme Water Court further found that the State too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters. In addition, compensation was awarded to the State for its loss of income from leasing out those waters.", "33. The Supreme Court (korkein oikeus, högsta domstolen) found in its decision of 3 February 1983 (no. 1983 II 29) that the damage which a company had caused by setting up timber floating routes in the Simo river (Simojoki, Sim älv) had engendered effects on private owners of water areas, causing them losses which were to be compensated by virtue of the Water Act. The State, which traditionally had the right to fish salmon in the river, had not used that right for decades, either by leasing out its waters or in any other way. 34.", "By judgment of 7 September 1995 (no. 133/1995) the Supreme Water Court upheld a decision of the Water Court of Northern Finland of 14 April 1994 which had dismissed various fishery associations' claims for compensation for the allegedly failed restocking of the estuary of the Kemi river as ordered on 28 December 1979. The Water Court had found that the defendants had complied with the obligations imposed on them in 1979 for the purpose of safeguarding the relevant fish stocks. In such circumstances the defendants could not be held responsible for the diminution in catches for which compensation had been sought. 35.", "In its precedent no. 2000:97 the Supreme Court examined an action for damages which a hydro-electric power company had brought against the State on the ground that a contract between the two with a view to establishing three power plants along the Kyrö river (Kyrönjoki, Kyro älv) could not be implemented in full, as Parliament had enacted legislation for the protection of the river (1139/1991). The company had sought compensation for wasted planning costs in so far as those had exceeded the amount paid out following the assessment procedure provided for in the Act on the Redemption of Immovable Property and Special Rights (603/1977). The Supreme Court declined to examine this part of the claim as the costs to be compensated had already been finally determined in the procedure under the 1977 Act. 36.", "In so far as the company had claimed compensation for projected profit and related losses, the Supreme Court dismissed the action after having examined its merits. The Supreme Court reasoned, inter alia, as follows: “... The contract did not bind the legislative arm. Possible legislative changes and the possibility that no construction permit would be granted were specifically taken into account in the contract. The Government is therefore under no obligation to compensate for the economic losses suffered by the company due to the fact that the contract for the construction of the power plant was never implemented.", "The company is therefore not entitled to any compensation ... other than that stipulated in the [specific Act 1139/1991 on the protection of the river]. ...” An account of domestic law can also be found in the Court's judgment in Posti and Rahko v. Finland (no. 27824/95, §§ 18-30, 24 September 2002). THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 37.", "The Government objected that the applicants indicated at paragraph 10(x.) above had failed to appeal in the last resort to the Supreme Administrative Court even though they were allegedly of the view that the compensation awarded to them for the losses suffered in 1996 was insufficient. The applicants indicated at paragraph 10(vii.)-(ix.) had likewise failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as they did not apply for any compensation at all, although as professional fishermen fishing in the sea area adjacent to the Tornio river they would have qualified for such compensation out of the 1996 supplementary budget. 38.", "The applicants contended that they had no adequate remedy at their disposal. In its submissions to the Supreme Administrative Court the Frontier Rivers Commission explained that it had issued the 1996 fishing restriction of its own motion, regarding it as an administrative matter against which there was no appeal. The Commission moreover stated to the Supreme Administrative Court that the institution of extraordinary proceedings was also not possible in the matter. The applicants underlined that at any rate, under section 92 of the then Constitution the Supreme Administrative Court was unable to review whether a law was in conflict with the Constitution or even with the Act incorporating the Convention. As to the Government's argument that all applicants should have sought compensation for their losses, they pointed out that the compensation which they received or could have received, covered or would have covered, only a maximum of 85 per cent of their losses during 1996, whereas their grievance under the Convention related to an ongoing deprivation of their possessions.", "Moreover, compensation was payable only to certain professional fishermen and provided they met a number of conditions. 39. In its decision on admissibility the Court noted that this preliminary objection concerned the availability of court remedies which the applicants claim would not have been effective in their specific circumstances. The Court therefore joined this objection to the merits of the complaint under Article 6 § 1. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 40. The applicants complained of being unable to have the Frontier Rivers Commission's decision reviewed by a tribunal within the meaning of Article 6 § 1 of the Convention. This provision reads, in its relevant parts, as follows: “In the determination of his civil rights ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...” A. The parties' submissions 1.", "The applicants 41. The applicants maintained that in conceding that the right to fish belonged to the owner of the waters the Government recognised that the applicants enjoyed a “right” within the meaning of Article 6 § 1. The affected water areas were owned by the respective fishing co-operatives or associations for joint ownership which appear as co-applicants before the Court. The Government had misrepresented domestic law in so far as it purported to afford to the State a general right to fish salmon. On the contrary, this fishing right had always belonged to the owner or other lawful beneficiary of a water area, just like the right to fish any other species.", "It was true that pursuant to section 6, subsection 3, and section 12, of the Fishing Act the State enjoyed a right to fish salmon in certain designated areas such as the Simo river, as confirmed by the Supreme Court in its decision of 3 February 1983 (see “Relevant domestic law”). Those areas – which were normally leased out to fishermen – were not in issue in the applicants' case. Domestic judgments, in their view, had established the principle that where a claim was made that the right to fish exceptionally belonged to someone other than the owner of the water area, the burden was on that claimant to refute the general presumption that the right belonged to the owner. If the State made such a claim, it too had to produce convincing proof to that effect. 42.", "The applicants added that, in its judgment of 17 August 1994, the Supreme Court confirmed the absence of any state-owned water area off the city of Tornio in the northern part of the Gulf of Bothnia (judgment no. m 91/202). A judgment of the Land Court of Northern Finland of 14 May 1998 furthermore confirmed that the waters surrounding some state-owned islands within the aforementioned area belonged to the applicant association indicated at paragraph 10 vii. and not to the State. 43.", "The applicants submitted that the procedure before the Supreme Administrative Court did not satisfy Article 6 § 1 of the Convention as they were not properly heard in the annulment proceedings. In particular, the Supreme Administrative Court held no public hearing. No other avenues of redress in the courts had been open to them. 2. The Government 44.", "The Government contested the applicability of Article 6 § 1. In light of section 12 of the Fishing Act, other legislation and various jurisprudence, they argued that the prohibition and restrictions imposed by the Frontier Rivers Commission did not affect a “right” of the applicants within the meaning of Article 6 § 1. On the Finnish side of the Tornio River area and most other rivers and some sea areas, the salmon and sea trout as well as the right to fish them belonged to the State on the basis of a restricted right in rem (regaalioikeus, regale). This right was independent of the ownership of water areas and belonged to the State on the basis of public law. The restricted right in rem had been introduced into Finnish legislation and case-law already in the 1540s.", "Taxes were levied by the State on all salmon caught and over the centuries this transformed into a right to collect rent on fishing areas. The State's right to fish remained in force where it continuously used its rights, notably and publicly. This requirement was satisfied where it leased out its right or issued temporary fishing permits for payment. There was accordingly a prohibition on the fishing of salmon or sea trout without a specific permission by the State to do so. Landowners of river areas could not sell or lease fishing rights for those fish.", "45. In the present case, the applicants were owners of the water areas in question but the right to fish salmon belonged to the State independently of that ownership. Domestic law did not recognise that the applicants had any right to the fishing in question, although they did enjoy rights in respect of other types of fish. 46. Were the Court to have another view on the question of applicability, the Government considered that the applicants had effective access to court.", "The Convention had been incorporated into Finnish law by an Act of Parliament with the status of ordinary law. Even assuming therefore that the decision of the Frontier Rivers Commission affected a “right” of the applicants within the meaning of Article 6 § 1, the applicants were properly heard in the annulment proceedings before the Supreme Administrative Court. They had not asked for any oral hearing at any stage and therefore waived the possibility. Furthermore, if the applicants had considered that their rights had been violated through unlawful proceedings they could have presented a claim for damages in a district court or sought damages under tort legislation. B.", "The Court's assessment 1. Applicability of Article 6 § 1 47. The Court must first ascertain whether there was a dispute over a “right” within the meaning of Article 6 § 1 which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise, and the result of the proceedings must be directly decisive for the right in question. Finally, the right must be of a “civil” character (see, for example, Zander v. Sweden, judgment of 25 November 1993, Series A no.", "279-B, p. 38, § 22). 48. Article 6 § 1 of the Convention is not aimed at creating new substantive rights without a legal basis in the Contracting State, but at providing procedural protection of rights already recognised in domestic law (see, for example, W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121-A, p. 32-33, § 73). The term “right” must nevertheless be given an autonomous interpretation under Article 6 § 1 of the Convention (see, for example, König v. Germany, judgment of 28 June 1986, Series A no.", "27, pp. 29-30, §§ 88-89). 49. The Court observes in the present case that it is not disputed that the applicants were owners of water areas and enjoyed rights to fish those waters. The Government have not disputed that, prior to the decision to prohibit fishing of salmon and sea trout, the applicants also carried out fishing of these species.", "It is not asserted that the applicants carried out fishing under lease granted by a state authority or under any express agreement or that they made any payment to the state authorities in respect of any catches. Notwithstanding the restricted right in rem over salmon and sea trout vested in the State relied on by the Government, the Court finds therefore that the applicants can claim to have exerted rights over the fishing stocks in general linked to their ownership of the waters that arguably gave rise to a “right” which is civil in nature and falls within the scope of Article 6 § 1 of the Convention. The Court is reinforced in this view by the fact that the applicants at paragraph 10(x.) above received compensation for loss of income as professional fishermen arising from their inability to continue to fish salmon and sea trout. 50.", "Although Article 6 cannot guarantee a right of access to a court with power to invalidate or override a law enacted by the legislature (see, for instance, Ruiz-Mateos and Others v. Spain, application no. 14324/88, Commission decision of 19 April 1991, DR 69, p. 227; Posti and Rahko v. Finland, no. 27824/95, ECHR 2002-VII, § 52), the Court may examine the direct effect of the decisions of the Finnish-Swedish Frontier Rivers Commission which prohibited fishing under the powers bestowed on them by various decrees. Since these decisions impinged on the previously exercised fishing rights of the applicants, the Court is satisfied that a genuine and serious dispute over the existence and scope of the applicants' civil right to fish for certain species within their waters arose. The Court must accordingly examine whether the applicants had effective access to court in respect of that dispute.", "2. Compliance with Article 6 § 1 51. The Court recalls that it has already had occasion to consider whether access to court concerning disputes about fishing rights was provided in Posti and Rahko v. Finland (cited above, §§59-65). It found that a claim for damages in tort would only succeed against the State if the applicants succeeded in showing that a representative of the executive branch had failed in his or her duty to take a measure or perform a task that could have reasonably been required in the light of the nature and purpose of the activity in question. No prospect of such a possibility existed where the impugned measures were undoubtedly based on statutory law.", "The same considerations apply in the present case. 52. Some of the applicants (at paragraph 10(vii.)-(x.) above) did, however, contest the decision of the Frontier Rivers Commission before the Supreme Administrative Court in the context of an application for annulment. While it is true that the examination of an annulment or reopening request will not generally satisfy the requirements of Article 6 § 1 where such is an extraordinary remedy with limited scope of review and not involving an examination of the merits (see, e.g., Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no.", "52, p. 31, § 86), the Court recalls that a certain respect must be accorded to decisions taken by administrative authorities in particular in specialised areas of the law, such as planning which involved the exercise of discretion involving a multitude of local factors inherent in the choice and implementation of policies (see, mutatis mutandis, Zumtobel v. Austria, judgment of 21 September 1993, Series A no. 268‑A, § 32; Bryan v. the United Kingdom, judgment of 22 November 1995, Series A no. 335‑A, § 47; Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996‑IV, § 75). The Court considers that similar considerations arise in the field of environmental protection, where there are important conflicting considerations and interests and, as in this case, a wider international context in the form of a co-operation agreement with a neighbouring State implicated in the environmental concerns in issue. In the present case, the Supreme Administrative Court considered the lawfulness of the prohibition applied to the applicant associations and its conformity with the Constitution as well as Article 6 of the Convention.", "While there is no express reference to Article 1 of Protocol No. 1, the reasoning does give attention to the fairness of the procedure, finding that the applicants were given an adequate opportunity to put their objections to the Frontiers River Commission and also includes considerations as to the necessity and proportionality of the prohibition in reaching the conclusion that it was necessary for safeguarding fish stocks. It did not at any point decline jurisdiction in answering the applicants' points (see, mutatis mutandis, Zumtobel v. Austria, cited above, § 32; Posti and Rahko, cited above, § 60). The Court considers that having regard to the context in this case, the implementation of an international agreement geared to the general preservation of fishing stocks over an extensive area, the proceedings available before the Supreme Administrative Court provided the applicants with effective access to court for review of their claims. 53.", "Insofar as the applicants complained that there was no oral hearing before the Supreme Administrative Court, which was the only judicial instance to consider the applicants' case, the Court recalls that the entitlement to a “public hearing” in Article 6 § 1 implies a right to an “oral hearing” at least before one court instance. This obligation is not an absolute one and a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be made explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66; and Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, pp.", "19-20, § 58). The Court observes that in the present case there is no indication that the applicants made any request for an oral hearing, as was open to them. It considers that the applicants could have been expected to ask for an oral hearing before the Supreme Administrative Court, if they had found it important that one be held in the proceedings at issue. However, they chose not to do so and must thereby be considered to have unequivocally waived their right to an oral hearing in those proceedings. It does not appear that the proceedings involved any questions of public interest which would have made it incumbent on the Supreme Administrative Court to hold an oral hearing of its own motion.", "54. The Court concludes that there has been no violation of Article 6 § 1 of the Convention either as regards the scope of review by the Supreme Administrative Court or the lack of an oral hearing. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1, BOTH IN ISOLATION AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 55.", "The applicants complained that the fishing prohibitions imposed in the decision of the Frontier Rivers Commission violated their property rights under Article 1 of Protocol No. 1 and also discriminated against them in comparison with fishermen in adjacent waters. Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 14 of the Convention provides as follows: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, origin, association with a national minority, property, birth or other status.” A. The parties' submissions 1. The applicants 56. The applicants contended that the complete prohibition on fishing species other than salmon and sea trout from 1 May to 5 July 1997 was arbitrary and unjustified. In the coastal waters other species than salmon could well be fished without jeopardising the salmon stock.", "This prohibition, for which the applicants received no compensation, prevented them from exercising their profession and enjoying their possessions. Nor was a complete prohibition required by the Frontier Rivers Agreement. The restrictions imposed on the Swedish side and particularly in the Kalix river, while not as lengthy and far-reaching as those imposed on the applicants' waters, had successfully ensured the fish stocks without placing an excessive burden on the holders of the fishing. The restrictions on the fishing of salmon and trout were likewise excessive with a view to safeguarding the stocks. The restrictions applied at the period when it was possible to benefit from their possessions and nearly all their value had been lost.", "57. While agreeing on the necessity of salmon protection as such, the applicants considered that the prohibition in question was not supported by adequate reasoning showing its necessity in place and time, particularly in comparison with the adjacent water areas both on the Finnish and the Swedish side, where there were more lenient restrictions. The applicants' water areas were the only ones in the Baltic Sea and the Gulf of Bothnia to be governed by a system of complete prohibition of salmon fishing as opposed to a quota system. While maintaining a system of complete prohibition on owners, the State was able to collect revenue through selling licences for hand-held fishing by non-residents, such fishing being permissible throughout the year. This was inconsistent.", "58. The applicants underlined that their losses included diminution in the overall value of their water areas and not just the restricted opportunity to fish. They contested the Government's argument that strict control of the fishing of salmon in the relevant waters was necessary in view of the EU Salmon Action which required that the production of fry in the Tornio river area attain 50 percent of the potential level of production by 2010. A statement by the National Research Institute for Game and Fishing of 10 July 2001 indicated that the planting of fry would be discontinued in 2003 as nearly 100 percent of the potential level of production had already been attained. 59.", "The applicants also referred to the judgment of 6 April 2001 in which the Swedish Supreme Court ordered the State to compensate fishermen for economic losses suffered as a result of the fishing restrictions imposed in the Tornio river area on the basis of the Frontier Rivers Agreement. On the other hand, the judgments of the Rovaniemi Court of Appeal which have been invoked by the Government were of no relevance to the applicants' case as they were rendered prior to the enactment of the new Constitution of 2000. At the time the courts were barred from examining whether a law of ordinary rank was in conflict with the 1919 Constitution and therefore could not avoid applying Act no. 902/1971 incorporating the Finnish-Swedish Frontier Rivers Agreement and the Fishing Regulation. Nor did the 1998 decision of the Ministry for Agriculture and Fishery (no.", "319/1998) in substance remove the conflict between the fishing restrictions and the Constitution and Convention. In refusing to annul the decision of the Frontier Rivers Commission the Supreme Administrative Court failed to examine this alleged unconstitutionality, one of the grounds on which the applicants had sought an annulment. 60. The applicants considered the discrimination against them obvious and contested the Government's suggestion that the fishing restriction did not impact on them in an excessively hard manner. During the two summer months when fishing was permitted the catches were small as the fish did not move around much during that period.", "The waters were covered by ice during seven other months of the year, when fishing was difficult. Accordingly, even though the restrictions lasted only a few months, their impact was severe in that most of the applicants' potential catches would otherwise occur during that period. By contrast, the owners of the waters adjacent to those owned by the applicants were allowed to fish other species than salmon throughout the year and thus able to fish most of their potential catches. 2. The Government 61.", "The Government contested the applicability of this provision in the instant case. Neither the Convention nor any of its Protocols protected a right to obtain possessions. The applicants could not rely on any special grounds entitling them to fish salmon and sea trout, as an exception to the State's limited right in rem. Moreover, as the Supreme Administrative Court noted, the objective of the decision of the Frontier Rivers Commission was to increase the fish stock and to ensure future fishing possibilities. 62.", "Even assuming that the restricted fishing right did form a part of the applicants' “possessions” for the purposes of Article 1 of Protocol No. 1, the Government submitted that the contested measures amounted to a control of the use of those possessions and the second paragraph of Article 1 would be applicable. They were especially necessary for the protection of salmon and sea trout in the conditions at hand. In order to implement such protection, the legislature must have a wide margin of appreciation in determining whether the problem warranted measures of control and in choosing how to implement such measures. The decision of the Frontier Rivers Commission sought to safeguard the future stocks of salmon and sea trout.", "In the Government's view the aforesaid aim of the interference undoubtedly served the general interest, even if the fishing restrictions targeted private fishermen. Nor was the interference based on manifestly unreasonable grounds. The protection of salmon and sea trout in the sea and in the Tornio river fishing area and the restriction of the use of harmful fishing equipment was necessary in order to ensure the existence of natural stocks of salmon and sea trout. Due to the strict control of the fishing of salmon, the number of fish moving up the Tornio river has significantly increased in the past few years. The fact that the restrictions concerned different periods of time for different areas was based on the migration of the salmon.", "The idea was not to prohibit all fishing, only the use of such fishing equipment that caught salmon too efficiently. 63. The Government submitted, moreover, that with the exception of the applicants indicated at paragraph 10(x.) above they have not adduced evidence on any concrete economic loss or other damage caused by the impugned measures. All fishermen who suffered economic losses as a result of the restrictions governing the salmon fishing in the open sea adjacent to the Torniojoki river, were in principle entitled to compensation within the limits of an earmarked sum in the State's supplementary budget for 1996.", "The applicants indicated at paragraph 10(i.)-(ix.) above failed to seek such compensation. 64. At any rate, the applicants had sufficient remedies at their disposal for challenging the fishing restrictions, and accordingly also the procedural requirements inherent in Article 1 of Protocol No. 1 were fulfilled.", "In light of the above considerations and having regard to the legitimate aim pursued by the legislation as well as the wide margin of appreciation allowed to States in matters relating to Article 1 of Protocol No. 1, the Government concluded that the measures taken to achieve this aim were appropriate and proportionate, and that there was a fair balance between the general interests of the community and the rights of the applicants. 65. In respect of the alleged discrimination the Government argued that as the applicants' restricted fishing-right did not form part of their “possessions” for the purposes of Article 1 of Protocol No. 1, Article 14 was not applicable.", "Were the Court to have another view, the Government questioned whether the fishermen in adjacent waters were in such a similar position that their treatment could be compared with that afforded to the applicants. At any rate, it was necessary to restrict the fishing of salmon in order to safeguard the relevant wild salmon stocks. The differences between the restrictions imposed were justified by fishery-related reasons indicated by the Frontier Rivers Commission. There was an objective and reasonable justification to restrict fishing more in the coastal waters, estuaries and rivers than, for example, in the open sea. The impugned restrictions were of a short duration.", "Taking also the State's margin of appreciation into account, there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised, and the applicants were not discriminated against in the enjoyment of their assumed property rights. B. The Court's assessment 1. Article 1 of Protocol No. 1 in isolation 66.", "The Court finds that the applicants enjoyed fishing rights linked to their ownership of the waters. The limitation of those rights through the decision of the Frontier Rivers Commission amounted to a control of the use of their possessions, within the meaning of the second paragraph of Article 1 of Protocol No. 1. 67. The Court finds, essentially for the reasons invoked by the Government, that this interference with the applicants' property rights was justified, being lawful and pursuing, by means proportionate to that aim, the legitimate and important general interest in protecting the fish stocks (see mutatis mutandis Posti and Rahko v. Finland, cited above, § 177).", "Noting the margin of appreciation accorded to Contracting States in such matters, it has no reason to doubt that the state of fish stocks required conservation measures and that the timing and application of the measures were geared to local conditions. Moreover, the interference did not completely extinguish the applicants' right to fish in the relevant waters. Professional fishermen, whose livelihood was affected by the ban, were provided with the possibility of applying for compensation for economic losses and the applicants at paragraph 10(x.) above made use of this. While the applicants complain that this would not provide a full measure of compensation for their purported losses, they do not deny that such compensation is available.", "Insofar as compensation was not available as such for loss of leisure or sporting possibilities, the Court has previously stated that the national authorities must enjoy a wide margin of appreciation in determining not only the necessity of the measure of control concerned but also the types of loss resulting from the measure for which compensation will be made; the legislature's judgment in this connection will in principle be respected unless it is manifestly arbitrary or unreasonable (see Lithgow v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 51, § 122, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III, § 75). The Court finds in the present case that it is not unreasonable for the authorities to distinguish between losses linked to livelihood and the effects on enjoyment of property which are not so connected. 68.", "Accordingly, the Court finds that the control of use was compatible with the requirements of Article 1 of Protocol No. 1 and disclosed no breach of that provision taken alone. 2 Article 1 of Protocol No. 1 read in conjunction with Article 14 of the Convention 69. The Court recalls that Article 14 of the Convention has no independent existence and that to be applicable the facts of a case must fall within the ambit of another substantive provision of the Convention.", "For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it is based on personal characteristics such as race or association with a national minority and if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, ECHR 2000-X, § 37). 70. In the present case the Court is satisfied that the allegation of discrimination falls within the ambit of Article 1 of Protocol No.", "1. However, on the material submitted, it finds no reason to doubt that there was sufficient justification for the different timing of restrictions applied in the various water areas as well as for differing prohibitions of fishing gear in particular locations, namely to take into account the spawning routes of the salmon and the more confined nature of coastal, estuary and river waters. To the extent therefore that the applicants have been treated differently from those with fishing rights in other areas, the Court considers that it may be regarded as having objective and reasonable justification. For the reasons given above under Article 1 of Protocol No. 1, the principle of proportionality has also been respected.", "71. Accordingly, there has been no violation of Article 1 of Protocol No. 1, read in conjunction with Article 14 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been no violation of Article 6 § 1 of the Convention; 2.", "Holds that there has been no violation of Article 1 of Protocol No. 1 in isolation; 3. Holds that there has been no violation of Article 1 of Protocol No. 1 read in conjunction with Article 14 of the Convention; Done in English, and notified in writing on 28 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "FIFTH SECTION CASE OF GURSKA v. UKRAINE (Application no. 35185/04) JUDGMENT STRASBOURG 14 December 2006 FINAL 14/03/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gurska v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:[Note1] MrP. Lorenzen, President,MrsS.", "Botoucharova,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ. Borrego Borrego,MrsR.", "Jaeger, judges,[a2]and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 20 November 2006[Note3], Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35185/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Anelya Vatslavivna Gurska (“the applicant”), on 24 September 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaitsev.", "[N4]3. On 5 December 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1956 and lives in the village of Sobolivka, the Zhytomyr Region. 5. By three judgments of 18 February, 5 March and 20 May 2003 the Dzerzhynsk Town Court ordered the Sobolivka Village Council to pay the applicant UAH 4,097.01[1] in salary arrears and other payments. 6. The Romaniv Town Bailiffs’ Service instituted enforcement proceedings in respect of the first judgment on 3 March 2003 and in respect of two other judgments on 26 June 2003.", "7. On 14 June 2003 the Bailiffs’ Service discontinued the enforcement proceedings on the ground that the Cabinet of Ministers of Ukraine had not foreseen the order of payment of such judgment debts. 8. In January 2004 the applicant lodged a complaint with the same court against the Bailiffs’ Service for failure to enforce the judgments in her favour. On 5 February 2004 the court rejected her claim, finding no fault on the part of the Bailiffs’ Service.", "On 8 April 2004 the Zhytomyr Regional Court of Appeal upheld the decision of the first instance court. The courts held that the judgments could not be enforced as there were no procedure regulating the seizure of funds from the accounts of the State Treasury. The applicant’s appeal in cassation is still pending before the Supreme Court of Ukraine. 9. On an unspecified date the applicant received UAH 364.92[2].", "The judgments remain to a large extent unenforced (UAH 3,732.09[3]). II. RELEVANT DOMESTIC LAW 10. The relevant domestic law is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, § 20-25, 29 June 2004).", "THE LAW[Note5] I. ADMISSIBILITY 11. The applicant complained about the State authorities’ failure to enforce the judgments of the Dzerzhynsk Town Court of 18 February, 5 March and 20 May 2003 in full and in due time. She invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” 12. The Government contended that the applicant had not exhausted domestic remedies as the proceedings, in which she had challenged the alleged inactivity of the Bailiffs’ Service, were still pending before the domestic courts. The Government further stated that the applicant had not resubmitted the writs of execution for the judgments of 18 February, 5 March and 20 May 2003 to the Bailiffs’ Service.", "The Government therefore proposed that the application be declared inadmissible. 13. The Court recalls that it has already dismissed the Government’s analogous contentions in similar cases (see, for instance, Voytenko, cited above, §§[TAV6] 29-31, and Garkusha v. Ukraine, no. 4629/03, §§ 18-19, 13 December 2005) and finds no reason to reach a different conclusion in the present case. 14.", "The Court concludes that this part of the application raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring it inadmissible. II. MERITS 15. In their observations, the Government put forward arguments similar to those in the case of Voytenko v. Ukraine, contending that there had been no violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No.", "1 (see Voytenko, cited above, § 37). 16. The applicant disagreed. 17. The Court notes that to date the judgments of the Dzerzhynsk Town Court of 18 February, 5 March and 20 May 2003 have remained unenforced for around three years and seven months, and three years and four months, respectively.", "18. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the present application (see Voytenko, cited above, §§ 39-43 and 53-55). 19. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 20. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 21. The applicant claimed the remaining amount of the judgment debts (see paragraph 9 above) in respect of pecuniary damage. She further claimed UAH 46,000[4] for non-pecuniary damage. 22. The Government maintained that the applicant had not substantiated her claims and submitted that the finding of a violation would constitute sufficient just satisfaction.", "23. In so far as the applicant claimed the amount awarded to her by the judgments at issue, the Court considers that the Government should pay her the outstanding debt in settlement of her pecuniary damage. 24. As to the applicant’s claim in respect of non-pecuniary damage, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant the amount of EUR 1,300. B.", "Costs and expenses 25. The applicant also claimed UAH 600[5] for the cost of legal advice concerning the domestic proceedings and those before the Court. She submitted a certificate issued in this respect by Mr P. Veremchuk, a lawyer practising in the town of Romaniv, the Zhytomyr Region. 26. The Government contested this claim.", "27. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the requested sum of EUR 100 for costs and expenses in the proceedings before the Court. C. Default interest 28. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the judgment debts still owed to her, as well as the following sums, to be converted into the national currency of the respondent State at the rate applicable on the date of payment: (i) EUR 1,300 (one thousand three hundred euros) in respect of non‑pecuniary damage; (ii) EUR 100 (one hundred euros) for costs and expenses; (iii) plus any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident[Note7] [1]. Around 679 euros – “EUR”.", "[2]. Around EUR 61. [3]. Around EUR 618. [4].", "Around EUR 7,641. [5]. Around EUR 100. [Note1]Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). The Registrar’s name is not to be lined up with the judges’ names (no tab to be added).", "[a2]Substitute judges’ names are not to appear. [Note3]Indicate only the date(s) of the deliberations of the Chamber which actually adopts the judgment. [N4]Remove paragraph for clone, repetitive or other simple cases. [Note5]Delete sections that are not needed. [TAV6]1For decisions and judgments adopted before 1 November 1998, precede paragraph reference by page reference.", "Add a second \"§\" if referring to more than one paragraph. [Note7]Check names. Adapt tabs." ]

[ "SECOND SECTION CASE OF ALKOVIĆ v. MONTENEGRO (Application no. 66895/10) JUDGMENT STRASBOURG 5 December 2017 FINAL 05/03/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Alković v. Montenegro, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Julia Laffranque,Işıl Karakaş,Nebojša Vučinić,Paul Lemmens,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 14 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "66895/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Montenegrin national, Mr Rizo Alković (“the applicant”), on 9 November 2010. 2. The applicant was represented by Ms S. Lompar, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić. 3.", "The applicant alleged, in particular, that the authorities had failed to effectively investigate a series of ethnically and/or religiously motivated attacks against him perpetrated by individuals between 26 May and 22 September 2009. 4. On 14 December 2015 the application was communicated to the Government. 5. On 23 March 2016, under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, the President of the Section granted the European Roma Rights Centre leave to intervene as a third party in the proceedings.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1960. He currently lives in Belgium, but at the material time lived in Podgorica, Montenegro. 7.", "The applicant is a Roma and a Muslim. On an unspecified date in 2006 the applicant and his family moved into an apartment in a building constructed for socially disadvantaged families. According to the applicant, because of constant attacks in which his car and the apartment were damaged, the perpetrators of which were never found, he installed a camera outside his apartment. A. Events between 26 May and 22 September 2009 and the ensuing proceedings 8.", "On 26 May 2009 the applicant’s next-door neighbour, Y, was watching a kickboxing match between a Montenegrin and a Bosnian contestant on television. The applicant overheard the next-door conversation as the doors of both his and Y’s (adjacent) terraces were open. When the Bosnian kickboxer appeared with his coaches, all of whom were Muslim, Y allegedly said that he would slaughter one of them, and X, another neighbour, made a disparaging reference to the Bosnian kickboxer’s Turkish descent. According to the applicant, X left Y’s apartment at a certain point and went to his car, from which he took a gun. Y said “turn it to the left”, which was the direction of the applicant’s terrace.", "This was followed by nine to ten gunshots, and Y’s calling out insulting references to the applicant’s “Turkish mother”. X, Y and Y’s family picked up the spent cartridges from the ground afterwards. 9. On 9 September 2009 three neighbours, V (Y’s wife), S and B, were talking on the next-door terrace. As he was on his terrace, the applicant overheard the conversation.", "V said that she was fighting “cockroaches, frogs, nits and lice, and all sorts of other things”, which had been brought by “those dirty gipsies” (“od ovija gabeljčina”). V continued by saying that B and S “[could] use a hammer and a pruning knife (kosijer), and [she] would use an axe”. S replied that “her [people] carried swords”. V said that the axe could serve just as well. S answered “no, no, he is a Muslim, I have a sword”.", "B said “all is fine, whatever is more readily available” (“valja što god prije stigne”). V said loudly “An axe, an axe, a sledgehammer, like the one used on pigs”. 10. On 15 September 2009 Y was having an argument with M, another neighbour, when X joined and said, among other things, that if he “saw red”, he would “kill both you and your brother here like a dog” (“e ću te ubit ka psa i tebe i brata ođe”), apparently pointing at the applicant’s apartment, adding “dirty gypsy” (“cigane glibavi”) and “trash” (“ovo smeće”). This was witnessed by M’s brother, D. It is unclear from the case‑file if the applicant was present during the argument or if he learned about it in some other manner.", "11. On 22 September 2009, the day of Ramadan Bayram, a religious holiday celebrated by the applicant and his family, a large cross was drawn on the applicant’s apartment door, and a large message was written on the wall next to it saying “move out or you’ll bitterly regret it” (“seli se, usko će ti bit”). The applicant called the police, who came and took photographs of the cross and the message. The same day the applicant lodged a criminal complaint with the police against the families of X, Y, S and B, and one more family living in the building. 12.", "Between 19 and 22 October 2009 the police interviewed X, Y, V, B, M, D, and three other neighbours. 13. X, Y, V, and B denied the applicant’s allegations. X and Y also denied that they had watched the match together, and Y submitted that everything he had said had been addressed to the Bosnian kickboxer. Both X and Y confirmed that they had heard the shots but said they did not know who had fired them.", "Y and his children had indeed picked up the spent cartridges from the ground, not in order to hide anything, but because the children found the spent cartridges interesting to play with. Neither X nor Y knew who was responsible for the incident of 22 September 2009, but they suspected the applicant himself. 14. V submitted that the discussion of 9 September 2009 had referred to another person sought by the police at the time in relation to various attacks, and they had been discussing how they would defend themselves in the event of an attack. B denied that she had been in V’s apartment on that occasion.", "15. M confirmed that during the argument with Y, X had come and said that if he “saw red” he would “kill them, as well as this gypsy” (“napraviću dženaze i vama, a i ovom ciganinu”), pointing in the direction of the applicant’s flat. M had assumed that he had meant the applicant. D confirmed M’s statement. 16.", "The other two neighbours were not aware of any conflicts amongst the neighbours, or that anybody ill-treated or insulted the applicant on the basis of his national origin. They had no idea who could be responsible for the incident of 22 September 2009. The third neighbour, N.L., confirmed the applicant’s submissions in relation to another incident (see paragraph 30 (b) below). 17. On 26 October 2009 the case file was transmitted to the State prosecutor’s office (Osnovno državno tužilaštvo) in order to assess whether there were any elements of the criminal offence of jeopardising someone’s security (ugrožavanje sigurnosti).", "18. On 18 November 2009 the applicant lodged a criminal complaint with the higher State prosecutor’s office (Više državno tužilaštvo) in Podgorica in relation to the above events. He filed the complaint against X, Y, V, S and B for incitement to ethnic, racial and religious hatred, discontent and intolerance (izazivanje nacionalne, rasne i vjerske mržnje, razdora i netrpeljivosti, hereinafter “hate crime”) in connection with discrimination, racial and otherwise (see paragraphs 38-39 below). He also enclosed relevant video material. 19.", "On 24 November 2009 the higher State prosecutor’s office rejected the complaint on the grounds that there were no elements of any hate crime or other criminal offence within its competence. The applicant was notified that he could take over the prosecution as a subsidiary prosecutor and that the case file had already been forwarded to the State prosecution service on 26 October 2009 (see paragraph 17 above). 20. On 25 November 2009 the State prosecution service issued an official report (službena zabilješka) finding that the impugned words of 26 May, as well as those of 9 September 2009, which referred to the use of swords and axes, had not been addressed to either the applicant or anybody close to him, and that the incident of 15 September 2009 could not be considered a threat. It was concluded that none of those three events had involved an element of jeopardising someone’s security, or any other criminal offence subject to public prosecution.", "The incident of 22 September 2009, however, could be considered as jeopardising security. On 27 November 2009 the State prosecution service asked the police to undertake measures in order to find the perpetrator. At the same time the police were informed that the applicant’s criminal complaint in this regard would be kept until the perpetrator was found, or until 22 September 2012, when the prosecution of that criminal offence would become time-barred. On 31 December 2009 the State prosecutor informed the applicant of this, as well as of the fact that he could file a criminal complaint against a specific person with appropriate evidence (uz valjane dokaze). 21.", "On 14 December 2009 the applicant filed an application for an investigation (zahtjev za sprovođenje istrage) with the High Court (Viši sud) in Podgorica. He enclosed the relevant videos, and proposed that the court hear a number of neighbours, including those he suspected. 22. On 17 March 2010 the High Court dismissed that application for lack of evidence. In particular, the submitted video material was considered to be inadmissible, having been obtained without a prior court order, and the court observed that the suspected neighbours had denied that what they had said related to the applicant.", "It was further held that the applicant had not submitted any evidence in relation to the incident of 22 September 2009, nor had he called the police at the time to come to the scene and “collect the necessary material for further analysis” in order to verify his suspicions. 23. On 26 March 2010 the applicant appealed against that decision. He submitted, in particular, that on 22 September 2009 he had actually called the police, who had only taken photographs of the scene. The fact that they had failed to do what they should have done was in no way his fault, as it was not up to him to tell the police what to do, but only to lodge a criminal complaint, which he had done.", "24. On 31 May 2010 the Court of Appeal dismissed his appeal for lack of evidence, in substance endorsing the reasoning of the High Court. In doing so, the court held that the applicant’s objections as to the gathering of evidence by the police “could not be the subject of [that] court’s assessment”. 25. On 19 July 2010 the applicant lodged a constitutional appeal.", "He maintained, inter alia, that because of the failure of the domestic authorities to protect him and his family, they had had to move out of the apartment (see paragraph 35 below). He relied on the right to private life, the right to an effective domestic remedy, and the prohibition of discrimination. 26. On 25 March 2014 the Constitutional Court dismissed the applicant’s constitutional appeal. It considered that it should be examined under Articles 6 and 14 of the Convention and corresponding Articles of the Montenegrin Constitution, and found there had been no violation of any of them.", "27. On 7 April 2016, as regards the incident of 22 September 2009, the police informed the State prosecutor’s office that “[they] had acted on [the applicant’s] criminal complaint and undertaken measures in accordance with their authority, having dedicated a significant amount of time [to the complaint]. While carrying out those official actions [they] had not found material evidence which would undoubtedly indicate the perpetrator of this criminal offence”. B. Other relevant facts 28.", "The Government submitted information from the applicant’s criminal record reflecting convictions for minor offences in 1981, 1990 and 2002. For each of these offences he had received a suspended sentence. 29. On 20 December 2007 the applicant was celebrating Bayram. X and Y claimed before the domestic bodies that the applicant had celebrated inappropriately by playing loud music from very early in the morning, shooting in the air and calling Turks and Wahhabi (vehabije) to jihad.", "He had apparently also tried to hit X with a flagpole (koplje od zastave). The applicant submitted that X and W (the husband of X’s niece) had been insulting him and his family, while X had also spat on him, shouted obscenities and thrown stones at him, causing him minor physical injuries. On 30 September 2008 the applicant was found guilty in misdemeanour proceedings of disturbing public order and peace (narušavanje javnog reda i mira) by shooting several shots in the air from his starting pistol on 20 December 2007. He was sentenced to a ten-day period of imprisonment and the pistol was confiscated. The decision was upheld by a second‑instance body on 23 December 2008.", "In relation to the same incident, on 29 July 2008 X and W were charged with violent behaviour against the applicant. In the course of the proceedings, a medical expert witness submitted that the applicant had a contusion (nagnječenje) on the left part of the back of his head, which would have been classified as a minor physical injury at the time it had been inflicted. The medical expert submitted that the injury had been caused by a blunt object, possibly a “larger stone”, and that it could not have been caused by sand or “stones the size of beans”. On 24 May 2011, after the case had been remitted, the Court of First Instance acquitted X and W, considering that it had not been proved that they had committed the offence. 30.", "The applicant reported the following events to the police, but to no avail: (a) on 6 October 2008 an unknown person had thrown a brick and broken one of the windows of his apartment; (b) on 11 September 2009 S and her husband, Z, had tried to hit the applicant’s parked car with their own car; this was confirmed by another neighbour, N.L., who witnessed this event and was interviewed by the police in October 2009 (see paragraph 16 above); (c) on 16 October 2009 S had asked Y aloud if he was going to “slaughter” somebody, and he had answered that he was, both of them looking at the applicant; S had said that he would “make [his] car dirty with that man”; (d) on 19 December 2009 an unknown person had fired several shots in front of the applicant’s apartment, below the children’s bedroom; the applicant gave the police eight bullet shells that he had found on the ground; (e) on 1 January 2010, shortly after midnight, X had thrown firecrackers at the applicant’s car and broken its windscreen; he had also thrown a glass bottle at the applicant and a metal bar at his son, swearing profusely and threatening to slaughter them all; this had been followed by gunshots. 31. On 21 October, 23 October and 30 October 2009 X, V and M.Ć. respectively lodged criminal complaints against the applicant for insulting and provoking them, and for playing loud music and calling Turks and Wahhabi to jihad. On 25 December 2009 those complaints were rejected by the State prosecutor.", "32. On 24 April 2010 the Court of First Instance (Osnovni sud) in Podgorica found the applicant guilty of recording Y without authorisation and eavesdropping (prisluškivanje) on him, and sentenced him to 40 days’ imprisonment, suspended for a period of one year. That judgment was upheld by the High Court on 15 October 2010. On 26 December 2012 the Constitutional Court dismissed a constitutional appeal by the applicant in this regard. 33.", "On 7 May 2010 the applicant was fined 800 euros (EUR) in minor offence proceedings (prekršajni postupak) for threatening (izazivanje osjećaja ugroženosti) V, a decision which was upheld on 7 July 2010. 34. On 26 May 2010 the applicant lodged a criminal complaint against X with the State prosecution service, alleging that in August and September 2009 he had threatened to “cut [the applicant’s] gypsy head off and impale it on a pike” (nabiti na kolac). On 27 July 2010 the deputy State prosecutor rejected the criminal complaint. On 12 August 2010 the applicant filed a private criminal action (optužni predlog) against X, who was acquitted by the Court of First Instance on 7 June 2011.", "The court found that X had indeed said the impugned words in front of a witness, and that the words could have made the applicant feel frightened and insecure, but the court could not accept “that [the applicant] had taken those words seriously, especially since the witness, who was the only one who had heard the words, had not taken them seriously, which was why he had informed the applicant about them only two months later”. That decision was upheld by the High Court on 7 March 2012. 35. On 6 July 2010 X threatened the applicant’s daughter by saying that he would kill and slaughter them all, with his hands stretched towards her neck. The girl apparently fainted and was admitted to hospital unconscious.", "The same day the applicant and his family moved out of their apartment. They were allegedly on a hunger strike for the next twenty-four days, seeking help from various State institutions. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Criminal Code of Montenegro (Krivični zakonik Crne Gore, published in the Official Gazette of the Republic of Montenegro - OG RM - nos.", "70/03, 13/04, 47/06, and the Official Gazette of Montenegro - OGM - nos. 40/08, 25/10, 73/10, 32/11, 64/11, 40/13, 56/13, 14/15, 42/15, 058/15 and 044/17) 36. Respectively, Articles 168, 370 and 443 of this Code provide for the criminal offences of jeopardising another person’s security, incitement to ethnic, racial and religious hatred, and discrimination, racial or otherwise. 37. Article 168 provides, inter alia, that whoever jeopardises another person’s security by threatening an attack on their life or on the life of someone close to them shall be fined or sentenced to a year in prison.", "Whoever commits this offence in respect of several persons or commits the offence out of hatred shall be sentenced to between three months and three years in prison. 38. Article 370 provides, inter alia, that whoever publicly encourages violence or hatred towards a group or a group member on the basis of their race, skin colour, religion, origin, or nationality shall be sentenced to between six months and five years in prison. If this offence is committed by jeopardising someone’s security, the perpetrator shall be sentenced to between one and eight years in prison. 39.", "Article 443 provides, inter alia, that whoever violates someone’s fundamental human rights and freedoms on the basis of their race, skin colour, nationality, ethnic origin or other personal characteristic, shall be sentenced to between six months and five years in prison. B. The Criminal Procedure Code 2003 (Zakonik o krivičnom postupku, published in the OG RM nos. 71/03, 07/04, 47/06, and 57/09). 40.", "Articles 19, 20, 44, 45, 59 and 243, read in conjunction, provided, inter alia, that formal criminal proceedings (krivični postupak) could be instituted at the request of an authorised prosecutor. In respect of crimes subject to public prosecution, the authorised prosecutor would be the State prosecutor. However, his authority to decide whether to press charges was bound by the principle of legality, which required that he had to act whenever there was a reasonable suspicion that a crime subject to public prosecution had been committed. For crimes subject to private prosecution (za koja se goni po privatnoj tužbi), the authorised prosecutor would be a victim (privatni tužilac). 41.", "Article 59 provided that, should the State prosecutor decide that there was no basis on which to press charges, he had to inform the victim of that decision, and the latter would then have the right to take over the prosecution of the case on his own behalf, as a “subsidiary prosecutor” (oštećeni kao tužilac), within eight days of being notified of that decision. C. The Criminal Procedure Code 2009 (Zakonik o krivičnom postupku, published in the OGM nos. 57/09, 049/10, 047/14, 002/15, 035/15 and 058/15). 42. This Code entered into force on 1 September 2011 and thereby repealed the previous Code (except for Chapter XXIX, which is not relevant to the present case).", "43. Articles 437 and 438 provide for a possibility for the Supreme State Prosecutor to lodge a request for the protection of legality (zahtjev za zaštitu zakonitosti), either of his own motion or upon a proposal to that effect submitted by a defendant sentenced to unconditional imprisonment of one year or more. D. The Obligations Act (Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11) 44. Sections 148 and 149 set out the different grounds for claiming compensation for both pecuniary and non-pecuniary damage, including for a violation of personal rights (povreda prava ličnosti).", "In particular, section 148(1) provides that whoever causes somebody else damage is liable to pay compensation, unless he or she can prove that the damage was not his or her fault. 45. Sections 206-207 provide that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of personal rights (prava ličnosti) is entitled to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary relief. This Act entered into force on 15 August 2008. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION 46. The applicant complains under Articles 8 and 14 of the Convention regarding the failure of the authorities to effectively investigate a series of ethnically and/or religiously motivated attacks against him perpetrated by individuals between 26 May and 22 September 2009. The Court considers that it is appropriate to examine the applicant’s complaints under Article 8 taken in conjunction with Article 14 (see, mutatis mutandis, Škorjanec v. Croatia, no. 25536/14, § 38, ECHR 2017 (extracts)). 47.", "The relevant Articles read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 48. The Government contested the applicant’s allegations.", "A. Admissibility 49. The Government submitted that the applicant had failed to lodge a request for the protection of legality with the Supreme State Prosecutor under Articles 437 and 438 of the Criminal Procedure Code 2009, and/or a compensation claim under sections 148-149 and 206-207 of the Obligations Act (see paragraphs 43-45 above). 50. The applicant maintained that he had exhausted all effective domestic remedies. In particular, a request for the protection of legality was not an effective domestic remedy, given that it could only be submitted by a State prosecutor with competence, and not by an applicant himself or his representative.", "In any event, he had lodged his application before the Criminal Procedure Code 2009 and the relevant Articles to which the Government had referred had entered into force. 51. The relevant general principles concerning exhaustion of domestic remedies are set out in Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014. In particular, the Court must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no.", "22277/93, § 59, ECHR 2000‑VII). An applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999‑III). 52. Turning to the present case, the Court has already found that a request for the protection of legality is not an effective domestic remedy, given that it can only be filed by a public prosecutor (see Lepojić v. Serbia, no.", "13909/05, § 54, 6 November 2007). The Court finds no reason to depart from that conclusion in the present case. 53. The Court also takes note of the allegations brought by the applicant before the police and observes that there is no reason to question the effectiveness of a criminal complaint as a remedy. It also reiterates that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see paragraph 51 in fine above).", "In these circumstances, and leaving aside the question of whether a civil remedy is in fact appropriate to the applicant’s complaint, the Court considers that by filing a criminal complaint the applicant exhausted effective domestic remedies and was thus dispensed from filing a compensation claim in addition. The Government’s objection must therefore be dismissed. 54. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 55. The applicant made no further comments in addition to his initial complaints and submissions.", "(b) The Government 56. The Government contested the applicant’s complaint and submitted that there had been no violation of any of the Articles referred to. In particular, the applicant was a person who was inclined to conflict and who was prone to violent behaviour and breaking the law, as proved by his previous convictions (see paragraph 28 above) and his dysfunctional relations with his neighbours. The same neighbours had good relations with people of other nationalities and religions living in the same building, including Muslims, which proved there had been no racial or religious intolerance in the present case. 57.", "As regards the events between 26 May and 22 September 2009, the prosecuting authorities with competence had acted lawfully and had given duly explained decisions on the basis of the data collected and, inter alia, the applicant’s dysfunctional relations with his neighbours. The DVD submitted by the applicant could not be used as valid evidence, since it had not been obtained in accordance with the law and in any event had been produced in 2003 and edited much later. 58. The domestic authorities had also acted promptly after the incident of 20 December 2007, which had resulted in an indictment against X and W (see paragraph 29 above), and following the applicant’s criminal complaint of 26 May 2010, which had had to be rejected in the absence of any elements of a criminal offence subject to public prosecution (see paragraph 34 above). The applicant’s claims that the State authorities had treated his criminal complaints differently were not true, as several criminal complaints against him had also been rejected in the same period (see paragraph 31 above).", "59. As regards the complaint under Article 14, the applicant had offered no evidence that there had been a situation similar to his where parties had been treated differently. 60. The Government also argued that the third party’s submissions were general and vague (see paragraphs 61-62 below). They submitted that Roma in Montenegro were protected by the Constitution, which incorporated all international legal standards, and a number of statutes, including the Discrimination Prohibition Act, and the Minority Rights and Freedoms Act.", "Montenegro had also adopted a “Strategy for improving the situation of Roma and Egyptians 2012-2016”, which defined a whole set of legal, political, economic, social, health and other measures and activities, and whose implementation was monitored by a commission composed also of representatives of Roma, Egyptians and non-governmental organisations (NGOs) for such groups. The Government further maintained that Montenegro had worked on improving the living standards of Roma, particularly their living conditions, by building a number of residential units in several towns. (c) The third party 61. The European Roma Rights Centre (ERRC) referred to various international reports and surveys concerning the relations between Roma and the police, and an increase in violence against Roma. In addition, a survey conducted by a Montenegrin NGO had indicated that between 21% and 43.5% of respondents would prefer not to have a Roma neighbour, colleague or boss, and for there to be no Roma in the country at all.", "Montenegrin criminal legislation had been amended in 2013 so as to introduce bias as an aggravating circumstance, but there was no indication that this had made any difference in practice. There were no available records on hate crimes for the period 2009-2014, the only available data being that there had been no sentences in 2014. The ERRC submitted that the United Nations Committee on the Elimination of Racial Discrimination had observed that serious cases of incitement to racial hatred in Montenegro very often were treated as misdemeanours, and seldom resulted in convictions, and that this had been criticised by the European Commission against Racism and Intolerance as early as 2008. The ERRC maintained that this amounted to institutional racism. 62.", "They further submitted that vulnerable victims, such as Roma, alleging racially motivated violence were unlikely to be able to prove beyond reasonable doubt that they had been subjected to discrimination, especially when they were also victims of a failure on the part of the domestic authorities to carry out an effective investigation. They asserted that the authorities’ failure to implement appropriate legal and policy measures disclosed institutional racism. 2. The Court’s assessment 63. The relevant principles as regards Article 8 are set out in Aksu v. Turkey [GC], nos.", "4149/04 and 41029/04, § 58-59, ECHR 2012; Sandra Janković v. Croatia, no. 38478/05, §§ 44-46, 5 March 2009; and R.B. v. Hungary, no. 64602/12, § 78 and §§ 81-84, 12 April 2016; and, as regards Article 14, in Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005‑VII; Aksu, cited above, §§ 43-44, and, mutatis mutandis, Šečić v. Croatia, no.", "40116/02, §§ 66-67, 31 May 2007. 64. In particular, the Court has previously held, in various contexts, that the concept of private life within the meaning of Article 8 of the Convention includes a person’s physical and psychological integrity (see, for example, Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004‑VI) and also covers an individual’s ethnic identity (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Ciubotaru v. Moldova, no.", "27138/04, § 49, 27 April 2010). 65. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective respect for private life, which may involve the adoption of measures in the sphere of relations between individuals (see Tavlı v. Turkey, no. 11449/02, § 28, 9 November 2006). To that end, States are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Isaković Vidović v. Serbia, no.", "41694/07, § 59, 1 July 2014, and the authorities cited therein). Moreover, the State’s positive obligation under Article 8 to safeguard the individual’s physical integrity may also extend to questions relating to the effectiveness of a criminal investigation (see M.C. v. Bulgaria, no. 39272/98, § 152, ECHR 2003‑XII). The Court reiterates that, for an “investigation to be regarded as ‘effective’, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible.", "This is not an obligation of result, but one of means” (see Király and Dömötör v. Hungary, no. 10851/13, § 79, 17 January 2017). 66. The Court also reiterates that it is part of the authorities’ responsibilities under Article 14, taken in conjunction with Articles 2, 3 or 8, to investigate the existence of a possible link between racist attitudes and acts of violence (see, with respect to Article 14 in conjunction with Article 2, Nachova and Others, cited above, § 161; with respect to Article 14 in conjunction with Article 3, Šečić, cited above, § 66, and Abdu v. Bulgaria, no. 26827/08, § 44, 11 March 2014; and with respect to Article 14 in conjunction with Article 8, R.B., cited above, § 84).", "Accordingly, where any evidence of racist verbal abuse comes to light in an investigation of violent acts, it must be checked and, if confirmed, a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives for the violence (see Balázs v. Hungary, no. 15529/12, § 61, 20 October 2015). Admittedly, in practice it is often extremely difficult to prove a racist motive. The obligation on the respondent State to investigate possible racist overtones to an act of violence is, however, an obligation which concerns the means employed rather than the specific result achieved. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth, and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence (see, mutatis mutandis, Škorjanec, cited above, § 57, and Abdu, cited above, §§ 43-45, with further references).", "67. The Court lastly reiterates that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate methods of protecting individuals from attacks on their personal integrity, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Sandra Janković, cited above, § 46). 68. Turning to the present case, the Court firstly notes that the Montenegrin legal framework provided for the criminal offences of jeopardising someone’s security, incitement to ethnic, racial and religious hatred, and discrimination, racial or otherwise. The Court further observes that Montenegrin criminal law distinguished between criminal offences to be prosecuted by the State prosecutor and criminal offences to be prosecuted by means of a private prosecution.", "It also provided for the injured party to act as a subsidiary prosecutor. In respect of criminal offences for which the prosecution was to be undertaken by the State prosecutor, where that official declined to prosecute, on whatever grounds, the injured party could take over the prosecution as a subsidiary prosecutor. In these circumstances, the Court is satisfied that, in the present case, the domestic legal framework as such provided sufficient protection (see Isaković Vidović, cited above, § 62). 69. The Court notes that most of the impugned remarks or actions were not made in the applicant’s presence nor aimed at him directly (see, by contrast, R.B., cited above, § 80).", "It is also clear that the applicant and his family were not physically harmed by any violent acts. Nevertheless, the applicant alleged that there were repeated expressions of violent intent and threatening behaviour, as well as indirect acts of violence, which could arouse a well-founded fear that violence might actually be used (see, mutatis mutandis, Hajduová v. Slovakia, no. 2660/03, § 49, 30 November 2010). In particular, the applicant complained also regarding the shooting by X on the night of 26 May 2009 and the incident on 22 September 2009. The Court will focus its examination on these two incidents.", "70. The Court notes in this regard that the prosecutor completely omitted the shooting of 26 May 2009 from his conclusion. The shooting clearly took place, having been confirmed by both X and Y, and the relevant bullet shells were still available, having been collected by Y and his children. However, nothing in the case file indicates that anything was done to find out whether it was indeed X who had been shooting, for example taking the collected bullet shells from Y for analysis, checking if X did indeed have a gun and, if so, whether the collected bullets had been fired from that gun, and checking what the motive for the shooting was. 71.", "As regards the incident of 22 September 2009 it was considered to involve the elements of the crime of jeopardising security, and the prosecutor asked the police to undertake the necessary measures in order to find the perpetrator. It was clearly indicated that a criminal prosecution in this regard would become time-barred on 22 September 2012. When dismissing the applicant’s request for an investigation into that incident, the domestic courts held that evidence should have been provided by either the applicant or the police, whom allegedly the applicant had never called. When the applicant objected to that finding by submitting that he had both submitted an official complaint and reported the impugned incident to the police, who had merely taken photos of the scene without taking any further evidence, the courts dismissed his argument by simply stating that it was not up to them to assess the work of the police. The police submitted only in 2016, that is four years after criminal prosecution of the criminal offence had become time-barred, that they “had implemented measures, having dedicated a significant amount of time [to the complaint]”, but to no avail (see paragraph 27 above).", "Apart from their coming to the scene on 22 September 2009 and taking photographs, there is nothing in the case file that would indicate exactly what other measures were taken in this regard and when. 72. In these particular circumstances, the Court finds that the above‑mentioned course of action in itself was not capable of leading to the establishment of the facts of the case, and did not constitute a sufficient response to the situation complained of. The cumulative effect of those shortcomings in the investigations was that the shooting, and the threat of 22 September 2009 remained virtually without legal consequences, and the applicant was not provided with the required protection of his right to psychological integrity (see, mutatis mutandis, Király and Dömötör, cited above, § 80). He could not have the benefit of the implementation of a legal framework affording effective protection.", "This applies all the more, given the fact that the applicant is Roma as well as Muslim, and that there was not one, isolated incident directed against him, but many, and in view of the nature of these other incidents (see paragraphs 29-30 and 34-35 above). The Court is mindful of the ongoing conflictual relationship between the applicant and his neighbours, as well as his own contribution to that conflict (see paragraphs 28-35 above). However, it does not consider that these factors justify the authorities’ lack of sufficient response in respect of the applicant’s complaints regarding the shooting and the threat. 73. In view of the above, the Court considers that the manner in which the criminal-law mechanisms were implemented in the present case by the judicial authorities was defective to the point of constituting a violation of the respondent State’s obligations under Article 8 of the Convention (see, mutatis mutandis, Sandra Janković, §§ 52-58, and Isaković Vidović¸ §§ 61‑64, both cited above) in conjunction with Article 14 of the Convention (see, mutatis mutandis, Škorjanec, cited above, §§ 71-72).", "II. ALLEGED VIOLATION OF ARTICLES 9 AND 13 OF THE CONVENTION 74. The applicant made the same complaint under Articles 9 and 13 of the Convention, which read as follows: Article 9 “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.", "Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 75. The Government contested the applicant’s allegations. 76. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible. 77.", "Having regard to its finding under Article 8 in conjunction with Article 14, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 9 (see, mutatis mutandis, Hoffmann v. Austria, 23 June 1993, § 38, Series A no. 255‑C) and Article 13 (see, mutatis mutandis, Zorica Jovanović v. Serbia, no. 21794/08, § 80, ECHR 2013). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 79. The applicant claimed 100,001 euros (EUR) in respect of non‑pecuniary damage. 80. The Government contested the applicant’s claim as arbitrary, inappropriately high and unjustified, and contrary to the relevant case-law of the Court.", "81. The Court accepts that the applicant has suffered non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 under this head. B. Costs and expenses 82.", "The applicant also claimed EUR 6,630.25 for costs and expenses incurred before the domestic courts, and EUR 1,200 for those incurred before the Court. 83. The Government contested the applicant’s claim in respect of costs and expenses incurred before the domestic courts, and left it to the Court to assess the claim in respect of costs and expenses incurred before it. 84. In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no.", "31107/96, § 54, ECHR 2000‑XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 to cover costs under all heads. C. Default interest 85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 8 in conjunction with Article 14 of the Convention; 3. Holds that there is no need to examine the complaint under Articles 9 and 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 5 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithRobert SpanoRegistrarPresident" ]

[ "FOURTH SECTION CASE OF GODYSZ v. POLAND (Application no. 46949/07) JUDGMENT STRASBOURG 28 April 2009 FINAL 28/07/2009 This judgment may be subject to editorial revision. In the case of Godysz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges and Lawrence Early, Section Registrar, Having deliberated in private on 7 April 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 46949/07) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Władysław Godysz (“the applicant”), on 3 September 2007.", "2. The applicant was represented by Mr A. Dolniak, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant alleged that his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.", "4. On 1 July 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1951 and lives in Siemanowice. 6. On 28 April 2005 the applicant was arrested on suspicion of bribery, several counts of evasion of tax and customs duties and several counts of forgery, committed in an organised criminal gang. 7. On 29 April 2005 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question.", "The court referred to the complexity of the case and the considerable number of accused. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence and induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence. 8. Later, twenty-one other persons were detained and charged in connection with the investigation against the applicant.", "9. The applicant’s appeal against the detention order, like his further appeals against decisions prolonging his detention and all his subsequent numerous applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeal, he argued that the charge against him was based on unreliable and contradictory evidence. 10. In the course of the investigation, the applicant’s detention was prolonged on 22 July 2005, 20 October 2005, 20 January 2006, 29 March 2006, 28 June 2006, 27 September 2006, 4 January 2007 and 4 April 2007.", "11. On 17 April 2007 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with bribery, several counts of evasion of tax and customs duties, several counts of forgery and membership of an organised criminal gang. The bill of indictment also concerned twenty-one other persons. 12.", "Further decisions extending the applicant’s detention were taken on 25 July 2007, 24 October 2007 and 27 February 2008. In a decision given on 24 October 2007, the Katowice Court of Appeal Court criticised the manner in which the investigation had been conducted. It also referred to delays in the proceedings which amounted to six months. It acknowledged that almost all the evidence had been gathered and that the risk that the applicant would tamper with evidence had been marginal. In a decision given on 27 February 2008, the Katowice Court of Appeal ruled that the applicant could be released on bail on payment of security of 800,000 Polish zlotys.", "The applicant requested the court to reduce the amount of bail. On 28 March 2008 the court reduced it to 300,000 Polish zlotys. The applicant paid the security and he was released on 30 April 2008. 13. The criminal proceedings are currently pending before the first‑instance court.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 14. The relevant domestic law and practice concerning the imposition of detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS A. The Committee of Ministers 15. On 6 June 2007 the Committee of Ministers adopted on the Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). Noting that the number of cases in which the European Court had found similar violations was constantly increasing.", "It concluded that the number of the Court’s judgments finding Poland in violation of Article 5 § 3 of the Convention revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 34, 3 February 2009; not final). B. The Council of Europe’s Commissioner for Human Rights 16.", "On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland, stressing that examples of cases brought to the Court where pre-trial detention had lasted between 4 to 6 years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pre‑trial detention in Polish law. A more detailed rendition of the relevant parts of the memorandum can be found in the above mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 17.", "The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 18. The Government contested that argument. A. Admissibility 19.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Period to be taken into consideration 20. The applicant’s detention started on 28 April 2005, when he was arrested on suspicion of bribery, several counts of evasion of tax and customs duties and several counts of forgery, committed in an organised criminal gang. He was released on 30 April 2008. Accordingly, the period to be taken into consideration amounts to three years and two days. 2.", "The parties’ submissions (a) The applicant 21. The applicant submitted in general terms that his application lodged with the Court was justified. (b) The Government 22. The Government considered that the applicant’s detention satisfied the requirements of Article 5 § 3 of the Convention. The Government emphasised that the serious nature of the charges as well as the fact that there had been twenty-one defendants charged with numerous offences required the authorities to take all necessary measures to secure the proper conduct of the trial.", "The necessity of the applicant’s continued detention had been thoroughly examined by the courts which on each occasion had given sufficient reasons for their decisions. The applicant’s case had been extremely complex on account of the number of charges (121) and defendants (21), and by reason of the volume of evidence. The Government further submitted that the domestic courts had acted diligently and speedily, in particular taking into account the complexity of the case, the number of witnesses to be heard and the number of co-accused, most of whom had been suspected of acting in an organised criminal group. 3. The Court’s assessment (a) General principles 23.", "The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references). (b) Application of the above principles in the present case 24. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on four grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable (3) the need to secure the proper conduct of the proceedings, particularly the risk that he might tamper with evidence and (4) the complexity of the case.", "25. The applicant was charged with bribery, several counts of evasion of tax and customs duties, several counts of forgery and membership of an organised criminal gang. In the Court’s view, the fact that the case concerned a member of a such criminal gang should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).] 26.", "The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need to obtain a large volume of evidence and to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from witnesses, constituted valid grounds for the applicant’s initial detention. 27. Indeed, in cases such as the present one concerning organised criminal gangs, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused or might otherwise obstruct the proceedings often is, by the nature of things, high. In this respect, the Court notes, however, that in all the decisions extending the applicant’s detention, no specific substantiation of the risk that the applicant would tamper with evidence, intimidate witnesses or attempt to otherwise disrupt the trial emerged.", "In the absence of any other factor capable of showing that the risk relied on actually existed, this argument cannot be accepted in the context of the whole period. 28. Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself justify long periods of detention on remand (see Michta v. Poland, no. 13425/02, §§ 49, 4 May 2006).", "29. As regards the complexity of the case, the Court’s attention has been drawn to the nature of the charges, the number of the accused (twenty one) and the voluminous documentation. It appears, however, that the authorities referred to the complexity of the case in a very general manner. There is no indication that the nature of the case required the applicant’s continuous detention. Moreover, it seems that the authorities had gathered all necessary evidence by October 2007 and that they subsequently failed to envisage the possibility of imposing other, less strict, preventive measures on the applicant (see paragraph 12 above).", "30. While all those above factors could justify even a relatively long period of detention, they did not give the domestic courts an unlimited power to prolong this measure. 31. Having regard to the foregoing, even taking into account the fact that the courts were faced with the particularly difficult task of trying a case involving an organised criminal gang, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant’s detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.", "There has accordingly been a violation of Article 5 § 3 of the Convention. II. APPLICATION OF ARTICLE 46 OF THE CONVENTION 32. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 33. Recently, in the case of Kauczor v. Poland (see Kauczor, cited above, § 58 et seq. with further references) the Court referred to the above mentioned 2007 Resolution of the Committee of Ministers taken together with the number of judgments already delivered and concluded: “60. The Court thus concludes, as the Committee of Ministers did, that for many years, at least as recently as in 2007, numerous cases have demonstrated that the excessive length of pre-trial detention in Poland revealed a structural problem consisting of “a practice that is incompatible with the Convention” (see mutatis mutandis Broniowski v. Poland [GC], no.", "31443/96, §§ 190‑191, ECHR 2004‑V; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 229-231, ECHR 2006‑...; Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999‑V with respect to the Italian length of proceedings cases)”. 34.", "It is true that the present case concerns a person involved in an organised criminal group. However, as stated above, while this element is to be taken into account in assessing compliance with Article 5 § 3 and may justify a longer period of detention than in a case concerning an individual offender, a member of an organised criminal group is entitled to the protection against unreasonably lengthy detention afforded by this provision (see paragraphs 27, 30 and 31 above). As in other numerous similar detention cases, the authorities did not justify the applicant’s continued detention by relevant and sufficient reasons (see paragraphs 25‑31 above). Moreover, as demonstrated by the ever increasing number of judgments in which the Court has found Poland to be in breach of Article 5 § 3 in respect of applicants involved in organised crime, the present case is by no means an isolated example of the imposition of unjustifiably lengthy detention but a confirmation of a practice found to be contrary to the Convention (see, among many other examples, Celejewski v. Poland, no. 17584/04, 4 May 2006; Kąkol v. Poland, no.", "3994/03, 6 September 2007; Malikowski v. Poland, no. 15154/03, 16 October 2007). Consequently, the Court sees no reason to diverge from its findings made in Kauczor as to the existence of a structural problem and the need for the Polish State to adopt measures to remedy the situation (see Kauczor, cited above, §§ 60‑62 ). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 36. The applicant claimed EUR 2,000,000 in respect of pecuniary and non-pecuniary damage. 37. The Government did not express an opinion on the matter.", "38. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 under this head. B.", "Costs and expenses 39. The applicant also claimed EUR 18,000 for legal costs. He did not submit any documents in support of his claim. 40. The Government did not express an opinion on the matter.", "41. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court observes that the applicant failed to produce any documents in support of his claim. In those circumstances, the Court makes no award under this head (see Adamiak v. Poland, no. 20758/03, § 49, 19 December 2006).", "C. Default interest 42. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF ABIL v. AZERBAIJAN (Application no. 16511/06) JUDGMENT STRASBOURG 21 February 2012 FINAL 21/05/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Abil v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Peer Lorenzen,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 31 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "16511/06) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Baybala Alibala oglu Abil (Bəybala Əlibala oğlu Abil – “the applicant”), on 15 April 2006. 2. The applicant was represented by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.", "The applicant alleged, in particular, that his right to stand for election, as guaranteed by Article 3 of Protocol No. 1 to the Convention, had been infringed. 4. On 27 June 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1952 and lives in Baku. 6. The applicant stood for the elections to the National Assembly of 6 November 2005 as an independent candidate.", "He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-member Garadagh Electoral Constituency no. 11. 7. On 28 October 2005 the ConEC held a meeting in the applicant’s absence and decided to apply to the Court of Appeal with a request to cancel his registration as a candidate owing to reports of his engaging in activities incompatible with the requirements of the Electoral Code. In particular, the ConEC noted that it had received a number of written statements from voters claiming that the applicant had promised them money in exchange for their promise to vote for him.", "The ConEC forwarded a total of seventeen such statements to the Court of Appeal, enclosed with its request for the applicant’s disqualification. 8. On 29 October 2005 the applicant and his lawyer attempted to get a copy of the case file from the Court of Appeal, but were not allowed to do so. 9. On 31 October 2005 the Court of Appeal examined the case and cancelled the applicant’s registration as a candidate, in accordance with Articles 88.4 and 113.2.3 of the Electoral Code.", "During the hearing, the applicant submitted that he had not been informed of the ConEC meeting of 28 October 2005 in advance and, therefore, had not been able to attend it. He denied all the accusations against him and asserted that they had been fabricated. 10. The court heard oral testimonies of eight out of the seventeen persons who had submitted written statements to the ConEC accusing the applicant of attempting to bribe them. One of them, H., testified that the applicant had personally offered him money.", "The remaining seven testified that they had been approached by some unknown people who had offered them money if they promised to vote for the applicant. When asked in court whether, when offering money, those “unknown people” had inquired from them whether they had been registered as voters in the applicant’s constituency, these witnesses replied in the negative. 11. The Court of Appeal considered the above evidence sufficient to find that the applicant had offered money to voters in exchange for their votes in his favour, thus breaching Article 88.4 of the Electoral Code. 12.", "After the delivery of the Court of Appeal’s judgment, the applicant carried out an enquiry about the identity of the persons who had testified against him. He found out that four of the eight persons who had testified against him in court were not actually registered as voters in his constituency. Moreover, witness H. was not registered and did not actually reside at the address which, according to his submissions to the court, was his primary residence located in the applicant’s constituency. In the applicant’s opinion, this information gave rise to serious doubts as to the personal integrity of the witnesses and the truthfulness of their statements, because it showed that they had either lied about their personal details or made false accusations against him, as there was no reason or incentive for a candidate in a given constituency to attempt, either by means of legal campaigning or illegal methods, to secure the votes of persons who were registered to vote elsewhere and therefore could not vote for him anyway. 13.", "The applicant lodged an appeal with the Supreme Court, arguing that the Court of Appeal’s judgment was arbitrary, that the evidence used against him had been fabricated, that the persons who had testified against him were false witnesses and that some of those persons were actually relatives of various officials of the local executive authorities. In support of his arguments, he submitted the information described in the above paragraph. 14. On 3 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 31 October 2005. It found that the Court of Appeal had duly established the factual circumstances of the case.", "15. In the meantime, in September and October 2008 the applicant lodged several complaints with the ConEC and the Central Electoral Commission (“the CEC”) concerning various alleged irregularities in the election process in his constituency. However, according to the applicant, he did not receive any replies to his complaints. 16. The applicant lodged an action with the Court of Appeal, complaining about the above-mentioned irregularities and asking the court to hold the Chairman of the CEC liable for the alleged failure to respond to his complaints.", "On 2 November 2005 the Court of Appeal dismissed the applicant’s claims as unsubstantiated. On 7 November 2005 the Supreme Court upheld that judgment. II. RELEVANT DOMESTIC LAW A. Electoral Code 17.", "Article 88.4 of the Electoral Code of 2003 provides as follows: “88.4. Candidates ... are prohibited from gaining the support of voters in the following ways: 88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work; 88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work; 88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material); 88.4.4. providing services free of charge or on privileged terms; 88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.” 18. According to Articles 113.1 and 113.2.3 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4 of the Code. 19. Complaints concerning decisions of electoral commissions must be examined by the courts within three days (unless the Electoral Code provides for a shorter period).", "The period for lodging an appeal against a court decision is also three days (Article 112.11). B. Code of Civil Procedure 20. Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code.", "21. Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case (Article 291.2). 22.", "The appellate court’s decision can be appealed against to the higher court (the court of cassation) within three days. This appeal must be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No.", "1 TO THE CONVENTION 23. Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicant complained that his registration as a candidate for the parliamentary elections had been cancelled arbitrarily. The Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention, which reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. Admissibility 24.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 25. The Government submitted that the aim of Article 88.4 of the Electoral Code was to ensure equal and fair campaign conditions for all candidates. Disqualification of candidates who engaged in various forms of illegal vote-buying had the legitimate aim of protecting the free expression of the opinion of the people in elections. 26. The Government maintained that the applicant had been disqualified because he had attempted to bribe voters.", "According to the Government, this fact had been sufficiently proved by the written statements made by a number of voters. They maintained that the applicant had been afforded an opportunity to fully and effectively defend his position in the relevant proceedings. 27. Lastly, the Government noted that the electoral law prohibited “any abuse” with regard to any voter, irrespective of which constituency a particular voter was registered to vote in. For this reason, the Government considered irrelevant the applicant’s arguments that some of the persons who had accused him of bribery were not registered as voters in his electoral constituency.", "28. The applicant submitted that the decision to disqualify him had been arbitrary and based on tenuous, insufficient, unreliable and fabricated evidence. The content and form of the written statements by alleged voters accusing him of bribery, which had been later used as a basis for his disqualification, were extremely suspect. The fact of receipt of those statements was missing from the ConEC’s official register of incoming correspondence and complaints. Furthermore, most of those statements did not contain the relevant complainant’s address, telephone number or other personal information, which would enable easy identification of the complainant.", "Some of those statements had been signed by persons who had even failed to mention their full names, including their first name and patronymic. Ten of the seventeen statements were not dated. Moreover, the applicant claimed to have discovered that eight of the seventeen complainants were actually either relatives of, or otherwise personally dependent on, public officials of the local executive authorities. 29. The applicant further claimed that some copies of the written statements which the Government had enclosed with their observations to the Court had been tampered with at a later date.", "Specifically, dates and the ConEC stamp had been added to them. According to the applicant, the fact of this document-tampering could be easily established by comparing the copies submitted by the Government with the copies of the same statements that the applicant had obtained immediately after the Court of Appeal hearing of 31 October 2005, which were missing a date and a stamp. 30. The applicant further submitted that the manner in which the ConEC meeting of 28 October 2005 had been conducted had been in breach of several formal requirements of the Electoral Code, and that there were inconsistencies in the minutes of the ConEC meeting as to which specific ConEC members had been present and how they had voted. He further alleged that the domestic courts had relied on very dubious and contradictory evidence and had ignored information which had put the alleged complainants’ true identity and integrity into serious doubt.", "In particular, among other omissions, the courts had failed to give due consideration to the fact that a number of the alleged complainants were not even voters in the applicant’s constituency and that some of them had simply lied about their residence status in the constituency in question. 2. The Court’s assessment 31. The Court notes that the summary of its case-law on the right to effectively stand for election, as guaranteed by Article 3 of Protocol No. 1 to the Convention, can be found in, among many other judgments, Orujov v. Azerbaijan (no.", "4508/06, §§ 40-42, 26 July 2011). On a more specific note, the Court also reiterates that, while the Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote and to stand for election, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate or arbitrary (see Mathieu‑Mohin and Clerfayt v. Belgium, 2 March 1987, § 52, Series A no. 113; Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV; and Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109 (iii), 8 July 2008).", "32. The Court notes that in the present case the applicant was disqualified as a candidate in accordance with Articles 88.4 and 113 of the Electoral Code, which provide for the possibility of disqualification of candidates who resort to unfair and illegal means of gaining voter support. Given that Article 3 of Protocol No. 1 does not contain a list of “legitimate aims” capable of justifying restrictions on the exercise of the rights it guarantees and does not refer to those enumerated in Articles 8 to 11 of the Convention, the Contracting States are free to rely on an aim not mentioned in those Articles, provided that it is compatible with the principle of the rule of law and the general objectives of the Convention (see, for example, Ždanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006-IV).", "The Court accepts the Government’s argument that the conditions set out in the above‑mentioned provisions of the Electoral Code pursue the legitimate aim of ensuring equal and fair conditions for all candidates in an electoral campaign and protecting the free expression of the opinion of the people in elections. 33. It remains to be determined whether there was arbitrariness or a lack of proportionality in the authorities’ decisions. 34. The Court reiterates that its competence to verify compliance with domestic law is limited and that it is not its task to take the place of the domestic courts in such issues as the assessment of evidence or the interpretation of the domestic law.", "Nevertheless, for the purposes of supervision of the compatibility of the interference with the requirements of Article 3 of Protocol No. 1, the Court must scrutinise the relevant domestic procedures and decisions in detail in order to determine whether sufficient safeguards against arbitrariness were afforded to the applicant and whether the relevant decisions were sufficiently reasoned (see, mutatis mutandis, Melnychenko v. Ukraine, no. 17707/02, § 60, ECHR 2004-X). 35. Furthermore, the Court notes that a finding that a candidate has engaged in unfair or illegal campaigning methods could entail serious consequences for the candidate concerned, in that he or she could be disqualified from running for the election.", "As the Convention guarantees the effective exercise of individual electoral rights, the Court considers that, in order to prevent arbitrary disqualification of candidates, the relevant domestic procedures should contain sufficient safeguards protecting the candidates from abusive and unsubstantiated allegations of electoral misconduct, and that decisions on disqualification should be based on sound, relevant and sufficient proof of such misconduct (see Orujov, cited above, § 46). 36. Turning to the present case, the Court notes that only eight out of seventeen persons who had written complaints accusing the applicant of bribery were heard by the Court of Appeal. Seven of these eight persons testified that they had been offered money by some unknown people in exchange for a promise to vote for the applicant. The Court considers that this information, by itself, does not prove that the alleged offer of a bribe originated from the applicant or that those “unknown people” were acting on his instructions or otherwise had authority to act on his behalf.", "There existed no further evidence linking the applicant with the alleged actions of those “unknown people” who had allegedly offered bribes to voters. The mere fact that those persons allegedly mentioned the applicant’s name does not, in itself, mean that they acted on his instructions; nor does it prove that the applicant had any intention to buy votes or had taken any practical steps to put it into action. 37. It is true that one person, H., testified in court that the applicant had offered him money personally. However, the Court notes that the applicant managed to verify that H. was not registered in the voter lists of his constituency and that he had lied in court about his registered address of primary residence.", "The above information appears to be prima facie correct. Based on this information, the applicant put forward before the domestic courts a rather serious and arguable objection challenging H.’s personal integrity as a witness. The Court considers that an adequate examination of this objection might have affected the assessment of the truthfulness of H.’s statements. However, this objection was ignored by the domestic courts. In such circumstances, the Court considers that witness H. and his statements were not assessed in a manner that could remove serious doubts as to their reliability.", "38. For the reasons mentioned above, the Court considers that the applicant’s disqualification was based on irrelevant, insufficient and inadequately examined evidence. 39. Furthermore, the Court notes that the applicant was not afforded sufficient procedural safeguards against arbitrariness. In particular, the ConEC did not inform the applicant about its hearing of 28 October 2005, depriving him of the possibility to defend his position at the ConEC level, and took the decision to request his disqualification without hearing the complainants or otherwise attempting to carry out a comprehensive assessment of the situation.", "Moreover, as mentioned above, the domestic courts failed to take into account, and provide any reasoned response to, the applicant’s objections and submissions. 40. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant’s electoral rights fell short of the standards required by Article 3 of Protocol No. 1. The applicant’s disqualification from running for election was not based on sufficient and relevant evidence, the procedures of the electoral commission and the domestic courts did not afford the applicant sufficient guarantees against arbitrariness, and their decisions lacked sufficient reasoning.", "41. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 42.", "The applicant complained under Article 3 of Protocol No. 1 to the Convention that there had been a number of irregularities during the election process in his constituency and that the authorities had failed to duly examine his complaints concerning those irregularities. In conjunction with this complaint, he also complained under Article 14 of the Convention that independent candidates were at a disadvantage in comparison to candidates representing major political parties because, by law, the latter could conduct their campaign under more privileged terms, such as receiving free air time on State television and other forms of free campaigning. 43. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Pecuniary damage 45. The applicant claimed 13,600 Azerbaijani manats (AZN) in respect of pecuniary damage, consisting of the expenses borne during the electoral campaign. 46. The Government contested this claim and maintained that it was largely unsupported by any documentary evidence. 47.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 2. Non-pecuniary damage 48. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 49.", "The Government considered that the amount claimed was excessive. 50. The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated solely by the finding of the violation of Article 3 of Protocol No. 1. Ruling on an equitable basis, the Court awards him the sum of EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses 51. The applicant also claimed approximately EUR 5,735 for the costs and expenses incurred before the domestic courts and the Court, including legal fees, translation costs and postal expenses. 52. The Government argued that the amount claimed was excessive and unreasonable and was not actually incurred.", "53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,600 covering costs under all heads, plus any tax that may be chargeable to the applicant on that sum. C. Default interest 54. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 3 of Protocol No. 1 to the Convention concerning the applicant’s disqualification from running for election admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina Vajić RegistrarPresident" ]

[ "SECOND SECTION CASE OF PEÁK v. HUNGARY (Application no. 20280/04) JUDGMENT STRASBOURG 1 July 2008 FINAL 01/12/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Peák v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 10 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20280/04) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr István Peák on 6 April 2004. 2. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. 3. On 3 September 2007 the Court decided to give notice of the application to the Government.", "Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the applications at the same time. THE FACTS 4. The applicant was born in 1956 and lives in Balatonakarattya. 1. The proceedings concerning the applicant’s patent rights 5.", "On 26 October 1995 the applicant brought an action before the Budapest Regional Court against the Military Engineering Institute and six individuals. He sought to have it established that the defendants had violated his patent rights in that they had utilised without licence one of his inventions when creating a military defence tool for armoured vehicles. The applicant was represented by his patent agent. 6. On 17 April 1997 the Regional Court dismissed the applicant’s claim.", "In May 1997, the applicant had his patent cancelled, being of the view that it followed from the decision of the Regional Court that it could only be reviewed if he first abandoned his patent protecting the invention. Subsequently, he appealed against the Regional Court’s decision, maintaining that the defendants had used his invention without licence. 7. On 6 January 1999 the appellate bench of the Supreme Court quashed the first-instance decision and remitted the case to the Regional Court. 8.", "In the resumed proceedings the defendants filed a preparatory paper with the Regional Court on 9 November 1999. 9. On 7 April 2000 the Regional Court, establishing that the defendants’ invention had been based on a different technical solution than that of the applicant and, that, therefore, the former had not illegally used the latter’s invention, again dismissed the action. The applicant appealed. 10.", "In 2003 the appellate bench of the Supreme Court appointed a technical expert, the Expert Committee of the Hungarian Patent Office, which submitted its opinion to the court on 2 February 2004. On 8 March 2004 the applicant submitted a counter-opinion prepared by other experts. 11. The appellate bench of the Supreme Court upheld the first-instance decision on 31 March 2004. The courts relied on documentary evidence, the opinion of the technical expert and the parties’ testimony.", "The applicant lodged a petition for review with the Supreme Court. 12. On 15 October 2004 the review bench of the Supreme Court declared the applicant’s petition inadmissible, without examining the merits, since it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure. 13. In April 2004 the applicant lodged a criminal complaint with the Budapest Prosecutor’s Office, alleging that the documents submitted by the defendants during the proceedings had been forged.", "On 18 April 2005, after a remittal, the Prosecutor’s Office terminated the investigation in the absence of any crime, which decision was upheld by the Chief Prosecutor’s Office in June 2005. 2. Civil proceedings against the Budapest Regional Court 14. In 2004 the applicant brought an official liability action against the Budapest Regional Court before the Pest County Regional Court, alleging that the Budapest Regional Court’s wrong decision had forced him to abandon his patent rights in 1997. 15.", "On 10 October 2005 the Pest County Regional Court dismissed the applicant’s claim. It found that the applicant had erred in accepting a non-final decision ─ against which he appealed ─ as a binding legal opinion and, therefore, the Budapest Regional Court was not responsible for his alleged loss. The applicant appealed. 16. On 13 April 2006 the Budapest Court of Appeal upheld the first-instance decision.", "The applicant lodged a petition for review with the Supreme Court. On 9 November 2006 the Supreme Court dismissed the applicant’s petition. The courts relied on documentary evidence and the parties’ testimony. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17.", "The applicant complained that the length of the proceedings concerning the patent rights (see paragraphs 5-13 above) had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 18. The Government contested that argument. 19. The period to be taken into consideration began on 26 October 1995 and ended on 15 October 2004, i.e. it lasted for nine years.", "From the period taken into consideration, 6 months ─ the length of the review proceedings before the Supreme Court ─ are imputable to the applicant, since this futile motion initiated by him was declared inadmissible ratione materiae with the relevant provisions of the Code of Civil Procedure and not examined on the merits. The relevant period thus lasted 8 years and 6 months for two levels of jurisdiction, including a remittal. A. Admissibility 20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 21. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "22. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Frydlender, cited above). 23. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "24. There has accordingly been a breach of Article 6 § 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 25. The Court observes that the applicant complained under Article 6 § 1 of the Convention about the outcome and the unfairness of both proceedings.", "The Court notes that these complaints are essentially of a fourth-instance nature: there is no indication in the case file that the domestic courts lacked impartiality or that the proceedings were otherwise unfair or arbitrary. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention. 26. The Court further observes that the applicant complained under Article 1 of Protocol No. 1 to the Convention about the violation of his property rights.", "In this connection he also relied on Article 13 of the Convention, without substantiating or developing further this complaint. The Court considers that the mere refusal of the applicant’s claims in judicial proceedings which disclose no sign of arbitrariness does not raise an issue under Article 1 of Protocol No. 1 to the Convention or Article 13 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention. 27.", "Lastly, the Court notes that the applicant complained, without relying on any particular provisions of the Convention, that his criminal accusations did not lead to any conviction. The Court observes that the Convention or its Protocols do not guarantee any right as such to press criminal charges against third persons or have them convicted. It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4. 28. It follows that these remaining complaints must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 30. The applicant claimed 35.8 billion Hungarian forints in respect of pecuniary and non-pecuniary damage.", "31. The Government did not express an opinion on the matter. 32. The Court does not discern any casual link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, on the equitable basis, it awards the applicant EUR 5,600 for the non-pecuniary damages.", "B. Costs and expenses 33. The applicant did not put forward any claim under this head. C. Default interest 34. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings concerning the patent rights admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,600 (five thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, which sum is to be converted into Hungarian forints at the rate applicable at the date of settlement: (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 1 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise Tulkens RegistrarPresident" ]

[ "GRAND CHAMBER CASE OF AXEL SPRINGER AG v. GERMANY (Application no. 39954/08) JUDGMENT STRASBOURG 7 February 2012 This judgment is final but may be subject to editorial revision. In the case of Axel Springer AG v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of: Nicolas Bratza, President,Jean-Paul Costa,Françoise Tulkens,Josep Casadevall,Lech Garlicki, Peer Lorenzen, Karel Jungwiert,Renate Jaeger,David Thór Björgvinsson,Ján Šikuta,Mark Villiger,Luis López Guerra,Mirjana Lazarova Trajkovska,Nona Tsotsoria,Zdravka Kalaydjieva,Mihai Poalelungi,Kristina Pardalos, judges,and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 13 October 2010 and on 7 December 2011, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 39954/08) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a public limited company incorporated under German law, Axel Springer AG (“the applicant company”), on 18 August 2008.", "2. Relying on Article 10, the applicant company complained about the injunction imposed on it against reporting on the arrest and conviction of a well-known actor for a drug-related offence. 3. The application was initially allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court – “the Rules”). On 13 November 2008 a Chamber of that Section decided to give notice of the application to the Government.", "By virtue of Article 29 § 3 of the Convention, as worded at the relevant time, it also decided that the admissibility and merits of the case should be considered together. On 30 March 2010 the Chamber, composed of the following judges: Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Rait Maruste, Mark Villiger, Mirjana Lazarova Trajkovska and Zdravka Kalaydjieva, and also Claudia Westerdiek, Section Registrar, after deciding to join the present application to the applications Von Hannover v. Germany (nos. 40660/08 and 60641/08) concerning the refusal by the German courts to grant an injunction against any further publication of two photos, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 4. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 2 and 3 of the Convention (now Article 26 §§ 4 and 5) and Rule 24 of the Rules of Court.", "On 3 November 2011 Jean‑Paul Costa’s term as President of the Court came to an end. Nicolas Bratza succeeded him in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). Jean-Paul Costa continued to sit following the expiry of his term of office, in accordance with Article 23 § 3 of the Convention and Rule 24 § 4. At the final deliberations, Lech Garlicki and Nona Tsotsoria, substitute judges, replaced Rait Maruste and Christos Rozakis, who were unable to take part in the further consideration of the case (Rule 24 § 3). 5.", "The President of the Grand Chamber decided to maintain the application of Article 29 § 3 of the Convention before the Grand Chamber with a view to a joint examination of the admissibility and merits of the applications. He also decided that the proceedings in the present case should be conducted simultaneously with those in the Von Hannover cases cited above (Rule 42 § 2). 6. The applicant company and the Government each filed written observations on the admissibility and merits of the case. The Government filed written observations on the applicant company’s observations.", "7. In addition, third-party comments were received from the following non-governmental organisations: Media Lawyers Association, Media Legal Defence Initiative, International Press Institute and World Association of Newspapers and News Publishers, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties were given the opportunity to reply to those comments (Rule 44 § 5). 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 13 October 2010 (Rule 59 § 3).", "There appeared before the Court: (a) for the GovernmentMrsA. Wittling-Vogel, Federal Ministry of Justice,Agent,MrC. Walter, Professor of Public Law,Counsel,MrsA. von Ungern-Sternberg, Assistant,MrR. Sommerlatte, Federal Office for Culture,MrA.", "Maatsch, Judge of the Hamburg Regional Court,Advisers; (b) for the applicant companyMrU. Börger, Lawyer,Counsel,MrsK. Hesse, Lawyer,Adviser. The Court heard addresses, and answers to questions from judges, from Mr Walter and Mr Börger. After being invited by the Court to provide additional information concerning the holding of a press conference by the Munich public prosecutor’s office following the arrest of the actor X, the parties subsequently submitted a certain number of documents in that connection.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant is a public limited company whose registered office is in Hamburg. It publishes the Bild, a daily newspaper with a large circulation. The present case concerns the publication by the newspaper of two articles about X, a well-known television actor.", "Between May 1998 and November 2003 X had played the part of Police Superintendent Y, the hero of a television series broadcast on a private television channel in the evenings, until 2005. By October 2004, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Police Superintendent Y. The average audience rating was 18% (between 3 and 4,700,000 viewers per episode). 10. On 14 June 2003 the applicant company revealed that X had been convicted of unlawful possession of drugs.", "After receiving a warning from X, it undertook, on pain of an agreed penalty, to refrain from publishing information according to which four grams of cocaine had been found at X’s home that he had had sent to him by post from Brazil and for which he had been given a prison sentence, suspended for five months, and fined 5,000 euros (EUR). A. X’s arrest 11. At approximately 11 p.m. on 23 September 2004 X was arrested at the Munich beer festival (Oktoberfest) for possession of cocaine. In a sworn statement (eidesstattliche Versicherung) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and, if so, on what grounds. The police had confirmed that X had been arrested in the Käfer tent in possession of cocaine, without giving any further details.", "12. According to that statement, the journalist had then contacted the public prosecutor, W., from the public prosecutor’s office of Munich Regional Court I, in charge of relations with the press, and had asked him for information. W. had confirmed that X had been arrested in the Käfer tent in possession of cocaine. According to W., plain-clothes police officers had arrested X because they had seen him making a suspicious movement with his hand when coming out of the toilets. The officers had searched him, and, having found him to be in possession of an envelope containing 0.23 grams of cocaine, had arrested him.", "According to W., the arrest had taken place at approximately 11 p.m. on 23 September and a criminal complaint was currently being investigated. B. The articles in issue 1. The first article 13. In its 29 September 2004 edition, the applicant company’s daily newspaper, the Bild, published the following headline in large type on its front page: “Cocaine!", "Superintendent Y caught at the Munich beer festival.” The article, which was printed in small type, read as follows: “He came out of the gents tapping his nose suspiciously and was arrested! At the beer festival the police caught X (... years old, Superintendent Y on television), in possession of a small envelope of cocaine. See page 12 for the details.” The following headline appeared on page twelve of the daily: “TV star X caught in possession of cocaine. A bretzel (Brezn), a beer mug [containing a litre of beer – Maß] and a line of coke (Koks).” The article, printed in small type, read as follows: “Thursday night, 11 p.m. At the beer festival there was drinking, partying, swaying arm in arm. And sniffing....", "In the celebrities’ tent the TV star X (... years old, whose real name is ...) came out of the gents tapping his nose and attracting the attention of police officers. They searched the star actor from the TV series Y (of which, by June, there had been more than 60 episodes in five years). COCAINE! X had a packet on him containing 0.23 grams of coke, and was arrested. Public prosecutor W. from Munich told the Bild: “He was making suspicious movements with his hand, tapping his nose with his fingers.", "This of course attracted the attention of our officers. An investigation is under way. Only a small quantity of cocaine is involved though. W. : “Right in the middle of the festival grounds (Wiesn) – it might have been snuff tobacco, but our men have a flair for this sort of thing...”. X had already had a run-in with the law for possession of drugs.", "In July 2000 the Superintendent from the TV series had been given a five-month suspended prison sentence and two years’ probation and fined EUR 5,000. He was accused of illegally importing drugs. On a trip to Brazil X had arranged for four grams of cocaine to be sent to his address in Munich. His probation period ended two years ago. The quantity of the drug found in the tent ... is negligible.", "What can the actor expect? According to a legal expert questioned by Bild: “Even if the probation period is over the previous conviction is recent. X may get an unsuspended prison sentence – up to six months”. Why prison? “X has apparently not been sufficiently daunted by the suspended prison sentence”.", "The actor has probably had to submit to a forensic head hair examination. Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken. Yesterday X refused to comment. P.S: “In every toilet cubicle in the tent ... there are signs saying: “The use of drugs is liable to prosecution!” The article was accompanied by three photos of X, one on the first page and the other two on page twelve. 14.", "On the same day, during the morning, press agencies and other newspapers and magazines reported on X’s arrest, referring in part to the article published in the Bild. That day the prosecutor W. confirmed the facts reported in the Bild to other written media and television channels, two of which (“RTL” and “pro7”) broadcast the same reports that evening. During one of the broadcasts the prosecutor W. made the following statement: “The police officers saw X making a suspicious movement with his hand while coming out of the men’s toilets and concluded that he had taken something. They searched him and found an envelope containing 0.213 grams of cocaine. He had already been convicted of importing drugs and given a suspended prison sentence.", "He is not a first offender (Ersttäter). He should have known that he should not touch drugs. He can now expect a further prison sentence, even if the quantity found on him is insignificant.” 2. The second article 15. In its 7 July 2005 edition the Bild printed the following headline on its inside pages: “TV series Superintendent X confesses in court to having taken cocaine.", "He is fined 18,000 euros!” The article read as follows: “Munich – On TV he plays a superintendent who puts criminals behind bars. Yesterday, it was the turn of the actor X (... years old, ...) to be hauled up in front of the court and confess! X, who had to explain himself to the Munich District Court [Amtsgericht] on charges of “unlawful possession of drugs”, has confessed to taking drugs! X’s counsel ... stated: “We fully acknowledge the offence with which we have been charged in the indictment”. X confessed to the court: “I have occasionally smoked cannabis and taken cocaine from time to time.", "This has not made me happy. It had not turned into a habit but is just something that I have done from time to time”. Question from the court ...: “Are you currently taking drugs?” Reply from X: “No, I smoke cigarettes.” The sentence: a fine of EUR 18,000. The court: “The accused’s full confession has counted in his favour.” On TV X continues investigating on the side of law and order. In Vienna he is in front of the cameras for the television series ... which should be starting on the second channel in the autumn.” The article was accompanied by a photo of X. C. The proceedings in the German courts 16.", "Immediately after the articles appeared, X. instituted proceedings against the applicant company in the Hamburg Regional Court. The applicant company attached to its initial reply the statement by its journalist (see paragraphs 11 and 12 above) and numerous press articles about X, including a number of interviews given by him, to Bunte magazine among others, together with photos of him. 1. The first set of proceedings (a) The injunction proceedings 17. On 30 September 2004 the Hamburg Regional Court imposed an injunction on publication of the article, following a request lodged by X on 29 September 2004.", "In a judgment of 12 November 2004 it confirmed the injunction. That judgment was upheld by the Court of Appeal on 28 June 2005. On 6 October 2004 the Regional Court also imposed an injunction on publication of the photos illustrating the article. It confirmed that decision in a judgment of 12 November 2004. The applicant company did not challenge that judgment, which became final.", "(b) The main proceedings (i) Judgment of the Regional Court 18. On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of an agreed penalty, under Articles 823 § 1 and 1004 § 1 (by analogy) of the Civil Code (see paragraph 47 below), read in the light of the right to protection of personality rights (Allgemeines Persönlichkeitsrecht). It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004). 19. According to the Regional Court, the article in question, which mentioned X’s name and was accompanied by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of the public.", "The court found that, despite those negative effects, reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report. Any interference with a criminal’s private sphere was limited, however, by the proportionality principle, which involved a balancing exercise between the competing interests. The court held that in the present case the right to protection of X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor the person of X, nor any other circumstances justified publication of the article at issue. 20.", "The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor, seriousness, was a very common one and there was no particular public interest in knowing about it. The court added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one. The report had focussed more on X’s person than on the offence, which would probably never have been reported in the press if it had been committed by a person unknown to the public.", "Similarly, the court pointed out, whilst X’s previous conviction for a similar offence was such as to increase the public’s interest, it was his only previous conviction and, moreover, dated back several years. 21. The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information.", "The interest in X did not, in any event, go beyond the interest habitually manifested by the public in leading actors in German television series. 22. The court observed that the applicant company had published many articles about X over a period of six years and particularly over the last three years. The vast majority of these publications had, however, merely mentioned X’s name – often without a photo – among the names of celebrities invited to various events. Whilst it was undisputed that X had taken part in over 200 national and international cinematographic and televised productions, that did not convey much of an idea of his public importance.", "Indeed, actors could have starred in hundreds of television series and still remain little known to the public. There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye. 23. X had, to an extent, sought to attract the public’s attention by giving interviews to certain magazines between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other well‑known figures who avoided the limelight.", "According to the court, X had not, however, courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights. 24. The Regional Court conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role. However, that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting the conduct of the character in question in his daily life.", "The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the court’s view, viewers could distinguish between the actor and his role, even where the actor was well known essentially for playing one particular character. 25. The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue; neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company contained no comment by X on the subject.", "In issue no. 48/2003 of the magazine Bunte, X had stated, in passing, that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court’s view, the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and 2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field. That subject had been only marginally covered in the interview, which had mainly concerned the actor’s professional prospects and his difficulties in his relationships. 26.", "Observing that when balancing the competing interests, the decisive criteria were how well known X was and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned an actor who was not exceptionally well known and was accused of an offence which, while not insignificant, was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas the information published amounted to a serious (gravierend) interference with X’s right to the protection of his personality rights. 27. The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public prosecutor’s office at the Munich Regional Court I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public prosecutor’s office could be regarded as a “privileged source” (privilegierte Quelle) of information that did not, as a general rule, require verification as to the truth of its content.", "Moreover, three press agencies had disclosed similar details. However, even assuming that it had received all the information before publishing the article in question, the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X’s right to protection of his personality rights. In the court’s opinion, the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press. 28. The court found that it could be presumed that institutions providing a public service, and in particular the public prosecutor’s office and the police, made every effort, in accordance with the principle of neutrality, not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned.", "However, such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media. 29. In the instant case the applicant company was actually better placed than a member of the Munich public prosecutor’s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest. On that point the court considered that account also had to be taken of the context in which the information was published: the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person’s name was justified or not. Accordingly, publishers could not generally consider that the disclosure of a person’s identity by a privileged source would make any kind of report on the person concerned legal, without having first balanced the interests at stake.", "30. The Regional Court pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was appropriate for the public prosecutor’s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started. The court concluded that the applicant company could not argue that it had relied on the disclosure of X’s name by the public prosecutor’s office. (ii) Judgment of the Court of Appeal 31.", "On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that the disclosure of a suspect’s name when reporting on an offence constituted, as a general rule, a serious infringement of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness. In X’s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at a young audience. 32. The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below).", "It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court’s opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well-known television star. 33. The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained because X was a well-known figure and had played the part of a police superintendent over a long period of time (längerer Zeitraum).", "However, even if X played that role, this did not mean that he had himself necessarily become an idol or role model as a law-enforcement officer, which could have increased the public’s interest in the question whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well be that X’s appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model whose image should be corrected by the newspaper report in question.", "34. The publications submitted by the applicant company were indeed evidence that X was hugely popular, but did not support the contention that he had used confessions about his private life to attract the public’s attention. Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the drug had actually been consumed in the men’s toilets, that is, in a place that fell within the protected private sphere, and out of public view. Lastly, even if it were to be established that X’s arrest was a matter of substantial public interest, the same could not be said of the description and characterisation of the offence committed out of public view. 35.", "Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public prosecutor’s office, the Court of Appeal stated that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor’s office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice. (iii) The decisions of the Federal Court of Justice 36.", "On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. 37. On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions (Anhörungsrüge). It stated that when balancing the public’s interest in being informed about public criminal proceedings against an interference with the defendant’s private sphere, the Court of Appeal had taken into account the circumstances of the case and had reached its decision in accordance with the criteria established in its case-law. There was no evidence that the relevant criteria for the balancing exercise had been disregarded.", "The Federal Court of Justice stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard. 2. The second set of proceedings (a) The injunction proceedings 38. On 15 August 2005 the Hamburg Regional Court granted an application by X for an injunction against any further publication of the second article. (b) The main proceedings (i) Judgment of the Regional Court 39.", "By a judgment of 5 May 2006, the Regional Court granted X’s application in the main proceedings, ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18-30 above). It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled to report on the substantial penalty imposed in that case. (ii) Judgment of the Court of Appeal 40. On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31-35 above).", "On the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct. In the present case, the public’s interest in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a superintendent in a television series, was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose (informationelle Selbstbestimmung). 41. The applicant company’s reliance on the high audience rating of the television series Y. did not, in the Court of Appeal’s opinion, prove that X. had served as a role model or a counter model. If a role model existed for millions of viewers, the role model in question was the character of the superintendent.", "The Court of Appeal reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view, in the men’s toilets. The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not been established that other persons present in the tent had noticed that X had taken cocaine. 42. The Court of Appeal added that whilst the fact that the “quality press” had reported the case might indicate that there was a not insignificant (nicht geringes) interest in reporting it, that was not a basis on which to conclude that the interference with X’s right to the protection of his personality rights had been lawful. 43.", "The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter’s judgment of 15 November 2005 (see paragraph 48 below). (iii) Decisions of the Federal Court of Justice 44. On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions. 3.", "Decision of the Federal Constitutional Court 45. On 5 March 2008 a three-judge panel of the Federal Constitutional Court declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings. It stated that it was not giving reasons for its decision. 4. Other judicial decisions concerning the applicant company 46.", "On 12 September 2006 and 29 January 2008 the Hamburg Regional Court ordered the applicant company to pay X two penalty payments of EUR 5,000, each one for having breached the order of 15 August 2005 (see paragraph 38 above). The court criticised the applicant company for, inter alia, publishing in the 7 July 2006 edition of the daily newspaper Die Welt and on the newspaper’s internet page (welt.de) on 22 March 2007 the following statement by one of its editors: “Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine, even though he was a very well-known recidivist and the offence was committed at the beer festival in Munich.” II. RELEVANT DOMESTIC LAW AND PRACTICE AND EUROPEAN TEXTS A. Domestic law and practice 1. The Civil Code 47.", "Article 823 § 1 of the Civil Code (Bürgerliches Gestezbuch) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to make compensation for the resulting damage. In accordance with Article 1004 § 1, where another’s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction. 2. Relevant case-law 48.", "In its judgment of 15 November 2005 (no. Vi ZR 286/04) the Federal Court of Justice reiterated its established case-law according to which the decisive criteria for evaluating the lawfulness of a news report mentioning the name of the person concerned were the nature of the offence and the person of the suspect. The facts of the case were a fine and a prohibition on driving imposed by the French courts for speeding on a motorway (211 instead of 130 km per hour) on a person known to the public. The Federal Court of Justice found, firstly, that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme contempt for the highway regulations, and, secondly, that the offence had put other motorists at considerable risk. Moreover, both the manner in which the person concerned had behaved in public in the past and his origins and the fact that he was the husband of a very well-known individual meant that the interest of the press in publishing a news report prevailed over the right to protection of the personality rights of the person concerned.", "The Federal Court of Justice pointed out that the Court’s judgment in the case of Von Hannover v. Germany of 24 June 2004 (no. 59320/00, ECHR 2004‑VI) allowed of no other conclusion. The articles (and photos) in that case had concerned only scenes from Caroline von Hannover’s daily life, and had aimed merely to satisfy the curiosity of a particular readership regarding her private life. 49. In a decision of 13 June 2006 (no.", "1 BvR 565/06), a three-judge panel of the Federal Constitutional Court decided not to entertain a constitutional appeal lodged against the judgment of the Federal Court of Justice and upheld the latter’s findings. B. Texts adopted by the Council of Europe 1. Recommendation Rec(2003)13 of the Committee of Ministers 50. The relevant passages of Recommendation (Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, adopted on 10 July 2003 at the 848th meeting of the Ministers’ Deputies, read as follows:- “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society; Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, ...", "Appendix to Recommendation Rec(2003)13 Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 - Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. Principle 3 - Accuracy of information Judicial authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions.", "In the latter case, this should be clearly indicated to the media. Principle 4 - Access to information When journalists have lawfully obtained information in the context of on-going criminal proceedings from judicial authorities or police services, those authorities and services should make available such information, without discrimination, to all journalists who make or have made the same request. (...) Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 2.", "Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy 51. The relevant passages of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, read as follows:- “... 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.", "7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures. 9.", "Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society.", "These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.", "...” THE LAW I. DISJOINDER OF THE APPLICATION 52. The Court notes that before relinquishing jurisdiction in favour of the Grand Chamber the Chamber had joined the present application to the applications in Von Hannover v. Germany (nos. 40660/08 and 60641/08) – see paragraph 3 above). Having regard, however, to the nature of the facts and the substantive issues raised in those cases, the Grand Chamber considers it appropriate to disjoin applications nos. 40660/08 and 60641/08 from the present application.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 53. The applicant company complained about the injunction imposed on it against reporting on the arrest and conviction of X. It relied on Article 10 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 54. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention. It notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The Government 55. The Government acknowledged that the impugned court decisions amounted to an interference with the applicant company’s right to freedom of expression. However, the interference was prescribed by law and pursued an aim recognised as legitimate by the Court, namely, the protection of the private sphere (News Verlags GmbH & Co.KG v. Austria, no.", "31457/96, § 44, ECHR 2000‑I). The question at issue between the parties in the present case was whether the interference had been proportionate, and in particular whether the balancing exercise undertaken by the national courts of the applicant company’s right to freedom of expression against X’s right to respect for his private life was in conformity with the criteria established by the Court’s case-law. In that connection regard had to be had to the role of the person concerned, the purpose of the publication and the severity of the sanction imposed on the press. 56. The Government referred to the national courts’ finding that, unlike Superintendent Y, X was not well known to the public and accordingly could not be regarded as a public figure.", "In its judgment concerning the second article, the Regional Court had, moreover, differentiated X from Prince Ernst August von Hannover (see paragraph 39 above). The press interviews given by X had not been sufficient in themselves to increase the public’s interest in his person. In the Government’s submission, the task of assessing how well a person was known to the public should fall to the domestic courts. That was particularly true in borderline cases, which required an assessment of the facts and of social situations that the Court could not undertake in respect of each and every potential public figure in 47 States. 57.", "With regard to the subject matter of media reports, the Government acknowledged that where the press reported on the commission of an offence it was generally playing its role as “public watchdog”, in particular where criminal proceedings were concerned. There was a greater public interest in this case than when the press merely reported details of the private life of an individual. In the present case, however, the public had no interest in being informed about the offence committed by X, whom they could not have dissociated from the person of the defendant. The present case had not called into question the workings of the justice system, like the case of Obukhova v. Russia (no. 34736/03, 8 January 2009), but had concerned only a minor drugs-related offence committed by a relatively well-known actor.", "58. The task of assessing the seriousness of the offence should fall within the margin of appreciation of the national authorities. In the instant case the courts considered that the offence was of medium, or even minor, seriousness. The Government pointed out that the amount of the fine was relatively high on account of X’s income. The criminal courts had fixed the amount at 90 day-fines, so the offence did not appear in X’s certificate of good conduct (destined for employers) or in his criminal record.", "59. The Government disputed the applicant company’s allegation that the Munich prosecutor had held a press conference and published a press release about X’s arrest prior to publication of the first article (see paragraph 69 below). 60. As regards the nature of the penalty imposed on the applicant company, the Government observed that the latter had merely been prevented from publishing the content of the articles in question and had been ordered to reimburse modest legal costs. The applicant company had neither been convicted under criminal law nor ordered to pay damages, unlike publishers in other cases who had been given a custodial sentence; nor had it been prevented from carrying on the profession of journalist or faced an order for the seizure of all copies of the particular edition of a newspaper or an order to pay hefty damages (Cumpǎnǎ and Mazǎre v. Romania [GC], no.", "33348/96, § 112, ECHR 2004‑XI; Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 41, 27 October 2005; and Flinkkilä and Others v. Finland, no. 25576/04, § 89, 6 April 2010). The Government added that the German courts had not, moreover, imposed a blanket ban on all reporting of X’s arrest and trial; the problem had been that the applicant company had failed to maintain the anonymity of the actor at the time of his arrest and prior to the trial. 61.", "The Government highlighted the margin of appreciation enjoyed by the State in the present case. That margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of the Convention. (Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008, and A. v. Norway, no.", "28070/06, § 66, 9 April 2009). Generally speaking, the margin enjoyed by the States was broader where there was no European consensus. In the Government’s submission, whilst there was admittedly a trend towards harmonisation of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations (Regulation EC No. 864/2007 of 11 July 2007 – Rome II Regulation). The margin of appreciation was also broad where the national authorities had to strike a balance between competing private and public interests or Convention rights (Evans v. the United Kingdom [GC], no.", "6339/05, § 77, ECHR 2007‑I, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78 ECHR 2007‑XIII). Moreover, the case-law of the Court of Justice of the European Union apparently took the same approach (cases of Omega of 14 October 2004, C‑36/02, and Schmidberger of 12 June 2003, C-112/00). 62. The Government argued that the special nature of certain cases, such as the present one, in which the domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact that the proceedings before the Court were in fact a continuation of the original legal action, with each party to the domestic proceedings potentially able to apply to the Court.", "It was precisely for that reason that one result alone of the balancing exercise of the competing interests was insufficient, and that there should be a “corridor” of solutions within the confines of which the national courts should be allowed to give decisions in conformity with the Convention. Failing that, the Court would have to take the decision on every case itself, which could hardly be its role. 63. The Government stated that there had been slightly less of a tendency to do this at domestic level because the Federal Constitutional Court granted the ordinary courts a margin of appreciation in that respect and refrained from carrying out its own balancing exercise in their stead. That could, moreover, explain the absence of reasons given for the decision of the Federal Constitutional Court in the present case.", "The tendency, at national level, to reduce the scope of review by a constitutional court should apply a fortiori to the European Court of Human Rights, which had the task of examining the outcome of balancing exercises carried out by the courts in 47 Contracting States, whose legal systems were still very heterogeneous. 64. In the Government’s submission, the Court should intervene only where the domestic courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where the result of that exercise was patently disproportionate (Cumpănă and Mazăre, cited above, §§ 111‑120). That conclusion was confirmed, moreover, by Article 53 of the Convention: where the relationship between State and citizen was concerned, a gain of freedom for the individual concerned involved only a loss of competence for the State, whereas in the relationship between two citizens the fact of attaching more weight to the right of one of the persons concerned restricted the right of the others, which was forbidden under Article 53 of the Convention. (b) The applicant company 65.", "The applicant company maintained that at the material time X was a well-known actor who played the main role in a television crime series that was extremely popular, especially among young male adults; X had, moreover, been voted second most popular actor in 2002. He was not therefore just an ordinary individual who did not attract media attention, as had been so in other cases decided by the Court (see, inter alia, Sciacca v. Italy, no. 50774/99, ECHR 2005‑I; Toma v. Romania, no. 42716/02, 24 February 2009; and Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009).", "66. In the applicant company’s submission, the commission of a criminal offence was, by its very nature, never a purely private matter. Furthermore, in the present case X was a repeat offender as he had already been given a five-month suspended prison sentence in July 2000 and fined EUR 5,000 for possession of drugs. 67. The public’s interest in being informed prevailed over X’s right to respect for his private life.", "X had – of his own initiative – courted public attention, had a market value corresponding to his high profile, had willingly allowed photos to be taken of himself on public occasions and had given press interviews revealing aspects of his private life, including his drug consumption. As a role model and having himself entered the public arena, X should have accepted that he would attract the public’s attention, in particular if he committed a criminal offence. The applicant company argued that anyone who used the media for self-promotion should expect their conduct to be truthfully reported on by the media. This was particularly true in X’s case because, following his first conviction for possession of drugs, he had asserted that he had given up taking drugs. He had accordingly waived his right to privacy.", "68. The applicant company stated, further, that the truth of the facts reported in the articles in question was not disputed (citing, conversely, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, ECHR 2004‑XI). The information given had, moreover, not affected the conduct of the preliminary investigation or the trial (citing, conversely, Tourancheau and July v. France, no. 53886/00, 24 November 2005); it had included details not only about X’s private life, but also serious factual information about criminal law and the consequences of drug taking.", "The present case was thus distinguishable from the case of Von Hannover (cited above), especially as, unlike X, the applicant in that case had always sought to protect her private life. 69. The applicant company reiterated that it had reported on X’s arrest after the prosecution authorities had disclosed the facts and the identity of the person arrested. In its submissions at the hearing, particularly in reply to the judges’ questions, it had stated that prior to publication of the articles the Munich public prosecutor’s office had held a press conference – in the presence of television cameras – during which it had provided detailed information. The public prosecutor’s office had also published a long press release on the subject.", "Accordingly, the applicant company had published only information that had already been made public. It would be demotivating for journalists not to be able to publish such information. Attending a press conference would be a complete waste of time. 70. In conclusion, the applicant company submitted that the press should not be reduced to reporting only on political figures.", "Since prominent persons were able to establish a certain image of themselves by seeking the attention of the media, the latter should be permitted to correct that image when it no longer corresponded to the reality. It was not a question of asserting the primacy of the freedom of expression over the right to respect for private life. Freedom of expression should, however, prevail where the person concerned enjoyed a more than regional degree of prominence and had freely engaged in his or her self-promotion. 2. Third parties’ observations (a) Media Lawyers Association 71.", "The third-party association submitted that the right to reputation was not protected by the Convention. Publication of a defamatory article about a person did not, of itself, amount to an interference with the exercise of the rights guaranteed under Article 8. When balancing the rights under Articles 8 and 10 of the Convention wide and strong protection should be given to the right of the media to report on all matters of public interest and in particular to inform the public about judicial proceedings. The third-party association observed that the inclusion of a person’s name or other identifying detail played an important part in fulfilling the task of informing the public. 72.", "According to a United Kingdom Supreme Court ruling, if the names of the parties were not revealed when reporting on court proceedings the report would be disembodied, readers would be less interested and editors would give the report lower priority. The Media Lawyers Association also stressed the importance of preserving a wide editorial discretion and the principle of open justice to which the media contributed an essential element, adding that there should be no incursion into that principle except where strictly necessary such as protecting a defendant or witness by anonymity. Other than in those circumstances, there should be no restriction on the right of the media to publish reports on court proceedings including photographs. (b) Joint submissions by the Media Legal Defence Initiative, International Press Institute and World Association of Newspapers and News Publishers 73. The three third-party associations submitted that a broad trend could be observed across the Contracting States towards the assimilation by the national courts of the principles and standards articulated by the Court relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if the individual weight given to a particular factor might vary from one State to another.", "They invited the Court to grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53 of the Convention. They referred to the Court’s judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999‑III), submitting that the Court had indicated that it would allow Contracting States a wide margin of appreciation in situations of competing interests. 74. The Contracting States were likewise generally granted a wider margin in respect of positive obligations in relationships between private parties or other areas in which opinions within a democratic society might reasonably differ significantly (Fretté v. France, no.", "36515/97, § 41, ECHR 2002‑I). The Court had, moreover, already allowed the Contracting States a broad margin of appreciation in a case concerning a balancing exercise in respect of rights under Articles 8 and 10 of the Convention (A. v. Norway, cited above, § 66). Its role was precisely to confirm that the Contracting States had put in place a mechanism for the determination of a fair balance and whether particular factors taken into account by the national courts in striking such a balance were consistent with the Convention and its case-law. It should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusions reached by the domestic courts were clearly arbitrary or summarily dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming a court of appeal for such cases.", "3. The Court’s assessment 75. The parties agreed that the judicial decisions given in the present case constituted an interference with the applicant company’s right to freedom of expression as guaranteed by Article 10 of the Convention. 76. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10.", "It therefore falls to be determined whether the interference was “prescribed by law”, had an aim or aims that is or are legitimate under Article 10 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims. 77. It is common ground between the parties that the interference was prescribed by Articles 823 § 1 and 1004 § 1 of the Civil Code (see paragraphs 18 and 47 above), read in the light of the right to protection of personality rights. They also agree that it pursued a legitimate aim – namely, the protection of the reputation or rights of others – within the meaning of Article 10 § 2 of the Convention, which, according to the Court’s case-law (Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI, and Pfeifer v. Austria, no.", "12556/03, § 35, 15 November 2007), can encompass the right to respect for private life within the meaning of Article 8. The parties disagree, however, as to whether the interference was “necessary in a democratic society”. (a) General principles (i) Freedom of expression 78. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.", "Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004‑IV; and Lindon, Otchakovsky‑Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007‑IV).", "79. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no.", "21980/93, §§ 59 and 62, ECHR 1999‑III, and Pedersen and Baadsgaard, cited above, § 71). 80. This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them (see News Verlags GmbH & Co. KG v. Austria, no.", "31457/96, § 56, ECHR 2000‑I; Dupuis and Others v. France, no. 1914/02 § 35, ECHR 2007‑VII; and Campos Dâmaso v. Portugal, no. 17107/05, § 31, 24 April 2008). 81. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Baadsgaard, cited above, § 71).", "Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February 2009). (ii) Limits on the freedom of expression 82. However, Article 10 § 2 of the Convention states that freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern.", "These duties and responsibilities are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Pedersen and Baadsgaard, cited above, § 78, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 89, ECHR 2007‑III). 83.", "The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer, cited above, § 35; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person’s identity, such as gender identification and sexual orientation, name or elements relating to a person’s right to their image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008-...). It covers personal information which individuals can legitimately expect should not be published without their consent (see Flinkkilä and Others, cited above, § 75, and Saaristo and Others v. Finland, no.", "184/06, § 61, 12 October 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, cited above, § 64). The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004‑VIII). 84.", "When examining the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011). (iii) Margin of appreciation 85. The Court reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under that provision is necessary (see Tammer v. Estonia, no.", "41205/98, § 60, ECHR 2001‑I, and Pedersen and Baadsgaard, cited above, § 68). 86. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004‑X, and Flinkkilä and Others, cited above, § 70). In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no.", "20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco, cited above, § 41; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). 87. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no.", "12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also point 11 of the Resolution of the Parliamentary Assembly – paragraph 51 above). Accordingly, the margin of appreciation should in principle be the same in both cases. 88.", "Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). (iv) Criteria relevant for the balancing exercise 89. Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that are relevant to the present case are set out below. (α) Contribution to a debate of general interest 90.", "An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009).", "The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes (see White v. Sweden, no. 42435/02, § 29, 19 September 2006; Egeland and Hanseid, cited above, § 58; and Leempoel & S.A. ED. Ciné Revue, cited above, § 72), but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos.", "11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010). However, the rumoured marital difficulties of a president of the Republic or the financial difficulties of a famous singer were not deemed to be matters of general interest (see Standard Verlags GmbH, cited above, § 52, and Hachette Filipacchi Associés (ICI PARIS), cited above, § 43). (β) How well known is the person concerned and what is the subject of the report? 91.", "The role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitute another important criterion, related to the preceding one. In that connection a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco, cited above, § 55). A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions (see Von Hannover, cited above, § 63, and Standard Verlags GmbH, cited above, § 47).", "Whilst in the former case the press exercises its role of “public watchdog” in a democracy by imparting information and ideas on matters of public interest, that role appears less important in the latter case. Similarly, although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – even where the persons concerned are quite well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying the curiosity of a particular readership in that respect (see Von Hannover, cited above, § 65 with the references cited therein, and Standard Verlags GmbH, cited above, § 53; see also point 8 of the Resolution of the Parliamentary Assembly – paragraph 51 above). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, § 66; Hachette Filipacchi Associés (ICI PARIS), cited above, § 40; and MGN Limited, cited above, § 143). (γ) Prior conduct of the person concerned 92. The conduct of the person concerned prior to publication of the report or the fact that the photo and the related information have already appeared in an earlier publication are also factors to be taken into consideration (see Hachette Filipacchi Associés (ICI PARIS), cited above, §§ 52 and 53, and Sapan, cited above, § 34).", "However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the report or photo at issue (see Egeland and Hanseid, cited above, § 62). (δ) Method of obtaining the information and its veracity 93. The way in which the information was obtained and its veracity are also important factors. Indeed, the Court has held that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Pedersen and Baadsgaard, cited above, § 78; and Stoll v. Switzerland [GC], no.", "69698/01, § 103, ECHR 2007-V). (ε) Content, form and consequences of the publication 94. The way in which the photo or report are published and the manner in which the person concerned is represented in the photo or report may also be factors to be taken into consideration (see Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no. 3), nos.", "66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to which the report and photo have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and Iltalehti, cited above, § 47, and Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006).", "(ζ) Severity of the sanction imposed 95. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of an interference with the exercise of the freedom of expression (see Pedersen and Baadsgaard, cited above, § 93, and Jokitaipale and Others, cited above, § 77). (b) Application to the present case (i) Contribution to a debate of general interest 96. The Court notes that the articles in question concern the arrest and conviction of the actor X, that is, public judicial facts that may be considered to present a degree of general interest. The public do, in principle, have an interest in being informed – and in being able to inform themselves – about criminal proceedings, whilst strictly observing the presumption of innocence (see News Verlags GmbH & Co. KG, cited above, § 56; Dupuis and Others, cited above, § 37; and Campos Dâmaso, cited above, § 32; see also Recommendation Rec(2003)13 of the Committee of Ministers and in particular principles nos.", "1 and 2 appended thereto – paragraph 50 above). That interest will vary in degree, however, as it may evolve during the course of the proceedings – from the time of the arrest – according to a number of different factors, such as the degree to which the person concerned is known, the circumstances of the case and any further developments arising during the proceedings. (ii) How well known is the person concerned and what is the subject of the report? 97. The Court notes the substantially different conclusions reached by the national courts in assessing how well known X was.", "In the Regional Court’s opinion, X was not a figure at the centre of public attention and had not courted the public to a degree that he could be considered to have waived his right to the protection of his personality rights, despite being a well-known actor and frequently appearing on television (see paragraph 23 above). The Court of Appeal, however, found that X was a well-known and very popular figure and had played the part of a police superintendent over a long period of time without himself having become a model law-enforcement officer, which would have justified the public’s interest in the question whether in his private life he actually behaved like his character (see paragraphs 33 and 34 above). 98. The Court considers that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially where that person is mainly known at national level. It notes in the present case that at the material time X was the main actor in a very popular detective series, in which he played the main character, Superintendent Y.", "The actor’s popularity was mainly due to that television series, of which, when the first article appeared, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Superintendent Y. Accordingly, he was not, as the Regional Court appeared to suggest, a minor actor whose renown, despite a large number of appearances in films (more than 200 – see paragraph 22 above), remained limited. It should also be noted in that connection that the Court of Appeal referred not only to the existence of X’s fan clubs, but also to the fact that his admirers could have been encouraged to imitate him by taking drugs, if the offence had not been committed out of public view (see paragraph 32 above). 99. Furthermore, whilst it can be said that the public does generally make a distinction between an actor and the character he or she plays, there may nonetheless be a close link between the popularity of the actor in question and his or her character where, as in the instant case, the actor is mainly known for that particular role.", "In the case of X, that role was, moreover, that of a police superintendent, whose mission was law enforcement and crime prevention. That fact was such as to increase the public’s interest in being informed of X’s arrest for a criminal offence. Having regard to those factors and to the terms employed by the domestic courts in assessing the degree to which X was known to the public, the Court considers that he was sufficiently well known to qualify as a public figure. That consideration thus reinforces the public’s interest in being informed of X’s arrest and of the criminal proceedings against him. 100.", "With regard to the subject of the articles, the domestic courts found that the offence committed by X was not a petty offence as cocaine was a hard drug. The offence was nevertheless of medium, or even minor, seriousness, owing both to the small quantity of drugs in X’s possession – which, moreover, were for his own personal consumption – and to the high number of offences of that type and related criminal proceedings. The domestic courts did not attach much importance to the fact that X had already been convicted of a similar offence, pointing out that this had been his only previous offence and, moreover, had been committed some years previously. They concluded that the applicant company’s interest in publishing the articles in question was solely due to the fact that X had committed an offence which, if it had been committed by a person unknown to the public, would probably never have been reported on (see paragraph 20 above). The Court can broadly agree with that assessment.", "It would observe, however, that X was arrested in public, in a tent at the beer festival in Munich. In the Court of Appeal’s opinion, that fact was a matter of important public interest in this case, even if that interest did not extend to the description and characterisation of the offence in question as it had been committed out of public view. (iii) X’s conduct prior to publication of the impugned articles 101. Another factor is X’s prior conduct vis-à-vis the media. He had himself revealed details about his private life in a number of interviews (see paragraph 25 above).", "In the Court’s view, he had therefore actively sought the limelight, so that, having regard to the degree to which he was known to the public, his “legitimate expectation” that his private life would be effectively protected was henceforth reduced (see, mutatis mutandis, Hachette Filipacchi Associés (ICI PARIS), cited above, § 53, and, by converse implication, Eerikäinen and Others, cited above, § 66). (iv) Method of obtaining the information and its veracity 102. With regard to the method of obtaining the published information, the applicant company submitted that it had reported on X’s arrest only after the disclosure, by the prosecuting authorities, of the facts and of the identity of the accused. It also asserted that all the information that it had published had already been made public, particularly during a press conference and in a press release issued by the public prosecutor’s office (see paragraph 69 above). The Government denied that any such press conference had been held by the public prosecutor’s office and submitted that it was not until after the applicant company had published the first article that the prosecutor W. had confirmed to other media the facts related by the applicant company.", "103. The Court observes that it cannot be determined from the documents in its possession whether or not the applicant company’s assertions that a press conference had been held and a press release issued prior to publication of the first article are substantiated. On the contrary, following a question put by the Court at the hearing the assertions in question turned out to be unfounded. The Court finds the attitude of the applicant company regrettable in this respect. 104.", "It can be seen, however, from the court decisions delivered in the present case and the observations of the parties to the domestic proceedings that this point was not dealt with before the domestic courts. For the purposes of examination of the present case, the Court will merely observe that the applicant company attached to all its replies in the various domestic proceedings a statement by one of its journalists as to how the information published on 29 September 2004 had been obtained (see paragraphs 11 and 12 above) and that the Government have not contested the truth of that statement. Consequently, whilst the applicant company is not justified in claiming that it had merely published information made public at a press conference held by the Munich public prosecutor’s office, the fact remains that the confirmation of the published information, and in particular X’s identity, emanated from the police and the prosecutor W., who was, moreover, press officer for the Munich public prosecutor’s office at the time. 105. Consequently, as the first article was based on information provided by the press officer at the Munich public prosecutor’s office, it had a sufficient factual basis (see Bladet Tromsø and Stensaas, cited above, § 72; Eerikäinen and Others, cited above, § 64; and Pipi v. Turkey (dec.), no.", "4020/03, 15 May 2009). The truth of the information related in both articles was, moreover, not in dispute between the parties to the domestic proceedings, and neither is it in dispute between the parties to the proceedings before the Court (see Karhuvaara and Iltalehti, cited above, § 44). 106. However, in the opinion of the domestic courts examining the case, the fact that the information had emanated from the Munich public prosecutor’s office merely meant that the applicant company could rely on its veracity; it did not dispense it from the duty to balance its interest in publishing the information against X’s right to respect for his private life. They found that that balancing exercise could only be undertaken by the press because a public authority was not in a position to know how or in what form the information would be published (see paragraphs 27-30 above).", "107. In the Court’s opinion, there is nothing to suggest that such a balancing exercise was not undertaken. The fact is, however, that having regard to the nature of the offence committed by X, the degree to which X is well known to the public, the circumstances of his arrest and the veracity of the information in question, the applicant company – having obtained confirmation of that information from the prosecuting authorities themselves – did not have sufficiently strong grounds for believing that it should preserve X’s anonymity. In that context, it should also be pointed out that all the information revealed by the applicant company on the day on which the first article appeared was confirmed by the prosecutor W. to other magazines and to television channels. Likewise, when the second article appeared, the facts leading to X’s conviction were already known to the public (see, mutatis mutandis, Aleksey Ovchinnikov v. Russia, no.", "24061/04, § 49, 16 December 2010). Moreover, the Court of Appeal itself considered that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful (see paragraph 35 above). In the Court’s view, it has not therefore been shown that the applicant company acted in bad faith when publishing the articles in question. (v) Content, form and consequences of the impugned articles 108. The Court observes that the first article merely related X’s arrest, the information obtained from W. and the legal assessment of the seriousness of the offence by a legal expert (see paragraph 13 above).", "The second article only reported the sentence imposed by the court at the end of a public hearing and after X had confessed (see paragraph 15 above). The articles did not therefore reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest (see Flinkkilä and Others, cited above, § 84, and Jokitaipale and Others, cited above, § 72). They contained no disparaging expression or unsubstantiated allegation (see the case-law cited in paragraph 82 above). The fact that the first article contained certain expressions which, to all intents and purposes, were designed to attract the public’s attention cannot in itself raise an issue under the Court’s case-law (see Flinkkilä and Others, cited above, § 74, and Pipi, above-cited decision). The Court notes, moreover, that the Regional Court imposed an injunction on publication of the photos accompanying the impugned articles and that the applicant company did not challenge that injunction.", "It therefore considers that the form of the articles in question did not constitute a ground for banning their publication. Furthermore, the Government did not show that publication of the articles had resulted in serious consequences for X. (vi) Severity of the sanction imposed on the applicant company 109. Regarding, lastly, the severity of the sanctions imposed on the applicant company, the Court considers that, although these were lenient, they were capable of having a chilling effect on the applicant company. In any event, they were not justified in the light of the factors set out above.", "(c) Conclusion 110. In conclusion, the grounds advanced by the respondent State, although relevant, are not sufficient to establish that the interference complained of was necessary in a democratic society. Despite the margin of appreciation enjoyed by the Contracting States, the Court considers that there is no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the national courts on the applicant company’s right to freedom of expression and, on the other hand, the legitimate aim pursued. 111. Accordingly, there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 112. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 113. The applicant company claimed EUR 27,734.28 in respect of pecuniary damage, corresponding to the three penalties that it had had to pay X (EUR 11,000 – see paragraphs 31 and 46 above), and X’s legal costs (EUR 1,261.84 – paragraphs 18 and 40 above) and lawyers’ fees (EUR 15,472.44 ) which it had had to reimburse.", "It referred, on the latter point, to the case of Verlagsgruppe News GmbH v. Austria (no. 2), (no. 10520/02, § 46, 14 December 2006). 114. The Government did not comment in that connection.", "115. The Court finds that there is a sufficient causal link between the violation found and the amounts claimed, except those corresponding to the two penalty payments of EUR 5,000. Accordingly, it awards EUR 17,734.28 under this head. B. Costs and expenses 116.", "The applicant company sought EUR 32,522.80 in respect of costs and expenses. That sum included court costs (EUR 6,610) and lawyers’ fees for the proceedings before the civil courts (EUR 13,972.50), the Federal Constitutional Court (EUR 5,000) and the Court (EUR 5,000), plus translation costs for the proceedings before the Court (EUR 1,941.30). The applicant company specified that although it had agreed on a higher amount of fees with its lawyers, it was claiming only the amounts provided for in the statutory fee scales. With regard to the amounts claimed for lodging the appeal with the Federal Constitutional Court and the application before the Court, the applicant company left the matter to the Court’s discretion, whilst specifying that it sought at least EUR 5,000 in respect of each set of proceedings. 117.", "The Government noted that the applicant company limited its claims for lawyers’ fees to the amounts set out in the scales applicable in Germany, which was not open to criticism. They contested the amounts claimed for the proceedings before the Federal Constitutional Court and before the Court, however, for lack of particulars. They indicated that where the Federal Constitutional Court declined to entertain a constitutional appeal, it generally fixed the value of the subject matter of the case at EUR 4,000. The corresponding lawyers’ fees would in that case amount to EUR 500 inclusive of tax. 118.", "The Court finds the sums claimed to be reasonable and, accordingly, awards those sums. C. Default interest 119. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Disjoins, unanimously, the applications in the case of Von Hannover v. Germany (nos.", "40660/08 and 60641/08) from the present application; 2. Declares, unanimously, the application admissible; 3. Holds, by twelve votes to five, that there has been a violation of Article 10 of the Convention; 4. Holds, by twelve votes to five, (a) that the respondent State is to pay the applicant company, within three months, the following amounts: (i) EUR 17,734.28 (seventeen thousand seven hundred and thirty‑four euros and twenty-eight centimes), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 32,522.80 (thirty-two thousand five hundred and twenty‑two euros and eighty centimes), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses, unanimously, the remainder of the applicant company’s claim in respect of just satisfaction.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 7 February 2012. Michael O’BoyleNicolas Bratza Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge López Guerra joined by Judges Jungwiert, Jaeger, Villiger and Poalelungi is annexed to this judgment. N.B.M.O’B. DISSENTING OPINION OF JUDGE LÓPEZ GUERRA JOINED BY JUDGES JUNGWIERT, JAEGER, VILLIGER AND POALELUNGI I do not agree with the finding by the Grand Chamber of a violation of Article 10 of the Convention. In my opinion, in the present case the Grand Chamber had no grounds for concluding that the domestic courts did not duly protect the applicant company’s right to freedom of expression.", "I certainly agree with the Grand Chamber’s determination of the facts of the case. It correctly established that there had been an interference with the applicant company’s right to freedom of expression as recognised in Article 10 of the Convention (in this case, the right to publish certain information) as a result of court sanctions imposed on it for publishing two press articles concerning the arrest and sentencing of a third person. I also agree with the Grand Chamber that the sanctions were provided for by law and pursued a legitimate end, namely, respect for the rights of others, in this case the right to privacy (including the right to respect for one’s reputation) as recognised in Article 8 of the Convention. I also agree with the Grand Chamber’s assertion (see paragraph 76 of the judgment) that the Court’s task was to determine whether those sanctions were necessary in a democratic society pursuant to the terms of Article 10 § 2 of the Convention. Also, as indicated in subsequent paragraphs of the Grand Chamber judgment, in order to answer this question this Court had to decide whether the domestic courts had adequately weighed the conflicting rights and interests, namely, the right to freedom of expression versus the right to privacy.", "My difference of opinion with the Grand Chamber judgment derives from its further reasoning. According to our consolidated case-law as cited in this judgment (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010), it is not the task of this Court to assume the role of the competent national courts in determining the merits of the case, but rather to review the decisions those courts render in the exercise of their powers of appreciation.", "Concerning compliance with Article 10 of the Convention, the domestic courts have a certain margin of appreciation (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004‑VI, and Lappalainen v. Finland (dec.), no. 22175/06, 20 January 2009) although, as the Grand Chamber underscores in the present judgment (see paragraph 86) their decisions are subject to the scrutiny of this Court. In that regard, this Court has established a series of criteria which must be followed when assessing how the domestic courts have balanced conflicting rights, including, inter alia, the published information’s contribution to a debate of general interest, the previous behavior and degree of notoriety of the person affected, the content and veracity of the information, and the nature of the sanctions and penalties imposed. In balancing the conflicting rights in the cases brought before them, national authorities (in this case, the national courts) must apply these criteria in reaching their decision, whilst appraising, with the benefit of direct examination, the facts and circumstances of the case when applying their domestic law.", "In order to exercise this Court’s powers of review without becoming a fourth instance, our task in guaranteeing respect for Convention rights in this type of case is essentially to verify whether the domestic courts have duly balanced the conflicting rights and have taken into account the relevant criteria established in our case-law without any manifest error or omission of any important factor. Where these prerequisites have been met, that is, the domestic courts have expressly weighed the conflicting rights and interests and applied the pertinent criteria established in our above-cited case-law, an additional assessment of the competing interests by this Court, examining anew the facts and circumstances of the case, is tantamount to acting as a fourth instance (or, as now, a fifth instance). In the present case the domestic courts (mainly the Hamburg Regional Court and the Court of Appeal) certainly performed the required balancing exercise. Concerning each of the published articles, on two consecutive occasions those courts assessed the competing interests derived from freedom of expression and the safeguard of privacy. In extensive reasoning they explained their final judgments and their reasons for giving more weight to the protection of the right to privacy and reputation.", "These judgments exhaustively examined the different aspects and circumstances of the question, including the relevance of the matter for the public interest, the degree of notoriety of the person affected, the nature of the crime of which he was suspected and subsequently accused and sentenced, and the severity of the sanction imposed on the applicant company. Furthermore – albeit indirectly – the domestic Court of Appeal consciously applied our Court’s criteria by using as a point of reference the judgment of the Federal Court of Justice of 15 November 2005, a judgment which expressly cited and applied the criteria established in our Von Hannover v. Germany judgment of 24 June 2004. There is certainly a possibility that domestic courts may apply the relevant criteria in a manifestly unreasonable way or may fail to duly assess the presence of some important factor. But in this case the judgments of both the Hamburg Regional Court and the Court of Appeal demonstrate that both domestic courts carefully weighed all the relevant facts of the case, with the advantage of their knowledge and their continuous contact with the social and cultural reality of their country, in a way which cannot be considered arbitrary, careless or manifestly unreasonable. In view of the above, none of the grounds which would justify a review by this Court of the judgments of the domestic courts are present in this case.", "The domestic courts did not fail to balance the conflicting interests or to apply the relevant criteria in doing so. They made no manifest error of appreciation; nor did they fail to consider all the relevant factors. Nevertheless, on this occasion and instead of concentrating its assessment on whether the domestic courts applied the above-mentioned criteria effectively, the Grand Chamber has chosen to re-examine the same facts that were brought before the national courts. And this was done in spite of the national courts having extensively assessed the circumstances of the case in a way that was not manifestly unreasonable, and with the added benefit of their direct examination of the context in which the events occurred. Analysing the same facts and using the same criteria and same balancing approach as the domestic courts, the Grand Chamber came to a different conclusion, giving more weight to the protection of the right to freedom of expression than to the protection of the right to privacy.", "But that is precisely what the case-law of this Court has established is not our task, that is, to set ourselves up as a fourth instance to repeat anew assessments duly performed by the domestic courts." ]

[ "FIRST SECTION CASE OF CONSTANTINIDES v. GREECE (Application no. 76438/12) JUDGMENT (Extracts) STRASBOURG 6 October 2016 FINAL 06/03/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Constantinides v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mirjana Lazarova Trajkovska, President,Ledi Bianku,Kristina Pardalos,Linos-Alexandre Sicilianos,Robert Spano,Armen Harutyunyan,Pauliine Koskelo, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 30 August 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "76438/12) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Yiangos (John) Constantinides (“the applicant”), on 20 November 2012. 2. The applicant was represented by Mr L. Loucaides, a lawyer practising in Nicosia (Cyprus). The Greek Government (“the Government”) were represented by their Agent’s Delegates, Mr K. Georghiadis, Adviser, State Legal Council, and Ms A. Magrippi, Legal Assistant, State Legal Council. The United Kingdom Government did not avail themselves of their right to intervene in the proceedings (Article 36 § 1 of the Convention).", "3. The applicant alleged a violation of Article 6 § 3 (d) and Article 6 § 1 (fairness and length of proceedings) of the Convention. 4. On 5 October 2015 the Government were given notice of the application. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1943 and lives in London. 6. The applicant is of Cypriot origin and has lived all of his adult life in London. In 1997 he and another British national, C.G., bought a plot of land in the Glyfada district of Athens.", "7. In 1998 the applicant and C.G. asked the mortgage registry to register the deed of sale for the land in question. The mortgage registry refused to do so, since the State claimed ownership of the land. According to the Forestry Commission of the Ministry of Agriculture, the land had been classified as part of the forest estate since 1976.", "8. In 2002 the applicant secured an order from the Athens Court of First Instance requiring the mortgage registry to register the deed of sale; the mortgage registry did so on 31 January 2003. The applicant paid the sum of 36,911.63 euros (EUR) in registration fees. 9. The public prosecutor’s office appealed against the order and succeeded in having it set aside and the registration declared void.", "10. On 29 March 2004 the investigating judge drew up an indictment in respect of the applicant and C.G., accusing the applicant of having forged: (a) a certificate from the tax authorities attesting that he had paid inheritance tax on land valued at EUR 63,768,920, whereas he knew that the land was part of the public forest estate and the tax had not been paid; and (b) a document allegedly issued by the Penteli Forestry Commission attesting that the land was not part of the forest estate. The investigating judge also accused him of having used the forged documents to persuade the administrative authorities that the land was privately owned and could be the subject of a transaction, in particular a deed of transfer. 11. The file included a handwriting analysis requested by the public prosecutor’s office, dated 29 June 2003 and produced by a lawyer and graphology expert, M.M.K., who had taken an oath on 17 April 2003 to discharge that function.", "The sixty-two-page report concluded that one of the two documents “appeared to have been entirely written” by the applicant and contained an illegible signature, whereas aspects of the signature on the other document “strongly suggested that it had been added” by the applicant’s co-accused. On 8 May 2003 the applicant, through his lawyer, had appointed another expert, C.T.S., as a “technical adviser” to assist him. 12. When presenting his defence to the investigating judge on 29 March 2004, the applicant disputed the competence of the graphologist M.M.K. He mentioned that two associations of graphologists of which she had claimed to be a member had stated that they had no knowledge of her and that a British graphologist, F.C., had noted in a report that M.M.K.", "was not qualified and that her comments were incorrect. However, the applicant did not submit any reports by his own technical adviser. 13. On 7, 28 and 29 December 2004 the applicant submitted three reports by a different expert, D.K., whom he had instructed. The reports concluded that the documents in issue had not been written by the applicant and that the report by M.M.K.", "was inaccurate. 14. On an unspecified date the applicant and C.G. were committed for trial in the Athens Criminal Court of Appeal, sitting as a bench of three judges, on charges of forgery and the use of forged documents. 15.", "The hearing, concerning not only the applicant but also other individuals whose cases had been joined to his, was initially set down for 8 May 2006 and was then adjourned until 30 October 2006 and subsequently 12 March 2007, as the defendants’ lawyers were unable to attend. It eventually took place on 12, 14 and 20 March 2007. 16. On 12 March 2007 counsel for the applicant asked the president of the Criminal Court of Appeal to call M.M.K. and D.K.", "to give evidence. The president adjourned the hearing and directed that the public prosecutor’s office was to ensure the attendance of the two experts. On the resumption of the hearing on 14 March 2007, only D.K. was present; he confirmed the findings set out in his three reports. No explanation was given for M.M.K.’s absence.", "Subsequently, all the evidence was read out (105 documents running to a total of more than 1,500 pages), including the report by M.M.K., the defence witnesses gave testimony, and counsel for the defence asked questions and made their submissions without mentioning the need to examine other witnesses. At the end of the hearing, the president asked all the parties to the proceedings whether they wanted any additional examinations or explanations, but they replied in the negative. 17. On 20 March 2007 the Criminal Court of Appeal found the applicant guilty of forgery and the use of forged documents and sentenced him in absentia to twelve years’ imprisonment. Addressing the findings of M.M.K.’s report, it noted the following: “The forgery of the aforementioned certificates by the first two defendants has been validly proved beyond all doubt, in particular through the handwriting analysis by the graphology expert M.M.K., the contents of which the court finds entirely convincing; in addition, the report’s credibility is backed up by the documents in the file and the witness testimony.", "It can be established with little effort from an assessment of these items of evidence that the certificates were forged by the defendants, who, moreover, were the only people with an interest in taking such action.” 18. On 20 March 2007 the applicant appealed against that judgment to the Athens Criminal Court of Appeal, sitting as a bench of five judges. The hearing, which had initially been set down for 6 February 2009, was adjourned until 20 November 2009 and subsequently 19 March 2010, as counsel for the defendant was unable to attend. 19. The hearing eventually took place on 19, 26 and 29 March and 8 April 2010.", "The Court of Appeal upheld the applicant’s conviction in his absence but reduced his sentence to eleven years’ imprisonment. At the end of the hearing, counsel for the defence asked the Court of Appeal to examine D.P. as a witness, and also the experts D.K. and M.M.K. 20.", "The Criminal Court of Appeal refused the request in respect of all the witnesses mentioned, holding as follows: “The defendants’ request to call the graphologist [M.M.K.] and the witness [D.P.] cannot be accepted as it is not deemed necessary in view of the evidence gathered so far. The graphologist [M.M.K.] has produced a detailed analytical report, which has been read out in court ... With regard to the forged documents, several expert reports have been submitted and read out; accordingly, the attendance of these witnesses is also unnecessary on account of the evidence gathered.", "The defendants who are asking for the above-mentioned witnesses to be called to testify in court have, moreover, not stated the reason for their request ...” 21. As regards the expert report by M.M.K., the Court of Appeal held that the applicant had had no factual or legal basis for challenging it, and that his objections were contradicted by the factual circumstances, which were established and undisputed. Summing up, over six pages, the factual circumstances as established by the documents and the witness testimony, the Court of Appeal also mentioned the findings of M.M.K.’s report, describing it as “detailed” while adding: “The contents and conclusions of the handwriting analysis by M.M.K. are convincing and consistent with the documents issued by the tax authorities, the Forestry Commission, the Criminal Investigation Department and the other documents that have been read out, and also with the witness testimony.” 22. On 15 February 2010 the applicant appealed on points of law.", "He alleged that there had been a violation of Article 6 § 3 (d) of the Convention in that he had been convicted solely on the basis of the report by M.M.K., without having been allowed to cross-examine her at the hearings in the courts of first instance and appeal. The applicant relied on an extensive body of the Court’s case-law in this area and even reproduced the relevant passages, translated into Greek, of seven judgments of the Court. He pointed out that although his counsel had asked both the first-instance and the appellate court to examine M.M.K., she had not appeared in court despite having been called to give evidence. He noted that in the appeal proceedings the defendants’ request had been refused on the grounds that M.M.K. had produced a detailed analytical report, the conclusions of which had been read out in court.", "Nevertheless, the applicant had been deprived of his right to cross-examine her. 23. The hearing, which had been set down for 1 April 2011, was postponed until 18 November 2011 at the applicant’s request. In a judgment of 5 April 2012 (finalised on 7 May 2012 and certified as authentic on 4 July 2012) the Court of Cassation dismissed the appeal on points of law. In response to the ground of appeal alleging a violation of Article 6 § 3 (d), it held: “...", "However, these requests [by the defendants], as formulated, were wholly vague and the court ... was not obliged to reply to them in detail. Nevertheless, the court rejected the requests in the following terms, on sufficient and substantiated grounds: ‘The defendants’ request to call the graphologist [M.M.K.] and the witness [D.P.] cannot be accepted as it is not deemed necessary in view of the evidence gathered so far. The graphologist [M.M.K.]", "has produced a detailed analytical report, which has been read out in court ... The defendants who are asking for the above-mentioned witnesses to be called to testify in court have, moreover, not stated the reason for their request ...’ Accordingly, the ground of appeal submitted to that end by John Constantinides, alleging a violation of Article 510 § 1 (a) and (d) [failure to provide specific reasons] of the Code of Criminal Procedure, is unfounded and must be dismissed, since no provision relating to the accused’s defence rights has been infringed, whether Article 6 § 3 (d) of the Convention or the constitutional requirement to provide detailed and specific reasons for a judicial decision.” ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION 28. The applicant complained that the trial and appeal courts had refused to examine an expert whose report had formed the sole basis for his conviction, and that the Court of Cassation had not given sufficient reasons for dismissing his ground of appeal on that account.", "He alleged a violation of Article 6 §§ 1 and 3 (d) of the Convention, which provides as follows: “1. In the determination... of any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. Non-attendance in court of the graphology expert M.M.K. ... 2. Merits (a) The parties’ submissions (i) The applicant 30.", "The applicant submitted that the expert report by the graphologist M.M.K. was the only evidence, or at least the decisive evidence, in support of his conviction. He contended that the Government had made abstract references in their observations to other items of evidence on which the domestic courts had allegedly based their decisions, but had not specified what they were, even though the Government representatives had all the case materials in their possession and had therefore been in a position to indicate to the Court which other items of evidence had been decisive. The applicant also asserted that contrary to what the Government maintained, he had not waited until a late stage of the appeal proceedings before asking for M.M.K. to be called to give evidence; he had already done so at first instance, and moreover, the hearing of his appeal had extended over several days because of adjournments, and the date on which his request was examined had not been his responsibility.", "31. The applicant disputed that he had had an obligation to inform the court in advance of the nature of the questions he wished to ask M.M.K. Article 6 did not provide for the possibility of notifying a witness of the matters on which a defendant wished to examine him or her. Such advance notice would thwart the purpose of cross-examination, which was to test the witness’s credibility, and would give the witness the opportunity to prepare answers that suited his or her own interests. 32.", "The applicant emphasised that he had not only wished to challenge the validity of the findings of the relevant expert report. Since the report dealt with a technical subject, M.M.K. should have had to reply orally in court to the questions raised in the separate report by the expert D.K., who had been instructed by the applicant himself. The attendance of M.M.K. had been important in terms of equality of arms; her report had generated considerable publicity in favour of the prosecution authorities, and M.M.K.", "had in reality been a “witness for the prosecution”. (ii) The Government 33. Relying on the Court’s judgments in Doorson v. the Netherlands (26 March 1996, Reports of Judgments and Decisions 1996-II), Brandstetter v. Austria (28 August 1991, Series A no. 211) and Bönisch v. Austria (6 May 1985, Series A no. 92), the relevant Articles of the Code of Criminal Procedure and the fact that M.M.K.", "had been an expert and not a “witness”, the Government argued that Article 6 § 3 (d) was not applicable in the present case, and that even if it were, it had not been breached. 34. The Government asserted firstly that the theory of criminal law made a clear distinction between witnesses and experts. Witnesses gave evidence about facts of which they had personal knowledge or of which they had been informed by others in relation to a specific criminal case. Experts, however, took an oath to discharge their duties impartially on the basis of scientific truth; they did not support the case for the prosecution, but, by means of a report, assisted the court in matters requiring specialist knowledge.", "The defendant could challenge the contents of the report by having another report drawn up by technical advisers, whom he or she was at liberty to appoint. 35. The Government contended that the applicant had not complained at the end of the appeal hearing about M.M.K.’s non-attendance, had not challenged her professional ability before the courts and had not explained why he had asked for her to be examined at such a late stage of the hearing of his appeal. It had therefore been logical for the trial and appeal courts and the Court of Cassation to conclude that the applicant had intended to dispute only the validity of the expert report and its findings. He had been given several opportunities to do so, and had indeed done so by submitting handwriting analyses and instructing another graphologist to give testimony.", "However, none of this evidence indicated any convincing reasons for examining M.M.K. in court. 36. In the Government’s submission, the same facts had likewise not given rise to a breach of the adversarial principle and equality of arms. The applicant had had every opportunity to challenge the conclusions of M.M.K.’s report.", "In particular, he had simply appointed a technical adviser without actually calling on her services; at first instance, he had not asked for M.M.K.’s report to be excluded from consideration; and on appeal, he had asked for M.M.K. to be called but had not specified what relevant questions she should have answered. The Court of Appeal, when examining the applicant’s appeal, had not been obliged to order M.M.K.’s forced attendance since it had found, on substantiated grounds, that this was not necessary. It had also held that the applicant’s guilt had been established beyond all doubt, even without the expert report by M.M.K. The reasons given by the trial and appeal courts had been exhaustive and sufficient.", "They had been based on witness testimony and other evidence set out in 105 documents running to a total of approximately 1,500 pages. (b) The Court’s assessment (i) General principles 37. The Court reiterates that the notion of “witness” is to be interpreted autonomously from its meaning in the domestic law of the Contracting States (see Kostovski v. the Netherlands, 20 November 1989, § 40, Series A no. 166, and Damir Sibgatullin v. Russia, no. 1413/05, § 45, 24 April 2012).", "Although the wording of Article 6 § 3 (d) refers to witnesses and not experts, the guarantees in paragraph 3 are inherent aspects of the right to a fair trial enshrined in paragraph 1 of Article 6. The Court has thus concluded that the right of a person charged with a criminal offence to examine experts is protected by the general principle set forth in Article 6 § 1 and is to be examined under that paragraph, “whilst having due regard to the guarantees of paragraph 3” (see Brandstetter, cited above, § 42, and Matytsina v. Russia, no. 58428/10, § 168, 27 March 2014). 38. The opinion of an expert appointed by the competent court to address the questions raised by the case is liable to have a significant impact on that court’s assessment of the case.", "Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question witnesses against him, either when they make their statement or at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001-II, and Solakov v. “the former Yugoslav Republic of Macedonia”, no. 47023/99, § 57, ECHR 2001-X). If a court decides that an expert assessment is needed, the defence should have the opportunity to put questions to the experts, to challenge their findings and to examine them directly at the trial (see Mirilashvili v. Russia, no.", "6293/04, § 190, 11 December 2008). 39. In Schatschaschwili v. Germany ([GC], no. 9154/10, § 111-31, ECHR 2015) the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not of itself render a trial unfair, although it remained a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which could tip the balance in favour of a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that the Court’s concern is to ascertain whether the proceedings as a whole were fair, it must review the existence of sufficient counterbalancing factors not only in cases in which the evidence given by an absent witness was the sole or the decisive basis for the accused’s conviction.", "It must also do so in those cases where it finds it unclear whether the evidence in question was the sole or decisive basis but is nevertheless satisfied that it carried significant weight and that its admission may have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair (see Seton v the United Kingdom, no. 55287/10, § 59, 12 September 2016). The Court considers that these principles are applicable, mutatis mutandis, in the present case, which concerns experts.", "(ii) Application of those principles in the present case 40. In the present case, the Court observes firstly that despite the fact that the Court of Criminal Appeal, sitting as a court of first instance, had ordered the attendance of M.M.K., it did not proceed to examine her and did not provide any explanation for this omission. In the appeal proceedings, the Court of Appeal rejected the applicant’s request outright, holding that the expert’s attendance was not necessary. The Greek courts therefore did not do everything that could reasonably have been expected of them to secure the attendance of M.M.K. 41.", "Next, the Court notes that during the proceedings at first instance, the Court of Appeal emphasised that it had been validly proved beyond all doubt – in particular by M.M.K.’s report, the credibility of which was backed up by the documents in the file and the witness testimony – that the certificates had been falsified by the defendants, including the applicant. In the appeal proceedings, the Court of Appeal held that the contents and conclusions of the report were convincing and consistent with the documents issued by various State authorities and the witness testimony. It is clear from the wording of its judgments at first instance and on appeal that the Court of Appeal regarded the expert report by M.M.K. as an important document which was corroborated by other items of evidence. 42.", "It remains to be determined whether, given the two above-mentioned aspects that worked to the applicant’s detriment, sufficient counterbalancing factors were present to ensure that he had a “fair trial”. 43. In this connection, the Court notes firstly that after M.M.K. had been appointed as an expert at the prosecution’s request, the applicant, through his counsel, had appointed another expert, C.T.S., to assist him as a “technical adviser”, as he was entitled to do under domestic law. However, he never actually called on her services.", "Furthermore, on 7, 28 and 29 December 2004 the applicant submitted three reports by a different expert instructed by him, D.K., which concluded that the documents in issue had not been written by the applicant and that the report by M.M.K. was inaccurate (see paragraph 13 above). At the first-instance hearing in the Court of Appeal, which had called him to give evidence, this expert defended his reports in favour of the applicant. 44. The Court further notes that although the applicant disputed M.M.K.’s professional competence when presenting his defence to the investigating judge, he did not ever do so in the proceedings before the trial and appeal courts, instead simply casting doubt on the findings of her report.", "Furthermore, in particular at first instance, the applicant, who had asked for M.M.K. to be called, did not react either when she was not present at the resumption of the hearing or when the president of the Court of Appeal asked the parties at the end of the hearing whether they wished any additional examinations to be conducted (see paragraph 16 above). 45. It therefore appears that the applicant had the opportunity to dispute the findings of M.M.K.’s report and availed himself of that opportunity, in particular by submitting three reports prepared by the expert he had instructed, D.K., who presented his findings orally at the first-instance hearing before the Court of Appeal. 46.", "The Court also attaches importance to the fact that the applicant did not explain to the Court of Appeal, in the appeal proceedings, why he wished to cross-examine M.M.K. at the hearing. Although it accepts his argument that it would not have been appropriate for him to disclose in advance the questions he intended to put to M.M.K., it would have been reasonable for him to give the Court of Appeal some indication at least of the reasons why he considered the examination of M.M.K. at the hearing to be absolutely necessary, or of what it would have added to the findings of the expert D.K. However, the applicant did not give any such indications, and has not even done so in the proceedings before the Court.", "47. The Court observes that the trial and appeal courts emphasised that the contents and conclusions of M.M.K.’s report were consistent with a series of other official documents, issued by bodies including the tax authorities, the Forestry Commission and the Criminal Investigation Department, and also with the witness testimony (see paragraph 21 above). In this connection it should be noted that the file included 105 documents running to a total of approximately 1,500 pages. The report by M.M.K. was one of the documents in the file.", "48. It therefore considers that the present case should be distinguished from cases in which the trial courts’ finding as to an applicant’s guilt is based to a decisive extent on the evidence of witnesses against him whom he has been unable to examine at any stage. The present case does not concern witnesses who gave evidence on matters they had seen or learnt about by hearsay (see, among many other authorities, Nikolitsas v. Greece, no. 63117/09, §§ 38-39, 3 July 2014), but rather an expert report which was drawn up by an independent expert appointed by the judicial authorities during the investigation with the aim of providing the court with information on a technical aspect of the case, and the findings of which were scrutinised by an expert instructed by the applicant himself. In that respect the present case differs from Matytsina (cited above, § 175), in which the Court found a violation of Article 6 §§ 1 and 3 (d) because, among other things, the domestic court had before it an expert report which had been produced by the prosecution without any involvement of the defence, and the findings of which the defence had been unable to challenge at the hearing.", "49. In the present case, by contrast, at least at the hearing stage, the expert instructed by the applicant was able to call M.M.K.’s findings into question, both orally and in writing. The fact that the applicant did not take such steps prior to the hearing was due to his own conduct, since he did not seek the assistance of the technical adviser he himself had appointed (see paragraph 11 above). 50. To sum up, while the Criminal Court of Appeal, in the first-instance proceedings, did not take all possible steps to require M.M.K.", "to appear before it, she was an expert rather than a witness, and her report was not the sole or decisive basis for the applicant’s conviction. Furthermore, there were sufficient counterbalancing factors in the applicant’s case as he appointed his own expert, who submitted three reports and testified at the hearing. The requirements of the adversarial principle were therefore satisfied in his case. 51. Having regard to the foregoing, the Court considers that the applicant’s defence rights were not restricted to a degree incompatible with the requirements of a fair trial.", "52. There has therefore been no violation of Article 6 §§ 1 and 3 (d) of the Convention. ... FOR THESE REASONS, THE COURT, UNANIMOUSLY, ... 3. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention as regards the complaint about an expert’s non-attendance at hearings; ... Done in French, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Renata DegenerMirjana Lazarova TrajkovskaDeputy RegistrarPresident" ]

[ "FIRST SECTION [In its composition prior to 1 November 2001] CASE OF S.N. v. SWEDEN (Application no. 34209/96) JUDGMENT STRASBOURG 2 July 2002 FINAL 02/10/2002 In the case of S.N. v. Sweden, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrsW. Thomassen, President,MrsE.", "Palm,MrGaukur Jörundsson,MrR. Türmen,MrC. Bîrsan,MrJ. Casadevall,MrR. Maruste, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 20 November 2001 and 10 June 2002, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case originated in an application (no. 34209/96) against the Kingdom of Sweden lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swedish national, S.N. (“the applicant”), on 28 August 1996. 2. The applicant alleged that he had not had a fair trial under Article 6 §§ 1 and 3 (d) of the Convention in criminal proceedings against him.", "3. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 4.", "The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 16 January 2001 the Chamber declared the application admissible. 6.", "The applicant and the Government each filed observations on the merits (Rule 59 § 1). 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within the former First Section. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 20 November 2001 (Rule 59 § 2).", "There appeared before the Court: (a) for the GovernmentMsE. Jagander, Ministry for Foreign Affairs,Agent,Ms C. Renfors, Ministry of Justice,Mr J. Sangborn, Ministry of Justice,MsC. Hellner, Ministry for Foreign Affairs,Advisers. (b) for the applicantMrP.E. Samuelsson,Counsel.", "The Court heard addresses by Mr Samuelsson and Ms Jagander. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. In February 1995 the Social Council (socialnämnden) of Borgholm was contacted by a schoolteacher on account of a suspicion that one of her pupils, M., a boy born in June 1984 and thus at the time aged 10, had been sexually abused by the applicant. On 29 March 1995, having carried out an investigation, the Council reported the matter to the police authority in Kalmar.", "10. On 7 April 1995, between 10.09 a.m. and 10.51 a.m., M. was interviewed by the police. The interview was recorded on videotape. M.'s parents and representatives of the Social Council were present in the adjoining room. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him.", "The interview was conducted by a detective inspector with twenty-six years of service in the police force. Since 1989 he had been working exclusively on investigations concerning ill-treatment and sexual abuse of children. 11. On 10 May 1995 the applicant was questioned by the police and the public prosecutor. Before the questioning the applicant was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), of the suspicions against him.", "12. In June 1995 the applicant received a copy of the report of the preliminary investigation and on 3 July defence counsel was appointed for him. The applicant was given an opportunity to submit observations and request additional interviews and other investigative measures. Finding that further information was necessary with regard to, inter alia, the dates and the number of occasions when the alleged acts had been committed and the sites at which they were supposed to have occurred, the applicant's counsel requested that M. be interviewed again. 13.", "In accordance with counsel's request, a second interview with M. was conducted on 20 September 1995, between 12.50 p.m. and 1.14 p.m. at the boy's home, by the same detective inspector. During the interview, which was recorded on audiotape only, M.'s parents were present but not the applicant's counsel. It appears that M.'s counsel, who had not been served notice of the interview, was opposed to counsel for only one of the parties being present at an interview. Finding that it would be unreasonable to cancel the interview, as the police officer was present and M. had taken time off from school, the applicant's counsel agreed that it could be conducted without his being present. The police officer and the applicant's counsel discussed what aspects of the case needed to be addressed during the interview.", "In general, counsel for the applicant wished to have a more detailed account of what was alleged to have happened. However, no written list of questions was drawn up. Counsel for the applicant later listened to the audiotape of the interview and was given a transcript of the tape. Finding that the issues raised in his request had been covered, he did not call for a further interview to be held. 14.", "On 29 September 1995 the applicant was indicted for sexual acts with a child (sexuellt umgänge med barn). 15. The Kalmar District Court (tingsrätten) heard the case on 31 October 1995. The applicant denied the charges. The videotaped police interview with M. was shown during the hearing.", "The record of the second interview was read out. The court also heard evidence from M.'s mother and his schoolteacher as witnesses. No request for M. to be heard in person was made. 16. In a judgment of 14 November 1995 the District Court convicted the applicant and sentenced him to eight months' imprisonment.", "The court, noting that the outcome of the case was entirely dependent on the credibility of M.'s statements, found no reason to call into question their veracity. Thus, basing itself on those statements, the court found that the applicant, on a large number of occasions in 1994, had touched M.'s penis or masturbated him and induced M. to touch the applicant's penis or masturbate him. 17. The applicant appealed to the Göta Court of Appeal (Göta hovrätt). Subsequently, at the applicant's request, his defence counsel was replaced.", "The appellate court held a hearing on 22 April 1996, during which it heard the applicant and his new counsel. M.'s mother and his schoolteacher gave evidence. The videotape of the first police interview with M. and the audiotape of the second interview were played back. Again, the applicant did not request that M. give evidence during the hearing. 18.", "In a judgment of 6 May 1996 the Court of Appeal upheld the applicant's conviction but reduced the sentence to three months' imprisonment. It considered that, as there was no technical evidence in the case and nobody had witnessed the alleged acts, the credibility of M.'s statements was of decisive importance in determining the applicant's guilt. It went on to state the following: “For reasons of legal certainty, the questioning of children during pre-trial investigations must – as explained in detail by the Supreme Court [Högsta domstolen] in NJA 1993 p. 616 – meet high standards with regard to both methods and content. The information given by [M.] is, in some parts, vague and uncertain. He has not been able to give details of any specific incident covered by the prosecution and he has been able to describe only in more general terms what kind of sexual contact has occurred.", "It should further be noted that some of the questions put to him have been of a leading nature. Even if these circumstances are taken into account, the Court of Appeal finds that [M.'s] statements cannot be disregarded. A fact which strongly indicates that [M.] has been subjected to homosexual abuse is his expressed concern that he would become 'gay'. The Court of Appeal has had further regard to the following circumstances. The general impression of the video-recording is that [M.] has talked about something he has indeed experienced and that it has been embarrassing and painful for him to give this information.", "This may explain his unwillingness to go into detail about specific incidents. [M.] has not shown any tendency to exaggerate his statements and has corrected the interrogator on several occasions. Furthermore, in some respects his statements can be said to contain more personal observations, for example, 'Of course, I did not want to touch his but sometimes I did it without gloves' and 'First I asked if I would get any (refers to pastilles). He did not have any and then I did it voluntarily but I do not know why'. It should further be noted that no information has come to hand which could reasonably explain why [M.] would make untrue statements about events which he obviously considers to be shameful.", "Also of importance is the information given by [M.'s] mother and teacher which describes how [M.'s] personality has changed since the alleged injustice. The fact that it was a long time before [M.] spoke about what he experienced is easily explained by the feelings of guilt he has had and by the fact that thinking about the incidents is distasteful to him. [M.'s] accounts do not contain any improbable elements, neither is the information given by him contradicted by other statements. In view of what has now been said, the Court of Appeal finds that [M.] is credible and that his statements should form the basis for the Court of Appeal's assessment of whether [the applicant] has behaved towards him in the manner indicated by the public prosecutor in his statement on the charges.” The Court of Appeal found that the information given by M. showed that the applicant had induced M. to touch the applicant's penis or masturbate him. However, the statements that the applicant had touched M.'s penis or masturbated him were too uncertain and vague and thus did not constitute sufficient evidence.", "19. The applicant appealed to the Supreme Court. Relying on Article 6 §§ 1 and 3 (d) of the Convention, he complained that his counsel had not been able to put questions to M. He noted that there was no technical or other evidence in the case to support M.'s statements. He further criticised the manner in which M. had been interviewed and stated that M.'s statements were vague and contradictory. In these circumstances, the applicant claimed that he had a right to cross-examine M. He maintained that the Supreme Court's case-law, which allegedly permitted the procedure followed in his case, had to be changed in order either to give counsel for the defence a right to examine the minor or to require clear supporting evidence.", "20. On 26 June 1996 the Supreme Court refused the applicant leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 21. Domestic provisions of relevance in the present case are found in the Code of Judicial Procedure ( “the Code”) and in the Ordinance on Preliminary Investigations (Förundersökningskungörelsen, 1947:948 – “the Ordinance”).", "There is also some national case-law of interest. A. Legislation 22. A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, section 10, of the Code includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation.", "The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not manifest itself until a person has been informed of the suspicions against him in accordance with Chapter 23, section 18, of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel are present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, section 11, of the Code).", "23. When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime, the person in question must be notified of the suspicions against him, pursuant to Chapter 23, section 18, of the Code. Under the second paragraph of that provision, an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision must be given. If the suspect makes a complaint, the issue is settled by the court (Chapter 23, section 19, of the Code).", "24. Interviews with children conducted in the course of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, section 10, of the Code, a child's custodian should be present whenever a child under the age of 15 is questioned if this can be done without any harmful effects on the investigation. 25. Further and more detailed provisions concerning the questioning of children are found in the Ordinance, section 17 of which provides that interviews with, inter alia, an injured party under the age of 18 must be conducted in such a manner that there is no danger that the interviewed person might be harmed.", "It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters. Furthermore, particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require. Questioning should, moreover, according to section 17 of the Ordinance, occur on only one occasion unless it is more appropriate to conduct several interviews out of consideration for the child who is being questioned. 26. Section 18 of the Ordinance provides that interviews with children must be conducted by persons who are particularly apt to perform the task.", "In addition, section 19 provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child's testimony. 27. Whenever the evidence of a witness below the age of 15 is used in a criminal case, the court must determine, taking account of all relevant circumstances, whether the child should testify (Chapter 36, section 4, of the Code). There is no corresponding provision applicable to children who are in the position of being the injured party. In practice, however, such evidence is normally presented to the court in the form of a video-recording of the police interview, which is played back during the court's main hearing.", "In allowing this to take place, the court applies Chapter 35, section 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconveniences that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand. B. Case-law 28. As already mentioned, children below the age of 15 do not normally give evidence in person before a court. There are, however, examples where children have been heard in court. Thus, in two recent cases before the Svea Court of Appeal (Svea hovrätt) concerning sexual offences against children (case no.", "B 1129-98, judgment of 28 September 1998, and case no. B 1635-99, judgment of 7 June 1999), the injured parties, two girls aged 10 and 11, gave evidence in person. Their statements were made before the members of the court, the public prosecutor, the defence counsel and their own counsel but in the absence of the accused, who were able to listen to the statements in an adjoining room. In both cases, the girls were heard at the request of the prosecutor following the acquittal of the accused at first instance. In another case before the same appellate court concerning a sexual offence (case no.", "B 4488-01, judgment of 25 October 2001), the defence, upon appeal against the conviction of the accused at first instance, requested that the injured party, a 13-year-old girl, give evidence in person. The prosecutor and the girl's counsel opposed the request which was subsequently rejected by the Court of Appeal on account of her age. Instead, the court allowed recordings of her statements during the preliminary investigation to be played back. However, the Court of Appeal reversed the judgment of the District Court and acquitted the accused, finding that the evidence presented did not sufficiently show that he had committed the alleged offence. 29.", "The application of Chapter 35, section 14, of the Code in relation to Article 6 of the Convention has been examined by the Supreme Court on one occasion. In the case in question, published in Nytt juridiskt arkiv ((NJA) 1992, pp. 532 et seq. ), the court quashed a judgment by a court of appeal and referred the case back to the latter court for re-examination. The reason for this was that the appellate court, as well as the first-instance court, had allowed the prosecutor to use in evidence written records of a police interview with the injured party in a case concerning indictment for robbery.", "It had not been possible to serve a summons on the injured party to attend the main hearing. The court of appeal had been of the opinion that the information submitted by the injured party to the police had to be given credit and convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. In the light of the fact that the European Court of Human Rights had come to the conclusion that there was a breach of Article 6 when a court relied on statements in support of a conviction by a person who had not been heard by the court and whom the defendant had not had the opportunity to question in some other context, the Supreme Court in its turn came to the conclusion that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention.", "30. Issues concerning the quality and evaluation of evidence have been examined by the Supreme Court in two published cases (NJA 1993, pp. 68 et seq., and 1993, pp. 616 et seq. ), which are of relevance in this context.", "The first-mentioned case concerned the alleged sexual abuse of a minor, aged 14, who could not give evidence in court on account of mental problems. The evidence consisted mainly of information supplied by the injured party to the police. The police interview had been recorded on videotape. The Supreme Court came to the conclusion that it was inevitable that the value of such statements as evidence was not the same as the value of statements made during the main hearing. Even so, the evidence in that case, that is the injured party's testimony together with other evidence, was deemed to be strong enough for a conviction.", "31. In the second case, the injured parties were born in 1981 and 1983, respectively. The essential evidence consisted of videotaped interviews with them. The interviews had taken place in the absence of the suspect and his defence counsel. They were given the opportunity to examine the information and to request that additional information be provided prior to indictment.", "However, defence counsel was of the opinion that further questioning would prove pointless since, in his view, the injured parties would only repeat from memory what they had submitted previously. The Supreme Court stated that, bearing in mind that the accused had chosen not to request a further examination, his right to a fair trial could not be seen as having been breached on account of the fact that the videotapes had been used as evidence against him. As far as the evaluation of the evidence was concerned, the Supreme Court stressed the fact that the injured parties had only been questioned out of court and that it could not therefore assess their credibility and the trustworthiness of their information by means of impressions conveyed through a direct examination in court. It followed, according to the Supreme Court, that the information submitted by the injured parties should be assessed with particular care. The fact that the accused had been prevented from putting questions to the injured parties through his defence counsel and that the court itself had also been prevented from doing so pointed in the same direction.", "According to the Supreme Court this did not mean, however, that the videotaped interviews could not be sufficient to prove the guilt of the accused beyond reasonable doubt. The injured parties' submissions, combined with other evidence, led the Supreme Court to the conclusion that the judgment should be based on, inter alia, the submissions in question. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 32. The applicant complained that he had not had a fair trial, as he had not been given the opportunity to question M. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which provide: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;” A. Submissions of the parties 1. The Government 33. The Government submitted that in criminal proceedings regard had to be had not only to the rights of the defence but also to the situation of the injured party, especially if it was a child. They stated that M. had been harmed to a much lesser extent by the two interviews during the preliminary investigation than if he had had to endure being questioned in a court setting.", "Maintaining that these circumstances could not be allowed to prevent prosecution, the Government asserted that it had to be considered proportionate to safeguard the interests of the injured party by sparing him one or more appearances in court in view of the fact that the applicant had been given the opportunity to discuss M.'s version of events and to give his own version, first to the police and later to the courts. Furthermore, the practice whereby only a police officer put questions to a child during a police interview was intended for the protection of the child; in the Government's view, Article 6 could not be interpreted as giving defence counsel the right to put questions directly to the child. 34. The Government further pointed out that the applicant had not requested that M. be heard before the courts. Although aware of the general reluctance of courts to allow children to give testimony, the Government referred to the above-mentioned cases heard by the Svea Court of Appeal, where children aged 10 and 11 had given evidence in person (see paragraph 28 above) and noted that M. had reached the age of 12 when the Supreme Court had decided not to grant the applicant leave to appeal.", "Moreover, the applicant's counsel had agreed that the second police interview with M. could take place without his being present and had not asked for that interview to be rescheduled. 35. The Government also argued that M.'s statements had been submitted to the domestic courts in the form of video- and audio-recordings which had given the courts a much better opportunity to assess the value of the statements as evidence than if, for instance, the statements had been related to the courts by a police officer or been written down and read out to the courts. In their submission, the filming technique in particular had enabled the courts to assess the value of M.'s statements by, for instance, paying attention to the way he reacted to certain questions. 36.", "Furthermore, it was allegedly clear from the Court of Appeal's judgment that it had been aware of the flaws attached to the police interviews with M. For example, the court had taken note of the fact that “some of the questions put to him [had] been of a leading nature”. The court's reasoning showed that it had applied special diligence in assessing the value of the evidence provided by the video- and audio-recordings. Moreover, the Court of Appeal's analysis of M.'s account had actually led to the applicant's partial acquittal. 37. The Government also stated that the video and audiotapes of the police interviews had not been the only evidence relied on by the prosecutor against the applicant.", "Both M.'s mother and his teacher had testified before the District Court and the Court of Appeal about the change in personality which M. had undergone since he had suffered the alleged injustice. His submissions had thus been corroborated by other evidence. 38. In sum, the Government asserted that the Swedish courts had struck a fair balance in the applicant's case, taking into account the victim's rights as well as the rights of the defence. 2.", "The applicant 39. The applicant submitted that the fact that his defence counsel, in accordance with Swedish law and practice, had been prevented from putting questions directly to M. had violated his rights under Article 6 § 3 (d) of the Convention. Even if the applicant's counsel had attended the second interview with M., he would not have been allowed to put one single question to M. 40. Moreover, it would have been meaningless for the applicant to request that M. be heard before the courts because for more than thirty years this had not been allowed according to court practice. If such a request had been made in spite of this, it would certainly have been rejected and counsel would have risked being criticised for relying on evidence against his better judgment.", "The applicant stated that he knew of no case in which a defence counsel's request for a minor to give evidence to a court had been granted. 41. The applicant claimed that defence counsel was not allowed to question a child because the child could be harmed if the questions were too critical. The system whereby the police replaced counsel for the accused was unreasonable. In his submission, since the object of the system was to prevent the examination from being too critical, the thinking behind the system had to be that the police were not as critical as counsel for the defence.", "That was probably correct, a fact that was devastating for the legal certainty of the accused. He maintained that the police interviews with M. had been flawed, in particular as they had contained leading questions and no questions on the issues indicated by counsel for the defence had been asked during the second interview. 42. The applicant further submitted that, although his counsel had not been allowed to cross-examine M., he had been convicted solely on the basis of M.'s statements. The applicant thus disputed the Government's opinion that there had been supplementary evidence against him.", "He asserted that, if there was a desire to protect victims of crime from being harmed by hearings, defence counsel and cross-examinations, the accused would have to be acquitted in such cases. Under the prevailing circumstances, people were convicted anyway, which in practice meant that the burden of proof in cases regarding sex crimes against children was very low. B. The Court's assessment 43. The Court first notes that the guarantees in Article 6 § 3 (d) of the Convention are specific aspects of the right to a fair trial set forth in the first paragraph of this Article.", "Consequently, the complaint will be examined under the two provisions taken together (see, among other authorities, Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25). 44. The Court reiterates that the admissibility of evidence is primarily governed by the rules of domestic law, and that, as a rule, it is for the national courts to assess the evidence before them. The task of the Convention organs is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (ibid., p. 10, § 26).", "All evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use in evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (see Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43, and A.M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX).", "The Court further draws attention to the fact that Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see, among other authorities, Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89). 45. As to the notion of “witness”, the Court notes that although M. did not testify at a court hearing, he should, for the purposes of Article 6 § 3 (d), be regarded as a witness – a term to be given its autonomous interpretation – because his statements, as recorded by the police, were used in evidence by the domestic courts (see, among other authorities, Asch, cited above, p. 10, § 25).", "46. In regard to the circumstances of the present case, the Court observes that the statements made by M. were virtually the sole evidence on which the courts' findings of guilt were based. The witnesses heard by the courts – M.'s mother and his schoolteacher – had not seen the alleged acts and gave evidence only on the perceived subsequent changes in M.'s personality. The District Court stated that the outcome of the case was entirely dependent on the credibility of M.'s statements and the Court of Appeal considered that this was of decisive importance in determining the applicant's guilt. It must therefore be examined whether the applicant was provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 of the Convention in respect of the evidence given by M. 47.", "The Court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the perceived victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence (see Baegen v. the Netherlands, judgment of 27 October 1995, Series A no.", "327-B, opinion of the Commission, p. 44, § 77). In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 471, § 72, and P.S. v. Germany, no. 33900/96, § 23, 20 December 2001). 48.", "The Court reiterates that M. never appeared before the courts. The applicant stated that he had refrained from requesting that M. give evidence in person during the hearings as, in line with long-standing practice, such a request would have been refused. While accepting that the courts were generally hesitant in letting children give evidence in person, the Government referred to a few cases where minors had actually appeared before the courts. The Court notes that these cases, decided after the applicant's conviction, concerned requests made by the public prosecutor. In view of the apparent absence of cases where counsel for the defence has successfully requested the cross-examination of a minor and noting that the parties have expressed similar opinions on the general practice followed by the Swedish courts in this matter, the Court accepts the applicant's view that, in the circumstances of the case, he could not have obtained the appearance of M. in person before the courts.", "49. However, the second police interview with M. during the pre-trial investigation was held at the request of the applicant's counsel who considered that further information was necessary. On account of the absence of M.'s legal counsel (see paragraph 13 above), the applicant's counsel was not present during the interview, nor was he able to follow it with the help of technical devices in an adjacent room. However, he consented not to be present, notwithstanding the resulting handicap to the defence, and he also accepted the manner in which the interview was to be conducted. It was open to the applicant's counsel to ask for a postponement of the interview until such time as M.'s counsel was free to attend.", "However, he chose not to do so. It was also open to him to request that the second interview be videotaped, which would have enabled him to satisfy himself that the interview had been conducted fairly. However, he did not avail himself of that possibility either. 50. Furthermore, it is clear from the facts submitted by the parties that the applicant's counsel was able to have questions put to M. by the police officer conducting the interview.", "Having subsequently listened to the audiotape and read the transcript of the interview, counsel for the applicant was apparently satisfied that the questions he had indicated to the police officer had actually been put to M. 51. Accordingly, there has been no violation of the applicant's rights under Article 6 § 3 (d) of the Convention on the ground that his counsel was absent during the second police interview. 52. Nor can it be said that the applicant was denied his rights under Article 6 § 3 (d) on the ground that he was unable to examine or have examined the evidence given by M. during the trial and appeal proceedings. Having regard to the special features of criminal proceedings concerning sexual offences (see paragraph 47 above), this provision cannot be interpreted as requiring in all cases that questions be put directly by the accused or his or her defence counsel, through cross-examination or by other means.", "The Court notes that the videotape of the first police interview was shown during the trial and appeal hearings and that the record of the second interview was read out before the District Court and the audiotape of that interview was played back before the Court of Appeal. In the circumstances of the case, these measures must be considered sufficient to have enabled the applicant to challenge M.'s statements and his credibility in the course of the criminal proceedings. Indeed, that challenge resulted in the Court of Appeal reducing the applicant's sentence because it considered that part of the charges against him had not been proved. 53. The Court reiterates, however, that evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care (see Doorson, cited above, p. 472, § 76).", "In its judgment of 6 May 1996 the Court of Appeal noted that the questioning of children during pre-trial investigations must meet high standards with regard to procedure and content. The court took into account the fact that some of the information given by M. had been vague and uncertain and lacking in detail. The court also had regard to the leading nature of some of the questions put to him during the police interviews. In these circumstances, the Court is satisfied that the necessary care was applied in the evaluation of M.'s statements. 54.", "Having regard to the foregoing, the Court considers that the criminal proceedings against the applicant, taken as a whole, cannot be regarded as unfair. There has accordingly been no breach of Article 6 §§ 1 and 3 (d) of the Convention. FOR THESE REASONS, THE COURT Holds by five votes to two that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention. Done in English, and notified in writing on 2 July 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleWilhelmina ThomassenRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mrs Thomassen joined by Mr Casadevall; (b) dissenting opinion of Mr Türmen and Mr Maruste.", "W.T.M.O'B. CONCURRING opinion of judge THOMASSENJOINED BY JUDGE CASADEVALL Although I do share the opinion of the majority that there has been no violation of Article 6, I nevertheless have certain reservations of a more general character about the procedure followed in the present case. I certainly agree with the majority that proceedings concerning sexual offences are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant, and that these features are even more prominent in a case involving a minor. In the present case it was therefore, in my view, fully justified that the Swedish judicial authorities took measures to protect the child. The Court has already held that Contracting States should organise their criminal proceedings in such a way that the interests of witnesses, and in particular victims, are not unjustifiably imperilled (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 470, § 70).", "However, it can be concluded from the case-law of the Court on the use of evidence obtained from anonymous witnesses that, where the defence – because of measures taken to protect vulnerable witnesses – is confronted with difficulties which criminal proceedings normally should not involve, the resulting handicaps for the defence should be sufficiently counterbalanced by the proceedings followed by the judicial authorities (see Doorson, cited above, p. 471, § 72; Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 712, § 54; and Kok v. the Netherlands (dec.), no. 43149/98, ECHR 2000-VI). Furthermore the Court has held in these cases and in Lucà v. Italy (no. 33354/96, § 40, ECHR 2001-II), where the defence could not examine or have examined a witness at any stage of the proceedings, that, when a conviction is based solely or to a decisive degree on statements by that witness, the rights of the defence have been restricted to an extent incompatible with the guarantees provided by Article 6. It is true that the present case does not concern an anonymous witness, nor can it be said that the defence was not able to have the child questioned at all.", "However, the similarity with the above-mentioned cases is that the defence in the present case was handicapped in its possibilities of questioning or having questioned the child and that the child's statement was the decisive evidence (see, mutatis mutandis, P.S. v. Germany, no. 33900/96, 20 December 2001). In cases of sexual abuse the testimony of a victim will often be the decisive evidence for a conviction. Where the defence in such cases cannot, even for very good reasons, question the victim, in my view and following the line of reasoning adopted by the Court in the case-law cited above, the defence is handicapped in such a way that sufficient measures should be taken in the proceedings to counterbalance this handicap.", "The procedure followed in the present case, in my opinion, can be said to reveal a certain inherent weakness in the sense that after the first and most important statement of the child had been taken by a police officer without the defence being present, the second interview was again conducted by the police, and indeed by the same police officer, with the result that at no stage in the proceedings was the child heard – or could have been heard – by someone independent of the prosecution. These circumstances raise the question whether the proceedings as such can be regarded as sufficiently counterbalancing the fact that the child, being below the age of 15, could not be questioned in open court. I nevertheless share the conclusion of the majority that the applicant was not deprived of a fair hearing for the following reasons. The applicant's lawyer voluntarily chose not to avail himself of the possibility of attending the second interview of the child. He thus deprived himself of the opportunity to watch the child's demeanour under questioning.", "Nor did he ask for this interview to be recorded on tape in order to be able to obtain insight into how the interview was conducted, and into the manner in which the child answered the questions put to him. Consequently, the applicant's lawyer deprived himself of a full opportunity to challenge, on the basis of direct observations by the defence, the credibility of the child's statements and to comment on the child's testimony during the trial with a view to persuading the courts to decide in his client's favour. In these circumstances I cannot but conclude that, although the procedure at issue might be considered flawed, there has been no violation of Article 6 of the Convention. Dissenting opinionof judges Türmen and Maruste To our regret we are not in agreement with the majority in finding that the criminal proceedings against the applicant as a whole were not unfair, and we would like point out that the authorities did not do everything they could in this case. It is true that criminal proceedings concerning sexual abuse of minors are very delicate and that clear measures should be taken to protect the victim and avoid causing more harm to him or her.", "Therefore, the decision of the police and the courts not to allow cross-examination in these circumstances is understandable. As a consequence of that decision, the victim, M., never appeared before the courts and the applicant was convicted on the basis of recorded statements made by the victim. M.'s mother and teacher were heard by the court, but they had no direct knowledge of the events. No medical examination was carried out, no investigation of the sites in question took place and no psychologist commented on the evidence given by M. or examined him. Furthermore, it was known that some of the questions put by the police had been of a leading nature and that some of the information given by M. was vague and uncertain.", "The Court of Appeal rightly noted that the questioning of children during pre-trial investigations had to meet high standards with regard to procedure and content. Also, the Court has reiterated that evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care. Having regard to all these special circumstances and requirements, every possible step should be taken to support the interests of diligence and a fair trial. This means that some other counterbalancing procedures should be used or further evidence should be obtained; otherwise, the applicant should be acquitted. One possible step in such cases is to call for forensic-psychology experts, who have special training in and knowledge of the matter.", "They would protect the child against deliberate or involuntary harm caused by the proceedings and help the police and courts in the assessment of the victim's behaviour and testimony. We think that the involvement of forensic experts would serve as a “counterbalancing procedure” to compensate sufficiently the handicaps under which the defence labours (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II). There is no evidence in the file that any steps were taken to call on expert assistance. We understand that the interests of minors must be duly taken into account and that even the principle of cross-examination can be left aside for that reason, but this should be possible only in cases where there is other neutral corroborating evidence. Otherwise, the protection of the rights of one person (the victim) will disproportionately jeopardise the accused's right to a fair trial.", "As was stated in Doorson (ibid., p. 470, § 70): “... Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake ... [I]nterests of ... victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.” We believe that the principle also applies vice versa." ]

[ "FIRST SECTION CASE OF ISAKOV v. RUSSIA (Application no. 20745/04) JUDGMENT STRASBOURG 19 June 2008 FINAL 19/09/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Isakov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 29 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20745/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Kudabertovich Isakov (“the applicant”), on 25 May 2004. 2. The Russian Government (“the Government”) were represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 12 September 2005 the Court gave notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The Government objected to the joint examination of the admissibility and merits, but the Court dismissed this objection. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1939 and lives in Kosta Khetagurova, a village in Karachay-Cherkessia. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1990 the applicant subscribed to a State savings scheme for buying a car.", "The State failed to provide the car, and the applicant had to apply to a court. 7. On 19 December 2002 the Mirninskiy District Court of Yakutia awarded the applicant 138,967 Russian roubles against the Ministry of Finance. On 5 February 2003 the judgment became binding, but was not enforced. 8.", "On 15 July 2004 the Presidium of the Supreme Court of Yakutia allowed the Ministry’s supervisory-review complaint, and quashed the judgment on the ground that the district court had misinterpreted material law. II. RELEVANT DOMESTIC LAW 9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a judgment must be enforced in two months. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 10. The applicant complained that the non-enforcement and subsequent quashing of the judgment breached Article 6 § 1of the Convention and Article 1 of Protocol No. 1. As far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 11. The Government asked the Court to strike the application out because the applicant’s letters to the Court contained insults. The Court rejects this request, noting that the Government have not specified which expressions they took for insults, and that the applicant has apologised for any perceived harshness of language.", "12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 13. The applicant maintained his complaint. 14. The Government argued that the complaint was manifestly ill-founded. First, it was impossible to enforce the judgment because it had been quashed on supervisory review.", "Second, the quashing of the judgment was justified, because the judgment had misinterpreted the law on the savings scheme and awarded more than was due. Third, the applicant did receive a partial reimbursement of the car’s price. 15. The Court reiterates that Article 6 of the Convention includes the “right to a court” (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 36).", "To honour this right, the State must obey a binding judgment (see Burdov v. Russia, no. 59498/00, ECHR 2002‑III) and avoid quashing it, save for correcting a miscarriage of justice or judicial error (Ryabykh v. Russia, no. 52854/99, §§ 51–58, ECHR 2003‑IX). Besides, an enforceable judgment constitutes a “possession” within the meaning of Article 1 of Protocol No. 1.", "16. The Court considers that in the case at hand the State has breached the applicant’s “right to a court” and prevented him from peacefully enjoying his possessions. First, the State avoided paying the judgment debt for one year and five months. Then the State quashed the judgment because it had been based on an alleged misinterpretation of law, which did not fall within the exceptional circumstances referred to above (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007).", "17. There have accordingly been violations of Article 6 of the Convention and of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 18.", "The applicant complained under Article 13 of the Convention that he had no effective domestic remedy against the non-enforcement of the judgment and its subsequent quashing. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 19. The Court notes that this complaint is linked to the ones examined above and therefore must also be declared admissible. 20. The applicant maintained his complaint.", "The Government made no observations in reply. 21. As the Government have not rebutted the applicant’s allegation, the Court finds that the applicant had no effective domestic remedy (see Lositskiy v. Russia, no. 24395/02, §§ 30, 14 December 2006). 22.", "There has accordingly been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 24. The applicant did not submit a claim for just satisfaction.", "Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there have been violations of Article 6 of the Convention and of Article 1 of Protocol No. 1; 3.", "Holds that there has been a violation of Article 13 of the Convention. Done in English, and notified in writing on 19 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF NEKHOROSHEV v. RUSSIA (Application no. 45017/04) JUDGMENT STRASBOURG 10 April 2008 FINAL 10/07/2008 This judgment may be subject to editorial revision. In the case of Nekhoroshev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 20 March 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45017/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yuriy Sergeyevich Nekhoroshev (“the applicant”), on 19 November 2004.", "2. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. 3. On 12 October 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1931 and lives in Moscow. 5. In November 2001 the applicant, a retired military officer, brought proceedings against the Military Service Commission of Moscow (Военный комиссариат г. Москвы – “the Commission”) for recalculation of his pension as from 1993 to take account of the fact that he served in the extreme north of Russia which made him eligible for a higher pension.", "6. On 3 December 2002 the Tverskoy District Court of Moscow granted the applicant’s claim, adjusted his pension by a coefficient 1.4 and awarded him 221,913.54 Russian roubles (RUB) in arrears. 7. The Commission did not lodge an ordinary appeal against the judgment and it became binding and enforceable on 16 December 2002. 8.", "On 26 December 2002 the defendant enforced the judgment in a part concerning the lump sum of RUB 221,913.54. The monthly pension payments were calculated based on a coefficient of 1.4 in accordance with the judgment of 3 December 2002 during the period from December 2002 until August 2004. 9. On 3 December 2003 the Commission filed an application for supervisory review, claiming that the civil-law provisions on which the court based its judgment were not relevant to the applicant. 10.", "On 18 May 2004 the applicant was informed about the initiation of the supervisory-review procedure. 11. On 20 May 2004 the Presidium of the Moscow City Court held a supervisory-review hearing. It held that the first-instance court had erroneously applied the substantive law. On that ground it quashed the judgment of 3 December 2002 and remitted the matter for a fresh examination.", "Before the announcement of the judgment the applicant was asked to wait outside the courtroom. At the same time the respondent remained there. The decision of the court was announced to the applicant by the bailiff. The applicant received a copy of the final decision on 6 August 2004. 12.", "On 28 February 2005 the Tverskoy District Court of Moscow dismissed the applicant’s claim for recalculation of his pension. At the same time, the court rejected the Commission’s claim for recovery of the sum already paid to the applicant in arrears pursuant to the judgment of 3 December 2002, since such recovery was not possible under the domestic law. On 10 June 2005 the Moscow City Court upheld the judgment on appeal. II. RELEVANT DOMESTIC LAW A.", "Code of Civil Procedure of the Russian Federation 13. The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows: Article 362. Grounds for quashing or altering judicial decisions by appeal courts “1. The grounds for quashing or altering judicial decisions by appeal courts are: ... (4) violation or incorrect application of substantive or procedural legal provisions.” Article 376.", "Right to apply to a court exercising supervisory review “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against ... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” Article 381. Examination of an application for supervisory review “2.", "Having examined an application for supervisory review, the judge issues a decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision... 4. If a decision to obtain the file has been made, the judge may suspend enforcement of the judicial decision until the supervisory-review proceedings have been completed...” Article 384. Decision on remitting the case for examination on the merits by a supervisory-review court “1. A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain: (7) a reasoned description of the grounds for remitting the case for examination on the merits...” Article 387. Grounds for quashing or altering judicial decisions by way of supervisory review “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” Article 390.", "Competence of the supervisory-review court “1. Having examined the case by way of supervisory review, the court may ... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination; ... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.” B. Resolution of the Plenary Supreme Court of the Russian Federation 14. Resolution no. 2 of the Plenary Supreme Court of the Russian Federation of 20 January 2003, “On certain issues arising in connection with adoption and coming into force of the Code of Civil Procedure of the Russian Federation”, provided that “22.", "... The [one-year] time-limit for lodging an application for supervisory review of judicial decisions that became legally binding before 1 February 2003, shall run from 1 February 2003.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT 15. The applicant complained that the act of quashing had violated his “right to a court” under Article 6 § 1 of the Convention and his right to the peaceful enjoyment of possessions under Article 1 of Protocol No.", "1. The relevant parts of these provisions read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 16. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Alleged violation of Article 6 of the Convention 17.", "The Government submitted that the supervisory-review proceedings in the applicant’s case fully complied with the domestic law: the application for supervisory review was lodged within the prescribed time-limit by a party to the proceedings with a view to correcting the judicial error committed by the District Court by wrongful application of the substantive provisions of the domestic law. There had therefore been no violation of the principle of legal certainty. 18. The applicant maintained his claims. 19.", "The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61). 20. This principle insists that no party is entitled to seek re-opening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts’ power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects.", "The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X, and Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). 21.", "The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application is not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 54-56). 22. The Court reiterates that it has found a violation of an applicant’s “right to a court” guaranteed by Article 6 § 1 of the Convention in many Russian cases in which a judicial decision that had become final and binding was subsequently quashed by a higher court on an application by a State official or a party to the proceedings, especially when a rather long period of time lapsed from the date the judgment in the applicant’s favour had become binding to the date the supervisory-review proceedings were instituted (see Roseltrans v. Russia, no.", "60974/00, §§ 24-28, 21 July 2005; Volkova v. Russia, no. 48758/99, §§ 32-37, 5 April 2005; Ryabykh, cited above, §§ 51-58; Borshchevskiy v. Russia, no. 14853/03, §§ 41-50, 21 September 2006; Nelyubin v. Russia, no. 14502/04, §§ 22-30, 2 November 2006; Sergey Petrov v. Russia, no. 1861/05, §§ 21-29, 10 May 2007; and Zvezdin v. Russia, no.", "25448/06, §§ 26-32, 14 June 2007). 23. The Court observes that on 3 December 2002 the applicant obtained a judgment in his favour. No appeal was lodged against the judgment, and it became binding and enforceable. However, on 20 May 2004 that judgment was quashed within the supervisory-review procedure on the ground that the District Court had incorrectly applied the substantive law.", "24. The Court stresses that a binding and enforceable judgment should only be quashed in exceptional circumstances rather than for the sole purpose of obtaining a different decision in the case (see the case-law cited in paragraphs 20 and 22 above). The fact that in the present case the Presidium disagreed with the assessment made by the District Court was not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant’s claim (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007). 25.", "The Court further observes that in the Russian legal system the grounds for quashing or altering judgments by appeal courts largely overlap with those for quashing or altering judgments by way of supervisory review (compare Article 362 § 1 (4) and Article 387 of the Code of Civil Procedure). Thus, the situation calling into question the binding judgment in the applicant’s favour could have been avoided, had the Commission lodged an ordinary appeal. It is noteworthy, however, that the Russian Codes of Civil Procedure, both that of RSFSR and that of the Russian Federation, permitted a party to apply for supervisory review even if it had not previously exhausted an ordinary appeal. In the present case the Commission failed to exercise its right to lodge an ordinary appeal and permitted the statutory ten-day time-limit to expire without challenging the judgment of 3 December 2002. The Government did not point to any exceptional circumstances that would have prevented the Commission from exposing its arguments to the District Court or making use of an ordinary appeal in good time (see Nelyubin, cited above, §§ 27-28; Sergey Petrov, cited above, § 29; and Zvezdin, cited above, §§ 30-31).", "26. Having regard to the above considerations, the Court finds that, by granting the Commission’s request to set aside the judgment of 3 December 2002, the Presidium of the Moscow City Court infringed the principle of legal certainty and the applicant’s “right to a court” under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article. 2. Alleged violation of Article 1 of Protocol No.", "1 27. The Government denied that there had been a violation of the applicant’s property rights because after the quashing of the judgment of 3 December 2002 by way of supervisory review there had been no legal grounds for an increase of the applicant’s pension. 28. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid and constitutes the beneficiary’s “possessions” within the meaning of Article 1 of Protocol No. 1.", "Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu, cited above, § 74, and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). 29. The Court observes that by virtue of the judgment of 3 December 2002 the applicant’s pension was considerably increased. The quashing of the enforceable judgment frustrated the applicant’s reliance on a binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive.", "In these circumstances, the Court considers that the quashing of the judgment of 3 December 2002 by way of supervisory review placed an excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol No. 1. There has therefore been a violation of that Article. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 30.", "The applicant complained under Article 6 § 1 of the Convention about various procedural defects of the hearing before the Presidium of the Moscow City Court. 31. The Court finds that, having concluded that there has been an infringement of the applicant’s “right to a court” by the very use of the supervisory review procedure, it is not necessary to consider whether the procedural guarantees of Article 6 of the Convention were available in those proceedings (see Ryabykh, cited above, § 59). It therefore rejects this part of the application pursuant to Article 35 § 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33. The applicant claimed 115,200 Russian roubles in respect of pecuniary damage. This sum represents the 40% increase to the applicant’s current pension underpaid to him during three years after the quashing of the judgment of 3 December 2002 by way of supervisory review.", "The applicant did not make a claim for non-pecuniary damage. 34. The Government claimed that no award should be made because the applicant’s claim had been rejected by the domestic courts. 35. The Court recalls that in the instant case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1, in that the final judgment in the applicant’s favour had been quashed in supervisory-review procedure. The Court notes that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the violations found (see Dovguchits v. Russia, no.", "2999/03, § 48, 7 June 2007). In the present case the Court recalls that the applicant received the arrears of his pension on 26 December 2002 and also, until August 2004, an increase based on a coefficient of 1.4. It was not, however, until 10 June 2005 that the Moscow City Court finally dismissed the applicant’s claim for an increase to his pension which means that the quashing of the previous judgment deprived the applicant of the 1.4 coefficient increase from August 2004 until 10 June 2005. Having regard to this the Court awards the applicant 950 euros in respect of pecuniary damage. B.", "Costs and expenses 36. The applicant did not make any claims for the costs and expenses incurred before the domestic courts and the Court. 37. Accordingly, the Court does not award anything under this head. C. Default interest 38.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applicant’s complaint concerning the act of quashing of the final judgment in his favour admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment of 3 December 2002 by way of supervisory review; 3.", "Holds (a) that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, is to pay the applicant EUR 950 (nine hundred fifty euros) in respect of pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 10 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF JENČOVÁ v. SLOVAKIA (Application no. 70798/01) JUDGMENT STRASBOURG 4 May 2006 FINAL 04/08/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jenčová v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrM.", "Pellonpää,MrK. Traja,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 4 April 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 70798/01) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mrs Elena Jenčová (“the applicant”), on 14 May 2001. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mr P. Kresák, succeeded by Mrs A. Poláčková. 3.", "On 5 October 2004 the Court decided to communicate the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1952 and lives in Bratislava. 5.", "On 20 June 1997 the applicant claimed a sum of money (the equivalent of approximately 500 euros) from an individual before the Bratislava III District Court. 6. On 27 August 1997 the District Court issued a payment order under which the debtor was obliged to pay the sum in issue to the applicant. The payment order was served on the applicant and on the defendant on 9 September 1997. It became final and binding on 25 September 1997.", "7. On 20 April 1998 the applicant requested the Bratislava III District Court to enforce its order. 8. On 15 May 1998 the court asked the applicant to submit further information as regards her enforcement request and to pay a court fee. The applicant replied on 25 May 1998.", "In particular, she proposed that the sum in issue should be obtained by selling movable property from the premises of the debtor’s company. 9. On 28 May 1998 the District Court granted the applicant’s request and ordered enforcement of the sum in question by means of selling the defendant’s movables. 10. On 6 August 1998 a court bailiff visited the domicile of the defendant for the purpose of serving him with the District Court’s decision of 28 May 1998 and making a list of his movables.", "The action failed as the bailiff established that the defendant had been absent from his domicile for more than two years. 11. On 7 August 1998 the court asked the Central Register of Citizens and the police for information about the defendant’s domicile. On 19 August 1998 and on 7 September 1998 the court received replies according to which the defendant had not been present at his domicile for two years and his whereabouts were unknown. 12.", "On 7 September 1998 the court unsuccessfully requested information about the defendant’s whereabouts from the police and the Central Register of Prisoners. 13. On 27 October 1998 the District Court delivered a decision declaring the enforcement of its order by selling the defendant’s movable property inadmissible on the ground that the whereabouts of the defendant were unknown. The applicant was notified of the court’s decision on 12 November 1998. The service of that decision on the defendant failed.", "14. On 24 November 1998 the applicant appealed against the District Court’s decision of 27 October 1998 and indicated the place where the defendant was staying. 15. On 10 December 1998, on 13 January 1999 and on 16 February 1999 respectively the court sent by registered mail the applicant’s appeal to the defendant. The delivery failed as the defendant was present neither at his domicile nor at the address indicated by the applicant.", "On 10 March 1999 the letter was finally returned to the court as undeliverable. 16. In April and November 2000 the applicant requested the District Court to proceed with the case. On 19 February 2001 she complained about delays in the proceedings to the Ministry of Justice. 17.", "On 3 November 2000 the case file was transferred to the Bratislava Regional Court for a decision on the applicant’s appeal. 18. On 21 February 2001 the Regional Court upheld the District Court’s decision of 27 October 1998. 19. On 18 May 2001 the Bratislava III District Court discontinued the enforcement proceedings.", "On 28 June 2001 the District Court appointed a guardian to the defendant as his whereabouts were unknown. The District Court’s decision of 18 May 2001 was delivered to the guardian and it became final on 20 July 2001. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant complained that the length of the enforcement proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 21.", "The Government contested that argument. 22. The period to be taken into consideration began on 20 April 1998 and ended on 18 May 2001. It thus lasted 3 years and 29 days at two levels of jurisdiction. A. Admissibility 23.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 24.", "The Government contended that there had been no particular delays in the enforcement proceedings imputable to the Slovak authorities except for the period when the District Court had attempted to serve the applicant’s appeal on the defendant. They pointed out that the applicant had contributed to the length of the proceedings as she had appealed against the decision declaring the enforcement by selling the defendant’s movable property inadmissible although it had been then obvious that the defendant had not stayed at his address for two years and that it would thus have been difficult for the court to find him for the purpose of selling his movable property. They also recalled that the applicant had insisted on enforcement by means of selling the defendant’s movable property and she had not proposed any other means of enforcement. 25. The applicant disagreed with the arguments of the Government.", "She submitted, in particular, that she had known the situation of the debtor which did not permit the recovery of the debt by other means of enforcement than that which she had suggested. Furthermore, the sum could have been obtained by selling material stored in the debtor’s company, but the District Court had disregarded her request to that effect. 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "27. The enforcement proceedings under consideration were not complex. The Court accepts the Government’s argument that their length was mainly due to the fact that it had been impossible to establish the whereabouts of the debtor. It considers that by her behaviour the applicant did not contribute in a significant manner to the length of the proceedings. 28.", "As to the conduct of the domestic courts, more than 19 months elapsed between 10 March 1999, when the letter sent to the defendant by registered mail was returned to the District Court as being undeliverable, and 3 November 2000, when the District Court transferred the case file to the Regional Court for appellate proceedings. No explanation has been provided for such a delay. The Court considers that such a delay is incompatible with the reasonable time requirement in the circumstances of the case notwithstanding that the proceedings as a whole cannot be qualified as being particularly lengthy. 29. There has accordingly been a breach of Article 6 § 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 31. The applicant claimed 52,775 Slovak korunas (SKK) in respect of pecuniary damage and SKK 100,000[1] in respect of non-pecuniary damage.", "32. The Government contested these claims. 33. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 700 in respect of non-pecuniary damage.", "B. Costs and expenses 34. The applicant also claimed SKK 34,656[2] for the costs and expenses incurred before the domestic courts and before the Court. That sum comprised compensation for time spent by her on studying the relevant provisions of the Convention and domestic law (SKK 34,000), court fee paid on 25 May 1998 (SKK 390) and postal expenses relating to the correspondence with the Court (SKK 266). 35.", "The Government contested the claim with the exception of the last mentioned item. 36. According to the Court’s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court awards the applicant, who was not represented by a lawyer, the sum of EUR 50 in respect of incidental expenses related to the proceedings before it. C. Default interest 37.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 700 (seven hundred euros) in respect of non-pecuniary damage and EUR 50 (fifty euros) in respect of costs and expenses, to be converted into Slovakian korunas at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 May 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas Bratza RegistrarPresident [1] SKK 100,000 is the equivalent of approximately 2,670 euros. [2] The equivalent of approximately 920 euros." ]

[ "FIRST SECTION CASE OF ELMURZAYEV AND OTHERS v. RUSSIA (Application no. 3019/04) This version was rectified on 27 February 2009 under Rule 81 of the Rules of the Court JUDGMENT STRASBOURG 12 June 2008 FINAL 01/12/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Elmurzayev and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 22 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "3019/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twelve Russian nationals, (“the applicants”), on 9 January 2004. 2. The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 23 May 2006 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants are: 1) Mr Supian Khasanovich Elmurzayev, born in 1963; 2) Ms Zina Elmurzayeva, born in 1933; 3) Mr Khasan Katayevich Elmurzayev, born in 1933; 4) Mr Isa Khasanovich Elmurzayev, born in 1954; 5) Mr Aslambek[1] Khasanovich Elmurzayev, born in 1967; 6) Ms Zura Ismailovna Elmurzayeva, born in 1964; 7) Mr Beslan Musayevich Elmurzayev, born in 1984; 8) Mr Movsar Musayevich Elmurzayev, born in 1986; 9) Ms Larisa Shekhmirzayevna (Shakhmirzayevna) Mukhtarova, born in 1978; 10) Ms Mariam Aptiyevna Elmurzayeva (Mukhtarova), born in 1999; 11) Mr Magomed Aptiyevich Elmurzayev (Mukhtarov), born in 2001; 12) Ms Ayshat Khasanovna Elmurzayeva, born in 1976.", "5. The applicants live in the village of Martan-Chu, the Urus-Martan District, the Chechen Republic. 6. The facts of the case, as submitted by the parties, may be summarised as follows. A.", "Disappearance of Apti and Musa Elmurzayev and the ensuing investigation 1. The applicants' account (a) Background of the case 7. The second and third applicants are the parents of Mr Apti Khasanovich Elmurzayev, born in 1969, Mr Musa Khasanovich Elmurzayev, born in 1956, and of the first, fourth, fifth and twelfth applicants. The sixth applicant was the wife of Musa Elmurzayev; they are the parents of the seventh and eighth applicants. The ninth applicant was the wife of Apti Elmurzayev; they are the parents of the tenth and eleventh applicants.", "8. At the material time several members of the Elmurzayev family lived at 23 Krasnoarmeyskaya Street in Martan-Chu. Their household consisted of three separate buildings with a common courtyard. Musa Elmurzayev's and the first applicant's families each occupied one building. Apti Elmurzayev and his family shared the third building with the second, third and twelfth applicants.", "Other applicants lived nearby in the same village. 9. Prior to 1999 Apti Elmurzayev worked as the head of the administration of the village of Martan-Chu and Musa Elmurzayev worked as his deputy. For some time in 1999 Apti Elmurzayev attended an Arabic school in the town of Gudermes, but then dropped out. Since the beginning of the hostilities in Chechnya Apti and Musa Elmurzayev had no regular employment.", "10. On an unspecified date in May or June 2002 Apti Elmurzayev was questioned by local law enforcement agencies about his studies of the Arabic language in Gudermes. He was not charged with, or accused of, any wrongdoing. (b) Abduction of Apti Elmurzayev 11. At about 2 or 3 a.m. on 9 July 2002 a group of men wearing masks and camouflage uniforms and armed with machine guns arrived at the Elmurzayevs' household and walked into its courtyard.", "About ten of the armed men climbed over the fence and entered Musa Elmurzayev's house. Without identifying themselves or producing any warrant, the armed men searched the house, turning everything upside down. According to the applicants, those men belonged to the Russian military because they spoke Russian without an accent. The servicemen asked Musa Elmurzayev to wake up his younger brother Apti, who lived in a separate building. Then four servicemen entered Apti Elmurzayev's house and searched his room.", "One of them pointed a machine gun at the ninth applicant. The servicemen allowed Apti Elmurzayev to get dressed, then tied his hands and blindfolded him with adhesive tape and took him to the door. One of the men told the ninth applicant that he would shoot her if she followed them. The servicemen and Apti Elmurzayev left; the ninth applicant managed to step outside the house and saw them walking in the direction of Urus-Martan. 12.", "At some point the first applicant walked out of his house and heard a muted sound. He realised that a sniper bullet fired by one of the armed men had just missed him. Later he found a bullet in the house. 13. On the following morning the applicants learned from their neighbours that the Russian servicemen had arrived in Martan-Chu in two armoured personnel carriers (APCs) and two UAZ vehicles.", "(c) Search for Apti Elmurzayev and investigation of his kidnapping 14. In the morning of 9 July 2002 Musa Elmurzayev went to the local police, the prosecutor's office of the Urus-Martan District (“the district prosecutor's office”) and the military commander's office of the Urus-Martan District to enquire about his brother's whereabouts. However, no officials acknowledged detaining Apti Elmurzayev or provided any information on his whereabouts and fate. 15. Musa Elmurzayev and the applicants repeatedly wrote to various official bodies requesting assistance in the search for Apti Elmurzayev.", "16. On 29 July 2002 the district prosecutor's office instituted criminal investigation file no. 61105 in relation to the kidnapping of Apti Elmurzayev. 17. On an unspecified date the first applicant was interviewed by the police.", "18. On 20 August 2002 the prosecutor's office of the Chechen Republic forwarded a letter by the second applicant to the district prosecutor's office. 19. On 22 August 2002 the head of the administration of the Urus-Martan District informed the second applicant that the district prosecutor's office had opened an investigation of the kidnapping of her son, and that all possible steps were being taken to establish Apti Elmurzayev's whereabouts. 20.", "On 3 September 2002 the second applicant requested the Urus-Martan District Department of the Federal Security Service (“FSB”), the military commander's office of the Urus-Martan District, the district prosecutor's office and the Urus-Martan Department of the Interior (“ROVD”) to take all possible steps in order to find Apti Elmurzayev. 21. On 29 September 2002 the district prosecutor's office suspended the investigation in case no. 61105 for failure to identify the perpetrators and informed the first applicant accordingly. 22.", "On 29 November 2002 an official of the Commission for the Investigation of Human Rights Violations in the North Caucasus wrote to the military prosecutor of the Northern Caucasus Circuit about the abduction of Apti Elmurzayev. The letter was forwarded to the military prosecutor's office of the United Group Alignment (“the UGA prosecutor's office”). 23. On 4 December 2002 the Department of the FSB of the Chechen Republic informed the second applicant that the FSB had no information on Apti Elmurzayev's whereabouts and that no arrest warrant had been issued against him and that he had not been suspected of any unlawful activities. 24.", "On 28 December 2002 the prosecutor's office of the Chechen Republic informed the second applicant that despite the suspension of the investigation in case no. 61105 the search for Apti Elmurzayev was under way. (d) Abduction of Musa Elmurzayev 25. At about 2 a.m. on 27 January 2003 a group of armed men arrived at the Elmurzayevs' household and knocked at the door of Musa Elmurzayev's house. The sixth applicant opened the door; one of the armed men pointed a machine gun at her without saying a word.", "Three other men entered a room in which Musa Elmurzayev was sleeping. They did not identify themselves or produce a search warrant. The sixth applicant inferred that the armed men belonged to the Russian military as they spoke Russian without an accent. The three servicemen pointed their machine guns at Musa Elmurzayev and ordered him to identify himself. The latter obeyed and then was told to get dressed.", "The sixth applicant asked the servicemen where they intended to take her husband; she received no reply but was told to keep quiet. The servicemen took Musa Elmurzayev's identity papers and proceeded to the door. Then they ordered everybody to be quiet and left the house taking Musa Elmurzayev with them. They locked the entrance door from the outside so that Musa Elmurzayev's family could not go out. 26.", "The twelfth applicant heard some noise and stepped out of her house to the courtyard. She saw the servicemen, who ordered her to keep quiet, and Musa Elmurzayev. The twelfth applicant asked the servicemen where they were taking her brother but received no reply. The men blindfolded Musa Elmurzayev and tied his hands with adhesive tape and took him out of the courtyard. 27.", "The following morning the sixth applicant told the first applicant about her husband's abduction. The applicants found many footprints in their courtyard and concluded that the servicemen had arrived in a large group. They learned from their neighbours that the servicemen had driven two UAZ vehicles. (e) Search for Apti and Musa Elmurzayev and investigation of their kidnapping 28. Following Musa Elmurzayev's abduction, the first applicant took the lead in the search for his brothers.", "The family immediately contacted various officials trying to establish the whereabouts of their missing relatives. 29. On 27 January 2003 the second applicant requested the military commander of the Urus-Martan District, the district prosecutor's office and the ROVD to establish Musa Elmurzayev's whereabouts and release him. 30. On 1 February 2003 the military prosecutor's office of military unit no.", "20102 (“the unit prosecutor's office”) informed the second applicant that military servicemen of the United Group Alignment, servicemen of the Ministry of the Interior of the Chechen Republic and the FSB agents had not detained Apti Elmurzayev, and that the latter's whereabouts were unknown. 31. On 5 February 2003 the prosecutor's office of the Chechen Republic forwarded the second applicant's letter concerning Musa Elmurzayev's abduction to the district prosecutor's office and recommended that criminal proceedings be instituted if necessary. 32. On 12 February 2003 the district prosecutor's office instituted criminal proceedings in case no.", "32017 in relation to the kidnapping of Musa Elmurzayev. 33. On an unspecified date the first applicant was invited to the local police station where he was interviewed about the circumstances of Musa Elmurzayev's abduction. He testified that he had not seen the abduction himself, but indicated the person in their family who had. The fourth applicant was then interviewed, although he only saw the abduction from across the street.", "He produced a written statement for the police. Other family members were not questioned. 34. On 5 and 22 April 2003 the UGA prosecutor's office forwarded the second applicant's letters to the unit prosecutor's office. 35.", "On 24 April 2003 the prosecutor's office of the Chechen Republic informed the second applicant that the investigation of Musa Elmurzayev's kidnapping had been suspended on 12 April 2003 due to failure to identify those responsible. 36. On 23 May 2003 the unit prosecutor's office informed the second applicant that involvement of the military in Musa Elmurzayev's kidnapping had not been proven and noted that, should such involvement be established in the future, the case would be transferred for investigation to a military prosecutor's office. 37. On 24 July 2003 the Urus-Martan Town Court (“the town court”), acting on the ninth applicant's request, declared Apti Elmurzayev missing since 9 July 2002.", "38. On 28 July 2003 the first applicant requested the prosecutor's office of the Chechen Republic to resume the investigation in case no. 34017. He expressed confidence that the official “power structures” (силовые структуры) had been involved in the abduction and complained that the district prosecutor's office had failed to take all possible investigative measures, notably to question relatives of the missing and other villagers; to question officials on duty at checkpoints between Urus-Martan and Martan-Chu on the night of the kidnapping; to question officials who could have authorised the unhindered entry and exit from Urus-Martan into Martan-Chu of the armed men; and to examine the traces left by the UAZ vehicle on the night of the kidnapping. 39.", "On 14 August 2003 the prosecutor's office of the Chechen Republic informed the first applicant that the investigation in case no. 34017 had been resumed. 40. On 22 August 2003 the first applicant requested the prosecutor's office of the Chechen Republic to resume the investigation in case no. 61105.", "He argued that the district prosecutor's office had not searched for two APCs and two UAZ vehicles used during the abduction of Apti Elmurzayev, and had not verified how they had passed through the checkpoints between Urus-Martan and Martan-Chu. He also alleged that servicemen on duty at checkpoints between Urus-Martan and Martan-Chu on the night of the detention and other officials of law-enforcement agencies had not been questioned. 41. On an unspecified date an investigator of the district prosecutor's office visited the Elmurzayevs' house and questioned the first and sixth applicants about the circumstances of Musa Elmurzayev's abduction. The investigator told the first applicant that the servicemen who had been on duty at the checkpoint had not been questioned, and that they could not be questioned because they would have left the Chechen Republic by then.", "42. On 29 August 2003 the Department of the FSB of the Chechen Republic informed the second applicant that the FSB had not detained her sons because there had been no legal basis for their detention as they had not been suspected of any criminal offences. 43. On 10 September 2003 the prosecutor's office of the Chechen Republic informed the first applicant that the decision to suspend the investigation in case no. 61105 had been quashed and overturned and that the proceedings had been resumed.", "44. On 3 January 2004 the first applicant informed the local administration, the district prosecutor's office, the Department of the FSB of the Chechen Republic and the ROVD district that it had been rumoured that he might be abducted himself and emphasised that he was willing to appear for questioning if he was suspected of any crime. 45. On 13 January 2004 the Department of the FSB of the Chechen Republic informed the first applicant that he was not suspected of any unlawful activities and that there was still no information on the whereabouts of Apti and Musa Elmurzayev. 46.", "On 5 October 2005 the SRJI acting on the first applicant's behalf requested the district prosecutor's office to provide an update on the progress in the investigation in cases nos. 61105 and 34017 and to allow the first applicant access to the investigation files. No reply followed. 47. On 30 November 2006 the first applicant studied the investigation file in case no.", "61105. He discovered that some witnesses had been questioned only in 2006, that servicemen on duty at the checkpoint between Urus-Martan and Martan-Chu on the night of Apti Elmurzayev's kidnapping had not been questioned and that no steps had been taken to find the APCs and UAZ vehicles. 2. Information submitted by the Government (a) Disappearance of Apti Elmurzayev 48. According to the Prosecutor General's Office, at 2 a.m. on 9 July 2002 unidentified armed persons entered the house at 24 Krasnoarmeyskaya Street, Martan-Chu, kidnapped Apti Elmurzayev and took him away in an unknown direction.", "(b) Investigation into Apti Elmurzayev's kidnapping 49. On 29 July 2002 the district prosecutor's office instituted an investigation into Apti Elmurzayev's abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 61105. 50. On 29 July 2002 the district prosecutor's office granted Musa Elmurzayev victim status in case no.", "61105 and questioned him. He submitted that on the night of 8 to 9 July 2002 unknown masked men had entered his parents' house and taken away his brother. 51. On 9 September 2002 the district prosecutor's office granted the first applicant victim status in case no. 61105.", "52. On 29 September 2002 the district prosecutor's office suspended the investigation in case no. 61105 for failure to identify the perpetrators and informed the first applicant accordingly. 53. On 23 January 2004 the district prosecutor's office quashed the decision of 29 September 2002 and resumed the criminal proceedings.", "54. On 25 January 2004 the first applicant was questioned. He submitted that at about 2 a.m. on 9 July 2002 he had heard some noise, walked out to the courtyard and seen around ten masked men armed with machine-guns. The men had taken Musa Elmurzayev to the courtyard and then walked to their parents' house. Later they had brought Apti Elmurzayev outside and driven him away in the direction of Urus-Martan.", "55. On 23 February 2004 the investigation was again suspended and the first applicant was notified accordingly. 56. On 8 November 2005 the district prosecutor's office quashed the decision of 23 February 2004 for the reason that the first applicant had made a formal request and resumed the investigation for one day, until 9 November 2005. On the following day the investigation was again suspended.", "57. On 31 July 2006 the district prosecutor's office quashed the decision of 9 November 2005 because some newly obtained information required verification and resumed the investigation in case no. 61105. 58. On 1 August 2006 the third applicant was questioned.", "He submitted that on the night of 9 July 2002 he had been woken by Musa Elmurzayev and seen four armed men wearing camouflage uniforms and masks. Those men had entered Apti Emlurzayev's room, told him to get dressed and taken him away. The third applicant had not heard any noise of vehicle engines. 59. On 2 August 2006 the district prosecutor's office refused to institute criminal proceedings under Articles 139 (unlawful intrusion into a dwelling) and 325 (theft of official documents) of the Russian Criminal Code on account of the invasion in the applicants' home on 9 July 2002 and the theft of Apti Elmurzayev's identity papers for expiration of the statutory limitation period.", "On the same date the district prosecutor's office extended the charges against unidentified persons in case no. 61105 to aggravated kidnapping with the use of weapons. (c) Disappearance of Musa Elmurzayev 60. At about 3 a.m. on 27 January 2003 unidentified masked persons armed with machine guns entered the house at 27 Krasnoarmeyskaya Street, Martan-Chu, kidnapped Musa Elmurzayev and took him away in an unknown direction. (d) Investigation into Musa Elmurzayev's kidnapping 61.", "On 12 February 2003 the district prosecutor's office instituted an investigation of Musa Elmurzayev's abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 34017. 62. On 22 February 2003 the fourth applicant was granted victim status in case no. 34017 and questioned.", "He submitted that the sixth applicant had told him that her husband had been taken away by unknown men. 63. On 12 April 2003 the district prosecutor's office suspended the investigation in case no. 34017 for failure to identify the perpetrators and notified the fourth applicant accordingly. 64.", "On 15 August 2003 the prosecutor's office of the Chechen Republic quashed the decision of 12 April 2003 as the district prosecutor's office had not taken all requisite investigative measures. The decision stated that, in order to carry out a comprehensive investigation, it was necessary to question the relatives of Musa Elmurzayev, his neighbours and acquaintances, to draw up a report on examination of the crime scene, to request information on any special operations carried out near the crime scene from the Department of the FSB of the Chechen Republic, the Ministry of the Interior and the Russian military, to send requests on eventual arrest and detention of Musa Elmurzayev to a number of law enforcement agencies, to verify whether any corpses corresponding to his description had been found and to take any other steps that might be required. 65. On 20 August 2003 the investigation in case no. 34017 was resumed.", "66. The district prosecutor's office questioned the ninth and first applicants on 22 August and 1 September 2003 respectively. They submitted that the sixth applicant had informed them of Musa Elmurzayev's abduction. 67. On 1 September 2003 the sixth applicant was questioned and submitted that on 27 January 2003 she had heard someone knocking and opened the door.", "She had seen a group of armed men wearing camouflage uniforms and masks. Three of them had entered the house, told her husband to get dressed and taken him away. 68. On 20 September 2003 the investigation in case no. 34017 was again suspended.", "69. On 31 July 2006 the district prosecutor's office quashed the decision of 20 September 2003 and resumed the investigation of Musa Elmurzayev's kidnapping as some newly discovered information required verification. 70. The neighbours of Musa Elmurzayev submitted that they had not witnessed his abduction and had not heard vehicle engines on 27 January 2003. (e) Information concerning investigation in cases nos.", "61105 and 34017 71. The investigation of the kidnappings of Apti and Musa Elmurzayev did not establish the identities of the perpetrators. The implication of special units of State agencies and federal forces in those crimes was not proven. Neither was it proven that the perpetrators had been driving APCs and UAZ vehicles. According to the information obtained by the district prosecutor's office from the Department of the FSB of the Urus-Martan District, various departments of the interior and military unit no.", "90567, Apti and Musa Elmurzayev had not been charged with any crimes or arrested and their whereabouts were unknown; no APCs had driven by the checkpoint between Urus-Martan and Martan-Chu on 9 July 2002. The head of penitentiary facility no. IZ-20/3 informed the district prosecutor's office that Apti and Musa Elmurzayev had not been detained in that facility. They were not in any other detention facility in the Chechen Republic. 72.", "The FSB had no information on the circumstances of the kidnapping of Apti and Musa Elmurzayev. 73. Following the resumption of the criminal proceedings on 31 July 2006 the investigation in cases nos. 61105 and 34017 was supervised by the Prosecutor General's Office. 74.", "Despite specific requests by the Court the Government did not disclose most of the contents of criminal cases nos. 61105 and 34017, providing only copies of decisions to suspend and resume the investigation and to grant victim status and of several notifications to the relatives of the suspension and resumption of the proceedings. Relying on the information obtained from the Prosecutor General's Office, the Government stated that the investigation of the kidnappings of Apti and Musa Elmurzayev was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the case files contained information of a military nature and personal data concerning witnesses or other participants in the criminal proceedings. B. Court proceedings against the investigators 75.", "On 15 June 2006 the first applicant complained to the town court of inaction by the district prosecutor's office under Article 125 of the Russian Criminal Procedure Code. He alleged that the investigation in cases nos. 61105 and 34017 had lasted an unreasonably long time and had been erroneously suspended. He also complained that his request for access to the case files had been declined. 76.", "On 9 August 2006 the town court examined the first applicant's complaint. It stated that the investigators had not taken all measures to establish Apti Elmurzayev's whereabouts. In particular, they had failed to identify and question federal servicemen on duty at the checkpoint between Urus-Martan and Martan-Chu on the night of Apti Elmurzayev's kidnapping. Neither had they identified and questioned heads of law-enforcement agencies of the Urus-Martan District who had authorised movement of military vehicles during curfew hours. The investigators had not identified “power structures” that had owned APCs and UAZ vehicles and had not studied records on the use of military vehicles and on the organisation of special operations.", "The town court granted the first applicant's complaint in the part concerning the access to the investigation file in case no. 61105 but did not allow him to make copies of documents and dismissed his request for resumption of the proceedings in that case as the district prosecutor's office had reopened them on 1 August 2006. The request for access to the investigation file in case no. 34017 was dismissed because the first applicant had not been granted victim status in that case. 77.", "On 14 August 2006 the first applicant lodged an appeal against the judgment of 9 August 2006 with the Supreme Court of the Chechen Republic. On 13 September 2006 the appeal was dismissed. II. RELEVANT DOMESTIC LAW 78. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no.", "40464/02, § 67-69, 10 May 2007. THE LAW I. The government's objection regarding non-exhaustion of domestic remedies A. The parties' submissions 79. The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies.", "They submitted that the investigation of the disappearance of Apti and Musa Elmurzayev had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about the allegedly unlawful detention of their relatives or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of that remedy. They also argued that it had been open to the applicants to pursuepursue civil complaints which theybut they had failed to do so. 80. The applicants contested that objection.", "They stated that the criminal investigation had proved to be ineffective. Referring to the other cases concerning such crimes reviewed by the Court, they also alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in the Chechen Republic rendered any potentially effective remedies inadequate and illusory in their case. B. The Court's assessment 81. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no.", "60272/00, § 73-74, 12 October 2006). 82. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. 83. As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention.", "A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government's objection in this regard is thus dismissed. 84.", "As regards criminal criminal law remedies, the Court observes that the applicants complained to the law law enforcement authorities immediately after the kidnappings of their two relatives and that those two sets of criminal proceedings have been pending since 29 July 2002 and 12 February 2003 respectively. The applicants and the Government dispute the effectiveness of the investigation of the kidnappings. 85. The Court considers that the Government's objection raises issues concerning the effectiveness of the investigation in two criminal cases which are closely linked to the merits of the applicants' complaints. Thus, it considers that these matters fall to be examined below under the relevant substantive provisions of the Convention.", "II. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. The parties' submissions 86. The applicants maintained that it was beyond reasonable doubt that the men who had taken away Apti and Musa Elmurzayev had been State agents. In support of their complaint they referred to the following facts.", "The village of Martan-Chu had been under the total control of federal troops since 1999. There had been Russian military check-points at the roads leading to and from the village. The armed men who had abducted Apti and Musa Elmurzayev had moved freely around the village past curfew established by the military commander of the Urus-Martan District on 25 September 2001. The armed men had spoken Russian without an accent, which proved that they were not of Chechen origin. 87.", "The Government submitted that unidentified armed men had kidnapped Apti and Musa Elmurzayev. They further contended that the investigation of the incident was pending, that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants' rights. They further argued that there was no convincing evidence that the applicants' relatives were dead. B. The Court's evaluation of the facts 88.", "The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-09, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, cited above, pp. 64-65, § 161). In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government's conduct in respect of the well-foundedness of the applicants' allegations.", "The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants' relatives can be presumed dead and whether their death can be attributed to the authorities. 89. The applicants alleged that the persons who had apprehended Apti Elmurzayev on 9 July 2002 and Musa Elmurzayev on 27 January 2003 had been State agents. 90. The Court notes that this allegation is supported by the witness statements collected by the applicants and by the investigation.", "It finds that the fact that a large group of armed men in uniform was able to move freely through federal roadblocks during curfew hours strongly supports the applicants' allegation that these were State servicemen. The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check whether law enforcement agencies were involved in the kidnapping. The investigation was unable to establish which precise military or security units had carried out the operation, but it does not appear that any serious steps were taken to that end. 91. The Court observes that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of documents it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred.", "The burden of proof is thus shifted to the Government and if they fail in their arguments issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II). 92. Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their relatives were apprehended by State servicemen.", "The Government's statement that the investigation did not find any evidence to support the involvement of the special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government's failure to submit the documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court considers that Apti and Musa Elmurzayev were apprehended on 9 July 2002 and 27 January 2003 respectively at their homes, by State servicemen during unacknowledged security operations. 93. There has been no reliable news of Apti and Musa Elmurzayev since the dates of their respective abductions. Their names have not been found in any official detention facilities' records.", "The Government have not submitted any explanation as to what happened to them after their abduction. 94. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, among others, Bazorkina, cited above; Imakayeva v. Russia, no. 7615/02, ECHR 2006‑... (extracts); Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑... (extracts); Baysayeva v. Russia, no.", "74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Apti and Musa Elmurzayev or of any news of them for several years supports this assumption. 95. The Court further notes that, regrettably, it has been unable to benefit from the results of the domestic investigation, owing to the Government's failure to disclose most of the documents from the file (see paragraph 74 above).", "Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping. 96. For the above reasons the Court considers that it has been established beyond reasonable doubt that Apti and Musa Elmurzayev must be presumed dead following their unacknowledged detention by State servicemen. III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 97.", "The applicants complained under Article 2 of the Convention that their relatives had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties' submissions 98. The Government contended that the domestic investigation had obtained no evidence to the effect that Apti and Musa Elmurzayev were dead or that any servicemen of the federal law-enforcement agencies had been involved in their kidnapping or alleged killing. The Government claimed that the investigation into the kidnappings of the applicants' relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. 99.", "The applicants argued that their relatives had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court's case-law on Article 2. They pointed out that by December 2006 the district prosecutor's office had not taken some crucial investigative steps. They noted that the investigation in the cases concerning Apti and Musa Elmurzayev's respective kidnappings had been opened several days after the events and that the investigation in both sets of proceedings had been suspended and resumed a number of times – thus delaying the taking of the most basic steps – and that the applicants had not been properly informed of the most important investigative measures. They argued that the fact that the investigation had been pending for almost four years without producing any known results had been further proof of its ineffectiveness.", "The applicants invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file to them or to the Court. B. The Court's assessment 1. Admissibility 100. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 85 above). The complaint under Article 2 of the Convention must therefore be declared admissible. 2. Merits (a) The alleged violation of the right to life of Apti and Musa Elmurzayev 101. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted.", "In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147, and Avşar, cited above, § 391). 102. The Court has already found it established that the applicants' relatives must be presumed dead following their unacknowledged arrest by State servicemen and that their deaths can be attributed to the State.", "In the absence of any justification in respect of the use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Apti and Musa Elmurzayev. (b) The alleged inadequacy of the investigation of the kidnapping 103. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention's requirements (for a summary of these principles see Bazorkina, cited above, §§ 117-19). 104.", "In the present case the kidnappings were investigated. The Court must assess whether both sets of investigation met the requirements of Article 2 of the Convention. 105. The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.", "106. The Court notes that the authorities were immediately made aware of the crime by the applicants' submissions. The investigation in case no. 61105 was instituted twenty days after Apti Elmurzayev's kidnapping, while criminal case no. 34017 was opened sixteen days after Musa Elmurzayev's kidnapping.", "These delays per se were liable to affect the investigation of crimes such as kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It appears that after that a number of essential steps were delayed and were eventually taken only after the communication of the complaint to the respondent Government, or not at all. 107. As regards the investigation in case no. 61105, the Court notes that, as can be seen from the decision of the town court, by 9 August 2006 the investigators had not identified or questioned certain Russian federal servicemen and had not established the owner of the APCs and UAZ vehicles that had moved around Martan-Chu on the night of 9 July 2002 (see paragraph 76 above).", "As regards the investigation in case no. 34017, the Court points out that, according to the decision of the prosecutor's office of the Chechen Republic of 15 August 2003, during the first six months after Musa Elmurzayev's kidnapping the investigators did not question witnesses and did not request information on the missing person from law enforcement agencies (see paragraph 64 above). 108. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities' failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no.", "46477/99, § 86, ECHR 2002-II). 109. The Court also notes that even though the first and fourth applicants were granted victim status in cases nos. 61105 and 34017 respectively, they were only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation in two cases received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.", "110. Finally, the Court notes that the investigation in case no. 61105 was suspended and resumed three times and that there were lengthy periods of inactivity of the district prosecutor's office when no proceedings were pending. The Court further points out that the investigators' efforts were even more feeble as regards the search for Musa Elmurzayev, since no proceedings whatsoever were pending in case no. 34017 between 20 September 2003 and 31 July 2006, that is, for two years, ten months and eleven days.", "The Government mentioned the possibility for the applicants to apply for judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicants did make use of this remedy, which proved to be futile. In any event, the effectiveness of both sets of the investigation had already been undermined in its early stages by the authorities' failure to take necessary and urgent investigative measures. In such circumstances the Court considers that the applicants could not be required to challenge in court every single decision of the district prosecutor's office. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants' failure to exhaust domestic remedies within the context of the criminal investigation.", "111. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the respective disappearances of Apti and Musa Elmurzayev, in breach of Article 2 in its procedural aspect. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 112. The applicants relied on Article 3 of the Convention, submitting that as a result of their relatives' disappearance and the State's failure to investigate those events properly, they had endured mental suffering in breach of Article 3 of the Convention.", "They also complained under this heading that Apti and Musa Elmurzayev had probably been subjected to ill-treatment upon their respective abductions. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 113. The Government disagreed with these allegations and argued that the investigation had not established that either the applicants or Apti and Musa Elmurzayev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. As to the level of suffering allegedly caused to the applicants by the fact of their relatives' disappearance, that, in the Government's view, was beyond the evaluation of the law enforcement authorities and could not be objectively measured, as it related to psychological aspects, such as the emotions and personalities of the individuals concerned.", "114. In their observations on the admissibility and merits of the application the applicants submitted that they no longer wished to have their complaint regarding alleged ill-treatment of Apti and Musa Elmurzayev examined. They further reiterated their complaint concerning the suffering they had endured. B. The Court's assessment 1.", "Admissibility (a) The complaint concerning Apti and Musa Elmurzayev 115. The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v.Poland, no. 32220/96, Commission decision of 23 April 1998, unpublished; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no.", "27806/02, § 28, 10 February 2005). 116. It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention. (b) The complaint concerning the applicants 117. The Court notes that this part of the complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 118. The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation.", "Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities' reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities' conduct (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). 119.", "In the present case the Court notes that the applicants are close relatives of the two disappeared men. For more than five years they have not had any news of Apti and Musa Elmurzayev. During this period the applicants have applied to various official bodies with enquiries about their relatives, both in writing and in person. Despite their requests, the applicants have never received any plausible explanation or information as to what became of the Elmurzayev brothers following their respective kidnappings. The responses received by the applicants mostly denied that the State was responsible for the abductions or simply informed them that an investigation was ongoing.", "The Court's findings under the procedural aspect of Article 2 are also of direct relevance here. 120. In view of the above, the Court finds that the applicants suffered, and continue to suffer, distress and anguish as a result of the disappearance of their relatives and their inability to find out what happened to them. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3. 121.", "The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 122. The applicants further stated that Apti and Musa Elmurzayev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2.", "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties' submissions 123. In the Government's opinion, no evidence was obtained by the investigators to confirm that Apti and Musa Elmurzayev had been deprived of their liberty in breach of the guarantees set out in Article 5 of the Convention.", "124. The applicants reiterated their complaint. B. The Court's assessment 1. Admissibility 125.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 85 above). It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible. 2. Merits 126.", "The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122). 127. The Court has found it established that Apti and Musa Elmurzayev were apprehended by State servicemen on 9 July 2002 and 27 January 2003 respectively and have not been seen since.", "Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 128. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants' complaints that their relatives had been detained and taken away in life-threatening circumstances.", "However, the Court's findings above in relation to Article 2 and, in particular, the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard them against the risk of disappearance. 129. Having regard to the Government's objection concerning the applicants' failure to complain of their relatives' unlawful detention to domestic authorities, the Court observes that after Apti and Musa Elmurzayev had been taken away by armed men, the applicants actively attempted to establish their whereabouts and applied to various official bodies, whereas the authorities denied responsibility for the detention of the two missing men. In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicants, it is more than questionable whether a court complaint of the unacknowledged detention of the applicants' relatives by the authorities would have had any prospects of success. Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicants' situation, namely that it would have led to the release of Apti and Musa Elmurzayev and the identification and punishment of those responsible.", "Accordingly, the Government's objection concerning non-exhaustion of domestic remedies must be dismissed. 130. In view of the foregoing, the Court finds that Apti and Musa Elmurzayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. VI.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 131. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13, taken in conjunction with Articles 2, 3 and 5 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties' submissions 132. The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. The applicants had had an opportunity to challenge the actions or omissions of the investigating authorities in court and had availed themselves of it.", "In sum, the Government submitted that there had been no violation of Article 13. 133. The applicants reiterated their complaint. B. The Court's assessment 1.", "Admissibility 134. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 135. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court's settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many other authorities, Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997‑III, p. 1020, § 64). 136.", "As regards the applicants' complaint of lack of effective remedies in respect of their complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State's obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva, cited above, § 183). 137.", "In view of the Court's above findings with regard to Article 2, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13. 138. It follows that in circumstances where, as here, the criminal investigation into the disappearance of two persons has been ineffective and the effectiveness of any other remedy that may have existed, including the civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention.", "139. Consequently, there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention. 140. As regards the applicants' reference to Article 3 of the Convention, the Court notes that it has found a violation of the above provision on account of the applicants' mental suffering as a result of the disappearance of their close relatives, their inability to find out what had happened to them and the way the authorities handled their complaints. However, the Court has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities' conduct that led to the suffering endured by the applicants.", "The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention. 141. As regards the applicants' reference to Article 5 of the Convention, the Court reiterates that, according to its established case-law, the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention as a result of unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case. VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 142.", "The applicants complained that they had been discriminated against in the enjoyment of their Convention rights, because the violations of which they complained had taken place because of their residence in Chechnya and their ethnic background as Chechens. This was contrary to Article 14 of the Convention, which reads as follows: “The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties' submissions 143. The Government contended that the applicants had never been discriminated against in the enjoyment of their Convention rights on any ground. 144.", "The applicants insisted that they had been discriminated against. B. The Court's assessment 145. The Court observes that no evidence has been submitted to it that suggests that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated.", "146. It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. VIII. ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION 147. In their initial application form the applicants stated that they had been deprived of access to a court, contrary to the provisions of Article 6 of the Convention, and that the detention of their close relatives constituted an unlawful and unjustified interference with their family life, in breach of Article 8 of the Convention.", "The relevant parts of Article 6 of the Convention read as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 8 of the Convention, in so far as relevant, provides: “1. Everyone has the right to respect for his ... family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 148. In their observations on admissibility and merits of 4 December 2006 the applicants stated that they no longer wished their complaints under Articles 6 and 8 of the Convention to be examined. 149.", "The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require the further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see Stamatios Karagiannis, cited above, § 28). 150. It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention. IX.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 151. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. The Government's objection 152. The Government submitted that the document containing the applicants' claims for just satisfaction had been signed by Mr E. G. Ch. Wesselink, while, in the Government's opinion, the applicants had been represented by Mr Sakalov.", "They insisted therefore that the applicants' claims for just satisfaction were invalid. 153. The Court points out that the applicants issued powers of attorney in the name of the SRJI, an NGO that collaborates with a number of lawyers. Since the SRJI lists Mr E. G. Ch. Wesserlink as a member of its Governing Board, the Court has no doubts that he was duly authorised to sign the claims for just satisfaction on behalf of the applicants.", "The Government's objection must therefore be dismissed. B. Damage 1. Pecuniary damage 154. The applicants argued that they would have regularly obtained some pecuniary support from their missing relatives if they had not disappeared.", "They alleged that Apti and Musa Elmurzayev had earned 12,000 and 15,000 Russian roubles (RUB) per month respectively, and claimed loss of earnings as pecuniary damage. They left the exact amount to be awarded under this heading to the Court's discretion. However, they did not provide any documents confirming the income of the two missing persons. 155. The Government pointed out that the applicants had not substantiated their claims for pecuniary damage.", "156. The Court reiterates that, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised, “failing which the Chamber may reject the claim in whole or in part”. Since the applicants have failed to produce any calculations regarding the pecuniary damage claimed, the Court decides to make no award under this head (cf. Öneryıldız v. Turkey [GC], no. 48939/99, § 168, ECHR 2004‑XII).", "2. Non-pecuniary damage 157. The applicants claimed non-pecuniary damage for the suffering they had endured as a result of the loss of their family members, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relatives. The second and third applicants claimed 50,000 euros (EUR) each; the seventh, eighth, tenth and eleventh applicants claimed EUR 25,000 each; the first, fourth, fifth, sixth, ninth and twelfth applicants claimed EUR 20,000 each. 158.", "The Government submitted that the applicants' claims had been excessive. 159. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants' relatives. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations.", "On an equitable basis it awards the second and third applicants EUR 15,000 jointly; the sixth, seventh and eighth applicants EUR 24,000 jointly; the ninth, tenth and eleventh applicants EUR 24,000 jointly; the first, fourth, fifth and twelfth applicants EUR 2,000 each, plus any tax that may be chargeable thereon. C. Costs and expenses 160. The applicants were represented by the SRJI. They submitted an itemised list of costs and expenses that included collection of documents at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court at a rate of EUR 150 per hour, EUR 11,625 in total. They also claimed EUR 85.55 in fees for international courier mail and EUR 813.75 in administrative costs.", "The aggregate claim in respect of costs and expenses related to the applicants' legal representation amounted to EUR 12,524.30. 161. The Government submitted that the applicants had not provided copies of their agreement with the SRJI. They further contended that the sum claimed was excessive for legal representation rates applicable in Russia and disputed the reasonableness and the justification of the amounts claimed under this heading. They also objected to the representatives' request to transfer the award for legal representation directly into their account in the Netherlands.", "162. The Court has to establish first whether the costs and expenses indicated by the applicants were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220). 163. Having regard to the details of the information, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants' representatives. 164.", "Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of preparation. It notes at the same time that, due to the application of Article 29 § 3 in the present case, the applicants' representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives. 165.", "Furthermore, the Court observes that it is its standard practice to rule that awards in relation to costs and expenses are to be paid directly into applicants' representatives' accounts (see, for example, Toğcu, cited above, § 158, and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 175, ECHR 2005‑VII). 166. Having regard to the details of the claims submitted by the applicants' representatives, the Court awards them EUR 6,000, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable, the net award to be paid into the representatives' bank account in the Netherlands, as identified by the applicants. D. Default interest 167.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the applicants' complaint under Article 3 in relation to the presumed ill-treatment of Apti and Musa Elmurzayev and their complaints under Articles 6 and 8 of the Convention; 2. Decides to join to the merits the Government's objection concerning non-exhaustion of domestic remedies; 3. Declares the complaints under Articles 2, 5 and 13, as well as the complaint under Article 3 of the Convention as regards the applicants, admissible and the remainder of the application inadmissible; 4.", "Holds that there has been a violation of Article 2 of the Convention in respect of Apti and Musa Elmurzayev; 5. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Apti and Musa Elmurzayev had disappeared; 6. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants; 7. Holds that there has been a violation of Article 5 of the Convention in respect of Apti and Musa Elmurzayev; 8. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violation of Article 2 of the Convention; 9.", "Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 10. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage to the second and third applicants jointly; EUR 24,000 (twenty-four thousand euros) in respect of non-pecuniary damage to the sixth, seventh and eighth applicants jointly; EUR 24,000 (twenty-four thousand euros) in respect of non-pecuniary damage to the ninth, tenth and eleventh applicants jointly; EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to the first, fourth, fifth and twelfth applicants each, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable to these amounts; (ii) EUR 5,150 (five thousand one hundred and fifty euros) in respect of costs and expenses, to be paid into the representatives' bank account in the Netherlands, plus any tax that may be chargeable to the applicants; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 11. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident [1] Rectified on 27 February 2009: the text was “5) Mr Aslanbek Khasanovich Elmurzayev,… ”" ]

[ "GRAND CHAMBER CASE OF CENTRE FOR LEGAL RESOURCES ON BEHALF OF VALENTIN CÂMPEANU v. ROMANIA (Application no. 47848/08) JUDGMENT STRASBOURG 17 July 2014 This judgment is final. In the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President,Guido Raimondi,Ineta Ziemele,Isabelle Berro,Alvina Gyulumyan,Davíd Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Luis López Guerra,Ledi Bianku,Nona Tsotsoria,Kristina Pardalos,Vincent A. De Gaetano,Angelika Nußberger,Paulo Pinto de Albuquerque,Paul Mahoney,Johannes Silvis, judges,and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 4 September 2013 and 26 May 2014, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "47848/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian non-governmental organisation, the Centre for Legal Resources (“the CLR”), on behalf of Mr Valentin Câmpeanu, on 2 October 2008. 2. Interights, acting until 27 May 2014 as adviser to counsel for the CLR, was represented by Mr C. Cojocariu, a lawyer practising in London. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3.", "The CLR alleged on behalf of Valentin Câmpeanu that the latter had been the victim of breaches of Articles 2, 3, 5, 8, 13 and 14 of the Convention. 4. On 7 June 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5.", "Third-party comments were received from Human Rights Watch, the Euroregional Center for Public Initiatives, the Bulgarian Helsinki Committee and the Mental Disability Advocacy Center, non-governmental organisations (NGOs) which had all been given leave by the President to intervene in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). The Council of Europe Commissioner for Human Rights exercised his right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2). The Government replied to those comments (Rule 44 § 5). 6. A hearing took place in public in the Human Rights Building, Strasbourg, on 4 September 2013 (Rule 59 § 3).", "There appeared before the Court: (a) for the GovernmentMsC. Brumar,Agent,MrG. Caian,Counsel,MrD. Dumitrache,Co-Agent; (b) for the CLRMsG. Iorgulescu, Executive Director, CLR,MsG.", "Pascu, Programme Manager, CLR,MrC. Cojocariu, lawyer, Interights, Counsel; (c) for the Council of Europe Commissioner for Human Rights MrN. Muižnieks, Commissioner for Human Rights,MsI. Gachet, Director, Office of the Commissioner for Human Rights,MsA. Weber, Advisor, Office of the Commissioner for Human Rights.", "The Court heard addresses by Ms Brumar, Mr Caian, Mr Cojocariu, Ms Iorgulescu and Mr Muižnieks. Ms Brumar, Mr Cojocariu and Ms Iorgulescu subsequently gave their answers to questions put by the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The death of Valentin Câmpeanu 1.", "Factual background 7. Valentin Câmpeanu, a man of Roma ethnicity, was born on 15 September 1985. His father was unknown, and his mother, Florica Câmpeanu, who died in 2001, abandoned him at birth. Mr Câmpeanu was therefore placed in an orphanage, the Corlate Centre, where he grew up. In 1990 Mr Câmpeanu was diagnosed as HIV-positive.", "He was later diagnosed with “profound intellectual disability, an IQ of 30 and HIV” and was accordingly classified as belonging to the “severe” disability group. In time, he also developed associated symptoms such as pulmonary tuberculosis, pneumonia and chronic hepatitis. In March 1992 he was transferred to the Craiova Centre for Disabled Children and at a later date to the Craiova no. 7 Placement Centre (“the Placement Centre”). 2.", "Assessments in 2003 and 2004 8. On 30 September 2003 the Dolj County Child Protection Panel (“the Panel”) ordered that Mr Câmpeanu should no longer be cared for by the State. The decision was justified on the grounds that Mr Câmpeanu had recently turned eighteen and was not enrolled in any form of education at the time. Although the social worker dealing with Mr Câmpeanu had recommended transferring him to the local Neuropsychological Recovery and Rehabilitation Centre, the Panel ordered that a competent social worker should take all measures necessary for Mr Câmpeanu to be transferred to the Poiana Mare Neuropsychiatric Hospital (“the PMH”). According to the relevant law, the decision could be challenged before the Craiova District Court.", "Mr Câmpeanu was not present in person and was not represented at the hearing held by the Panel. 9. On 14 October 2003 Mr Câmpeanu’s health was reassessed by the Dolj County Council Disabled Adults Medical Examination Panel. The assessment resulted solely in a finding of HIV infection, corresponding to the “average” disability group. It was also mentioned that the patient was “socially integrated”.", "10. Subsequently, on an unspecified date in October or November 2003, a medical and welfare assessment of Mr Câmpeanu was carried out by a social worker and a doctor from the Placement Centre as a prerequisite for his admission to a medical and social care centre. Under the heading “Legal representative” they indicated “abandoned at birth”, while the space next to “Person to contact in case of emergency” was left blank. The diagnosis indicated was “severe intellectual disability, HIV-positive”, without any reference to the previous diagnosis (see paragraph 9 above). The following information was included in the assessment report: “requires supervision and intermittent assistance with personal care”, and the report concluded that Mr Câmpeanu was able to take care of himself, but at the same time required considerable support.", "11. By a letter dated 16 October 2003, the PMH informed the Panel that it could not admit Mr Câmpeanu, who had been diagnosed with HIV and mental disability, as the hospital lacked the facilities necessary to treat individuals with such a diagnosis. 12. Following this refusal, between October 2003 and January 2004 the Panel and the County Department for the Protection of the Rights of the Child (“the Child Protection Department”) contacted a series of institutions, asking for assistance in identifying a social care or psychiatric establishment willing to admit Mr Câmpeanu. While stating that the PMH had refused to admit the patient because he had HIV, the Child Protection Department asked for the cooperation of the institutions concerned, mentioning that Mr Câmpeanu’s condition “did not necessitate hospitalisation, but rather continuous supervision in a specialist institution”.", "3. Admission to the Cetate-Dolj Medical and Social Care Centre 13. The Panel eventually identified the Cetate-Dolj Medical and Social Care Centre (“the CMSC”) as an appropriate establishment where Valentin Câmpeanu could be placed. In its request to the CMSC, the Panel mentioned only that Mr Câmpeanu was HIV-positive, corresponding to the average disability group, without referring to his learning difficulties. 14.", "On 5 February 2004 Mr Câmpeanu was admitted to the CMSC. According to a report issued by the CMSC and sent to the CLR on 5 March 2004 detailing his condition upon admission, Mr Câmpeanu was in an advanced state of “psychiatric and physical degradation”, was dressed in a tattered tracksuit, with no underwear or shoes, and did not have any antiretroviral medication or information concerning his medical condition. It was noted that the patient “refused to cooperate”. In her statement to the prosecutor on 22 July 2004 in the context of the domestic proceedings (described in section B below), M.V., the doctor who had treated Mr Câmpeanu at the Placement Centre, justified the failure to provide appropriate medication or information on the basis that she did not know whether, depending on the results of the most recent investigation (see paragraph 9 above), it would be necessary to modify his treatment. A medical examination carried out upon Mr Câmpeanu’s admission to the CMSC concluded that he suffered from “severe intellectual disability, HIV infection and malnutrition”.", "At that time, he was 168 centimetres tall and weighed 45 kilograms. It was mentioned that “he could not orient himself in time and space and he could not eat or care for his personal hygiene by himself”. 15. During the evening of 6 February 2004 Mr Câmpeanu became agitated. According to the above-mentioned report by the CMSC (see paragraph 14 above), on the morning of 7 February 2004 he “became violent, assaulted other patients, broke a window and tore up a mattress and his clothes and sheets”.", "He was given phenobarbital and then diazepam to calm him down. 4. Examination at the PMH 16. On 9 February 2004 Mr Câmpeanu was taken to the PMH for examination, diagnosis and treatment, as it was the nearest psychiatric establishment. He was again diagnosed with “severe intellectual disability”.", "However, his condition was described as “not a psychiatric emergency”, as “he was not agitated”. Dr L.G. diagnosed him with “medium intellectual disability” and prescribed sedative medicines (carbamazepine and diazepam). According to the medical records kept at the PMH, no information regarding Mr Câmpeanu’s medical history could be obtained upon his admission to the hospital, as he “would not cooperate”. In the statement she gave to the investigative authorities on 8 December 2005, Dr D.M.", "from the PMH stated that “the patient was different in that it was not possible to communicate with him and he had mental disabilities”. 5. Return to the CMSC 17. Mr Câmpeanu was returned to the CMSC on the same day, by which time his health had worsened considerably. At that time, the CMSC had received a supply of antiretroviral medication and thus his treatment was resumed.", "Despite these measures, his condition did not improve, and his medical records noted that he continued to be “agitated” and “violent”. 18. The CMSC decided that because it lacked the facilities needed to treat Mr Câmpeanu’s condition, it was impossible to keep him there any longer. The hospital sent a request to the Placement Centre asking it to refer him to a different establishment. However, the Placement Centre refused the request on the ground that he was already “outside its jurisdiction”.", "19. On 11 February 2004 E.O., the Director of the CMSC, allegedly called the Dolj County Public Health Department and asked it to come up with a solution that would allow Mr Câmpeanu to be transferred to a facility which was more suitable for the treatment of his health problems. It appears that she was advised to transfer him to the PMH for a period of four to five days for psychiatric treatment. 6. Transfer to the PMH 20.", "On 13 February 2004 Mr Câmpeanu was transferred from the CMSC to the PMH, on the understanding that his stay at the PMH would last for three or four days with the purpose of attempting to provide treatment for his hyperaggressive behaviour. He was placed in Psychiatric Department V. 21. On 15 February 2004 Mr Câmpeanu was placed under the care of Dr L.G. Given the fact that Mr Câmpeanu was HIV-positive, the doctor decided to transfer him to Psychiatric Department VI. She continued to be in charge of his psychiatric treatment, as that department had only two general, non-specialist doctors and no psychiatrists on its staff.", "22. On 19 February 2004 Mr Câmpeanu stopped eating and refused to take his medication. He was therefore prescribed an intravenous treatment which included glucose and vitamins. Upon examination by the doctor, he was found to be “generally unwell”. 7.", "Visit by staff of the CLR 23. On 20 February 2004 a team of monitors from the CLR visited the PMH and noticed Mr Câmpeanu’s condition. According to the information included in a report by CLR staff on that visit, Mr Câmpeanu was alone in an isolated, unheated and locked room, which contained only a bed without any bedding. He was dressed only in a pyjama top. At the time he could not eat or use the toilet without assistance.", "However, the staff at the PMH refused to help him, allegedly for fear that they would contract HIV. Consequently, the only nutrition provided to Mr Câmpeanu was glucose, through a drip. The report concluded that the hospital had failed to provide him with the most basic treatment and care services. The CLR representatives stated that they had asked for him to be transferred immediately to the Infectious Diseases Hospital in Craiova, where he could receive appropriate treatment. However, the hospital manager had decided against that request, believing that the patient was not an “emergency case, but a social case”, and that in any event he would not be able to withstand the trip.", "24. Valentin Câmpeanu died on the evening of 20 February 2004. According to his death certificate, issued on 23 February 2004, the immediate cause of death was cardiorespiratory insufficiency. The certificate also noted that his HIV infection was the “original morbid condition” and designated “intellectual disability” as “another important morbid condition”. 25.", "In spite of the legal provisions that made it compulsory to carry out an autopsy when a death occurred in a psychiatric hospital (Joint Order no. 1134/255/2000 of the Minister of Justice and the Minister of Health), the PMH did not carry out an autopsy on the body, stating that “it was not believed to be a suspicious death, taking into consideration the two serious conditions displayed by the patient” (namely intellectual disability and HIV infection). 26. Unaware of Mr Câmpeanu’s death, on 21 February 2004 the CLR had drafted several urgent letters and then sent them to a number of local and central officials, including the Minister of Health, the prefect of Dolj County, the mayor of Poiana Mare and the director of the Dolj County Public Health Department, highlighting Mr Câmpeanu’s extremely critical condition and the fact that he had been transferred to an institution that was unable to provide him with appropriate care, in view of his HIV infection; the CLR further criticised the inadequate treatment he was receiving and asked for emergency measures to be taken to address the situation. It further stated that Mr Câmpeanu’s admission to the CMSC and subsequent transfer to the PMH had been in breach of his human rights, and urged that an appropriate investigation of the matter be launched.", "On 22 February 2004 the CLR issued a press release highlighting the conditions and the treatment received by patients at the PMH, making particular reference to the case of Mr Câmpeanu and calling for urgent action. B. The domestic proceedings 1. Criminal complaints lodged by the CLR 27. In a letter of 15 June 2004 to the Prosecutor General of Romania, the CLR requested an update on the state of proceedings following the criminal complaint it had lodged with that institution on 23 February 2004 in relation to the circumstances leading up to Valentin Câmpeanu’s death; in the complaint it had emphasised that Mr Câmpeanu had not been placed in an appropriate medical institution, as required by his medical and mental condition.", "28. On the same day, the CLR lodged two further criminal complaints, one with the prosecutor’s office attached to the Craiova District Court and the other with the prosecutor’s office attached to the Craiova County Court. The CLR repeated its request for a criminal investigation to be opened in relation to the circumstances leading up to and surrounding Mr Câmpeanu’s death, alleging that the following offences had been committed: (i) negligence, by employees of the Child Protection Department and of the Placement Centre (Article 249 § 1 of the Criminal Code); (ii) malfeasance and nonfeasance against a person’s interests and endangering a person unable to care for himself or herself, by employees of the CMSC (Articles 246 and 314 of the Criminal Code); and (iii) homicide by negligence or endangering a person unable to care for himself or herself, by employees of the PMH (Article 178 § 2 and Article 314 of the Criminal Code). The CLR further argued that the Medical Examination Panel had wrongly classified Mr Câmpeanu as being in the medium disability group, contrary to previous and subsequent diagnoses (see paragraph 9 above). In turn, the Child Protection Department had failed to institute proceedings for the appointment of a guardian when Mr Câmpeanu had reached the age of majority, in breach of existing legislation.", "Moreover, the Placement Centre had failed to supply the required antiretroviral medication to CMSC staff when Mr Câmpeanu had been transferred there on 5 February 2004, which might have caused his death two weeks later. The CLR also claimed that the transfer from the CMSC to the PMH had been unnecessary, improper and contrary to existing legislation, the measure having been taken without the patient’s or his representative’s consent, as required by the Patients’ Rights Act (Law no. 46/2003). Lastly, the CLR argued that Mr Câmpeanu had not received adequate care, treatment or nutrition at the PMH. 29.", "On 22 August 2004 the General Prosecutor’s Office informed the CLR that the case had been sent to the prosecutor’s office attached to the Dolj County Court for investigation. On 31 August 2004 the prosecutor’s office attached to the Dolj County Court informed the CLR that a criminal file had been opened in response to its complaint, and that the investigation had been allocated to the Criminal Investigation Department of the Dolj County Police Department (“the Police Department”). 2. Forensic report 30. On 14 September 2004, at the request of the prosecutor’s office, a forensic report was issued by the Craiova Institute of Forensic Medicine.", "Based on the medical records submitted, the report concluded as follows: “Medical treatment was prescribed for [the patient’s] HIV and his psychiatric condition, the treatment [being] correct and appropriate as to the dosage, in connection with the patient’s clinical and immunological condition. It cannot be ascertained whether the patient had indeed taken his prescribed medication, having regard to his advanced state of psychosomatic degradation.” 31. On 22 October 2004 Valentin Câmpeanu’s body was exhumed and an autopsy carried out. A forensic report was subsequently issued on 2 February 2005, recording that the body showed advanced signs of cachexia and concluding as follows: “... the death was not violent. It was due to cardiorespiratory insufficiency caused by pneumonia, a complication suffered during the progression of the HIV infection.", "Upon exhumation, no traces of violence were noticed.” 3. Prosecutors’ decisions 32. On 19 July 2005 the prosecutor’s office attached to the Dolj County Court issued a decision not to prosecute, holding, inter alia, that, according to the evidence produced, the medical treatment provided to the patient had been appropriate, and that the death had not been violent, but rather had been caused by a complication which had occurred during the progression of Mr Câmpeanu’s HIV infection. 33. On 8 August 2005 the CLR lodged a complaint against that decision with the Chief Prosecutor of the prosecutor’s office attached to the Dolj County Court, claiming, inter alia, that some of the submissions it had made concerning the medical treatment given to the patient, the alleged discontinuation of the antiretroviral treatment and the living conditions in the hospitals had not been examined.", "On 23 August 2005 the Chief Prosecutor allowed the complaint, set aside the decision of 19 July 2005 and ordered the reopening of the investigation so that all aspects of the case could be examined. Specific instructions were given as to certain medical documents that needed to be examined, once they had been obtained from the Infectious Diseases Hospital in Craiova, the Placement Centre, the CMSC and the PMH. The doctors who had treated Mr Câmpeanu were to be questioned. The circumstances in which the antiretroviral treatment had or had not been provided to the patient while he was in the CMSC and in the PMH were to be clarified, especially as the medical records at the PMH did not mention anything on that account. 34.", "On 11 December 2006 the prosecutor’s office attached to the Dolj County Court decided that, pursuant to new procedural rules in force, it lacked jurisdiction to carry out the investigation, and referred the case file to the prosecutor’s office attached to the Calafat District Court. 4. Disciplinary proceedings 35. On 11 January 2006 the Police Department asked the Dolj County Medical Association (“the Medical Association”) to provide it with an opinion on “whether the therapeutic approach [adopted] was correct in view of the diagnosis [established in the autopsy report] or whether it contains indications of medical malpractice”. On 20 July 2006, the Disciplinary Board of the Medical Association ruled that there were no grounds for taking disciplinary action against staff at the PMH: “... the psychotropic treatment, as noted in the general clinical observation notes from the PMH, was appropriate ... [and therefore] ... the information received suggests that the doctors’ decisions were correct, without any suspicion of medical malpractice [arising from] an opportunistic infection associated with HIV [being] incorrectly treated.” That decision was challenged by the Police Department, but on 23 November 2006 the challenge was rejected as out of time.", "5. New decision not to prosecute and subsequent appeals 36. On 30 March 2007 the prosecutor’s office attached to the Calafat District Court issued a fresh decision not to prosecute. The prosecutor relied in his reasoning on the evidence adduced in the file, as well as on the decision issued by the Disciplinary Board of the Medical Association. 37.", "The CLR lodged a complaint against that decision, submitting that the majority of the instructions given in the Chief Prosecutor’s decision of 23 August 2005 (see paragraph 33 above) had been ignored. The complaint was dismissed by the Chief Prosecutor of the prosecutor’s office attached to the Calafat District Court on 4 June 2007. The brief statement of reasons in the decision referred to the conclusions of the forensic report of 14 September 2004 and the Medical Association’s decision of 20 July 2006. On 10 August 2007 the CLR challenged that decision before the Calafat District Court. 38.", "On 3 October 2007 the Calafat District Court allowed the complaint, set aside the decisions of 30 March 2007 and 4 June 2007 and ordered the reopening of the investigation, holding that several aspects of Mr Câmpeanu’s death had not been examined and that more evidence needed to be produced. Among the shortcomings highlighted by the court were the following: most of the documents which were supposed to have been obtained from the Infectious Diseases Hospital in Craiova and the Placement Centre had not actually been added to the investigation file (the forensic documents on the basis of which Mr Câmpeanu had been admitted to the CMSC and transferred to the PMH; the clinical and paraclinical tests undertaken; the records of questioning of the doctors and nurses who had been responsible for Mr Câmpeanu’s care; and the HIV testing guidelines). Contradictions in the statements of those involved in Mr Câmpeanu’s admission to the CMSC had not been clarified, and neither had the circumstances relating to the interruption of his antiretroviral treatment after being transferred to the PMH. In addition, the contradictory claims of medical personnel from the CMSC and the PMH regarding Mr Câmpeanu’s alleged “state of agitation” had not been clarified. The investigators had also failed to ascertain whether the medical staff at the PMH had carried out the necessary tests after Mr Câmpeanu had been admitted there and whether he had received antiretrovirals or any other appropriate medication.", "The investigators had failed to establish the origin of the oedema noted on Mr Câmpeanu’s face and lower limbs and whether the therapeutic approach adopted at the PMH had been correct. Given these failures, the request for an opinion from the Medical Association had been premature and should be resubmitted once the investigation file had been completed. 39. The prosecutor’s office attached to the Calafat District Court appealed against that judgment. On 4 April 2008 the Dolj County Court allowed the appeal, quashed the judgment delivered by the Calafat District Court and dismissed the CLR’s complaint concerning the decision of 30 March 2007 not to prosecute.", "The court mainly relied on the conclusions of the forensic report and the autopsy report, and also on the decision of the Medical Association, all of which had stated that there had been no causal link between the medical treatment given to Mr Câmpeanu and his death. C. Other proceedings initiated by the CLR 1. In relation to Mr Câmpeanu 40. In response to the complaints lodged by the CLR (see paragraph 26 above), on 8 March 2004 the prefect of Dolj County established a commission with the task of carrying out an investigation into the circumstances surrounding Valentin Câmpeanu’s death. The commission was made up of representatives of the Child Protection Department, the Public Health Department, the Criminal Investigations Department of the Police Department and the prefect’s office.", "The commission was given ten days to complete the investigation and submit a report on its findings. The commission’s report concluded that all procedures relating to Mr Câmpeanu’s treatment after his discharge from the Placement Centre had been lawful and justified in view of his diagnosis. The commission found only one irregularity, in that an autopsy had not been carried out immediately after Mr Câmpeanu’s death, in breach of existing legislation (see paragraph 25 above). 41. On 26 June 2004 the CLR filed a complaint with the National Authority for the Protection and Adoption of Children (“the National Authority”), criticising several deficiencies concerning mainly the failure to appoint a guardian for Mr Câmpeanu and to place him in an appropriate medical institution.", "The CLR reiterated its complaint on 4 August 2004, submitting that the wrongful transfer of Mr Câmpeanu to the PMH could raise issues under Article 5 § 1 (e) of the Convention. In response to those allegations, the National Authority issued a report on 21 October 2004 on the circumstances surrounding Mr Câmpeanu’s death. The National Authority acknowledged that the Panel had acted ultra vires when ordering Mr Câmpeanu’s admission to the PMH. However, it stated that in any event, the order had been of no consequence, given that the institution had initially refused to accept Mr Câmpeanu (see paragraph 11 above). The National Authority concluded that the Child Protection Department had acted in line with the principles of professional ethics and best practice when it had transferred Mr Câmpeanu to the CMSC.", "At the same time, the National Authority stated that it was not authorised to pass judgment on Mr Câmpeanu’s subsequent transfer to the PMH. Similarly, the National Authority declined to express an opinion on the allegedly wrongful categorisation of Mr Câmpeanu as belonging to the medium disability group, or on the events which had occurred after his admission to the CMSC. 42. On 24 March 2004 the Dolj County Public Health Department informed the CLR that a commission made up of various county-level officials had concluded that “no human rights were breached” in connection with Mr Câmpeanu’s death, as his successive admissions to hospital had been justified by Article 9 of Law no. 584/2002 on measures for the prevention of the spread of HIV infection and the protection of persons infected with HIV or suffering from AIDS.", "2. In relation to other patients 43. On 16 March 2005, following a criminal investigation concerning the death of seventeen patients at the PMH, the General Prosecutor’s Office sent a letter to the Ministry of Health, requiring it to take certain administrative measures to address the situation at the hospital. While noting that no criminal wrongdoing was detectable in connection with the deaths in question, the letter highlighted “administrative deficiencies” observed at the hospital and called for appropriate measures to be taken as regards the following problems: “[L]ack of heating in the patients’ rooms; hypocaloric food; insufficient staff, poorly trained in providing care to mentally disabled patients; lack of effective medication; extremely limited opportunities to carry out paraclinical investigations ..., all these factors having encouraged the onset of infectious diseases, as well as their fatal progression ...” 44. In a decision of 15 June 2006 concerning a criminal complaint lodged by the CLR on behalf of another patient, P.C., who had died at the PMH, the High Court of Cassation and Justice dismissed an objection by the public prosecutor that the CLR did not have locus standi.", "It found that the CLR did indeed have locus standi to pursue proceedings of this nature with a view to elucidating the circumstances in which seventeen patients had died at the PMH in January and February 2004, in view of its field of activity and stated aims as a foundation for the protection of human rights. The court held as follows: “The High Court considers that the CLR may be regarded as ‘any other person whose legitimate interests are harmed’ within the meaning of Article 2781 of the Code of Criminal Procedure. The legitimacy of its interest lies in the CLR’s request that the circumstances which led to the death of seventeen patients at the PMH in January and February 2004 be determined and elucidated; its aim was thus to safeguard the right to life and the prohibition of torture and ill-treatment ... by initiating an official criminal investigation that would be effective and exhaustive so as to identify those responsible for breaches of the above-mentioned rights, in accordance with the requirements of Articles 2 and 3 of the European Convention on Human Rights. [It also aimed] to raise the awareness of society as to the need to protect fundamental human rights and freedoms and to ensure access to justice, which corresponds to the NGO’s stated goals. Its legitimate interest has been demonstrated by the initiation of investigations, which are currently pending.", "At the same time, the possibility for the CLR to lodge a complaint in accordance with Article 2781 ... represents a judicial remedy of which the complainant availed itself, also in compliance with the provisions of Article 13 of the European Convention on Human Rights ...” D. Expert report submitted by the CLR 45. The CLR submitted an expert opinion, dated 4 January 2012 and issued by Dr Adriaan van Es, a member of the Forensic Advisory Team and director of the International Federation of Health and Human Rights Organisations (IFHHRO), assisted by Anca Boeriu, Project Officer at the IFHHRO. The opinion was based on copies of the evidence which the CLR also submitted to the Court, including the medical records from the CMSC and the PMH. The expert opinion referred to the “very poor, substandard, often absent or missing” medical records at the PMH and the CMSC, in which the description of Mr Câmpeanu’s clinical situation was “scant”. It noted that while at the PMH the patient had never been consulted by an infectious‑disease specialist.", "Also, contrary to Romanian law, no autopsy had taken place immediately after the patient’s death. Concerning the antiretroviral treatment, the documents available did not provide reliable information as to whether it had been received on a continuous basis. Therefore, as a result of inappropriate treatment, Mr Câmpeanu might have suffered from a relapse of HIV, and also from opportunistic infections such as pneumocystis pneumonia (pneumonia appeared in the autopsy report as the cause of death). The opinion noted that pneumonia had not been diagnosed or treated while the patient was at the PMH or the CMSC, even though it was a very common disease in HIV patients. Common laboratory tests to monitor the patient’s HIV status had never been carried out.", "The expert opinion stated that certain behavioural signs interpreted as psychiatric disorders might have been caused by septicaemia. Therefore, the risks of discontinued antiretroviral treatment, the possibility of opportunistic infections and the patient’s history of tuberculosis should have led to Mr Câmpeanu being admitted to an infectious-disease department of a general hospital, and not to a psychiatric institution. 46. The report concluded that Mr Câmpeanu’s death at the PMH had been the result of “gross medical negligence”. The management of HIV and opportunistic infections had failed to comply with international standards and medical ethics, as had the counselling and treatment provided to the patient for his severe intellectual disability.", "Moreover, the disciplinary proceedings before the Disciplinary Board of the Medical Association had been substandard and negligent, in the absence of important medical documentation. E. Background information concerning the Cetate and Poiana Mare medical institutions 1. Poiana Mare Neuropsychiatric Hospital 47. The PMH is located in Dolj County in southern Romania, 80 km from Craiova, on a former army base occupying thirty-six hectares of land. The PMH has the capacity to admit 500 patients, both on a voluntary and an involuntary basis, in the latter case as a result of either civil or criminal proceedings.", "Until a few years ago, the hospital also included a ward for patients suffering from tuberculosis. The ward was relocated to a nearby town as a result of pressure from a number of national and international agencies, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). At the time of the relevant events, namely in February 2004, there were 436 patients at the PMH. The medical staff included five psychiatrists, four psychiatry residents and six general practitioners. According to the CPT’s report of 2004 (see paragraph 77 below), during two consecutive winters, 109 patients died in suspicious circumstances at the PMH – eighty-one between January and December 2003 and twenty‑eight in the first five months of 2004.", "The CPT had visited the PMH three times, in 1995, 1999 and 2004; its last visit was specifically aimed at investigating the alarming increase in the death rate. After each visit, the CPT issued very critical reports, highlighting the “inhuman and degrading living conditions” at the PMH. Following a visit to several of the medical institutions indicated as problematic in the CPT’s reports, among them the PMH, the Ministry of Health issued a report on 2 September 2003. It concluded that at the PMH the medication provided to patients was inadequate, either because there was no link between the psychiatric diagnosis and the treatment provided, or because the medical examinations were very limited. Several deficiencies were found concerning management efficiency and the insufficient number of medical staff in relation to the number of patients.", "2. Cetate-Dolj Medical and Social Care Centre 48. It appears from the information received from the CLR that the CMSC was a small centre for medical and social care, with a capacity of twenty beds at the beginning of 2004; at the time, there were eighteen patients at the CMSC. Before 1 January 2004 – when it was designated as a medical and social care centre – the CMSC was a psychiatric hospital. According to its accreditation certificate for 2006 to 2009, the CMSC was authorised to provide services for adults experiencing difficult family situations, with an emphasis on the social component of medical and social care.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Romanian Criminal Code 49. The relevant parts of the Romanian Criminal Code as in force at the time of the impugned events read as follows: Article 114 – Admission to a medical facility “1. When an offender is mentally ill or a drug addict and is in a state that presents a danger to society, his or her admission to a specialist medical institution may be ordered until he or she returns to health. 2.", "This measure may also be taken temporarily during a criminal prosecution or trial.” Article 178 – Negligent homicide “Negligent homicide as a result of failure to observe legal provisions or preventive measures relating to the practice of a profession or trade, or as a result of the performance of a particular activity, shall be punishable by immediate imprisonment for two to seven years.” Article 246 – Malfeasance and nonfeasance against a person’s interests “A public servant who, in the exercise of official duties, knowingly fails to perform an act or performs it erroneously and in doing so infringes another person’s legal interests shall be punishable by immediate imprisonment for six months to three years.” Article 249 § 1 – Negligence in the performance of an official duty “The breach of an official duty, as a result of negligence on the part of a public servant, by failing to perform it or performing it erroneously, if such breach has caused significant disturbance to the proper operation of a public authority or institution or of a legal entity, or damage to its property or serious damage to another person’s legal interests, shall be punishable by imprisonment for one month to two years or by a fine.” Article 314 – Endangering a person unable to look after himself or herself “1. The act of abandoning, sending away or leaving helpless a child or a person unable to look after himself or herself, committed in any manner by a person entrusted with his or her supervision or care, [or of] placing his or her life, health or bodily integrity in imminent danger, shall be punishable by immediate imprisonment for one to three years ...” B. Romanian Code of Criminal Procedure 50. The procedure governing complaints lodged with a court against decisions taken by a prosecutor during criminal investigations was set out in Articles 275-2781 of the Code as in force at the time of the impugned events. The relevant parts of these Articles read as follows: Article 275 “Any person may lodge a complaint in respect of measures and decisions taken during criminal investigation proceedings, if these have harmed his or her legitimate interests ...” Article 278 “Complaints against measures or decisions taken by a prosecutor or implemented at the latter’s request shall be examined by ... the chief prosecutor in the relevant department. ...” Article 2781 “1.", "Following the dismissal by the prosecutor of a complaint lodged in accordance with Articles 275-278 in respect of the discontinuation of a criminal investigation ... through a decision not to prosecute (neurmărire penală) ..., the injured party, or any other person whose legitimate interests have been harmed, may complain within twenty days following notification of the impugned decision, to the judge of the court that would normally have jurisdiction to deal with the case at first instance. ... 4. The person in respect of whom the prosecutor has decided to discontinue the criminal investigation, as well as the person who lodged the complaint against that decision, shall be summoned before the court. If they have been lawfully summoned, the failure of these persons to appear before the court shall not impede the examination of the case. ... 5.", "The presence of the prosecutor before the court is mandatory. 6. The judge shall give the floor to the complainant, and then to the person in respect of whom the criminal investigation has been discontinued, and finally, to the prosecutor. 7. In the examination of the case, the judge shall assess the impugned decision on the basis of the existing acts and material, and on any new documents submitted.", "8. The judge shall rule in one of the following ways: (a) dismiss the complaint as out of time, inadmissible or ill-founded and uphold the decision; (b) allow the complaint, overturn the decision and send the case back to the prosecutor in order to initiate or reopen the criminal investigation. The judge shall be required to give reasons for such remittal and, at the same time, to indicate the facts and circumstances that require elucidation, as well as the relevant evidence that needs to be produced; (c) allow the complaint, overturn the decision and, when the evidence in the file is sufficient, retain the case for further examination, in compliance with the rules of procedure that apply at first instance and, as appropriate, on appeal. ... 12. The judge shall examine the complaint within thirty days from the date of receipt.", "13. A complaint lodged with the incorrect body shall be sent, as an administrative step, to the body with jurisdiction to examine it.” [footnote omitted] C. Social assistance system 51. Article 2 of the National Social Assistance Act (Law no. 705/2001), as in force at the relevant time, defines the social assistance system as follows: “... the system of institutions and measures through which the State, the public authorities and civil society ensure the prevention, the limitation or the removal of the temporary or permanent consequences of situations that may cause the marginalisation or social exclusion of some individuals.” Article 3 defines the scope of the social assistance system, which is: “... to protect individuals who, for economic, physical, mental or social reasons, do not have the ability to meet their social needs and to develop their own capabilities and social integration skills.” 52. Ordinance no.", "68/2003 concerning social services identifies the objectives of State social services and details the decision-making process concerning the allocation of social services. D. Legislation regarding the health system 53. A detailed description of the relevant legal provisions on mental health is to be found in B. v. Romania (no. 2) (no. 1285/03, §§ 42-66, 19 February 2013).", "Law no. 487/2002 on Mental Health and the Protection of People with Psychological Disorders (“the Mental Health Act 2002”), which came into force in August 2002, prescribes the procedure for compulsory treatment of an individual. A special psychiatric panel should approve a treating psychiatrist’s decision that a person remain in hospital for compulsory treatment within seventy-two hours of his or her admission to a hospital. In addition, this assessment should be reviewed within twenty-four hours by a public prosecutor, whose decision, in turn, may be appealed against to a court. The implementation of the provisions of the Act was dependent on the adoption of the necessary regulations for its enforcement.", "The regulations were adopted on 2 May 2006. 54. The Hospitals Act (Law no. 270/2003) provided in Article 4 that hospitals had an obligation to “ensure the provision of adequate accommodation and food and the prevention of infections”. It was repealed on 28 May 2006, once the Health Care Reform Act 2006 (Law no.", "95/2006) came into force. 55. The Patients’ Rights Act (Law no. 46/2003) provides in Article 3 that “the patient shall be entitled to respect as a human being, without discrimination”. Article 35 provides that a patient has “the right to continuous medical care until his or her health improves or he or she recovers”.", "Furthermore, “the patient has the right to palliative care in order to be able to die with dignity”. The patient’s consent is required for any form of medical intervention. 56. Order no. 1134/25.05.2000, issued by the Minister of Justice, and Order no.", "255/4.04.2000, issued by the Minister of Health, approved the rules on procedures relating to medical opinions and other forensic medical services, which provide in Article 34 that an autopsy should be conducted when a death occurs in a psychiatric hospital. Article 44 requires the management of medical establishments to inform the criminal investigation authorities, who must request that an autopsy be carried out. 57. Law no. 584/2002 on measures for the prevention of the spread of HIV infection and the protection of persons infected with HIV or suffering from AIDS provides in Article 9 that medical centres and doctors must hospitalise such individuals and provide them with appropriate medical care in view of their specific symptoms.", "E. The guardianship system 1. Guardianship of minors 58. Articles 113 to 141 of the Family Code, as in force at the time of the events in question, regulated guardianship of a minor whose parents were dead, unknown, deprived of their parental rights, incapacitated, missing or declared dead by a court. The Family Code regulated the conditions making guardianship necessary, the appointment of a guardian (tutore), the responsibilities of the guardian, the dismissal of the guardian, and the end of guardianship. The institution with the widest range of responsibilities in this field was the guardianship authority (autoritatea tutelară), entrusted, inter alia, with supervising the activity of guardians.", "At present, guardianship is governed by Articles 110 to 163 of the Civil Code. The new Civil Code was published in Official Gazette no. 511 of 24 July 2009 and subsequently republished in Official Gazette no. 505 of 15 July 2011. It came into force on 1 October 2011.", "2. The incapacitation procedure and guardianship of people with disabilities 59. Articles 142 to 151 of the Family Code, as in force at the time of the facts of the present case, governed the procedure of incapacitation (interdicţie), whereby a person who has proved to be incapable of managing his or her affairs loses his or her legal capacity. An incapacitation order could be made and revoked by a court in respect of “those lacking the capacity to take care of their interests because of mental disorder or disability”. Incapacitation proceedings could be initiated by a wide group of persons, among which were the relevant State authorities for the protection of minors, or any interested person.", "Once a person was incapacitated, a guardian was appointed to represent him or her, with powers similar to those of a guardian of a minor. Although the incapacitation procedure could also be applied to minors, it was particularly geared towards disabled adults. The above-mentioned provisions have since been included, with amendments, in the Civil Code (Articles 164 to 177). 60. Articles 152 to 157 of the Family Code, as in force at the material time, prescribed the procedure for temporary guardianship (curatela), designed to cover the situation of those who, even if not incapacitated, are not able to protect their interests in a satisfactory manner or to appoint a representative.", "The relevant parts of these provisions read as follows: Article 152 “Besides the other cases specified by law, the guardianship authority shall appoint a temporary guardian in the following circumstances: (a) where, on account of old age, illness or physical infirmity, a person, even if he or she retains legal capacity, is unable personally to manage his or her goods or to satisfactorily defend his or her interests and, for good reasons, cannot appoint a representative; (b) where, on account of illness or for other reasons, a person – even if he or she retains legal capacity – is unable, either personally or through a representative, to take the necessary measures in situations requiring urgent action; (c) where, because of illness or other reasons, the parent or the appointed guardian (tutore) is unable to perform the act in question; ...” Article 153 “In the situations referred to in Article 152, the appointment of a temporary guardian (curator) does not affect the capacity of the person represented by the guardian.” Article 154 “(1) Temporary guardianship (curatela) may be instituted at the request of the person who wishes to be represented, that person’s spouse or relatives, any of the persons referred to in Article 115, or the guardian (tutore) in the situation referred to in Article 152 (c). The guardianship authority may also institute the guardianship of its own motion. (2) The guardianship may only be instituted with the consent of the person to be represented, except in situations when such consent cannot be given. ...” Article 157 “If the reasons that led to the institution of temporary guardianship have ceased, the measure shall be lifted by the guardianship authority at the request of the guardian, the person being represented or any of the persons referred to in Article 115, or of its own motion.” The above-mentioned provisions have since been included, with amendments, in the Civil Code (Articles 178 to 186). 61.", "Emergency Ordinance no. 26/1997 regarding children in difficult situations, in force at the time of the events in question, derogated from the provisions on guardianship in the Family Code. Article 8 (1) of the Ordinance provided: “... if the parents of the child are dead, unknown, incapacitated, declared dead by a court, missing or deprived of their parental rights, and if guardianship has not been instituted, if the child has been declared abandoned by a final court judgment, and if a court has not decided to place the child with a family or an individual in accordance with the law, parental rights shall be exercised by the County Council, ... through [its Child Protection] Panel”. Emergency Ordinance no. 26/1997 was repealed on 1 January 2005, when new legislation concerning the protection and promotion of children’s rights (Law no.", "272/2004) came into force. 62. Order no. 726/2002, concerning the criteria on the basis of which the categories of disability for adults were established, described people with “severe intellectual disability” as follows: “... they have reduced psychomotor development and few or no language skills; they can learn to talk; they can become familiar with the alphabet and basic counting. They may be capable of carrying out simple tasks under strict supervision.", "They can adapt to living in the community in care homes or in their families, as long as they do not have another disability which necessitates special care.” 63. Law no. 519/2002 on the special protection and employment of people with disabilities listed the social rights to which people with disabilities were entitled. It was repealed by the Protection of People with Disabilities Act (Law no. 448/2006), which came into force on 21 December 2006.", "Article 23 of the Act, as initially in force, provided that people with disabilities were protected against negligence and abuse, including by means of legal assistance services and, if necessary, by being placed under guardianship. Under Article 25 of the Act as amended in 2008, people with disabilities are protected against negligence and abuse, and against any discrimination based on their location. People who are entirely or partially incapable of managing their affairs are afforded legal protection in the form of full or partial guardianship, as well as legal assistance. Furthermore, if a person with disabilities does not have any parents or any other person who might agree to act as his or her guardian, a court may appoint as guardian the local public authority or private-law entity that provides care for the person concerned. III.", "RELEVANT INTERNATIONAL LAW MATERIAL A. The issue of locus standi 1. United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 64. The CRPD, designed to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity, was ratified by Romania on 31 January 2011. It reads in its relevant parts as follows: Article 5 – Equality and non-discrimination “1.", "States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.", "4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.” Article 10 – Right to life “States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.” Article 12 – Equal recognition before the law “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.", "The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. ...” Article 13 – Access to justice “1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.” 2.", "Relevant Views of the United Nations Human Rights Committee 65. The First Optional Protocol to the International Covenant on Civil and Political Rights gives the Human Rights Committee (“the HRC”) competence to examine individual complaints with regard to alleged violations of the Covenant by States Parties to the Protocol (Articles 1 and 2 of the Optional Protocol). This expressly limits to individuals the right to submit a communication. Therefore, complaints submitted by NGOs, associations, political parties or corporations on their own behalf have generally been declared inadmissible for lack of personal standing (see, for instance, Disabled and handicapped persons in Italy v. Italy (Communication No. 163/1984)).", "66. In exceptional cases, a third party may submit a communication on behalf of a victim. A communication submitted by a third party on behalf of an alleged victim can only be considered if the third party can demonstrate its authority to submit the communication. The alleged victim may appoint a representative to submit the communication on his or her behalf. 67.", "A communication submitted on behalf of an alleged victim may also be accepted when it appears that the individual in question is unable to submit the communication personally (see Rule 96 of the Rules of Procedure of the HRC): Rule 96 “With a view to reaching a decision on the admissibility of a communication, the Committee, or a working group established under rule 95, paragraph 1, of these rules shall ascertain: ... (b) That the individual claims, in a manner sufficiently substantiated, to be a victim of a violation by that State party of any of the rights set forth in the Covenant. Normally, the communication should be submitted by the individual personally or by that individual’s representative; a communication submitted on behalf of an alleged victim may, however, be accepted when it appears that the individual in question is unable to submit the communication personally; ...” 68. Typical examples of this situation would be when the victim has allegedly been abducted, has disappeared or there is no other way of knowing his or her whereabouts, or the victim is imprisoned or in a mental institution. A third party (normally close relatives) may submit a communication on behalf of a deceased person (see, for instance, Mr Saimijon and Mrs Malokhat Bazarov v. Uzbekistan (communication no. 959/2000); Panayote Celal v. Greece (communication no.", "1235/2003); Yuliya Vasilyevna Telitsina v. Russian Federation (communication no. 888/1999); José Antonio Coronel et al. v. Colombia (communication no. 778/1997); and Jean Miango Muiyo v. Zaire (communication no. 194/1985)).", "3. The United Nations Special Rapporteur on Disability 69. In her report on the question of monitoring, issued in 2006, the Special Rapporteur stated: “2. People with developmental disabilities are particularly vulnerable to human rights violations. Also, people with disabilities are rarely taken into account, they have no political voice and are often a sub group of already marginalized social groups, and therefore, have no power to influence governments.", "They encounter significant problems in accessing the judicial system to protect their rights or to seek remedies for violations; and their access to organizations that may protect their rights is generally limited. While non-disabled people need independent national and international bodies to protect their human rights, additional justifications exist for ensuring that people with disabilities and their rights be given special attention through independent national and international monitoring mechanisms.” 4. Relevant case-law of the Inter-American Commission on Human Rights 70. Article 44 of the American Convention on Human Rights gives the Inter-American Commission on Human Rights the competence to receive petitions from any person or group of persons, or any non-governmental entity legally recognised in one or more member States of the Organization of American States (OAS). It provides: “Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party.” Article 23 of the Rules of Procedure of the Inter-American Commission on Human Rights states that such petitions may be brought on behalf of third parties.", "It reads as follows: “Any person or group of persons or nongovernmental entity legally recognized in one or more of the Member States of the OAS may submit petitions to the Commission, on their behalf or on behalf of third persons, concerning alleged violations of a human right recognized in, as the case may be, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights ‘Pact of San José, Costa Rica’ ..., in accordance with their respective provisions, the Statute of the Commission, and these Rules of Procedure. The petitioner may designate an attorney or other person to represent him or her before the Commission, either in the petition itself or in a separate document.” 71. The Inter-American Commission has examined cases brought by NGOs on behalf of direct victims, including disappeared or deceased persons. For instance, in the case of Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil (report no.", "33/01), the petitioner was the Center for Justice and International Law, acting in the name of disappeared persons and their next of kin. Regarding its competence ratione personae, the Commission acknowledged that the petitioning entity could lodge petitions on behalf of the direct victims in the case, in accordance with Article 44 of the American Convention on Human Rights. In Teodoro Cabrera Garcia and Rodolfo Montiel Flores v. Mexico (report no. 11/04), the Commission affirmed its jurisdiction ratione personae to examine claims brought by different organisations and individuals alleging that two other individuals had been illegally detained and tortured, and imprisoned following an unfair trial. In Arely José Escher et al.", "v. Brazil (report no. 18/06), the Commission affirmed its jurisdiction ratione personae to examine a petition brought by two associations (the National Popular Lawyers’ Network and the Center for Global Justice) alleging violations of the rights to due legal process, to respect for personal honour and dignity, and to recourse to the courts, to the detriment of members of two cooperatives associated with the Landless Workers’ Movement, through the illegal tapping and monitoring of their telephone lines. 72. Cases initially brought by NGOs may subsequently be submitted by the Commission to the Inter-American Court of Human Rights, after the adoption of the Commission’s report on the merits (see, for instance, Case of the “Las Dos Erres” Massacre v. Guatemala (preliminary objection, merits, reparations and costs), (judgment of 24 November 2009, Series C no. 211) brought by the Office of Human Rights of the Archdiocese of Guatemala and the Center for Justice and International Law; see also Arely José Escher et al., cited above).", "5. European Union Agency for Fundamental Rights (FRA) report: Access to justice in Europe: an overview of challenges and opportunities 73. The report issued by the FRA in March 2011 emphasises that the ability to seek effective protection of the rights of vulnerable people at the domestic level is often hindered, inter alia, by legal costs and a narrow construction of legal standing (see pages 37-54 of the report). B. Relevant reports concerning the conditions at the PMH 1.", "European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) reports on Romania 74. The CPT has documented the situation at the PMH during three visits: in 1995, 1999 and 2004. 75. In 1995 the living conditions at the PMH were considered to be so deplorable that the CPT decided to make use of Article 8 § 5 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which enables it in exceptional circumstances to make certain observations to the Government concerned during the visit itself. In particular, the CPT noted that in a period of seven months in 1995 sixty-one patients had died, of whom twenty-five had been “severely malnourished” (see paragraph 177 of the 1995 report).", "The CPT decided to ask the Romanian Government to take urgent measures to ensure that “basic living conditions” existed at the PMH. Other areas of concern identified by the CPT on this occasion were the practice of secluding patients in isolation rooms as a form of punishment, and the lack of safeguards in relation to involuntary admission. 76. In 1999 the CPT returned to the PMH. The most serious deficiencies found on this occasion related to the fact that the number of staff – both specialised and auxiliary – had been reduced from the 1995 levels, and to the lack of progress in relation to involuntary admission.", "77. In June 2004 the CPT visited the PMH for the third time, this time in response to reports concerning an increase in the number of patients who had died. At the time of the visit, the hospital, with a capacity of 500 beds, accommodated 472 patients, of whom 246 had been placed there on the basis of Article 114 of the Romanian Criminal Code (compulsory admission ordered by a criminal court). The CPT noted in its report that eighty-one patients had died in 2003 and twenty-eight in the first five months of 2004. The increase in the number of deaths had occurred despite the transfer from the hospital in 2002 of patients suffering from active tuberculosis.", "The main causes of death were cardiac arrest, myocardial infarction and bronchopneumonia. The average age of the patients who had died was 56, with sixteen being under 40. The CPT stated that “such premature deaths could not be explained exclusively on the basis of the symptoms of the patients at the time of their hospitalisation” (see paragraph 13 of the 2004 report). The CPT also noted that some of these patients “were apparently not given sufficient care” (see paragraph 14 of the report). The CPT noted with concern “the paucity of human and material resources” available to the hospital (see paragraph 16 of the report).", "It singled out serious deficiencies in the quality and quantity of food provided to the patients and the lack of heating in the hospital. In view of the deficiencies found at the PMH, the CPT made the following statement in paragraph 20 of the report: “... we cannot rule out the possibility that the combined impact of difficult living conditions – in particular the shortages of food and heating – resulted in the progressive deterioration of the general state of health of some of the weakest patients, and that the paucity of medical supplies available could not prevent their death in most cases. In the opinion of the CPT, the situation found at the Poiana Mare Hospital is very concerning and warrants taking strong measures aimed at improving the living conditions and also the care provided to patients. Following the third visit of the CPT to the Poiana Mare Hospital in less than ten years, it is high time the authorities finally grasped the real extent of the situation prevailing in the establishment.” Finally, in relation to involuntary admission through civil proceedings, the CPT noted that the recently enacted Mental Health Act 2002 had not been implemented comprehensively, as it had encountered patients who had been admitted involuntarily in breach of the safeguards included in the law (see paragraph 32 of the report). 2.", "The United Nations Special Rapporteur on the Right to Health 78. On 2 March 2004 the Special Rapporteur on the Right to Health, together with the United Nations Special Rapporteur on the Right to Food and the United Nations Special Rapporteur on Torture, wrote to the Romanian Government, expressing concern about alarming reports received with regard to the living conditions at the PMH and asking for clarification on the matter. The response from the Government was as follows (see summary by the Special Rapporteur on the Right to Health in UN Doc. E/CN.4/2005/51/Add.1): “54. By letter dated 8 March 2004, the Government responded to the communication sent by the Special Rapporteur regarding the situation of the Poiana Mare Psychiatric Hospital.", "The Government confirmed that the Romanian authorities fully understood and shared the concerns about the hospital. Ensuring the protection of handicapped persons remained a governmental priority and the Ministry of Health would start inquiries into all similar medical institutions in order to make sure Poiana Mare was an isolated case. Regarding Poiana Mare, immediate measures had been taken to improve the living conditions of the patients and these steps would continue until the hospital was completely rehabilitated. On 25 February 2004, the Minister of Health conducted an enquiry into Poiana Mare. There were deficiencies with the heating and water systems, food preparation, waste disposal, living and sanitary conditions, and medical assistance.", "Most of the problems connected with medical assistance were caused by the insufficiency of resources and bad management. The Government confirmed that the following measures were required: clarification by forensic specialists of the cause of death of those patients whose death was unrelated to pre-existing disease or advanced age; implementing the hospital’s plan of 2004; hiring supplementary specialized health professionals; reorganizing the working schedule of physicians to include night shifts; ensuring specialized medical assistance on a regular basis; and allocating supplementary funding to improve living conditions. The Government also confirmed that the Secretary of State of the Ministry of Health, as well as the Secretary of State of the National Authority for Handicapped Persons, had been discharged following the irregularities found at the Poiana Mare Psychiatric Hospital, and that the Director of the Hospital had been replaced by an interim director until a competitive selection for the vacant position was finalized. The Government confirmed that the hospital would be carefully monitored by representatives of the Ministry of Health throughout 2004 and that representatives of the local administration would be directly involved in improving the situation at the hospital. Finally, the Government confirmed that the Ministry of Health would start very soon an independent investigation of all other similar units, and would take all necessary measures to prevent any such unfortunate situations from ever happening again.” During his official visit to Romania in August 2004, the Special Rapporteur on the Right to Health inspected several mental health facilities, including the PMH.", "The report (UN Doc. E/CN.4/2005/51.Add.4) following the visit of the Special Rapporteur, issued on 21 February 2005, reads as follows, in so far as relevant: “61. Nonetheless, during his mission the Special Rapporteur formed the view that, despite the legal and policy commitments of the Government, the enjoyment of the right to mental health care remains more of an aspiration rather than a reality for many people with mental disabilities in Romania. Poiana Mare Psychiatric Hospital ... 63. During his mission, the Special Rapporteur had the opportunity to visit [the PMH] and to discuss developments which had taken place since February 2004 and the appointment of a new director of the hospital.", "The director informed the Special Rapporteur that funding (5.7 billion lei) had been received from the Government to make improvements. Food allocations had been increased, the heating system had been repaired, and wards and other buildings at the hospital were being refurbished. While the Special Rapporteur welcomes these improvements and commends all those responsible, he urges the Government to ensure that it provides adequate resources to support the implementation of these changes on a sustainable basis. The Government should also support other needed measures including: making appropriate medication available, providing adequate rehabilitation for patients, ensuring that patients are able to access effective complaint mechanisms, and the provision of human rights training for hospital staff. The Special Rapporteur understands that criminal investigations into the deaths are still ongoing.", "He will continue to closely monitor all developments at PMH. The Special Rapporteur takes this opportunity to acknowledge the important role that the media and NGOs have played in relation to Poiana Mare.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 13 OF THE CONVENTION 79. The CLR, acting on behalf of Mr Câmpeanu, complained that he had been unlawfully deprived of his life as a result of the combined actions and failures to act by a number of State agencies, in contravention of their legal obligation to provide him with care and treatment. In addition, the authorities had failed to put in place an effective mechanism to safeguard the rights of people with disabilities placed in long-stay institutions, including by initiating investigations into suspicious deaths.", "Furthermore, the CLR complained that serious flaws in Mr Câmpeanu’s care and treatment at the CMSC and the PMH, the living conditions at the PMH, and the general attitude of the authorities and individuals involved in his care and treatment over the last months of his life, together or separately amounted to inhuman and degrading treatment. In addition, the official investigation into those allegations of ill-treatment had not complied with the State’s procedural obligation under Article 3. Under Article 13 taken in conjunction with Articles 2 and 3, the CLR submitted that no effective remedy existed in the Romanian domestic legal system in respect of suspicious deaths and/or ill-treatment in psychiatric hospitals. The relevant parts of Articles 2, 3 and 13 of the Convention read as follows: Article 2 “1. Everyone’s right to life shall be protected by law.", "...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 80. The Government contended that the CLR did not have locus standi to lodge the present application on behalf of the late Valentin Câmpeanu; the case was therefore inadmissible as incompatible ratione personae with the provisions of Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 1. The parties’ submissions (a) The Government 81. The Government argued that the conditions required by Article 34 for an application to the Court were not met in the present case; on the one hand, the CLR did not have victim status and on the other hand, the association had not shown that it was the valid representative of the direct victim.", "Being aware of the dynamic and evolving interpretation of the Convention by the Court in its case-law, the Government nevertheless pointed to the fact that while judicial interpretation was permissible, any sort of legislating by the judiciary, by adding to the text of the Convention, was not acceptable; therefore, Article 34 should still be construed as meaning that the subjects of the individual petition could only be individuals, NGOs or groups of individuals claiming to be victims, or representatives of alleged victims. 82. The Government disputed that the CLR could be regarded either as a direct victim, or as an indirect or potential victim. Firstly, in the present case the CLR had not submitted that its own rights had been violated, and therefore it could not be regarded as a direct victim (the Government cited Čonka and the Human Rights League v. Belgium (dec.), no. 51564/99, 13 March 2001).", "Secondly, according to the Court’s case-law, an indirect or potential victim had to demonstrate, with sufficient evidence, either the existence of a risk of a violation, or the effect that a violation of a third party’s rights had had on him or her, as a consequence of a pre-existing close link, whether natural (for example, in the case of a family member) or legal (for example, as a result of custody arrangements). The Government therefore submitted that the mere fact that Mr Câmpeanu’s vulnerable personal circumstances had come to the attention of the CLR, which had then decided to bring his case before the domestic courts, was not sufficient to transform the CLR into an indirect victim; in the absence of any strong link between the direct victim and the CLR, or of any decision entrusting the CLR with the task of representing or caring for Mr Câmpeanu, the CLR could not claim to be a victim, either directly or indirectly, and this notwithstanding Mr Câmpeanu’s undisputed vulnerability, or the fact that he was an orphan and had had no legal guardian appointed (the Government referred, by way of contrast, to Becker v. Denmark, no. 7011/75, Commission decision of 3 October 1975, Decisions and Reports (DR) 4, p. 215). 83. Furthermore, in the lack of any evidence of any form of authorisation, the CLR could not claim to be the direct victim’s representative either (the Government cited Skjoldager v. Sweden, no.", "22504/93, Commission decision of 17 May 1995, unpublished). The Government argued that the CLR’s involvement in the domestic proceedings concerning the death of Mr Câmpeanu did not imply an acknowledgment by the national authorities of its locus standi to act on behalf of the direct victim. The CLR’s standing before the domestic courts was that of a person whose interests had been harmed by the prosecutor’s decision, and not that of a representative of the injured party. In that respect, the domestic law, as interpreted by the Romanian High Court of Cassation and Justice in its decision of 15 June 2006 (see paragraph 44 above), amounted to an acknowledgment of an actio popularis in domestic proceedings. 84.", "The Government argued that the present case before the Court should be dismissed as an actio popularis, observing that such cases were accepted by the Court solely in the context of Article 33 of the Convention in relation to the power of States to supervise one another. While noting that other international bodies did not expressly preclude an actio popularis (citing Article 44 of the American Convention on Human Rights), the Government maintained that each mechanism had its own limits, shortcomings and advantages, the model adopted being exclusively the result of negotiations between the Contracting Parties. 85. The Government further maintained that the Romanian authorities had addressed the specific recommendations of the CPT, with the result that a 2013 United Nations Universal Periodic Review had acknowledged positive developments concerning the situation of persons with disabilities in Romania. Further improvements had also been made concerning the domestic legislation on guardianship and protection of persons with disabilities.", "Moreover, in so far as several of the Court’s judgments had already addressed the issue of the rights of vulnerable patients placed in large-scale institutions (the Government cited C.B. v. Romania, no. 21207/03, 20 April 2010, and Stanev v. Bulgaria [GC], no. 36760/06, ECHR 2012), the Government argued that no particular reason relating to respect for human rights as defined in the Convention required that the examination of the application be pursued. (b) The CLR 86.", "The CLR submitted that the exceptional circumstances of this application required an examination on the merits; the Court could make such an assessment either by accepting that the CLR was an indirect victim, or by considering that the CLR was acting as Mr Câmpeanu’s representative. 87. In view of the Court’s principle of flexible interpretation of its admissibility criteria when this was required by the interests of human rights and by the need to ensure practical and effective access to proceedings before it, the CLR submitted that its locus standi to act on behalf of Mr Câmpeanu should be accepted by the Court. In such a decision, regard should be had to the exceptional circumstances of the case, to the fact that it was impossible for Mr Câmpeanu to have access to justice, either directly or through a representative, to the fact that the domestic courts had acknowledged the CLR’s standing to act on his behalf and, last but not least, to the CLR’s long-standing expertise in acting on behalf of people with disabilities. The CLR further mentioned that the Court had adapted its rules in order to enable access to its proceedings for victims who found it excessively difficult, or even impossible, to comply with certain admissibility criteria, owing to factors outside their control but linked to the violations complained of: evidentiary difficulties for victims of secret surveillance measures, or vulnerability due to such factors as age, gender or disability (citing, for instance, S.P., D.P.", "and A.T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unreported; Storck v. Germany, no. 61603/00, ECHR 2005‑V; and Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005‑IV). The Court had also departed from the “victim status” rule on the basis of the “interests of human rights”, holding that its judgments served not only to decide the cases brought before it, but more generally, “to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties” (the CLR referred to Karner v. Austria, no.", "40016/98, § 26, ECHR 2003‑IX). The CLR further submitted that the State had certain duties under Article 2, for instance, irrespective of the existence of next of kin or their willingness to pursue proceedings on the applicant’s behalf; furthermore, to make the supervision of States’ compliance with their obligations under Article 2 conditional on the existence of next of kin would entail the risk of disregarding the requirements of Article 19 of the Convention. 88. The CLR referred to the international practice of the Inter-American Commission on Human Rights and the African Commission on Human and Peoples’ Rights, which in exceptional circumstances allowed cases lodged by others on behalf of alleged victims if the victims were unable to submit the communication by themselves. NGOs were among the most active human rights defenders in such situations; furthermore, their standing to take cases to court on behalf of or in support of such victims was commonly accepted in many Council of Europe member States (according to a 2011 report by the European Union’s Fundamental Rights Agency entitled “Access to Justice in Europe: an overview of challenges and opportunities”).", "89. Turning to the particularities of the present case, the CLR underlined that a significant factor in the assessment of the locus standi issue was that its monitors had established brief visual contact with Mr Câmpeanu during their visit to the PMH and witnessed his plight; consequently, the CLR had taken immediate action and applied to various authorities, urging them to provide solutions to his critical situation. In this context, the association’s long-standing expertise in defending the human rights of people with disabilities played an essential role. Pointing out that at domestic level its locus standi was acknowledged, the CLR contended that the Court frequently took into account domestic procedural rules on representation in order to decide who had locus standi to lodge applications on behalf of people with disabilities (it cited Glass v. the United Kingdom, no. 61827/00, ECHR 2004‑II).", "Moreover, the Court had found violations in cases when domestic authorities had applied procedural rules in an inflexible manner that restricted access to justice for people with disabilities (for example, X and Y v. the Netherlands, 26 March 1985, Series A no. 91). In this context, the CLR argued that the initiatives it had taken before the domestic authorities essentially differentiated it from the applicant NGO in the recent case of Nencheva and Others v. Bulgaria (no. 48609/06, 18 June 2013), concerning the death of fifteen children and young people with disabilities in a social care home. In that case, while observing in general that exceptional measures could be required to ensure that people who could not defend themselves had access to representation, the Court had noted that the Association for European Integration and Human Rights had not previously pursued the case at domestic level.", "The Court had therefore dismissed the application as incompatible ratione personae with the provisions of the Convention in respect of the NGO in question (ibid., § 93). 90. Referring to the comments by the Council of Europe Commissioner for Human Rights highlighting the difficulties that people with disabilities had in securing access to justice, and also to concerns expressed by the United Nations Special Rapporteur on Torture that practices of abuse against people with disabilities secluded in State institutions often “remained invisible”, the CLR submitted that the “interests of human rights” would require an assessment of the present case on the merits. The CLR further indicated a few criteria that it considered useful for the determination of locus standi in cases similar to the present one: the vulnerability of the victim, entailing a potential absolute inability to complain; practical or natural obstacles preventing the victim from exhausting domestic remedies, such as deprivation of liberty or inability to contact a lawyer or next of kin; the nature of the violation, especially in the case of Article 2, where the direct victim was ipso facto not in a position to provide a written form of authority to third parties; the lack of adequate alternative institutional mechanisms ensuring effective representation for the victim; the nature of the link between the third party claiming locus standi and the direct victim; favourable domestic rules on locus standi; and whether the allegations raised serious issues of general importance. 91.", "In the light of the above-mentioned criteria and in so far as it had acted on behalf of the direct victim, Mr Câmpeanu – both prior to his death, by launching an appeal for his transfer from the PMH, and immediately afterwards and throughout the next four years, by seeking accountability for his death before the domestic courts – the CLR asserted that it had the right to bring his case before the Court. The CLR concluded that not acknowledging its standing to act on behalf of Mr Câmpeanu would amount to letting the Government take advantage of his unfortunate circumstances in order to escape the Court’s scrutiny, thus blocking access to the Court for the most vulnerable members of society. (c) Relevant submissions by the third parties (i) The Council of Europe Commissioner for Human Rights 92. The Council of Europe Commissioner for Human Rights, whose intervention before the Court was limited to the admissibility of the present application, submitted that access to justice for people with disabilities was highly problematic, especially in view of inadequate legal incapacitation procedures and restrictive rules on legal standing. Consequently, the frequent abuses committed against people with disabilities were often not reported to the authorities and were ignored, and an atmosphere of impunity surrounded these violations.", "In order to prevent and put an end to such abuses, NGOs played an important role, including by facilitating vulnerable people’s access to justice. Against that backdrop, allowing NGOs to lodge applications with the Court on behalf of people with disabilities would be fully in line with the principle of effectiveness underlying the Convention, and also with the trends existing at domestic level in many European countries and the case-law of other international courts, such as the Inter‑American Court of Human Rights, which granted locus standi to NGOs acting on behalf of alleged victims, even when the victims had not appointed these organisations as their representatives (for instance, in the case of Yatama v. Nicaragua (preliminary objections, merits, reparations and costs), judgment of 23 June 2005, Series C No. 127). In the Commissioner’s view, a strict approach to locus standi requirements concerning people with disabilities (in this case, intellectual) would have the undesired effect of depriving this vulnerable group of any opportunity to seek and obtain redress for breaches of their human rights, thus running counter to the fundamental aims of the Convention. 93.", "The Commissioner also submitted that in exceptional circumstances, to be defined by the Court, NGOs should be able to lodge applications with the Court on behalf of identified victims who had been directly affected by the alleged violation. Such exceptional circumstances could concern extremely vulnerable victims, for example persons detained in psychiatric and social care institutions, with no family and no alternative means of representation, whose applications, made on their behalf by a person or organisation with which a sufficient connection was established, gave rise to important questions of general interest. Such an approach would be in line with the European trend towards expanding legal standing and recognising the invaluable contribution made by NGOs in the field of human rights for people with disabilities; at the same time, it would also be in line with the Court’s relevant case-law, which had evolved considerably in recent years, not least as a result of the intervention of NGOs. (ii) The Bulgarian Helsinki Committee 94. The Bulgarian Helsinki Committee contended that, based on its extensive experience as a human rights NGO, institutionalised people with disabilities were devoid of the protection of the criminal law, unless an NGO acted on their behalf using legal remedies in addition to public advocacy, and even in such circumstances, the practical results remained insufficient in that there remained a lack of basic access to the courts for such victims, who at present were often denied justice on procedural grounds.", "As a result, crime against institutionalised individuals with mental disabilities was shielded from the enforcement of laws designed to ensure its prevention, punishment and redress. (iii) The Mental Disability Advocacy Center 95. The Mental Disability Advocacy Center submitted that the factual or legal inability of individuals with intellectual disabilities to have access to justice, an issue already examined by the Court in several of its cases (for instance, Stanev, cited above), could ultimately lead to impunity for violations of their rights. In situations where vulnerable victims were deprived of their legal capacity and/or detained in State institutions, States could “avoid” any responsibility for protecting their lives by not providing them with any assistance in legal matters, including in relation to the protection of their human rights. The case-law of the Canadian Supreme Court, the Irish Supreme Court and the High Court of England and Wales granting legal standing to NGOs in situations where no one else was able to bring an issue of public interest before the courts was cited.", "The above‑mentioned courts’ decisions on the issue of the locus standi of NGOs had mainly been based on an assessment of whether the case concerned a serious matter, whether the claimant had a genuine interest in bringing the case, the claimant’s expertise in the area involved in the matter and whether there was any other reasonable and effective means of bringing the issue before the courts. 2. The Court’s assessment (a) The Court’s approach in previous cases (i) Direct victims 96. In order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was “directly affected” by the measure complained of (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008, and İlhan v. Turkey [GC], no.", "22277/93, § 52, ECHR 2000‑VII). This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Karner, cited above, § 25, and Fairfield and Others v. the United Kingdom (dec.), no. 24790/04, ECHR 2005‑VI). Moreover, in accordance with the Court’s practice and with Article 34 of the Convention, applications can only be lodged by, or in the name of, individuals who are alive (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 111, ECHR 2009).", "Thus, in a number of cases where the direct victim has died prior to the submission of the application, the Court has not accepted that the direct victim, even when represented, had standing as an applicant for the purposes of Article 34 of the Convention (see Aizpurua Ortiz and Others v. Spain, no. 42430/05, § 30, 2 February 2010; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 41, 28 July 2009; and Kaya and Polat v. Turkey (dec.), nos. 2794/05 and 40345/05, 21 October 2008). (ii) Indirect victims 97.", "Cases of the above-mentioned type have been distinguished from cases in which an applicant’s heirs were permitted to pursue an application which had already been lodged. An authority on this question is Fairfield and Others (cited above), where a daughter lodged an application after her father’s death, alleging a violation of his rights to freedom of thought, religion and speech (Articles 9 and 10 of the Convention). While the domestic courts granted Ms Fairfield leave to pursue the appeal after her father’s death, the Court did not accept the daughter’s victim status and distinguished this case from the situation in Dalban v. Romania ([GC], no. 28114/95, ECHR 1999‑VI), where the application had been brought by the applicant himself, whose widow had pursued it only after his subsequent death. In this regard, the Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those where he or she had already died beforehand.", "Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see, for instance, the widow and children in Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281‑A, and Stojkovic v. the former Yugoslav Republic of Macedonia, no. 14818/02, § 25, 8 November 2007; the parents in X v. France, 31 March 1992, § 26, Series A no. 234-C; the nephew and potential heir in Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII; or the unmarried or de facto partner in Velikova v. Bulgaria (dec.), no.", "41488/98, ECHR 1999-V; and contrast the universal legatee not related to the deceased in Thévenon v. France (dec.), no. 2476/02, ECHR 2006-III; the niece in Léger v. France (striking out) [GC], no. 19324/02, § 50, 30 March 2009; and the daughter of one of the original applicants in a case concerning non-transferable rights under Articles 3 and 8 where no general interest was at stake, in M.P. and Others v. Bulgaria, no. 22457/08, §§ 96-100, 15 November 2011).", "98. However, the situation varies where the direct victim dies before the application is lodged with the Court. In such cases the Court has, with reference to an autonomous interpretation of the concept of “victim”, been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to “respect for human rights” (Article 37 § 1 in fine of the Convention) and the applicants as heirs had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant’s own rights (see Micallef v. Malta [GC], no. 17056/06, §§ 44-51, ECHR 2009, and Marie-Louise Loyen and Bruneel v. France, no. 55929/00, §§ 21-31, 5 July 2005).", "The latter cases, it may be noted, were brought before the Court following or in connection with domestic proceedings in which the direct victim himself or herself had participated while alive. Thus, the Court has recognised the standing of the victim’s next of kin to submit an application where the victim has died or disappeared in circumstances allegedly engaging the responsibility of the State (see Çakıcı v. Turkey [GC], no. 23657/94, § 92, ECHR 1999‑IV, and Bazorkina v. Russia (dec.), no. 69481/01, 15 September 2005). 99.", "In Varnava and Others (cited above) the applicants lodged the applications both in their own name and on behalf of their disappeared relatives. The Court did not consider it necessary to rule on whether the missing men should or should not be granted the status of applicants since, in any event, the close relatives of the missing men were entitled to raise complaints concerning their disappearance (ibid., § 112). The Court examined the case on the basis that the relatives of the missing persons were the applicants for the purposes of Article 34 of the Convention. 100. In cases where the alleged violation of the Convention was not closely linked to disappearances or deaths giving rise to issues under Article 2, the Court’s approach has been more restrictive, as in the case of Sanles Sanles v. Spain ((dec.), no.", "48335/99, ECHR 2000‑XI), which concerned the prohibition of assisted suicide. The Court held that the rights claimed by the applicant under Articles 2, 3, 5, 8, 9 and 14 of the Convention belonged to the category of non-transferable rights, and therefore concluded that the applicant, who was the deceased’s sister-in-law and legal heir, could not claim to be the victim of a violation on behalf of her late brother-in-law. The same conclusion has been reached in respect of complaints under Articles 9 and 10 brought by the alleged victim’s daughter (see Fairfield and Others, cited above). In other cases concerning complaints under Articles 5, 6 or 8 the Court has granted victim status to close relatives, allowing them to submit an application where they have shown a moral interest in having the late victim exonerated of any finding of guilt (see Nölkenbockhoff v. Germany, 25 August 1987, § 33, Series A no. 123, and Grădinar v. Moldova, no.", "7170/02, §§ 95 and 97-98, 8 April 2008) or in protecting their own reputation and that of their family (see Brudnicka and Others v. Poland, no. 54723/00, §§ 27-31, ECHR 2005‑II; Armonienė v. Lithuania, no. 36919/02, § 29, 25 November 2008; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, §§ 31-33, 21 September 2010), or where they have shown a material interest on the basis of the direct effect on their pecuniary rights (see Ressegatti v. Switzerland, no. 17671/02, §§ 23-25, 13 July 2006; and Marie-Louise Loyen and Bruneel, §§ 29-30; Nölkenbockhoff, § 33; Grădinar, § 97; and Micallef, § 48, all cited above).", "The existence of a general interest which necessitated proceeding with the consideration of the complaints has also been taken into consideration (see Marie-Louise Loyen and Bruneel, § 29; Ressegatti, § 26; Micallef, §§ 46 and 50, all cited above; and Biç and Others v. Turkey, no. 55955/00, §§ 22‑23, 2 February 2006). The applicant’s participation in the domestic proceedings has been found to be only one of several relevant criteria (see Nölkenbockhoff, § 33; Micallef, §§ 48-49; Polanco Torres and Movilla Polanco, § 31; and Grădinar, §§ 98-99, all cited above; and Kaburov v. Bulgaria (dec.), no. 9035/06, §§ 52-53, 19 June 2012). (iii) Potential victims and actio popularis 101.", "Article 34 of the Convention does not allow complaints in abstracto alleging a violation of the Convention. The Convention does not provide for the institution of an actio popularis (see Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28; The Georgian Labour Party v. Georgia (dec.), no. 9103/04, 22 May 2007; and Burden, cited above, § 33), meaning that applicants may not complain against a provision of domestic law, a domestic practice or public acts simply because they appear to contravene the Convention. In order for applicants to be able to claim to be a victim, they must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur; mere suspicion or conjecture is insufficient in this respect (see Tauira and 18 Others v. France, no.", "28204/95, Commission decision of 4 December 1995, DR 83-B, p. 112 at p. 131, and Monnat v. Switzerland, no. 73604/01, §§ 31-32, ECHR 2006‑X). (iv) Representation 102. According to the Court’s well-established case-law (see paragraph 96 above), applications can be lodged with it only by living persons or on their behalf. Where applicants choose to be represented under Rule 36 § 1 of the Rules of Court, rather than lodging the application themselves, Rule 45 § 3 requires them to produce a written authority to act, duly signed.", "It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim, within the meaning of Article 34, on whose behalf they purport to act before the Court (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; as regards the validity of an authority to act, see Aliev v. Georgia, no. 522/04, §§ 44-49, 13 January 2009). 103. However, the Convention institutions have held that special considerations may arise in the case of victims of alleged breaches of Articles 2, 3 and 8 at the hands of the national authorities.", "Applications lodged by individuals on behalf of the victim(s), even though no valid form of authority was presented, have thus been declared admissible. Particular consideration has been shown with regard to the victims’ vulnerability on account of their age, sex or disability, which rendered them unable to lodge a complaint on the matter with the Court, due regard also being paid to the connection between the person lodging the application and the victim (see, mutatis mutandis, İlhan, cited above, § 55, where the complaints were brought by the applicant on behalf of his brother, who had been ill-treated; Y.F. v. Turkey, no. 24209/94, § 29, ECHR 2003‑IX, where a husband complained that his wife had been compelled to undergo a gynaecological examination; and S.P., D.P. and A.T. v. the United Kingdom, cited above, where a complaint was brought by a solicitor on behalf of children he had represented in domestic proceedings, in which he had been appointed by the guardian ad litem).", "By contrast, in Nencheva and Others (cited above, § 93) the Court did not accept the victim status of the applicant association acting on behalf of the direct victims, noting that it had not pursued the case before the domestic courts and also that the facts complained of did not have any impact on its activities, since the association was able to continue working in pursuance of its goals. The Court, while recognising the standing of the relatives of some of the victims, nevertheless left open the question of the representation of victims who were unable to act on their own behalf before it, accepting that exceptional circumstances might require exceptional measures. (b) Whether the CLR had standing in the present case 104. This case concerns a highly vulnerable person with no next of kin, Mr Câmpeanu, a young Roma man with severe mental disabilities who was infected with HIV, who spent his entire life in the care of the State authorities and who died in hospital, allegedly as a result of neglect. Following his death, and without having had any significant contact with him while he was alive (see paragraph 23 above) or having received any authority or instructions from him or any other competent person, the applicant association (the CLR) is now seeking to bring before the Court a complaint concerning, amongst other things, the circumstances of his death.", "105. In the Court’s view the present case does not fall easily into any of the categories covered by the above case-law and thus raises a difficult question of interpretation of the Convention relating to the standing of the CLR. In addressing this question the Court will take into account the fact that the Convention must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and the authorities cited therein). It must also bear in mind that the Court’s judgments “serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties” (see Ireland v. the United Kingdom, 18 January 1978, § 154, Series A no.", "25, and Konstantin Markin v. Russia [GC], no. 30078/06, § 89, ECHR 2012). At the same time and, as reflected in the above case-law concerning victim status and the notion of “standing”, the Court must ensure that the conditions of admissibility governing access to it are interpreted in a consistent manner. 106. The Court considers it indisputable that Mr Câmpeanu was the direct victim, within the meaning of Article 34 of the Convention, of the circumstances which ultimately led to his death and which are at the heart of the principal grievance brought before the Court in the present case, namely the complaint lodged under Article 2 of the Convention.", "107. On the other hand, the Court cannot find sufficiently relevant grounds for regarding the CLR as an indirect victim within the meaning of its case-law. Crucially, the CLR has not demonstrated a sufficiently “close link” with the direct victim; nor has it argued that it has a “personal interest” in pursuing the complaints before the Court, regard being had to the definition of these concepts in the Court’s case-law (see paragraphs 97-100 above). 108. While alive, Mr Câmpeanu did not initiate any proceedings before the domestic courts to complain about his medical and legal situation.", "Although he was considered formally to be a person with full legal capacity, it appears clear that in practice he was treated as a person who did not have such capacity (see paragraphs 14 and 16 above). In any event, in view of his state of extreme vulnerability, the Court considers that he was not capable of initiating any such proceedings by himself, without proper legal support and advice. He was thus in a wholly different and less favourable position than that dealt with by the Court in previous cases. These concerned persons who had legal capacity, or at least were not prevented from bringing proceedings during their lifetime (see paragraphs 98 and 100 above), and on whose behalf applications were lodged after their death. 109.", "Following the death of Mr Câmpeanu, the CLR brought various sets of domestic proceedings aimed at elucidating the circumstances leading up to and surrounding his death. Finally, once the investigations had concluded that there had been no criminal wrongdoing in connection with Mr Câmpeanu’s death, the CLR lodged the present application with the Court. 110. The Court attaches considerable significance to the fact that neither the CLR’s capacity to act for Mr Câmpeanu nor their representations on his behalf before the domestic medical and judicial authorities were questioned or challenged in any way (see paragraphs 23, 27-28, 33, 37-38 and 40-41 above); such initiatives, which would normally be the responsibility of a guardian or representative, were thus taken by the CLR without any objections from the appropriate authorities, who acquiesced in these procedures and dealt with all the applications submitted to them. 111.", "The Court also notes, as mentioned above, that at the time of his death Mr Câmpeanu had no known next of kin, and that when he reached the age of majority no competent person or guardian had been appointed by the State to take care of his interests, whether legal or otherwise, despite the statutory requirement to do so. At domestic level the CLR became involved as a representative only shortly before his death – at a time when he was manifestly incapable of expressing any wishes or views regarding his own needs and interests, let alone on whether to pursue any remedies. Owing to the failure of the authorities to appoint a legal guardian or other representative, no form of representation was or had been made available for his protection or to make representations on his behalf to the hospital authorities, the national courts and to the Court (see, mutatis mutandis, P., C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 December 2001, and B. v. Romania (no. 2), no.", "1285/03, §§ 96-97, 19 February 2013). It is also significant that the main complaint under the Convention concerns grievances under Article 2 (“Right to life”), which Mr Câmpeanu, although the direct victim, evidently could not pursue by reason of his death. 112. Against the above background, the Court is satisfied that in the exceptional circumstances of this case and bearing in mind the serious nature of the allegations, it should be open to the CLR to act as a representative of Mr Câmpeanu, notwithstanding the fact that it had no power of attorney to act on his behalf and that he died before the application was lodged under the Convention. To find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at an international level, with the risk that the respondent State might escape accountability under the Convention as a result of its own failure to appoint a legal representative to act on his behalf as it was required to do under national law (see paragraphs 59-60 above; see also, mutatis mutandis, P., C. and S. v. the United Kingdom, cited above; and The Argeş College of Legal Advisers v. Romania, no.", "2162/05, § 26, 8 March 2011). Allowing the respondent State to escape accountability in this manner would not be consistent with the general spirit of the Convention, nor with the High Contracting Parties’ obligation under Article 34 of the Convention not to hinder in any way the effective exercise of the right to bring an application before the Court. 113. Granting standing to the CLR to act as the representative of Mr Câmpeanu is an approach consonant with that applying to the right to judicial review under Article 5 § 4 of the Convention in the case of “persons of unsound mind” (Article 5 § 1 (e)). In this context it may be reiterated that it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty” (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no.", "12). Mental illness may entail restricting or modifying the manner of exercise of such a right (see Golder v. the United Kingdom, 21 February 1975, § 39, Series A no. 18), but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33).", "A hindrance in fact can contravene the Convention just like a legal impediment (see Golder, cited above, § 26). 114. Accordingly, the Court dismisses the Government’s objection concerning the lack of locus standi of the CLR, in view of the latter’s standing as de facto representative of Mr Câmpeanu. The Court further notes that the complaints under this heading are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 1. Submissions to the Court (a) The CLR 115. The CLR submitted that as a result of their inappropriate decisions concerning Mr Câmpeanu’s transfer to institutions lacking the requisite skills and facilities to deal with his condition, followed by inappropriate medical actions or omissions, the authorities had contributed, directly or indirectly, to his untimely death. The CLR emphasised that although the medical examinations undergone by Mr Câmpeanu during the months prior to his admission to the CMSC and subsequently the PMH had attested to his “generally good state” without any major health problems, his health had deteriorated sharply in the two weeks before his death, at a time when he had been under the authorities’ supervision.", "In accordance with the extensive case-law of the Court under Article 2, as relevant to the present case, the State was required to give an explanation as to the medical care provided and the cause of Mr Câmpeanu’s death (the CLR cited, among other authorities, Kats and Others v. Ukraine, no. 29971/04, § 104, 18 December 2008; Dodov v. Bulgaria, no. 59548/00, § 81, 17 January 2008; Aleksanyan v. Russia, no. 46468/06, § 147, 22 December 2008; Khudobin v. Russia, no. 59696/00, § 84, 26 October 2006; and Z.H.", "v. Hungary, no. 28973/11, §§ 31-32, 8 November 2012). This obligation had not been fulfilled by the Government, who on the one hand had failed to submit important medical documents concerning Mr Câmpeanu, and on the other hand had submitted before the Court a duplicate medical record covering the patient’s stay at the PMH, in which important information had been altered. While the original medical record – as presented at various stages in the domestic proceedings – had not referred to any antiretroviral medication being provided to Mr Câmpeanu, the new document, written in different handwriting, included references to antiretroviral medication, thus suggesting that such medication had been given to the patient. As the Government had relied on the new document to dispute before the Court the CLR’s submissions concerning the lack of antiretroviral treatment (see paragraph 122 below), the CLR submitted that the document had in all likelihood been produced after the event, to support the Government’s arguments before the Court.", "116. The CLR further submitted that several documents produced in the case, especially in connection with the CPT’s on-site visits, proved that the authorities had definitely been aware of the substandard living conditions and provision of care and treatment at the PMH, both prior to 2004 and even around the relevant time (see paragraphs 47, 74 and 78 above). 117. The failure to provide adequate care and treatment to Mr Câmpeanu was highlighted by the very poorly kept medical records and the improperly recorded successive transfers of the patient between different hospital units. Such omissions were significant, since it was obvious that the patient’s state of health had deteriorated during the relevant period and thus emergency treatment had been required.", "Also, as mentioned above, while the patient’s antiretroviral medication had been discontinued during his short stay at the CMSC, it was very plausible that during his stay at the PMH Mr Câmpeanu had not received any antiretroviral medication either. At the same time, although a series of medical tests had been required, they had never been carried out. The official investigation had failed to elucidate such crucial aspects of the case, notwithstanding that there might have been more plausible explanations for the patient’s alleged psychotic behaviour, such as septicaemia or his enforced segregation in a separate room. In view of the above, the CLR submitted that the substantive obligations under Article 2 had clearly not been fulfilled by the respondent State. 118.", "The CLR further maintained that the living conditions at the PMH and the patient’s placement in a segregated room amounted to a separate violation of Article 3. Solid evidence in the file, including documents issued by Romanian authorities, such as the Government, the prosecutor’s office attached to the High Court, the National Forensic Institute or the staff of the PMH itself, highlighted the substandard conditions at the PMH at the relevant time, especially concerning the lack of food, lack of heating and presence of infectious diseases. It was undisputed that Mr Câmpeanu had been placed alone in a separate room; the CLR monitors had noted at the time of their visit to the PMH that the patient was not dressed properly, the room was cold and the staff refused to provide him with any support in meeting his basic personal needs. Whilst the Government alleged that this measure had been taken without any intention to discriminate against the patient, they had failed to provide any valid justification for it. The assertion that the room in question was the only space available was contradicted by numerous reports showing that the hospital had not been operating at full capacity at the time.", "119. The CLR contended that the official investigation conducted in the case had not complied with the requirements of the Convention, for the following reasons: its scope was too narrow, focusing only on two doctors, one from the CMSC and the other from the PMH, while ignoring other staff or other agencies involved; only the immediate cause of death and the period immediately before it had been analysed; and the authorities had failed to collect essential evidence in good time or to elucidate disputed facts, including the cause of death in the case. The failure to carry out an autopsy immediately after the patient’s death and failures in the provision of medical care were shortcomings emphasised in the first-instance court’s decision, which had, however, been overturned by the appellate court. The CLR submitted in conclusion that the investigation had fallen short of the requirements set out in Articles 2 and 3 of the Convention in that it had failed to establish the facts, identify the cause of death and punish the perpetrators. 120.", "The CLR argued that in the case of people with disabilities who were confined in State institutions, Article 13 required States to take positive steps to ensure that these people had access to justice, including by creating an independent monitoring mechanism able to receive complaints on such matters, investigate abuse, impose sanctions or refer the case to the appropriate authority. 121. The CLR submitted that in several previous cases against Romania, the Court had found a violation on account of the lack of adequate remedies concerning people with disabilities complaining under Articles 3 or 5 of the Convention (it cited Filip v. Romania, no. 41124/02, § 49, 14 December 2006; C.B. v. Romania, cited above, §§ 65-67; Parascineti v. Romania, no.", "32060/05, §§ 34-38, 13 March 2012; and B. v. Romania, cited above, § 97). The same conclusions emerged from the consistent documentation issued by international NGOs such as Human Rights Watch or Mental Disability Rights International, and the CLR itself had also reported on the lack of safeguards against ill-treatment and the fact that residents of psychiatric institutions were largely unaware of their rights, while staff were not trained in handling allegations of abuse. The CLR further contended that to its knowledge, despite highly credible allegations concerning suspicious deaths in psychiatric institutions, there had never been any final decision declaring a staff member criminally or civilly liable for misconduct in relation to such deaths. In the case of the 129 deaths reported at the PMH during the period from 2002 to 2004, criminal investigations had not resulted in any finding of wrongdoing, the decisions not to bring charges having been subsequently upheld by the courts. In conclusion, the Romanian legal system lacked effective remedies within the meaning of Article 13 in relation to people with mental disabilities in general, but more particularly in relation to Mr Câmpeanu’s rights as protected by Articles 2 and 3.", "(b) The Government 122. The Government contended that since HIV was a very serious progressive disease, the fact that Mr Câmpeanu had died from it was not in itself proof that his death had been caused by shortcomings in the medical system. Furthermore, no evidence had been adduced to show that the authorities had failed to provide Mr Câmpeanu with antiretroviral treatment; on the contrary, the Government submitted a copy of the patient’s medical records at the PMH, confirming that he had received the required antiretroviral treatment while at the hospital. The conclusion of the Disciplinary Board of the Medical Association also confirmed the adequacy of the treatment given to Mr Câmpeanu (see paragraph 35 above). Article 2 under its substantive head was therefore not applicable to the case.", "123. Under Article 3, the Government submitted that both at the CMSC and at the PMH, the general conditions (hygiene, nutrition, heating and also human resources) had been adequate and in accordance with the standards existing at the material time. The medical care received by Mr Câmpeanu had been appropriate to his state of health; he had been admitted to the CMSC while in a “generally good state” and transferred to the PMH once the “violent outbursts” had begun. The patient had been placed alone in a room at the PMH, not with the intention of isolating him, but because that had been the only spare room. In spite of his treatment through intravenous feeding, the patient had died on 20 February 2004 of cardiorespiratory insufficiency.", "In this context, the Government argued that given the short period of time which Mr Câmpeanu had spent at the PMH, Article 3 was not applicable in relation to the material conditions at the hospital. 124. The Government contended that the criminal complaints lodged by the CLR in connection with the circumstances of Mr Câmpeanu’s death had been thoroughly considered by the domestic authorities – courts, commissions or investigative bodies – which had all given detailed and compelling reasons for their rulings. Therefore, the State’s liability under Articles 2 or 3 could not be engaged. 125.", "Concerning Article 13, the Government submitted that as this complaint related to the other complaints brought by the CLR, no separate examination was necessary; in any event, the complaints under this Article were ill-founded. In the alternative, the Government maintained that the domestic legislation provided effective remedies within the meaning of Article 13 for the complaints raised in the application. The Government indicated the Romanian Ombudsman as one of the available remedies. According to the statistical information available on the Ombudsman’s website, the Ombudsman had been involved in several cases concerning alleged human rights infringements between 2003 and 2011. Referring to two domestic judgments provided as evidence at the Court’s request, the Government asserted that when dealing with cases involving people with mental disabilities, the Romanian courts acted very seriously and regularly gave judgments on the merits.", "126. On a more specific level, in relation to Article 2, the Government submitted that the situation at the PMH had significantly improved, following complaints relating to the living and medical conditions at the hospital. In that respect a complaint appeared to constitute an effective remedy, in terms of the Convention standards. Referring to Article 3, the Government argued that the CLR could also have brought an action seeking compensation for medical malpractice. For the above-mentioned reasons, the Government submitted that Mr Câmpeanu had, either in person or through representation, had various effective remedies for each of the complaints raised in the application; the complaint under Article 13 was therefore inadmissible.", "(c) Third-party interveners (i) The Mental Disability Advocacy Center 127. The Mental Disability Advocacy Center (“the MDAC”) argued that cases of life-threatening conditions in institutions housing children with mental disabilities or HIV had been documented throughout Europe, with reports suggesting that sick children tended not to be admitted to hospital, regardless of the seriousness of their condition, and that they were left to die in those institutions. In its 2009 Human Rights Report on Romania, the US Department of State had drawn attention to the continuing poor conditions at the PMH, referring to overcrowding, shortage of staff and medication, poor hygiene, and the widespread use of sedation and restraint. Referring to international case-law on the right to life (for example, the judgments of the Inter-American Court of Human Rights in The “Street Children” (Villagrán-Morales et al.) v. Guatemala (merits), judgment of 19 November 1999, Series C No.", "63, concerning five children who lived on the streets, and Velásquez Rodríguez v. Honduras (merits), judgment of 29 July 1988, Series C No. 4), the MDAC submitted that the State’s obligation to protect life included providing necessary medical treatment, taking any necessary preventive measures and implementing mechanisms capable of monitoring, investigating and prosecuting those responsible; at the same time, victims should be afforded an effective or practical opportunity to seek protection of their right to life. Failure by the State to provide extremely vulnerable persons with such an opportunity while alive should not ultimately lead to the State’s impunity after their death. (ii) The Euroregional Center for Public Initiatives 128. The Euroregional Center for Public Initiatives (“the ECPI”) submitted that Romania had one of the largest groups of people living with HIV in central and eastern Europe, mainly because between 1986 and 1991 some 10,000 children institutionalised in public hospitals and orphanages had been exposed to the risks of HIV transmission through multiple use of needles and microtransfusions with unscreened blood.", "In December 2004 there had been 7,088 cases of AIDS and 4,462 cases of HIV infections registered among children. Out of these, 3,482 children had died of AIDS by the end of 2004. The ECPI alleged that the high incidence of HIV infection among children was due to the treatment to which they had been subjected in orphanages and hospitals, in view of the fact that children with disabilities were considered “beyond recovery” and “unproductive” and because the personnel lacked the qualifications and interest to provide them with appropriate medical care. The ECPI referred to the fact that in 2003 the United Nations Committee on the Rights of the Child had expressed its concern that antiretroviral treatment was accessible to only a limited number of people in Romania and its continuous provision was usually interrupted owing to lack of funds. Moreover, even at the end of 2009, stocks of antiretroviral medication had been scarce because of a lack of financial resources from the National Health Insurance Fund and the mismanagement of the national HIV programme.", "The ECPI further submitted that when people living with HIV lived in closed institutions or hospitals for an extended period, their access to antiretroviral medication was heavily reliant on the steps taken by the institution to obtain supplies from the infectious-diseases doctor with whom the patient was registered. Commonly, HIV-infected patients usually lacked the information they needed in order to assert their lawful rights in accessing medical services. In 2009 the United Nations Committee on the Rights of the Child had expressed concern that children affected by HIV often experienced barriers in accessing health services. Concerning the particular case of people living with HIV who also suffered from mental health problems, the ECPI alleged that psychiatric hospitals sometimes refused to treat HIV-positive children and young people for fear of infection. Reference was made to a Human Rights Watch document of 2007 reporting on such situations (“Life Doesn’t Wait.", "Romania’s Failure to Protect and Support Children and Youth Living with HIV”). (iii) Human Rights Watch 129. Human Rights Watch made reference in its written submissions to the conclusions of the United Nations Committee on Economic, Social and Cultural Rights, to the effect that health facilities and services must be accessible to all, especially the most vulnerable population, and that failure by governments to provide such services included the lack of a national health policy designed to ensure the right to health for everyone, bad management in the allocation of available public resources, and failure to reduce infant and maternal mortality rates. 2. The Court’s assessment (a) Article 2 of the Convention (i) General principles 130.", "The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III). The positive obligations under Article 2 must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake. This is the case, for example, in the health-care sector as regards the acts or omissions of health professionals (see Dodov, cited above, §§ 70, 79-83 and 87, and Vo v. France [GC], no. 53924/00, §§ 89‑90, ECHR 2004‑VIII, with further references), States being required to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives (see Calvelli and Ciglio v. Italy [GC], no.", "32967/96, § 49, ECHR 2002‑I). This applies especially where patients’ capacity to look after themselves is limited (see Dodov, cited above, § 81); in respect of the management of dangerous activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004‑XII); in connection with school authorities, which have an obligation to protect the health and well-being of pupils, in particular young children who are especially vulnerable and are under their exclusive control (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 35, 10 April 2012); or, similarly, regarding the medical care and assistance given to young children institutionalised in State facilities (see Nencheva and Others, cited above, §§ 105-16). Such positive obligations arise where it is known, or ought to have been known to the authorities in view of the circumstances, that the victim was at real and immediate risk from the criminal acts of a third party (see Nencheva and Others, cited above, § 108) and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see A. and Others v. Turkey, no.", "30015/96, §§ 44-45, 27 July 2004). 131. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to any special needs resulting from his disability (see Jasinskis v. Latvia, no.", "45744/08, § 59, 21 December 2010, with further references). More broadly, the Court has held that States have an obligation to take particular measures to provide effective protection of vulnerable persons from ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001‑V). Consequently, where an individual is taken into custody in good health but later dies, it is incumbent on the State to provide a satisfactory and convincing explanation of the events leading to his death (see Carabulea v. Romania, no. 45661/99, § 108, 13 July 2010) and to produce evidence casting doubt on the veracity of the victim’s allegations, particularly if those allegations are backed up by medical reports (see Selmouni v. France [GC], no.", "25803/94, § 87, ECHR 1999‑V, and Abdülsamet Yaman v. Turkey, no. 32446/96, § 43, 2 November 2004). In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002, and Ireland v. the United Kingdom, cited above, § 161).", "132. The State’s duty to safeguard the right to life must be considered to involve not only the taking of reasonable measures to ensure the safety of individuals in public places but also, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Dodov, cited above, § 83). This obligation does not necessarily require the provision of a criminal‑law remedy in every case. Where negligence has been shown, for example, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts. However, Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice (see Calvelli and Ciglio, cited above, § 53).", "133. On the other hand, the national courts should not permit life‑endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 57, 20 December 2007). The Court’s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, have carried out the careful scrutiny required by Article 2 of the Convention, so as to maintain the deterrent effect of the judicial system in place and ensure that violations of the right to life are examined and redressed (see Öneryıldız, cited above, § 96).", "(ii) Application of these principles in the present case (α) Substantive head 134. Referring to the background to the case, the Court notes at the outset that Mr Câmpeanu lived his whole life in the hands of the domestic authorities: he grew up in an orphanage after being abandoned at birth, and he was later transferred to the Placement Centre, then to the CMSC and finally to the PMH, where on 20 February 2004 he met his untimely death. 135. Throughout these stages no guardian, whether permanent or temporary, was appointed after Mr Câmpeanu turned eighteen; the presumption therefore was that he had full legal capacity, in spite of his severe mental disability. If that was indeed so, the Court notes that the manner in which the medical authorities handled Mr Câmpeanu’s case ran counter to the requirements of the Mental Health Act in the case of patients with full legal capacity: no consent was obtained for the patient’s successive transfers from one medical unit to another, after he had turned eighteen; no consent was given for his admission to the PMH, a psychiatric institution; the patient was neither informed nor consulted regarding the medical care that was given to him, nor was he informed of the possibility for him to challenge any of the above-mentioned measures.", "The authorities’ justification was that the patient “would not cooperate”, or that “it was not possible to communicate with him” (see paragraphs 14 and 16 above). In this context, the Court reiterates that in the case of B. v. Romania (cited above, §§ 93-98) it highlighted serious shortcomings in the manner in which the provisions of the Mental Health Act were implemented by the authorities with respect to vulnerable patients who were left without any legal assistance or protection when admitted to psychiatric institutions in Romania. 136. Moreover, the Court observes that the decisions of the domestic authorities to transfer Mr Câmpeanu and to place him firstly in the CMSC and later in the PMH were mainly based on what establishment would be willing to accommodate the patient, rather than on where he would be able to receive appropriate medical care and support (see paragraphs 12-13 above). In this connection, the Court cannot ignore the fact that Mr Câmpeanu was first placed in the CMSC, a unit not equipped to handle patients with mental health problems, and was ultimately admitted to the PMH, despite the fact that that hospital had previously refused to admit him on the ground that it lacked the necessary facilities to treat HIV (see paragraph 11 above).", "137. The Court therefore considers that Mr Câmpeanu’s transfers from one unit to another took place without any proper diagnosis and aftercare and in complete disregard of his actual state of health and his most basic medical needs. Of particular note is the authorities’ negligence in omitting to ensure the appropriate implementation of the patient’s course of antiretroviral treatment, firstly by not providing him with the medication during his first few days in the CMSC, and subsequently by failing altogether to provide him with the medication while in the PMH (see paragraphs 14 and 115 above). In reaching these conclusions, the Court relies on the CLR’s submissions, supported by the medical documents produced before the domestic courts and the conclusions of the expert called to give an opinion on the therapeutic approach applied in Mr Câmpeanu’s case (see paragraphs 33, 38 and 45 above), as well as on the information provided by the ECPI concerning the general conditions in which antiretroviral treatment was provided to HIV-infected children (see paragraph 128 above), making the CLR’s assertions plausible. In view of these elements, the Court considers that the Government’s allegations to the contrary are unconvincing in so far as they are not corroborated by any other evidence proving them beyond reasonable doubt.", "138. Furthermore, the facts of the case indicate that, faced with a sudden change in the behaviour of the patient, who became hyperaggressive and agitated, the medical authorities decided to transfer him to a psychiatric institution, namely the PMH, where he was placed in a department that had no psychiatrists on its staff (see paragraph 21 above). As mentioned above, the PMH lacked the appropriate facilities to treat HIV-infected patients at the time; moreover, while at the PMH, the patient was never examined by an infectious-diseases specialist. The only treatment provided to Mr Câmpeanu included sedatives and vitamins, and no meaningful medical investigation was conducted to establish the causes of the patient’s mental state (see paragraphs 16 and 22 above). In fact, no relevant medical documents recording Mr Câmpeanu’s clinical condition while at the CMSC and the PMH were produced by the authorities.", "The information concerning the possible causes of Mr Câmpeanu’s death was likewise lacking in detail: the death certificate mentioned HIV and intellectual disability as important factors leading to his death which allegedly justified the authorities’ decision not to carry out the compulsory autopsy on the body (see paragraphs 24-25 above). 139. The Court refers to the conclusions of the medical report issued by the expert instructed by the CLR, describing the “very poor and substandard” medical records relating to Mr Câmpeanu’s state of health (see paragraph 45 above). According to this report, the medical supervision in both establishments was “scant”, while the medical authorities, confronted with the patient’s deteriorating state of health, had taken measures that could at best be described as palliative. The expert further mentioned that several potential causes of death, including pneumocystis pneumonia (which was also mentioned in the autopsy report), had never been investigated or diagnosed, let alone treated, either at the CMSC or at the PMH (ibid.).", "The report concluded that Mr Câmpeanu’s death at the PMH had been caused by “gross medical negligence” (see paragraph 46 above). 140. The Court reiterates in this context that in assessing the evidence adduced before it, particular attention should be paid to Mr Câmpeanu’s vulnerable state (see paragraph 7 above) and the fact that for the duration of his whole life he was in the hands of the authorities, which are therefore under an obligation to account for his treatment and to give plausible explanations concerning such treatment (see paragraph 131 above). The Court notes, firstly, that the CLR’s submissions describing the events leading to Mr Câmpeanu’s death are strongly supported by the existence of serious shortcomings in the medical authorities’ decisions. Such shortcomings were described in the reasoning of the Chief Prosecutor in the decision of 23 August 2005 (see paragraph 33 above); in the first‑instance court’s decision of 3 October 2007, in which it decided to send the case back for further investigation (see paragraph 38 above); and in the conclusions of the medical report submitted by the CLR in the case.", "Secondly, the Government have failed to produce sufficient evidence casting doubt on the veracity of the allegations made on behalf of the victim. While acknowledging that HIV may be a very serious progressive disease, the Court cannot ignore the clear and concordant inferences indicating serious flaws in the decision-making process concerning the provision of appropriate medication and care to Mr Câmpeanu (see paragraphs 137-38 above). The Government have also failed to fill in the gaps relating to the lack of relevant medical documents describing Mr Câmpeanu’s situation prior to his death, and the lack of pertinent explanations as to the real cause of his death. 141. Moreover, placing Mr Câmpeanu’s individual situation in the general context, the Court notes that at the relevant time, several dozen deaths (eighty-one in 2003 and twenty-eight at the beginning of 2004) had already been reported at the PMH; as mentioned in the CPT report of 2004, serious deficiencies were found at the relevant time in respect of the food given to the patients, and in respect of the insufficient heating and generally difficult living conditions, which had led to a gradual deterioration in the health of patients, especially those who were the most vulnerable (see paragraph 77 above).", "The appalling conditions at the PMH had been reported by several other international bodies, as described above (see paragraph 78); the domestic authorities were therefore fully aware of the very difficult situation in the hospital. Despite the Government’s assertions that the living conditions at the PMH were adequate (see paragraph 123 above), the Court notes that at the relevant time, the domestic authorities had acknowledged before the various international bodies the deficiencies at the PMH regarding the heating and water systems, the living and sanitary conditions and the medical assistance provided (see paragraph 78 above). 142. The Court observes that in Nencheva and Others (cited above) the Bulgarian State was found to be in breach of its obligations under Article 2 for not having taken sufficiently prompt action to ensure effective and sufficient protection of the lives of young people in a social care home. The Court took into consideration the fact that the children’s death was not a sudden event, in so far as the authorities had already been aware of the appalling living conditions in the social care home and of the increase in the mortality rate in the months prior to the relevant time (ibid., §§ 121‑23).", "143. The Court finds that, similarly, in the present case the domestic authorities’ response to the generally difficult situation at the PMH at the relevant time was inadequate, seeing that the authorities were fully aware of the fact that the lack of heating and appropriate food, and the shortage of medical staff and medical resources, including medication, had led to an increase in the number of deaths during the winter of 2003. The Court considers that in these circumstances, it is all the more evident that by deciding to place Mr Câmpeanu in the PMH, notwithstanding his already heightened state of vulnerability, the domestic authorities unreasonably put his life in danger. The continuous failure of the medical staff to provide Mr Câmpeanu with appropriate care and treatment was yet another decisive factor leading to his untimely death. 144.", "The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities have failed to comply with the substantive requirements of Article 2 of the Convention, by not providing the requisite standard of protection for Mr Câmpeanu’s life. (β) Procedural head 145. The Court further considers that the authorities failed not only to meet Mr Câmpeanu’s most basic medical needs while he was alive, but also to elucidate the circumstances surrounding his death, including the identification of those responsible. 146. The Court notes that several procedural irregularities were singled out in various reports by the domestic authorities at the time, among them the failure to carry out an autopsy immediately after Mr Câmpeanu’s death, in breach of the domestic legal provisions, and the lack of an effective investigation concerning the therapeutic approach applied in his case (see paragraphs 33, 38 and 40 above).", "Moreover, serious procedural shortcomings were highlighted in the Calafat District Court’s judgment, including the failure to collect essential medical evidence and to provide an explanation for the contradictory statements by the medical staff (see paragraph 38 above). However, as that judgment was not upheld by the County Court, the shortcomings noted have never been addressed, let alone remedied. In its brief reasoning, the County Court relied mainly on the decision of the Medical Association and the forensic report, which ruled out any medical negligence in the case while concluding that the patient had been provided with appropriate medical treatment. The Court finds these conclusions to be strikingly terse, in view of the acknowledged scarcity of medical information documenting the treatment provided to Mr Câmpeanu (see paragraph 45 above) and in view of the objective situation of the PMH as regards the human and medical resources available to it (see paragraphs 77-78 above). The Court further takes note of the CLR’s assertion that in the case of the 129 deaths at the PMH reported between 2002 and 2004 the criminal investigations were all terminated without anyone being identified or held civilly or criminally liable for misconduct.", "147. Having regard to all these elements, the Court concludes that the authorities have failed to subject Mr Câmpeanu’s case to the careful scrutiny required by Article 2 of the Convention and thus to carry out an effective investigation into the circumstances surrounding his death. There has accordingly also been a violation of Article 2 of the Convention under its procedural limb. (b) Article 13 taken in conjunction with Article 2 (i) General principles 148. Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.", "The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless the remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 96-97, ECHR 2002‑II).", "149. Where a right of such fundamental importance as the right to life or the prohibition against torture, inhuman and degrading treatment is at stake, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure. Where alleged failure by the authorities to protect persons from the acts of others is concerned, Article 13 may not always require the authorities to assume responsibility for investigating the allegations. There should, however, be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention (see Z and Others v. the United Kingdom, cited above, § 109). In the Court’s opinion, the authority referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense.", "Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective (see Klass and Others, cited above, § 67). The Court has held that judicial remedies furnish strong guarantees of independence, access for the victim and family, and enforceability of awards in compliance with the requirements of Article 13 (see Z and Others v. the United Kingdom, cited above, § 110). (ii) Application of these principles in the present case 150. As mentioned above, Article 13 must be interpreted as guaranteeing an “effective remedy before a national authority” to everyone who claims that his or her rights and freedoms under the Convention have been violated. The fundamental requirement of such a remedy is that the victim has effective access to it.", "151. In the present case, the Court has already established that Mr Câmpeanu’s vulnerability, coupled with the authorities’ failure to implement the existing legislation and to provide him with appropriate legal support, were factors that supported the legal basis for its exceptional recognition of the locus standi of the CLR (see paragraph 112 above). Had it not been for the CLR, the case of Mr Câmpeanu would never have been brought to the attention of the authorities, whether national or international. However, the Court notes that the CLR’s initiatives on behalf of Mr Câmpeanu were of a more sui generis nature, rather than falling within the existing legal framework relating to the rights of mentally disabled individuals, in view of the fact that this framework was ill-suited to address the specific needs of such individuals, notably regarding the practical possibility for them to have access to any available remedy. Indeed, the Court has previously found the respondent State to be in breach of Articles 3 or 5 of the Convention on account of the lack of adequate remedies concerning people with disabilities, including their limited access to any such potential remedies (see C.B.", "v. Romania, §§ 65-67; Parascineti, §§ 34-38; and B. v. Romania, § 97, all cited above). 152. On the basis of the evidence adduced in the present case, the Court has already found that the respondent State was responsible under Article 2 for failing to protect Mr Câmpeanu’s life while he was in the care of the domestic medical authorities and for failing to conduct an effective investigation into the circumstances leading to his death. The Government have not referred to any other procedure whereby the liability of the authorities could be established in an independent, public and effective manner. The Court further considers that the examples mentioned by the Government as indicative of the existence of appropriate remedies under Article 13 (see paragraph 125 above) are either insufficient or lacking in effectiveness, in view of their limited impact and the lack of procedural safeguards they afford.", "153. In view of the above-mentioned considerations, the Court considers that the respondent State has failed to provide an appropriate mechanism capable of affording redress to people with mental disabilities claiming to be victims under Article 2 of the Convention. More particularly, the Court finds a violation of Article 13 of the Convention taken in conjunction with Article 2, on account of the State’s failure to secure and implement an appropriate legal framework that would have enabled Mr Câmpeanu’s allegations relating to breaches of his right to life to have been examined by an independent authority. (c) Article 3, taken alone and in conjunction with Article 13 of the Convention 154. Having regard to its findings in paragraphs 140 to 147 and its conclusion in paragraph 153 above, the Court considers that no separate issue arises concerning the alleged breaches of Article 3, taken alone and in conjunction with Article 13 (see, mutatis mutandis, Nikolova and Velichkova, cited above, § 78, and Timus and Tarus v. the Republic of Moldova, no.", "70077/11, § 58, 15 October 2013). II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 155. The CLR further submitted that Mr Câmpeanu had suffered a breach of his rights protected by Articles 5, 8 and 14 of the Convention. 156.", "However, having regard to the facts of the case, the submissions of the parties and its findings under Articles 2 and 13 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see, among other authorities, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007; The Argeş College of Legal Advisers, cited above, § 47; Women On Waves and Others v. Portugal, no. 31276/05, § 47, 3 February 2009; Velcea and Mazăre v. Romania, no. 64301/01, § 138, 1 December 2009; Villa v. Italy, no. 19675/06, § 55, 20 April 2010; Ahmet Yıldırım v. Turkey, no.", "3111/10, § 72, ECHR 2012; and Mehmet Hatip Dicle v. Turkey, no. 9858/04, § 41, 15 October 2013; see also Varnava and Others, cited above, §§ 210-11). III. ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 157.", "The relevant parts of Article 46 read as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” 158.", "The Court reiterates that under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII, and Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above, and Brumărescu v. Romania (just satisfaction) [GC], no.", "28342/95, § 20, ECHR 2001‑I). 159. However, with a view to assisting the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, among many other authorities, Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, § 162, 26 November 2013). 160.", "In the present case the Court observes that owing to the failure of the authorities to appoint a legal guardian or other representative, no form of representation was or had been made available for Mr Câmpeanu’s protection or to make representations on his behalf to the hospital authorities, the national courts or this Court (see paragraph 111 above). In the exceptional circumstances that prompted it to allow the CLR to act on behalf of Mr Câmpeanu (see conclusion in paragraph 112 above) the Court has also found a violation of Article 13 of the Convention taken in conjunction with Article 2 on account of the State’s failure to secure and implement an appropriate legal framework that would have enabled complaints concerning Mr Câmpeanu’s allegations to have been examined by an independent authority (see paragraphs 150-53 above; see also paragraph 154 regarding the complaints under Article 3, taken alone and in conjunction with Article 13). Thus, the facts and circumstances in respect of which the Court found a violation of Articles 2 and 13 reveal the existence of a wider problem calling for it to indicate general measures for the execution of its judgment. 161. Against this background, the Court recommends that the respondent State envisage the necessary general measures to ensure that mentally disabled persons in a situation comparable to that of Mr Câmpeanu, are afforded independent representation, enabling them to have Convention complaints relating to their health and treatment examined before a court or other independent body (see, mutatis mutandis, paragraph 113 above and Stanev, cited above, § 258).", "B. Article 41 of the Convention 162. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 163. The CLR did not submit any claims in respect of pecuniary or non‑pecuniary damage.", "2. Costs and expenses 164. The CLR claimed 11,455.25 euros (EUR) for the costs and expenses incurred before the domestic courts in relation to the investigations into the PMH and before this Court; Interights, acting as adviser to counsel for the CLR, claimed EUR 25,800 for the costs and expenses incurred before the Chamber, corresponding to 215 hours’ work, and an additional EUR 14,564 for the proceedings before the Grand Chamber, corresponding to 111 hours’ work. An itemised schedule of these costs was submitted. 165.", "The Government contended that not all the costs and expenses were documented and detailed appropriately and that in any event they were excessive. 166. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court is satisfied that the CLR’s recourse to Interights’ participation in the proceedings as described above was justified (see, for example, Yaşa v. Turkey, 2 September 1998, § 127, Reports of Judgments and Decisions 1998‑VI; and Menteş and Others v. Turkey, 28 November 1997, § 107, Reports 1997‑VIII). Regard being had to the documents in its possession, to the number and complexity of issues of fact and law dealt with and the above criteria, the Court considers it reasonable to award EUR 10,000 to the CLR and EUR 25,000 to Interights.", "3. Default interest 167. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the complaints under Articles 2, 3 and 13 of the Convention admissible; 2.", "Holds, unanimously, that there has been a violation of Article 2 of the Convention, in both its substantive and procedural aspects; 3. Holds, unanimously, that there has been a violation of Article 13 of the Convention taken in conjunction with Article 2; 4. Holds, by fourteen votes to three, that it is not necessary to examine the complaint under Article 3, taken alone or in conjunction with Article 13 of the Convention; 5. Holds, unanimously, that it is not necessary to examine the admissibility and merits of the complaints under Articles 5 and 8 of the Convention; 6. Holds, by fifteen votes to two, that it is not necessary to examine the admissibility and merits of the complaints under Article 14 of the Convention; 7.", "Holds, unanimously, (a) that the respondent State is to pay, within three months, the following amounts in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable: (i) EUR 10,000 (ten thousand euros) to the CLR; and (ii) EUR 25,000 (twenty-five thousand euros) to Interights; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses, unanimously, the remainder of the just satisfaction claims. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 17 July 2014. Michael O’BoyleDean SpielmannDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Pinto de Albuquerque; (b) partly dissenting opinion of Judges Spielmann, Bianku and Nußberger; (c) partly dissenting opinion of Judges Ziemele and Bianku. D.S.M.O’B.", "CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE 1. Valentin Câmpeanu is a notorious case of judge-made law. In addition to the fundamental question of the legitimacy of this mode of exercising judicial power, the majority’s judgment also raises the crucial question of the method of reasoning used to establish the findings of the case and the scope of those findings. Ultimately, the European Court of Human Rights (“the Court”) is faced with these questions: Can judges create law? And if they can, how should they proceed, and within what limits?", "Without expecting to solve problems of this magnitude in the limited confines of a separate opinion, I felt that, nevertheless, I had an obligation to explain my vote for the majority position with a concurring opinion, in which these problems could at least be approached. What apparently seemed a case involving a simple procedural problem of legal representation could have become a groundbreaking case in which the Court addressed, in novel and solid terms, the interplay between legal principles and rules in the task of human rights treaty interpretation, and the limits of the Court’s own legal creativity. None of this happened, unfortunately. 2. Mr Câmpeanu died at the age of 18 in the Poiana Mare Neuropsychiatric Hospital.", "He was a severely mentally disabled, HIV‑positive Roma teenager, who at a certain point in time suffered from pulmonary tuberculosis, pneumonia and chronic hepatitis. He had no relatives, legal guardians or representatives, was abandoned at birth and lived in various public orphanages, centres for disabled children and medical facilities, where he allegedly did not receive proper health and educational treatment. Since these facts were abundantly proven and revealed ad nauseam a flagrant violation of the deceased teenager’s human rights, the only apparent question to be determined in this case was the right of the Centre for Legal Resources (“CLR”) to act on his behalf before the Court. As the Commissioner for Human Rights stressed, an intolerable legal gap in the protection of human rights emerged in this situation in view of Mr Câmpeanu’s lifelong state of extreme vulnerability, the absence of any relatives, legal guardians or representatives and the unwillingness of the respondent State to investigate his death and bring to justice those responsible. This legal black hole, where extremely vulnerable victims of serious breaches of human rights committed by public officials may linger for the rest of their lives without any possible way of exercising their rights, warranted a principled response by the Court.", "Regrettably, nothing of the kind was forthcoming. The Court’s case-specific reasoning 3. My point of discontent lies in the fact that the majority chose to approach the legal issue at stake in a casuistic and restricted manner, ignoring the need for a firm statement on a matter of principle, namely the requisites for representation in international human rights law. The judgment was simply downgraded to an act of indulgence on the part of the Court, which was willing to close its eyes to the rigidity of the requirements of the concept of legal representation under the European Convention on Human Rights (“the Convention”) and the Rules of Court in “the exceptional circumstances of this case” (see paragraphs 112 and 160 of the judgment), and to admit the CLR as a “de facto representative of Mr Câmpeanu” (see paragraph 114 of the judgment). To use the words of Judge Bonello, this is yet another example of the “patchwork case-law” to which the Court sometimes resorts when faced with issues of principle[1].", "4. Contrary to the statement made in paragraph 110 of the judgment, I consider that the fact that the domestic courts and other public authorities accepted the CLR as having standing to act on behalf of the victim is irrelevant. Otherwise, that would make accountability for a human rights violation dependent on the de facto acknowledgment of the applicant by those same institutions which might be responsible for the violation. Also irrelevant is the close link established in the last sentence of paragraph 111 of the judgment between the nature of the grievance (an Article 2 complaint) and the right of the CLR to act on behalf of the victim. This supposed link prejudices applications based exclusively or cumulatively on Articles 3, 4 or 5 of the Convention, and therefore on situations where an extremely vulnerable person has been tortured, ill-treated, enslaved or illegally detained and is not in a position to exercise his or her right of access to a court.", "Furthermore, in relation to Article 2 cases, I do not agree with the statement that the applicant must have become involved as a representative before the alleged victim’s death. In the case at hand, it is certainly a fiction to assume that the CLR became “involved as a representative” on the day of Mr Câmpeanu’s death (see paragraph 111 of the judgment). The only action undertaken by the CLR was to take notice of Mr Câmpeanu’s deplorable situation and to suggest that the hospital’s manager transfer him to another facility, and this laudable, but limited, action by the CLR cannot be characterised as “legal representation” for the purposes of national law or the Convention. Putting fictions aside, the Court does not have to consider whether the applicant has ever interviewed the alleged victim of human rights, or even seen him or her alive, because that would make the application depend on fortuitous facts which are not within the applicant’s power. 5.", "More importantly, the majority’s reasoning is logically contradictory in itself. On the one hand, they affirm that the case at hand is “exceptional” (see paragraph 112 of the judgment), but on the other hand, they consider that this case reveals “the existence of a wider problem calling for [the Court] to indicate general measures for the execution of its judgment” (see paragraph 160 of the judgment). If the case reveals a wider problem, then it is not exceptional. Ultimately, the majority acknowledge that this is not an exceptional case, but this acknowledgment is conceded only for the purpose of imposing a positive obligation on the respondent State. This way of proceeding based on double standards is not acceptable.", "It is not acceptable that the same set of facts is exceptional for the purpose of the definition of the Court’s remit and the conditions of admissibility of applications, whereas it is not exceptional and even “reveals a wider problem” for the purpose of imposing positive obligations on the respondent State. 6. In the end, the majority have one sole true argument in support of the admissibility of the CLR’s application as a representative of the deceased teenager, lodged with the Court after his death without any power of attorney. The argument is purely consequentialist: “To find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at an international level ...” (see paragraph 112 of the judgment). Hence, the majority admit the applicant association as a “representative” of the victim because they want to examine the alleged violation, and rejecting the application would prevent them from doing so.", "This self-authenticating proposition begs the question. Such a strictly opportunistic and utilitarian case-sifting methodology cannot in my view suffice. The words that follow in the argument are even less fortunate: “... with the risk that the respondent State might escape accountability under the Convention.” Whilst expressing the purpose of ensuring that the respondent State is held accountable, which is again stressed in the next sentence of the same paragraph, the majority imply that the selection of the case for examination is, ultimately, determined by the need to punish the respondent State with a finding of a violation, and the subsequent imposition of general remedial measures. In simpler terms, this line of argument puts the cart before the horse. 7.", "Finally, in stressing the “exceptional” character of the case, the majority regrettably close the door to any future extension of the present finding, concerning the situation of a mentally disabled person, to cover other victims of human rights violations, such as elderly people or members of minorities or groups facing discrimination, who might have had no access to justice in their own countries. The reason is quite obvious: exceptional findings cannot be extended to other situations. What I regret most is the fact that, by treating this case on the basis of the “exceptional circumstances”, the majority have in fact assumed that the Convention is not a living instrument and does not have to adapt to other new circumstances where the applicability of a concept of de facto representation might be called for[2]. Moreover, the implicit claim that each case is sui generis is subversive in international law, indeed in any field of law, since it frequently leads, as experience has shown, to a discretionary understanding of justice determined by non-legal – that is, political, social or purely emotional – considerations on the part of those tasked with the sifting of cases. The input of the court is determined not by the intrinsic merit of the claim, but by the intended strategic output.", "This brings me closer to the core of the case. An alternative principled reasoning 8. Instead of relying on the “exceptional circumstances” of the case, and basing the purported legal solution on case-specific reasoning, I would have preferred to rise above the specificities of the case, and address the question of principle raised by the case: what are the contours of the concept of representation of extremely vulnerable persons before the Court? It seems to me that this question could, and should, have been answered on the basis of the general principle of equality before the law applied in accordance with the traditional instruments for the interpretation of international human rights law. I refer to the theory of interpretation of human rights treaties in a way which not only secures their effet utile (ut res magis valeat quam pereat)[3], but is also the most protective of the rights and freedoms which they enshrine[4].", "Both these interpretation theories evidently apply to the conditions of admissibility of applications[5]. 9. The principle of equality permeates the whole European human rights protection system, and is particularly visible in Article 14 of the Convention and Article 1 of Protocol No. 12, as well as Article 20 and Article E in Part V of the Revised European Social Charter, Articles 4, 6 (2) and 9 of the Framework Convention for the Protection of National Minorities, Article 3 of the Council of Europe Convention on Action Against Trafficking in Human Beings, Article 2 (1) of the Council of Europe Convention on Access to Official Documents and Articles 3 to 5 of the Additional Protocol to the Convention on Cybercrime[6]. Applied in the light of the interpretative theories referred to above, the principle of equality could have filled the legal gap that I mentioned earlier, by providing a principled basis for expanding the limits of the concept of representation for the purposes of the Convention.", "When confronted with a situation where the domestic authorities ignored the fate of the alleged victim of human rights violations, and he or she was unable to reach the Court by his or her own means or those of a relative, legal guardian or representative, the Court has to interpret the conditions of admissibility of applications in the broadest possible way in order to ensure that the victim’s right of access to the European human rights protection system is effective. Only such an interpretation of Article 34 of the Convention accommodates the intrinsically different factual situation of extremely vulnerable persons who are or have been victims of human rights violations and are deprived of legal representation[7]. Any other interpretation, which would equate the situation of extremely vulnerable persons to that of other victims of human rights violations, would in fact result in discriminatory treatment of the former[8]. Different situations must be treated differently[9]. Thus, the right of access to court for extremely vulnerable persons warrants positive discrimination in favour of these persons when assessing their representation requirements before the Court[10].", "10. The proposed principled construction of the Convention is supported by a literal interpretation of the final sentence of Article 34 of the Convention. Extremely vulnerable persons who have been hindered “in any way” – that is, by actions or omissions on the part of the respondent State – in the exercise of their rights must be provided with an alternative means of access to the Court. The present case is, in fact, the perfect example of a continuing omission by the respondent State, which, by not providing any kind of legal representation or guardianship to Mr Câmpeanu while he was alive and while there was an arguable claim against the State as regards the health care and educational treatment he received, did indeed hinder the exercise of his Convention and domestic rights[11]. 11.", "Based on this proposed principled interpretation of the Convention, the Court should have established a concept of de facto representation for cases involving extremely vulnerable victims who have no relatives, legal guardians or representatives. These two cumulative conditions, namely the extreme vulnerability of the alleged victim and the absence of any relatives, legal guardians or representatives, should have been laid down clearly by the Court[12]. Extreme vulnerability of a person is a broad concept that should include, for the above purposes, people of tender age, or elderly, gravely sick or disabled people, people belonging to minorities, or groups subject to discrimination based on race, ethnicity, sex, sexual orientation or any other ground. The absence of relatives, legal guardians or representatives is an additional condition that must be assessed according to the facts known to the authorities at the material time. What is relevant is the fact that the victim has no known next of kin and no representative or guardian appointed by the competent authority to take care of his or her interests[13].", "These two conditions would have provided legal certainty to the Contracting Parties to the Convention and guidance to any interested institutions and persons who might be willing in future to lodge applications on behalf of other extremely vulnerable victims of human rights violations. By not providing clear and general criteria, and by linking its finding to the “extraordinary circumstances” of the case, the Court’s judgment not only weakens the authority of its reasoning and restricts the scope of its findings and their interpretative value, but also provides less guidance, or no guidance at all, to States Parties and interested institutions and persons who might be willing to intervene in favour of helpless, vulnerable victims of human rights violations. Instead of extending the benefit of its work to as many individuals as possible, the Court has restricted the reach of its work to the bare confines of the present case. 12. Judge-made law is inevitable in international law, and particularly in international human rights law, in view of the inherent indeterminacy of legal terminology and the high potential for conflicts between norms in this area of law, which is intimately connected with the fundamentals of human life in society[14].", "The Janus-faced nature of the interpretation of international human rights texts – both remedial and backward-looking on the one hand and promotional and forward-looking on the other – further propels judges into becoming “subsidiary legislators” (Ersatzgesetzgeber). But the promotional role of international courts, which is aimed ultimately at the furtherance of human rights across the domestic jurisdictions under their supervision, is circumscribed by the judge’s responsibility to be “faithful” to pre-existing treaty law, and especially to the legal principles upon which it is based[15]. In the Convention, these principles are the “principles of law recognised by civilised nations”, to which explicit reference is made in Article 7. Such principles are posited in the domestic laws of European and non-European nations at any given moment[16]. Only such legal principles can provide a solid basis for the interpretative work of the international judge, and for limiting his or her remit.", "Only they can furnish the intersubjectively controllable passerelle between the letter of the treaty and the “law of the case” when no specific rules are applicable[17]. Only they can assist the judge in his or her tasks of optimising conflicting rights and freedoms[18], distinguishing cases from one another and overruling a precedent[19]. By preferring fact-sensitive reasoning based on the “exceptional circumstances of this case”, and not displaying greater congruence with the principles embedded in the Convention, in practical terms the Court exponentially increases the impact of the element of irreducible subjectivity in the adjudicative process, and by so doing, it promotes the very judicial activism that it apparently seeks to limit. Without solid principled grounds, judge-made law is nothing but a disguised policy decision in the epiphenomenal form of a self-fulfilling prophecy based on the judge’s personal predilections[20]. The Court’s judgment as an act of auctoritas 13.", "I started by referring to the procedural problem raised by this case. I added that this was the problem raised on the surface, because below the surface a much bigger problem lies before the Court, namely how it envisages its adjudicative power and the impact of its judgments and decisions on the development of international law and the furtherance of human rights protection in Europe, as the preamble to the Convention puts it. The Court may envisage it in one of two ways, as an act of auctoritas or as an act of potestas. Auctoritas is exercised by way of reasoning, an intellectual act which aims to convince the addressees of the Court’s judgments and decisions and the much wider audience of the legal community and the public in general. It gains its legitimacy through the intrinsic strength of the principles upon which those judgments and decisions are based and the coherence and persuasiveness of the inferences drawn from these principles for the case at hand[21].", "In this case, the decision-maker – that is, the judges of the Court – is guided by a complex set of criteria of practical rationality with a view to weighing up which is the most coherent of the propositions presented by the parties[22]. Potestas is exercised by way of a decision, an act of will whose legitimacy lies in the power which the decision-maker is acknowledged as having to take the decision in accordance with a procedure. In this case, guided by a pragmatic assessment of the consequences of its decision, the decision-maker is moved to act whenever the advantages of a course of action outweigh its disadvantages[23]. 14. The Court must evidently exercise its power within the confines of the Convention, and the legitimacy of its judgments and decisions is dependent on formal compliance with the admissibility conditions and the procedure laid down in the Convention.", "While performing its tasks under the Convention, the Court must take into consideration, but not be conditioned by, the consequences of its judgments and decisions, not only for the parties involved, but also for all Contracting Parties to the Convention[24]. To this extent, the Court’s judgments and decisions are acts of potestas. But the Court should also aim to provide authoritative legal statements based on the intrinsic strength of the principles enshrined in the Convention and developed in the Court’s own case-law in the light of the “general principles recognised by civilised nations”. For it is through principled reasoning that judicial statements are normative, and it is only by being normative that they can be fully intelligible and implemented[25]. In their substance, the Court’s judgments and decisions are acts of auctoritas, which must avoid a fallacious over-simplification of the factual and legal problems raised by the case and resist the easy temptation of convenient omissions.", "Such auctoritas can be exercised only when the judge shies away from a one-sided selection of the domestic and international case-law and does not turn a blind eye to fundamental scholarly work pertinent to the discussion of the case under adjudication[26]. Most importantly of all, the consistency and coherency of the Court’s output cannot be secured if the judge runs away from definitional issues, leaving to legal writers the sometimes extremely difficult exercise of putting order into a chaotic sample of disparate legal statements[27]. Otherwise, the direction of the Court’s case-law will rely on an opportunistic, cherry-picked list of cases, selected and adjudicated in accordance with an unpredictable measuring stick, which can vary according to the power of the respondent State and the notoriety of the alleged victim involved in the dispute. Otherwise, the domestic courts will be strongly tempted to neglect, or even purposely flout, their duty to implement the Court’s case-law, when they are faced with judgments and decisions based on vague, succinct formulations that they do not understand. Otherwise, the lack of clarity and guidance of the Court’s judgments and decisions will prompt more and more applications, drowning the Court in a vicious circle of case-specific jurisprudence, an increasing number of applications and discretionary disposal of cases.", "Otherwise, the Court will shift to politicians, namely the Committee of Ministers, the quintessential judicial tasks of standard-setting and affording general remedies. 15. The pressure of numbers must not be taken as the decisive factor in the choice between the two mentioned approaches. The increasing demand for the Court to respond to human rights violations across Europe brings additional responsibility to the institution, but does not discharge the Court from all its Convention obligations, including those resulting from the overarching provision of Article 45 of the Convention. Justice cannot be sacrificed on the altar of expediency.", "It is precisely at a time of growth that sufficiently clear reasons are most needed, not only for all the Court’s final Committee, Chamber and Grand Chamber decisions and judgments (output), but also for the sifting (input) of cases by the single judge and the Grand Chamber panel. A minimalist form of reasoning only weakens the Court’s credibility. No reasoning at all is even worse. It simply kills all credibility of the Court as a champion of procedural justice and undermines its current efforts to cope with the many challenges it is faced with[28]. Conclusion 16.", "Following the applicant association’s main argument that the “public interest requires a decision on the merits of this case”[29], the majority pursued the utilitarian maxim salus publica suprema lex est, and took the opportunity afforded by this case to impose positive general obligations on the respondent State in relation to “mentally disabled persons in a situation comparable to that of Mr Câmpeanu” (see paragraph 161 of the judgment). I disagree with this methodological approach. In order for this case not to be an exhortation to bend the law on account of exceptional individual hardship, and consequently a free-riding exercise of judicial creativity and reconstruction of treaty obligations, the Court should have addressed the case on the basis of legal principles, namely the principle of equality before the law. If we cannot delude ourselves into dreaming of uniquely correct legal answers to hard cases, we can at least assume that the exercise of distilling from the principle of equality, which is firmly embedded in the Convention and the European human rights protection system, a rule on “de facto representation” before the Court would have avoided a strictly consequentialist application of the Convention. The methodology of the Court’s sifting and assessment of cases must be above any suspicion of arbitrariness.", "That impression would betray the remarkable sixty-year history of this formidable institution and undermine the efforts of many generations of dedicated judges, lawyers and linguists to pursue the ideal of the construction of a pan-European standard of human rights. The present case is a good example of how the Court sometimes reaches the right results by unconvincing, awkward means. Some of its working methods must change in order to achieve the right results by righteous means. Legal principles can provide the appropriate tools for that task, since a court of law is, to borrow the expression of Ronald Dworkin, the privileged forum of legal principles[30]. JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN, BIANKU AND NUßBERGER We have voted against the finding of the majority that it is not necessary to examine the complaint under Article 3, taken alone or in conjunction with Article 13 of the Convention.", "Firstly, we consider that the finding under Article 2 does not cover the violation of Article 3 in Mr Câmpeanu’s case. As the facts of the case reveal, Mr Câmpeanu was diagnosed as HIV-positive when he was 5 years old, was later diagnosed with “profound intellectual disability” (see paragraph 7 of the judgment) and developed pulmonary tuberculosis, pneumonia and chronic hepatitis. It seems clear from the facts of the case that the particular situation of Mr Câmpeanu did not meet with an appropriate response or treatment on the part of the competent authorities. On that basis the majority rightly find a violation of Article 2 of the Convention. While we agree with this conclusion, we do not agree that no separate issues arise under Article 3 of the Convention.", "We are of the opinion that the Romanian authorities should have taken concrete steps to protect Mr Câmpeanu from the suffering related to his condition, and of which the authorities were perfectly aware (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001–V). Mr Câmpeanu’s death was the result of a long period during which the authorities’ response to his situation was insufficient and inadequate; during this time he clearly suffered a violation of his Article 3 substantive rights, having received neither appropriate medical treatment nor even food and adequate shelter in the medical centres where he was kept. The “psychiatric and physical degradation” of Mr Câmpeanu when he was admitted to the Cetate-Dolj Medical and Social Care Centre (see paragraph 14 of the judgment) or when he was visited by the Centre for Legal Resources team at the Poiana Mare Neuropsychiatric Hospital (see paragraph 23 of the judgment) were evidence of long periods of neglect based on a complete lack of compassion. Therefore, this case has to be distinguished from those cases in which the death, or threats to the life, of the applicants have been a direct and immediate consequence of the use of force and in which the Court has found no separate issue under Article 3, having regard to its finding of a breach of Article 2 (see, for example, Nikolova and Velichkova v. Bulgaria, no.", "7888/03, 20 December 2007, and Shchiborshch and Kuzmina v. Russia, no. 5269/08, 16 January 2014). Finding a separate violation of Article 3 could also contribute to enhancing the protection under Article 2 in such cases. If over a long period of time the positive obligations under Article 3 are not fulfilled by the authorities and no appropriate treatment is provided for the most vulnerable individuals, it might be too late to save these individuals’ lives and thus to fulfil the authorities’ obligations under Article 2. Secondly, we find it regrettable that the Court has omitted the opportunity to clarify further the question of locus standi of a non-governmental organisation in connection with a complaint on the basis of Article 3.", "The gist of the case lies in determining the extent to which the most vulnerable persons’ interests can be defended before the Court by non-governmental organisations acting on their behalf, but without having any “close link” or “personal interest” as required by the Court’s case-law. The situation concerning Article 2 complaints is fundamentally different from Article 3 complaints in this respect. Article 2 complaints based on the victim’s death can never be brought before the Court by the victims themselves, whereas this is not true for Article 3 complaints. This is one of the aspects highlighted by the majority in their finding on the locus standi of the applicant (see paragraph 112 of the judgment). A separate analysis of the complaint of a violation of Article 3 of the Convention would have enabled the Court also to elaborate explicitly on the related questions in respect of Article 3.", "JOINT PARTLY DISSENTING OPINION OF JUDGES ZIEMELE AND BIANKU 1. We regrettably do not agree with the conclusion of the majority that there is no need for a separate ruling concerning Article 14 taken together with Article 2 in this case. 2. Turning to the circumstances of the case, we are stunned by the situation of Mr Câmpeanu. He was born in September 1985 and was of Roma ethnicity.", "His father was unknown and he was abandoned by his mother at birth; he was diagnosed at the age of 5 with HIV and later with profound intellectual disability and other acute medical problems. It would be very difficult to find another case examined by the Court in which the vulnerability of an applicant is based on so many grounds covered by Article 14 of the Convention. In our opinion, just one of these grounds would suffice to require the national authorities to devote particular attention to Mr Câmpeanu’s situation. The facts of the case, as set out in the judgment, clearly indicate that the measures taken by the authorities were totally inadequate in addressing Mr Câmpeanu’s circumstances. 3.", "It is rather worrying that only two weeks after Mr Câmpeanu turned eighteen, the Dolj County Child Protection Panel, without any individual assessment of his extremely particular situation, suggested that he should no longer be cared for by the State as he was not enrolled in any form of education at the time. This would suffice to conclude that his situation was considered to be the same as that of any other orphan who turns eighteen in perfectly good health and is able to look after himself or herself. The confusion that followed as to the identification of the appropriate institution to deal with Mr Câmpeanu’s condition is a sign of a lack of understanding and a careless approach to Mr Câmpeanu’s special needs (see paragraphs 8‑22 of the judgment). In addition, and this in our opinion is crucial to the Article 14 analysis, it appears that the staff at the Poiana Mare Neuropsychiatric Hospital refused to help Mr Câmpeanu, allegedly for fear that they would contract HIV. 4.", "In view of the above, and also taking into account the special nature of the State’s obligations as regards persons with disabilities (see, among other authorities, Jasinskis v. Latvia, no. 45744/08, 21 December 2010, and Kiyutin v. Russia, no. 2700/10, ECHR 2011), we are of the opinion that in the case of Mr Câmpeanu, a person who was in an extremely vulnerable position and completely dependent on the State institutions, there has been a violation of Article 14 taken together with Article 2 of the Convention. [1]. See Judge Bonello’s separate opinion in Al-Skeini and Others v. the United Kingdom [GC], no.", "55721/07, ECHR 2011. I have already had the opportunity to draw attention to this unfortunate method of reasoning and the problems it raises in my separate opinions appended to the judgments of Fabris v. France [GC], no. 16574/08, ECHR 2013, and De Souza Ribeiro v. France [GC], no. 22689/07, ECHR 2012. [2].", "Evolutive interpretation of human rights treaty law has been the position adopted by the Court since Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, as well as by the Inter-American Court of Human Rights since The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC–16/99, 1 October 1999, §114, Series A No. 16, and The “Street Children” (Villagrán-Morales et al.) v. Guatemala (merits), judgment of 19 November 1999, § 193, Series C No. 63, and the United Nations Human Rights Committee, since Judge v. Canada, no.", "829/1998, communication of 5 August 2002, UN Doc. CCPR/C/78/D/829/1998, paragraph 10.3. [3]. See Airey v. Ireland, 9 October 1979, § 24, Series A no. 32, and in general international law, among many other references, Lighthouses Case between France and Greece, judgment no.", "22 (1934), PCIJ, Series A/B no. 62, p. 27, Territorial Dispute (Libyan Arab Jamahiriya/Chad), judgment, ICJ Reports 1994, p. 21, and Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 231. [4]. The Court established this principle in Wemhoff v. Germany, 27 June 1968, p. 23, § 8, Series A no. 7.", "The Inter-American Court of Human Rights did the same in Compulsory Membership in an Association prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, 13 November 1985, § 52, Series A No. 5, and Baena Ricardo et al. v. Panama (merits, reparations and costs), judgment of 2 February 2001, § 189, Series C No. 72.", "There is therefore no in dubio mitius presumptive rule that human rights treaties should be interpreted in such a way as to minimise encroachment on State sovereignty. [5]. See S.P., D.P., A.T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unreported; İlhan v. Turkey [GC], no. 22277/93, § 55, ECHR 2000-VII; and Y.F.", "v. Turkey, no. 24209/94, § 29, ECHR 2003-IX. [6]. It is worth pointing out that the Court has applied Article 14 to grounds of discrimination not explicitly mentioned in that provision, such as sexual orientation (see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, ECHR 1999-IX) and mental or physical disabilities (see Glor v. Switzerland, no.", "13444/04, § 53, ECHR 2009). This latter judgment is particularly important in view of the fact that it made explicit reference to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as the basis for “the existence of a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment” despite the fact that the relevant events had taken place before the adoption of the CRPD by the General Assembly, and regardless of the fact that the respondent State had not signed it. On two other occasions, the Court has referred to the CRPD, even though the relevant events had occurred before the respondent States signed it (see Alajos Kiss v. Hungary, no. 38832/06, § 44, 20 May 2010, and Jasinskis v. Latvia, no. 45744/08, § 40, 21 December 2010).", "[7]. Although Mr Câmpeanu’s “wholly different” factual situation was acknowledged by the Court itself in paragraph 108 of the judgment, it drew no legal inferences from this acknowledgment. [8]. The equation of different situations would amount to “indirect discrimination”, which occurs when a provision, criterion or practice would put persons with a characteristic associated with a prohibited ground at a particular disadvantage compared with other persons. For the various facets of the principle of equality, and the Convention obligation to extend favourable provisions to persons who are discriminated against, see my separate opinion in Vallianatos and Others v. Greece [GC], nos.", "29381/09 and 32684/09, ECHR 2013. [9]. On reverse or positive discrimination in favour of minorities and vulnerable persons who do not have access to basic public goods, such as education and justice, as a basic requirement of justice, see Dworkin, Taking Rights Seriously, 1977, pp. 223-40; A Matter of Principle, 1986, pp. 293-33; Freedom’s Law: The Moral Reading of the American Constitution, 1996, pp.", "26-29; Law’s Empire, 1998, pp. 386-97; and Sovereign Virtue: The Theory and Practice of Equality, 2001, pp. 409-26. [10]. See the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 34, § 10, Series A no.", "6: “certain legal inequalities tend only to correct factual inequalities”. Thus, the State obligation to counterbalance factual inequalities and pay special attention to the most vulnerable emanates directly from the Convention. Within the European framework, see Article 15, paragraph 3, of the Revised European Social Charter; Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, and especially its Action Line no. 12 on legal protection, referring to objective (i): “to ensure effective access to justice for persons with disabilities on an equal basis with others” and to the specific action to be taken by member States (iv): “to encourage non-governmental advocacy networks working in defence of people with disabilities’ human rights”; Recommendation 1592 (2003) of the Parliamentary Assembly towards full social inclusion of people with disabilities; Recommendation No. R (99) 4 of the Committee of Ministers to member States on principles concerning the legal protection of incapable adults; the Handbook on European non-discrimination law, 2010, p. 78, jointly produced by the European Court of Human Rights and the European Union Agency for Fundamental Rights; the Fundamental Rights Agency, Access to justice in Europe: an overview of challenges and opportunities, 2011, pp.", "37-54; the European Network of Equality Bodies, Influencing the law through legal proceedings – The powers and practices of equality bodies, 2010, p. 6; and the European Commission against Racism and Intolerance (ECRI) General Policy Recommendation No. 7, 13 December 2002, paragraph 25. In the universal context, see also Article 13 of the CRPD, which imposes an obligation to “facilitate” access to and participation in justice for persons with disabilities, and the Committee on the Rights of Persons with Disabilities’ General Comment No. 1 (2014), CRPD/C/GC/1, 19 May 2014, paragraphs 24-31 and 34, on State obligations deriving from the United Nations Convention, in particular the obligation to provide support in the exercise of legal capacity. [11].", "In a way, the principle of good faith in the performance of treaties (Article 31 of the Vienna Convention on the Law of Treaties) is also engaged, since the respondent State cannot plead its own wrong. But this principle alone could not have resolved the procedural question raised by the present case, which required not only differentiation of the situation of extremely vulnerable persons, but also a measure of positive discrimination which could provide them with access to the right of which they had been deprived. Only the principle of equality, in its positive facet, could go that far. [12]. A similar approach was rightly suggested to the Court by the Council of Europe Commissioner for Human Rights in his submissions to the Grand Chamber (14 October 2011, paragraph 39).", "[13]. This condition is formulated explicitly in Rule 96 (b) in fine of the Rules of Procedure of the United Nations Human Rights Committee. [14]. This is not the moment to take a position on the dispute about the alleged non-existence of a general method of treaty interpretation and the alleged methodological difference between the interpretation of international human rights law and other international law, or between contractual and law-making treaties. In a perfunctory way, I would add at this juncture that I depart from the traditional position that there are “self-contained regimes” within international law (see, for example, Case of the SS “Wimbledon” (1923), PCIJ, Series A no.", "1, p. 15, and Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ Reports 1980, p. 40). Without prejudice to the tenets of a systemic interpretation of treaties, I do not think that rigid boundaries can be established between international human rights law and other international law (see, for example, the recent practice of the ICJ in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, pp. 662-73), and therefore I assume that the same interpretative methods can be applied in both fields of international law. One of the practical consequences of this assumption is that I favour cross-fertilisation of soft-law instruments and case-law of international courts and supervisory bodies. International courts are not isolated “little empires”, as Judges Pellonpää and Bratza put it in their concurring opinion appended to Al-Adsani v. the United Kingdom [GC], no.", "35763/97, ECHR 2001-XI. [15]. In the South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, ICJ Reports 1966, p. 6, the ICJ stated that it “can take account of moral principles only in so far as these are given sufficient expression in legal form”. On textual fidelity or Gesetztreu as a limit for judge-made law, see Esser, Vorverständnis und Methodenwahl in der Rechtsfindung. Rationalitätsgrundlagen richterlicher Entscheidungspraxis, 1970, pp.", "196-99, 283-89; Kriele, Recht, Vernunft, Wirklichkeit, 1990, pp. 519-38; and Dworkin, Justice in Robes, 2006, pp. 118-38. [16]. See Demir and Baykara v. Turkey [GC], no.", "34503/97, § 71, ECHR 2008. In fact, at the plenary session of the Consultative Assembly on 7 September 1949 (see the Travaux Préparatoires of the Convention, “References to the notion of the general principles of law recognised by civilised nations” (CDH(74)37)), Mr Teitgen stated: “organised international protection shall have as its aim, among other things, to ensure that internal laws on guaranteed freedoms are in conformity with the fundamental principles of law recognised by civilised nations. What are these principles? They are laid down in much doctrinal work and by a jurisprudence which is their authority. These are the principles and legal rules which, since they are formulated and sanctioned by the internal law of all civilised nations at any given moment, can therefore be regarded as constituting a principle of general common law, applicable throughout the whole of international society.” [17].", "If this is true for national judges, it is even truer for international judges, in the light of Article 38 (1) (c) of the ICJ Statute, the preamble to the Vienna Convention on the Law of Treaties, and the UNIDROIT Principles of International Commercial Contracts. On principles as “norm-sources”, see, among others, Pellet, annotation of Article 38, and Kolb, note on General Principles of Procedural Law, in Zimmermann et al., The Statute of the International Court of Justice: A Commentary, 2006, pp. 766-73 and 794-805 respectively; Thirlway, The Law and Procedure of the International Court of Justice: fifty years of jusrisprudence, vol. I, 2013, pp. 232-46, and vol.", "II, 2013, pp. 1,201-05; and Larenz and Canaris, Methodenlehre der Rechtswissenschaft, 1995, pp. 240-41. [18]. On principles as Optimierungsgebote in domestic law, see, for example, the contributions by Alexy and Koch in Alexy et al., Elemente einer juristischen Begründungslehre, 2003, pp.", "217-98; Alexy, A Theory of Constitutional Rights, 2009, pp. 401 and 405; and in international law, Ducoulombier, Les conflits de droits fondamentaux devant la Cour européenne des droits de l'Homme, 2011, pp. 564-67. [19]. See Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, 2009, pp.", "279 and 285. [20]. The most emblematic advocate of this working method, Justice Holmes, argued that principles do not solve cases. Law is, in his view, what the courts say it is, by deciding first the case and determining afterwards the grounds for the decision. His voice was not alone.", "In his autobiography, Justice Douglas relates that Chief Justice Hughes once told him: “Justice Douglas, you must remember one thing. At the constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” For this reason, Justice Frankfurter would say: “The Constitution is the Supreme Court”. To all this, Rawls gave the famous rebuttal: “The Constitution is not what the Court says it is” (Political Liberalism, 1993, p. 237). [21].", "Principles are “starting-points” for case sifting and for shaping the case rule, on the basis of a “universal rationality-bound concept of legal rationality” (Esser, Vorverständnis und Methodenwahl, cited above, p. 212, and Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts: Rechtsvergleichende Beiträge zur Rechtsquellen- und Interpretationslehre, 1990, pp. 183-86). Hence, a judicial decision deals with matters of principle, not matters of compromise and strategy resolved according to arguments of political policy, general welfare or public interest (Dworkin, Freedom’s Law, cited above, p. 83, and A Matter of Principle, cited above, p. 11). In this context, the publication of separate opinions plays the important role of avoiding the fiction of unanimity which in reality results from a negotiation that sacrifices the best possible solution to the lowest common denominator (Kriele, Theorie der Rechtsgewinnung entwickelt am Problem der Verfassungsinterpretation, 1976, p. 309). [22].", "Without entering into the dispute over the applicability of general discursive coherence criteria to the field of legal reasoning, it is worth mentioning the fundamental work by Alexy and Peczenik, who listed the following ten criteria by reference to which discursive coherence can be evaluated: (1) the number of supportive relations, (2) the length of the supportive chains, (3) the strength of the support, (4) the connection between supportive chains, (5) priority orders between arguments, (6) reciprocal justification, (7) generality, (8) conceptual cross-connections, (9) number of cases a theory covers, and (10) diversity of fields of life to which the theory is applicable (Alexy and Peczenik, “The Concept of Coherence and Its Significance for Discursive Rationality”, in Ratio Juris, 1990, pp. 130-47). One of the basic criteria formulated by the authors was that “When justifying a statement, one should support it with a chain of reasons as long as possible”. In fact, the use of legal principles implies a special onus of argumentation and justification imposed on the judge (see Larenz and Canaris, Methodenlehre, cited above, p. 247; Bydlinski, Grundzüge der juristischen Methodenlehre, 2005, p. 72; and Progl, Der Prinzipienbegriff: Seine Bedeutung für die juristische Argumentation und seine Verwendung in den Urteilen des Bundesgerichtshofes für Zivilsachen, 2001, p. 132). [23].", "See Esser, Grundsatz und Norm, cited above, pp. 235-41; and Dworkin, Taking Rights Seriously, cited above, pp. 22-28, 90-100, 273-78, and Justice in Robes, cited above, pp. 80‑81, 248-50, on the two different types of argumentation based on arguments of principle and arguments of utilitarian or ideal policy. [24].", "The consideration of consequences in legal reasoning results not only from the finalistic structure of legal provisions, as Esser has demonstrated in his Vorverständnis und Methodenwahl, cited above, p. 143, but more generally from the use of such arguments as the ad absurdum argument and such maxims as summum ius summa iniuria, as Perelman explained in Logique juridique. Nouvelle rhétorique, 1979, pp. 87-96, and as Deckert expounded in her list of twenty-three arguments drawn from consequences, in Folgenorientierung in der Rechtsanwendung, 1995, p. 252. [25]. “Normative” is used here in the sense of “universalisable”, as for example in Kaufmann, Das Verfahren der Rechtsgewinnung.", "Eine rationale Analyse, 1999, p. 85, and MacCormick, Rhetoric and The Rule of Law: A Theory of Legal Reasoning, 2005, pp. 148‑49. [26]. As Wittgenstein put it in Philosophische Untersuchungen, 1953, Part I, § 593, one of the main causes of intellectual error is a “unilateral diet” (einseitige Diät), where one feeds one’s thought with only one kind of example. This “pragmatic error” (pragmatische Fehler) is frequent in legal reasoning (F. Haft, Juristiche Rhetorik, 2009, p. 149).", "[27]. At this juncture it is useful to remember the words of Cardozo on the courts’ failure to put forward a comprehensive definition of the due process clause: “The question is how long we are to be satisfied with a series of ad hoc conclusions. It is all very well to go on pricking the lines, but the time must come when we shall do prudently to look them over, and see whether they make a pattern or a medley of scraps and patches” (Selected Writings, 1947, p. 311). [28]. See Maria Cruz Achabal Puertas v. Spain, United Nations Human Rights Committee, Communication No.", "1945/2010, 18 June 2013, where the author was informed that a Committee of the Court, composed of three judges, had decided to declare her application inadmissible, since it did not find “any appearance of a violation of the rights and freedoms guaranteed by the Convention or its Protocols”, but the Human Rights Committee concluded that “the limited reasoning contained in the succinct terms of the Court’s letter does not allow the Committee to assume that the examination included sufficient consideration of the merits”, and therefore decided there was no obstacle to its examining the communication under Article 5, paragraph 2 (a), of the Optional Protocol to the International Covenant on Civil and Political Rights and found that that the facts before it disclosed a violation of Article 7 of the Covenant, read independently and in conjunction with Article 2, paragraph 3, of the Covenant. The materials submitted to the Court by the author were similar to those presented to the Human Rights Committee. The Court cannot, as it so frequently does, require the domestic courts to indicate with sufficient clarity the grounds on which they base their decision, while at the same time not living up to the same standards itself. One could read the Human Rights Committee’s message as implying that the limits of forbearance of an unacceptable policy of judicial pragmatism have been reached, as Schwarzenberger once wrote (International Law as applied by International Courts and Tribunals, volume IV, 1986, p. 627). [29].", "See page 8 of the applicant association’s submissions to the Grand Chamber of 3 June 2013. [30]. Dworkin, A Matter of Principle, 1986, p. 33." ]

[ "THIRD SECTION CASE OF YABLOKO RUSSIAN UNITED DEMOCRATIC PARTY AND OTHERS v. RUSSIA (Application no. 18860/07) JUDGMENT STRASBOURG 8 November 2016 FINAL 24/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yabloko Russian United Democratic Party and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 11 October 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "18860/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Karelian regional division of the Yabloko Russian United Democratic Party, a political party registered under the laws of the Russian Federation (“the applicant party”) and three Russian nationals residing in the Republic of Karelia: Ms Irina Vladimirovna Petelyayeva (born in 1959), the chairwoman of the applicant party (“the second applicant”), Mr Aleksandr Ilyich Klimchuk (born in 1949) and Ms Kseniya Vladimirovna Fillipenkova (born in 1981), members of the applicant party (“the third and fourth applicants”). 2. The applicants were represented by Mr D.P. Holiner, a lawyer practising in London. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.", "3. The applicants alleged that the decision to cancel the registration of the Yabloko lists for elections in Karelia had been in breach of Article 3 of Protocol No. 1 to the Convention. 4. On 7 September 2012 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background information 5. The Republic of Karelia (“Karelia”) is a subject (constituent region) of the Russian Federation. Under Article 73 of the Constitution of the Russian Federation, subjects of the Federation possess the full authority of the Russian State in all matters other than those that come within the sole jurisdiction of the federal government or within the shared jurisdiction of federal subjects and the federal government to the degree of the latter’s scope of authority.", "6. At the relevant time, the Legislative Assembly of Karelia (hereinafter “the LA”) had fifty members elected by universal direct suffrage for a five-year term. Twenty-five seats were allocated on a proportional representation basis to registered party lists receiving at least 7% of the region-wide vote, while the remaining seats were allocated to the winners of twenty-five single-mandate constituencies, determined by majority vote. There was no minimum turnout for the election to be valid, and each voter could only vote for one party and one candidate in the electoral constituency in which he or she resided. 7.", "The regional branch of the Yabloko political party was registered by a competent State authority (at that time the regional department of the Ministry of Justice) in 2002. B. Decision to take part in the election to the regional legislature 8. On 26 April 2006 the regional council of the applicant party called for a regional party conference to be held in two sessions on 27 May and 12 August 2006, respectively. The aim was to prepare for the LA elections that were to take place in autumn 2006.", "9. Between 27 April 2006 and 26 May 2006 local party branches throughout Karelia held assemblies and conferences in accordance with the Yabloko party’s articles of association (hereinafter, “the charter”) and selected delegates to attend the regional party conference. At the time, the regional party had over 3,800 members, of whom 474 were so-called “registered party members”, that is, members who had specifically asked to be registered with the local party bodies in order to participate more actively in the party’s work, such as regional conferences. As a result, the 474 registered members elected forty-seven delegates to the regional conference. 10.", "On 27 May 2006 thirty-seven delegates present at the conference expressed their desire to participate in the upcoming LA elections. The nomination of candidates to the party list and electoral circuits was left to the second session scheduled for 12 August 2006. 11. On 10 and 11 June 2006 the Yabloko party at national level held its Thirteenth Party Congress, which adopted several amendments to the party’s charter. The charter maintained the division between party members and registered party members.", "In accordance with paragraph 9.1.14 of both versions the right to elect and be elected to the party’s governing and controlling bodies was reserved to registered members. The 2006 version specified, additionally, that party members who did not register automatically delegated the right to elect and be elected within the party to the registered party members of the relevant local branch. 12. On 4 July 2006 the LA set an election date of 8 October 2006. 13.", "On 27 July 2006 the amendments to the Yabloko national party charter were registered with the Federal Registration Service, upon which date they came into force. 14. On 12 August 2006 the regional party conference resumed. Thirty-seven of the forty-seven party delegates were present, and a quorum was declared. In accordance with the party’s charter, the conference nominated a 25-member party list and candidates for three electoral constituencies by secret ballot.", "The second and third applicants were chosen to run for office in two single-mandate constituencies. 15. The conference was attended by two representatives from the Karelia Directorate of the Federal Registration Service of the Ministry of Justice, and two members of the Central Electoral Commission of the Republic of Karelia (“the Electoral Commission”). At that time they did not report any irregularities in the conduct of the regional party conference. 16.", "On 16 August 2006 the applicant party submitted documents to the Electoral Commission in order to participate in the forthcoming election. On 21 August 2006 it paid the requisite deposits (150,000 Russian roubles (RUB) in respect of the party list and RUB 60,000 in respect of each of the three single-mandate candidates). 17. On 17 and 22 August 2006, after reviewing the documents, the Electoral Commission issued Orders nos. 65/343-3 and 66/352-3, by which it registered the applicant party’s three candidates, including the second and third applicants, and the party list.", "C. Proceedings to annul the applicant party’s registration 18. On 31 August 2006 the Karelia Directorate of the Federal Registration Service wrote to the Electoral Commission and informed it that the party conference of 12 August 2006 had been based on the participation of registered party members, and not party members in general. It referred to the provisions of the legislation on political parties (see below) which guaranteed equal rights of participation in party activities for all members. It argued that the party could not make a distinction between registered and other party members for the purposes of internal activities. As such, the conference of 12 August 2006 had been held in breach of the applicable legislation.", "19. On 8 September 2006 the Electoral Commission applied to the Supreme Court of the Republic of Karelia (hereinafter the Karelia Supreme Court) to annul its own decision to register the party list and single-mandate candidates. Referring to the letter of 31 August 2006, the Commission referred to the provision of the Basic Guarantees Act allowing the judicial annulment of the registration of individual candidates and party lists where “new facts” had come to light showing a violation of federal or regional law regulating the nomination of candidates. 20. In the meantime, on 11 September 2006 the Electoral Commission wrote to the head of the Federal Registration Service and informed him of the application lodged with the court.", "It also enquired which version of the charter should be applicable to the party conference of 12 August 2006 since the party had submitted the 2004 version to the Commission. 21. On 12 September 2006 the Federal Registration Service replied to the Electoral Commission that the new charter had been registered by that service on 27 July 2006 and that on the same day the old version of the document had ceased to be valid. The regional party should therefore have submitted the new version as the one applicable to their conference of 12 August 2006. At the same time, the Service stated that in June 2006 Yabloko had received a warning from it in connection with its differentiating between registered and other party members, and that the new version of the charter had contained provisions designed to correct that.", "In view of those considerations, the decision of the regional conference of 12 August 2006, which had been based on the previous version and had taken only registered members into account, could be seen as being in breach of the relevant legislation. D. Court decisions 22. On 15 September 2006 the Karelia Supreme Court allowed the application of the Electoral Commission and annulled the decisions of 17 and 22 August 2006 to register the applicant party’s list and candidates. It referred to the conclusions of the Federal Registration Service and found that the procedure whereby only registered members had taken part in the decision-making process had contradicted the legislation on elections and on political parties. It also noted that the party had submitted an invalid version of its charter.", "23. More specifically, the court concluded that the annulment decision was justified because the participation of a minority of the party’s regional membership in the nomination process had thwarted “the will of the majority”, finding as follows: “If one takes a formal approach to the problem it seems that all the requirements governing the nomination of the lists of candidates were observed. At the same time the court believes that the procedure for the nomination of the lists of candidates [to the LA] was breached. It was established at the court hearing that only so-called ‘registered members of the party’ participated and nominated the lists of candidates [to the LA] at the regional conference. What is the difference between ‘registered members of the party’ and ‘unregistered members’?", "Let us turn to section 7 of the party’s charter... The practice of applying these provisions of the charter in the party’s regional division in the Republic of Karelia is such ... that members of the party determine themselves whether to actively participate in the work of the regional branch of the party or to participate [only] as needed ... Accordingly, they decide whether to register with the regional branch or not. If a party member asks to be registered, one of the local branches, or the regional one, registers him with the [relevant] branch. From that moment the party member obtains the rights provided for by p. 9.1.14 of the charter...", "It is impossible to agree with applying the party’s charter in such a way. ... Section 8.4 of the [Political Parties Act] states that political parties should provide an equal opportunity for representation in a party’s governing bodies, in election lists and other positions ... Section 23.4 and 5 of the [Political Parties Act] establish that members of political parties take part in its functioning, have rights and bear obligations in line with the charter. Members have the right to elect and be elected to the party’s governing bodies, ... receive information about the party’s activities and the work of its governing bodies.", "However, this right, under p. 9.1.14 of the [Yabloko] charter, is reserved to a limited number of persons – ‘registered members’ – which in turn breaches the principle of the equality of party members as set out in Section 8.1 of the [Political Parties Act]. As a result, while the number of party members in Karelia was 3,824 (1 April 2006), the Conference was attended by 37 delegates who represented 394 registered members (15% of the total number of members). ... A democratic regime is characterised by the wide participation of the population in forming the organs of State authority and a wide spectrum of political rights and freedoms for citizens governed by the rule of law, the protection of the rights and legal interests of citizens and others. One can imagine that those exact same elements should appear in the activities of any democratic party. The Constitutional Court of the Russian Federation has emphasised the significance of the principle of the mandatory will of the majority, pointing out that ‘...elections as a means of determining the will of the people and forming the corresponding legitimate organs of State authority and local government, on whose behalf they exercise public authority, is based on the priority of the will of the majority of voters taking part in the vote’ (ruling of the Constitutional Court of 5 November 1998...).", "This principle applies with equal measure to the nomination of lists of candidates to [the legislature], since the basis for forming the representative bodies are the [candidates] nominated by political parties. In this specific case the principle of the ‘will of the majority’ was violated. In such circumstances, the court believes that the order for submitting electoral lists of candidates to the Karelia LA has been breached.” 24. The court dismissed the applicant party’s argument that interpreting the law in such a way constituted interference by the State authorities with the party’s internal organisation. The court responded by saying that it had been the conference’s duty to ensure compliance with the applicable legislation.", "25. Lastly, the court noted that the party had submitted an invalid version of its charter. As a consequence, the court cancelled the registration orders of 17 and 22 August 2006. 26. The applicant party lodged an appeal against that decision with the Supreme Court of the Russian Federation.", "It stressed that the difference in treatment between registered and other party members could not be regarded as a “newly discovered fact” since it had been based on the party’s charter of 2004, which had been registered with the relevant service. A record of the entire proceedings of the conference had been submitted to the Karelia Registration Service, together with a copy of the charter on which both stages of the conference had been based. The party also pointed out that the Service had had two members present at the conference in August 2006, and therefore should have been fully aware of the procedure applied. 27. On 29 September 2006 the Supreme Court of the Russian Federation dismissed the applicant party’s appeal, with reasoning that was similar to that of the Karelia Supreme Court.", "28. As a result of the annulment order coming into force the applicant party lost its election deposits. 29. On 8 October 2006 elections to the Fourth Legislative Assembly took place. The party list and the single constituency candidates nominated by the applicant party were not present on the ballot.", "The fourth applicant submitted that she had cast a ballot for the Yabloko party list, but that her choice had not been counted in the election results. E. Information about the elections to the Karelia LA 30. The Government submitted the following information about the elections which took place on 8 October 2006. Seven parties competed for places in the regional assembly: the Karelia branch of the Communist Party of the Russian Federation (KPRF) (obtained 12.77% of the votes cast), the Party of National Resurrection “People’s Will” (1.58%), the regional branch of the Patriots of Russia party (4.39%), the regional branch of United Russia (38.92%), the regional branch of the Liberal-Democratic Party of Russia (LDPR) (8.86%), the regional branch of the Russian Party for Life (16.19%) and the regional branch of the Russian Pensioners’ Party (12.06%). The total number of people who voted in the elections was 183,503, or 32.98% of the electorate.", "31. The Government also presented information about the subsequent election to the Karelia LA, in which Yabloko candidates had participated. That election took place on 4 December 2011 and had five parties competing. Yabloko obtained 7.13% of the votes and had deputies elected to the LA. A total of 50.03% of voters took part.", "II. RELEVANT DOMESTIC LAW A. The Political Parties Act 32. The status and activities of political parties were governed by the Political Parties Act (Federal Law no. 95-FZ of 11 July 2001), as in force at the relevant time.", "Section 8 laid down the basic rules for political party activity and that their functioning should be based on the principles of voluntary participation, equality, self-government, lawfulness and transparency. Political parties were free in the choice of their internal structure, aims, forms and methods of functioning, within the limits of the Act. Their activity was not to breach the rights and freedoms guaranteed by the Constitution. Political parties were to be transparent, and information about their charters and programmes was to be freely available. Section 8(4) required that political parties should allow equal opportunities for men and women and for Russian nationals of different ethnic backgrounds to be represented in their governing bodies and in the lists of candidates for external posts and positions.", "33. Section 21 set requirements for the articles of association (charters) of a political party. Among other requirements, charters were to regulate questions of membership, the rights and obligations of members, the setting up of the party’s governing bodies, and the internal procedure for submitting lists of candidates for elections. They could contain other provisions, which were not to contradict the applicable legislation. The charters and any changes to it had to be registered with the competent State authority.", "34. Membership of a political party was to be voluntary and individual. Citizens of the Russian Federation who had attained the age of eighteen could be members of a political party. Admission to membership of a political party was to be decided on the basis of a written application by a citizen of the Russian Federation, in accordance with the procedure set out in the party’s charters. Members of the party were to participate in its work, and had rights and obligations in line with the charters of the party.", "Members of the party had the right to elect and be elected to its governing bodies, its regional branches and other units, to get information about the work of the party and its governing bodies, and to challenge the actions and decisions of its bodies in line with the party’s charters. A citizen of the Russian Federation was to hold membership of only one political party at once. A member of a political party could be registered in only one regional branch in the region where he was permanently or predominantly resident. Membership of a political party could not be restricted on the grounds of someone’s profession, social group, race, ethnic or religious denomination, nor on the grounds of gender, origin, property status, or place of residence (relevant parts of section 23(1)-(6) and (10) of the Political Parties Act). 35.", "A political party’s governing regional bodies were to be re-elected at least every two years (section 24(4)). Management bodies at all levels had to be elected by secret ballot. The election had to be conducted in accordance with the procedure established by the party’s charters and the decision was to be taken by a majority of voting delegates present, members of the regional conference, or members of a permanent collegial governing body. The charters of a party could provide for additional conditions for adopting decisions on the composition of governing bodies and compiling the list of candidates for elections. All other decisions had to be taken in accordance with the party’s charters (relevant parts of section 25(1), (4) and (6)-(8)).", "36. Section 27 set out that a party was obliged to allow officials from the competent authorities to attend its public meetings. The party should inform the relevant electoral commissions in advance when holding conferences where it intended to draw up lists of candidates for elections and to allow them to attend ((1)-(2)). B. The Basic Guarantees Act 37.", "Elections in general were governed by Federal Law no. 67‑FZ on the basic principles of elections and referendums of 12 June 2002 (the Basic Guarantees Act), as in force at the relevant time. Section 35(2) and (14) stated that political parties had to draw up lists of candidates for elections at their conferences and assemblies, in line with the applicable legislation, in particular the Law on Political Parties. The party submitted a list of candidates for elections to the competent electoral commission, which had three days to approve it. 38.", "Section 38(24) and (25) provided reasons which would justify a refusal to register candidates. The electoral commission would refuse to register the candidates submitted by a political party if the procedure by which they had been chosen had been in breach of the relevant provisions of the Political Parties Act. An absence of the necessary documents could also be a reason for such a refusal. 39. Section 76(5) empowered the courts to annul the registration of lists of candidates upon requests from the competent electoral commissions if, inter alia, new circumstances had been discovered that could serve as the basis for denying registration under the relevant paragraphs of section 38.", "III. RELEVANT INTERNATIONAL DOCUMENTS A. Code Of Good Practice in the Field of Political Parties 40. The European Commission for Democracy through Law (“the Venice Commission”) has adopted a Code Of Good Practice in the Field of Political Parties (document CDL-AD(2009)002, adopted at its 77th Plenary Session) that reads, in so far as relevant: “III. Internal organisation of political parties 1.", "Membership ... 20. Everyone must be free to choose to be a member of a political party or not and to choose which party to join. Whilst this principle is universally acknowledged, it is also very common among European parties that they have specific admission procedures. This serves to secure the necessary congruence between the views of the would-be member and the party. Best practices are those that clearly establish in party statutes the procedures and requirements for joining and which clearly state the criteria to be fulfilled to be members... ... 24.", "It is not unusual for parties to establish different forms of involvement of individuals in their activities such as members, recognised sympathisers, collaborators, campaigners, etc. These statuses mark different thresholds of personal commitment. Hence, in order to identify the kind of commitments and to respect personal choices, a good practice is for party statutes to clearly spell out the different rights and duties of each situation. Any person must be able to define freely his or her personal form of relationship with a party... ... 2. Organisation ... 28.", "The general principles that inspire this Code also apply to the organisation of a political party. In particular: − Representativeness and receptiveness. Applied within a party, these principles mean that the structure of the party and its procedures should represent the opinion of the members and they should be receptive towards these. Although this commitment may not entail a legally expressed obligation, their breach runs against the basic intuitive concept of democratic organisation. − Responsibility and accountability.", "Organs (both collective and individual) should be held accountable and responsible to party members. Procedures should secure internal (and external) responsibility and rendering account of actions and policies. Although this commitment may not entail a legally expressed obligation, their breach runs against the basic intuitive concept of democratic organisation. − Transparency. Parties should make public their statutes and their programme.", "Publishing financial reports improves transparency and public confidence in political parties. Even though this commitment may not entail a legally expressed obligation, [its] breach runs against the basic intuitive concept of democratic organisation. 29. The existence of party statutes is a legal requirement for recognising and/or registering them in several countries of the Council of Europe. Statutes must comply with constitutional and legal regulations and reflect the international rules contained in the ECHR.", "The lack of compliance with party statutes constitutes, in some legal systems, a violation that can be legally challenged in extra-party jurisdictions. To the extent that compliance may be legally required, legal force may be deduced from party statutes. 30. Party statutes normally regulate the rights and duties of their members, and the organs, organisation and procedures for decision making of the parties. In certain national legal systems, there is a legal requirement that party statutes must establish a procedure for changing them.", "When this legal requirement is further enriched with the explicit involvement of members aimed at seeking their support through voting procedures, it comes closer to being a paradigm of good practice. ... 32. Wherever required by law, parties must define their national, regional or local organisation in their statutes. Wherever this is not required by law, these specifications contribute to enhance the good governance principles identified above. At each of these levels, bodies involving all members or their representatives, meeting on regular basis, must take the major decisions.", "Ideally, the supreme body (National congress or assembly) should meet at least once for each legislative term. In the interim periods the governing boards are usually responsible for decision-making. These boards, which are usually made up of members elected by the party membership, must be elected in accordance with the procedures set out in the party statutes. 33. The procedures for decision-making should be clearly specified in the statutes.", "When possible (i.e. on the local level), members should take decisions directly; otherwise, decisions should be taken on the basis of democratic delegation. 34. Party operational procedures should enable the opinions of grassroot members to be heard by party leaders. 3.", "Appointment of leaders and candidates for election ... 35. Whether directly or indirectly, party leaders must be democratically chosen at any given level (local, regional, national and European). This means that members must be able to vote for their selection. Bottom-up practices for the selection of nominees and candidates are a healthy expression of internal democracy which is very positively perceived by citizens. 36.", "Equally, whether directly or indirectly, candidates must be democratically chosen for elections at any level (local, regional, national and European).” B. Other relevant documents and opinions 41. The Venice Commission also made the following recommendations in its Guidelines and explanatory report on legislation on political parties: some specific issues (document CDL-AD(2004)007rev, adopted at its 58th Plenary Session on 15 April 2004): “B. Registration as a necessary step for recognition of an association as a political party, for a party’s participation in general elections or for public financing of a party does not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. Any requirements in relation to registration, however, must be such as are ‘necessary in a democratic society’ and proportionate to the objective sought to be achieved by the measures in question.", "Countries applying registration procedures to political parties should refrain from imposing excessive requirements for territorial representation of political parties as well as for minimum membership. The democratic or non-democratic character of the party organization should not in principle be a ground for denying registration of a political party. Registration of political parties should be denied only in cases clearly indicated in the Guidelines on prohibition of political parties and analogous measures, i.e. when the use of violence is advocated or used as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a peaceful change of the Constitution is advocated should not be sufficient for denial of registration.", "C. Any activity requirements for political parties, as a prerequisite for maintaining the status as a political party and their control and supervision, have to be assessed by the same yardstick of what is ‘necessary in a democratic society’. Public authorities should refrain from any political or other excessive control over activities of political parties, such as membership, number and frequency of party congresses and meetings, operation of territorial branches and subdivisions. ... EXPLANATORY REPORT b) Activity requirements for political parties and their control and supervision ... 11. Similar caution must be applied when it comes to activity requirements for political parties as a prerequisite for maintaining their status as a political party and their control and supervision. Far-reaching autonomy of political parties is a cornerstone of the freedoms of assembly and association and the freedom of expression as protected by the European Convention on Human Rights.", "... In particular, control over the statute or statute of a party should be primarily internal, i.e. should be exercised by the members of the party. As regards external control, the members of a party should have access to a court in case they consider that a decision of a party organ violates its statute. In general, judicial control over the parties should be preferred over executive control.” 42.", "In their joint Guidelines on Political Party Regulation (document CDL-AD(2010)024, adopted by the Venice Commission at its 84th Plenary Session (Venice, 15-16 October 2010)) OSCE/ODIHR and Venice Commission recommended: “98. However, as parties contribute to the expression of political opinion and are instruments for the presentation of candidates in elections, some regulation of internal party activities can be considered necessary to ensure the proper functioning of a democratic society. The most commonly accepted regulations are limited to requirements for parties to be transparent concerning their decision making and to seek input from membership when determining party constitutions and candidates.” 43. The Venice Commission Report on the Participation of Political Parties in Elections (document CDL-AD(2006)025, adopted by the Venice Commission at its 67th plenary session (Venice, 9-10 June 2006)) “12. In any case, there are other conditions, derived from the importance of political parties in modern democracies.", "This implies that the individual right to stand for election may be affected by two different sets of rules: first, by the general rules and requirements adopted by a State to allow parties to run in an election. And, second, by the rules adopted by the parties for nominating their candidates in a given election. The former rules have to be analysed especially with the perspective of pluralism: if, as the European Court of Human Rights has said, “there can be no democracy without pluralism”, the main point is to ascertain that additional requirements imposed on parties are not so heavy that may hurt the expression of social pluralism. The latter rules, which may be fixed by the parties themselves, or imposed by legislation, may affect the idea of intra-party democracy, or to the right of the members of a given (in this case, political) association, to participate in the basic decisions of the association (party). ... b) Procedures adopted by parties for nominating candidates ... 17.", "Parties are a specific kind of association. Their status is thus guaranteed under the right of freedom of association, and they can only be subject to restrictions prescribed by law. Therefore, internal party procedures for decision-making should be presided by the principle of self-governing, and in many countries these rules are only set in the Party Statutes. Nevertheless, their relevance for the working of the whole system implies that, as has been previously pointed out, the Constitution or the law may set up some rules, usually requiring parties to respect democratic principles in their internal organisation and working. 18.", "However rules may go further: the French Constitution had to be recently reformed to allow the law to impose the principle of equal access of men and women to elective offices, so limiting the free choice of candidates by party organs. In some countries, the Electoral Law contains a procedure of nomination of party candidates, which has logically be respected by the party statutes. This is, for instance, the case in Germany (art. 21) or Ukraine (art. 40).", "In this respect, it could be asked what is the scope of autonomy and self-governing that should be respected by the law or, in other words, what degree of external –and general constraints are compatible with the very idea of free association. In any case, it seems that the very respect of the democratic principle should suffice to exclude any possibility of changing the order of candidates within a list after voters have cast their ballots, as for instance seems to be possible in some specific countries.” 44. Another Venice Commission document, Report on the Method of Nomination of Candidates within Political Parties (document CDLD(2015)020, adopted by the Venice Commission at its 103rd Plenary Session (Venice, 19-20 June 2015)), says, where relevant: “5. In contemporary democracies, two main principles are central to the internal functioning of political parties. The first one is the principle of party autonomy, under which political parties are granted associational autonomy in their internal and external functioning.", "According to this principle, political parties should be free to establish their own organisation and the rules for selecting party leaders and candidates, since this is regarded as integral to the concept of associational autonomy. The second element is the principle of internal democracy, the argument being that because political parties are essential for political participation, they should respect democratic requirements within their internal organisation. 6. There can be tensions between the principle of party autonomy on the one hand and the principle requiring internal democracy on the other. It is not surprising that the influence of each principle differs in each system.", "... What system prevails in a particular country is basically shaped by its history and current circumstances. Much also depends on more detailed specification of the two principal factors set out above and the weight attached to them. Thus, it cannot be assumed that attachment to the principle of associational autonomy precludes per se any regulation of internal party procedure, since such a conclusion is dependent on contestable normative assumptions as to the degree of autonomy that flows from freedom of association. The same is true in relation to the principle of democracy. It is not self-evident what demands flow from attachment to this principle without further inquiry as to the more particular precepts that constitute the democratic principle and the way in which they might be applicable to the nomination of candidates by political parties.", "... II. Regulating political parties: the state of the art ... 11. The European Court of Human Rights has held in its case-law that political parties are a form of association essential to the proper functioning of democracy and that, in view of the importance of democracy in the European Convention on Human Rights system, an association, including a political party, is not excluded from the protection afforded by the Convention. 12. The Venice Commission Guidelines on Political Party Regulation view political parties as private associations that play a critical role as political actors in the public sphere.", "Although the document considers that “some regulation of internal party activities can be considered necessary to ensure the proper functioning of a democratic society”, such legislation must be “well–crafted and narrowly tailored” in order not to interfere with the freedom of association. However, the Guidelines recognise that: “As parties contribute to the expression of political opinion and are instruments for the presentation of candidates in elections, some regulation of internal party activities can be considered necessary to ensure the proper functioning of a democratic society. The most commonly accepted regulations are limited to requirements for parties to be transparent concerning their decision making and to seek input from membership when determining party constitutions and candidates”. ... 26. The requirements for candidate nomination are, in most cases, not specifically stated in the laws on political parties.", "However, they can be deduced from the general rules stated by the legislation on party organisation and proceedings and from the principles that the constitution proclaims, such as the principle of internal democracy, non-discrimination and the recognition of universal suffrage. In other cases, the requirements are stated in the electoral law... C. Requirements concerning party members’ rights ... 38. Finally, the party members’ rights recognised by the laws are also applicable to the nomination procedure; rights such as equality, the right to participate in the activities and organs of the party, the right to vote and the right to run for party offices. ... 39. Some of the laws analysed above establish several requirements for internal democracy.", "In general, laws on political parties are quite respectful of their freedom. For this reason, these laws refer to the statutes of political parties in order to set out in detail the principles and requirements established by the laws themselves. ... VI. Conclusions: ... 81. The possibility of adopting legal measures to foster respect for democratic principles in the selection of candidates is consistent with international standards and principles stated by the Venice Commission.", "However, legal intervention in the selection of candidates is not always required or suitable. On the one hand, long-established democracies with deep-rooted political parties favour associational freedom, since internal democracy is guaranteed by the political parties themselves. On the other hand, state interference in the selection of candidates in new or transitional democracies might jeopardise political pluralism. There is an increased risk where legal intervention constitutes an imposition of the majority over the minority.” THE LAW I. THE GOVERNMENT’S OBJECTION TO THE ADMISSIBILITY OF THE SECOND APPLICANT’S COMPLAINT 45.", "The Government noted that the second applicant (Mrs Petelyayeva) had failed to submit a valid power of attorney to authorise Mr Holiner to represent her before the Court. They argued that this situation should be considered by the Court as a ground to declare her application inadmissible. 46. On 23 April 2013 Mr Holiner informed the Court that he had been unable to obtain a power of attorney from the second applicant. 47.", "The Court notes that where applicants choose to be represented under Rule 36 § 1 of the Rules of Court rather than lodging the application themselves, Rule 45 § 3 requires them to produce a written authority to act, duly signed. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim within the meaning of Article 34 on whose behalf they purport to act before the Court (see N. and M. v. Russia (dec.), nos. 39496/14 and 39727/14, § 53, 26 April 2016; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 102, ECHR 2014; and Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009).", "What is important for the Court is that the written authority to act should clearly indicate that the applicant has entrusted his or her representation before the Court to a representative and that the representative has accepted that commission (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 53, ECHR 2012, and Ryabov v. Russia, no. 3896/04, § 40, 31 January 2008). Failure to do so would result in a finding that the complaint is inadmissible for want of an “applicant” for the purposes of Article 34 of the Convention (see N.Z. v. Croatia (dec.), no.", "2140/13, 2 June 2015). 48. In the present case, the second applicant has never been in contact with the Court directly and the application was lodged through her alleged representative, Mr Holiner. Despite reminders to do so, no written authority from her has been submitted to the Court and the application form was not signed. Consequently, the application lodged on behalf of the second applicant must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION 49. The applicants complained under Article 3 of Protocol No. 1 to the Convention that the annulment order had arbitrarily excluded them from participation in the election to the Karelia LA, and frustrated the free expression of the opinion of the fourth applicant in her choice of a representative legislature.", "The Article reads as follows: Article 3 of Protocol No. 1 (right to free elections) “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 50. The Government contested that argument. A. Admissibility 51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The first and third applicants (a) The parties’ arguments (i) The applicants 52.", "The first applicant (the Yabloko Karelia branch) and the third applicant complained that the disqualification of the party list and the individual candidates approved by the regional conference on 12 August 2006 and accepted by the Registration Service on 17 and 22 August 2006 had constituted a breach of the right to free elections. They put forward the following arguments. 53. Firstly, they disputed the suggestion that that the reasons advanced by the Karelia branch of the Federal Registration Service and accepted by the Karelia Electoral Commission and the courts, had constituted “newly discovered circumstances”. The fact that the delegates for the regional party conference held on 12 August 2006 had been elected by only registered party members and that an amended version of the party charter had entered into force on 9 August 2006 had been known to the Federal Registration Service.", "Both the 2004 and the 2006 versions of the party charter, deposited with the registration bodies, conferred the right on members to participate in internal decision-making by voting from the moment of their registration with one of the local branches. They stated that there was “no reasonable basis to contend that the [Electoral] Commission did not know or could not have known that the delegates to the applicant party’s regional conference had been elected only by those members who had registered to exercise their right to vote under the applicant party’s charter”. As to the registration of the new charter, the applicants stressed that it had been duly registered with the relevant bodies in August 2006, and thus could not have been regarded in September 2006 as a newly discovered fact. In any event, no provisions of either the old or new version had been breached by the procedure in question. 54.", "Secondly, in so far as the authorities argued that the very procedure under which the candidates had been selected was contrary to the relevant legislation, the applicants submitted that neither the party’s charter nor the practice in question had been in breach of any provisions of the legislation relied upon. Section 8(4) of the Political Parties Act mandated equal opportunities for members, independent of their gender and ethnic background. The right of all members to be registered with the party’s local branches had been guaranteed by the charter and thus the provision allowing members to do so was of a merely procedural character, creating no substantive distinction between members. The remaining legal acts cited had no bearing on the procedure in question. 55.", "Next, the applicants stressed that no member of the party had ever raised any complaints or challenges to the procedure for electing governing bodies or selecting candidates. The applicants noted that the Government had referred to two complaints lodged with the Electoral Commission by two candidates from the United Russia party. They argued that that supported their suspicion of discrimination against the opposition in favour of the competing ruling party candidates. 56. Summing up their complaints, the two applicants argued that the cancellation of the registration of the applicant party’s candidates’ list had been outside the wide margin of appreciation accorded to States in electoral matters.", "That measure had been not only “wholly without merit as a matter of domestic law, but ... also appeared to have pursued the illegitimate aim of restricting voter choice at the polls in favour of the ruling party”. They described the authorities’ reference to the submission of the wrong version of the charter with the candidates’ list as a “sanction ... wholly out of proportion to any professed legitimate aim.” They stressed that a new version of the charter had been submitted to the authorities by the time of the hearing at the Karelia Supreme Court and that, in any event, no provision of the new charter had been breached by the proceedings in question (the applicants relied, mutatis mutandis, on the Court’s judgments in The United Macedonian Organisation Ilinden and Others v. Bulgaria, no. 59491/00, §§ 67-68, 19 January 2006, and Tsonev v. Bulgaria, no. 45963/99, § 55, 13 April 2006). (ii) The Government 57.", "The Government stated that the elections of 8 October 2006 to the Karelia LA had been free, carried out by secret ballot and had respected the free expression of the voters’ will. The dismissal of the applicant party’s list of candidates had been carried out by a court, and had been based on serious breaches of electoral legislation by the applicant party. 58. Firstly, the applicant party had submitted an invalid version of its charter to the Karelia Electoral Commission. That fact had been discovered on 7 September 2006 and had been considered by the Karelia Supreme Court as constituting a newly discovered fact which had justified cancelling the registration of the list of candidates, in line with section 38(24) of the Basic Guarantees Act (and the corresponding provisions of Karelia’s regional legislation).", "The Government further explained that the Electoral Commission had not been tasked with checking the validity of the documents submitted, but that it had been the regional department of the Federal Registration Service that had drawn its attention to the problem in their letter of 31 August 2006 (received by the Electoral Commission on 4 September 2006). 59. As a separate breach of electoral legislation committed by the applicant party, the Government pointed to the procedure for nominating delegates for the regional party conference and compiling the list of candidates at that meeting. Referring to section 38(25) of the Basic Guarantees Act and sections 8(4), 21(2) and 23(4) and (5) of the Political Parties Act (and the corresponding provisions of the Karelia regional legislation), the Government submitted that the applicable legislation did not allow for a distinction to be made between members of the party on the basis of their “registration” with one of the local branches. Such an approach violated the principle of the equality of party members.", "The Government stated that the Yabloko party charter, before it had been changed in August 2006 had not per se contained such a violation. However, the practice followed by the applicant party in Karelia in the process of convening the party conference and compiling the list of candidates had infringed the rights of the majority of the regional party’s members. In the Government’s view, over 87% of the regional party’s members had not taken part in the procedure. The conference of 12 August 2006 had been carried out with several violations of the applicable legislation. 60.", "Pointing to section 38(25)(a) of the Basic Guarantees Act, the Government noted that failure to comply with the provisions of the Law on Political Parties in the course of drawing up lists of candidates constituted a valid ground to dismiss such a list and, in the case of newly discovered facts constituting such an infraction, to annul previously taken registration decisions. The Government referred to complaints lodged by two candidates who had been registered to run in the two constituencies where the second and the third candidates had also been registered. 61. It also stated that the newly discovered fact which had justified the cancellation of the applicants’ registration for the election had been the Karelia Supreme Court’s judgment of 15 September 2006, as upheld on appeal on 29 September 2006 by the Karelia Supreme Court. The courts had established two reasons for the cancellation: (i) breaches of section 8(1) and (4) and section 23(4) and (5) of the Law on Political Parties by the manner in which the regional party assembly had been formed through the participation of only 15% of the regional party’s members; and (ii) the submission of the invalid version of the party charter to the Karelia Electoral Commission, which had become known to the competent authorities only on 4 September 2006.", "62. In addition to the arguments made by the courts in that respect, the Government also relied on the provisions of the Law On Public Associations (No. 82-FZ of 19 May 1995, as in force at the relevant time), concerning non-profit NGOs, which provided that the physical individuals and legal entities constituting a public association should enjoy equal rights and obligations and have the right to elect and be elected to the association’s governing bodies in line with its charter. They further pointed to other provisions of the Law on Political Parties, which in its preamble guaranteed the equality of political parties before the law and which in section 32(1)(c) obliged the State authorities to ensure them equality when participating in elections and referendums. The Basic Guarantees Act, in sections 3 and 5, stated that the equality of all the citizens of the Russian Federation was one of the principles of elections.", "63. As to the presence of Electoral Commission officials at the regional party conference in August 2006, the Government submitted that their attendance had been based on the relevant legislative provisions and had not brought about any immediate legal consequences, for example by influencing the decision-making process or its outcome. 64. The Government also referred to the Venice Commission’s documents CDL-AD(2004)007rev and CDL-AD(2006)025 (see paragraphs 41 and 43 above). Those documents stated that the principles of necessity in a democratic society guided the procedure for registering political parties and that legislation on the nomination of candidates for election within parties could require ensuring democratic principles within them.", "They then noted the Court’s position in respect of the regulatory regime governing the creation of political parties (the Government cited The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 72, 18 October 2011, with further references). In the case at hand, they argued, the decision to cancel the registration of the list of candidates had pursued aims that were compatible with the principle of the rule of law and the general objectives of the Convention, in particular the protection of democracy (they cited Etxeberria and Others v. Spain, nos. 35579/03, 35613/03, 35626/03 and 35634/03, § 52, 30 June 2009).", "The restriction had also been proportionate since the measure in question had not been as far-reaching as the dissolution of the political party in question and it had been open to the applicant party to re-apply for registration, provided that it complied with all the formal requirements of the law (the Government referred to The United Macedonian Organisation Ilinden – PIRIN and Others, cited above, § 94). (b) The Court’s assessment (i) General principles 65. To start with, the Court reiterates that Article 3 of Protocol No. 1 to the Convention differs from other rights guaranteed by the Convention and its Protocols as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. However, having regard to the preparatory work to Article 3 of Protocol No.", "1 to the Convention and the interpretation of the provision in the context of the Convention as a whole, the Court has established that this provision also implies individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51, Series A no. 113, and Ždanoka v. Latvia [GC], no. 58278/00, § 102, ECHR 2006-IV). 66. The words “free expression of the opinion of the people” mean that elections cannot be conducted under any form of pressure in the choice of one or more candidates, and that in this choice the elector must not be unduly induced to vote for one party or another.", "The word “choice” means that the different political parties must be ensured a reasonable opportunity to present their candidates at elections (see Yumak and Sadak v. Turkey [GC], no. 10226/03, § 108, ECHR 2008). The Court reiterates that, under its case-law, the notion of “individual rights” to stand for election under Article 3 of Protocol No. 1 to the Convention is applicable to the party, independently of its candidates, where it presents a list in order to participate in the elections (see Georgian Labour Party v. Georgia, no. 9103/04, §§ 72-74, ECHR 2008).", "67. As noted in the Preamble to the Convention, the rights guaranteed under Article 3 of Protocol No. 1 to the Convention are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, these rights are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere.", "The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52; Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II; and Yumak and Sadak, cited above, § 109 (ii)). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005‑IX, and Scoppola v. Italy (no.", "3) [GC], no. 126/05, § 83, 22 May 2012). 68. The concept of “implied limitations” under Article 3 of Protocol No. 1 to the Convention is of major importance for the determination of the relevance of the aims pursued by restrictions on the rights guaranteed by this provision.", "Given that Article 3 of Protocol No. 1 to the Convention is not limited by a specific list of “legitimate aims” such as those enumerated in Articles 8 to 11 of the Convention, the Contracting States are therefore free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case. It also means that the Court does not apply the traditional tests of “necessity” or “pressing social need” which are used in the context of Articles 8 to 11 of the Convention. In examining compliance with Article 3 of Protocol No. 1 to the Convention, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people (see Yumak and Sadak, cited above, § 109 (iii), and Sitaropoulos and Giakoumopoulos v. Greece [GC], no.", "42202/07, §§ 63-64, ECHR 2012). 69. It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 of the Convention have been complied with. It has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, loc.", "cit.). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst, cited above, § 62; Yumak and Sadak, cited above, § 109 (iv); and Scoppola, cited above, § 84). 70. The Court has also emphasised that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see Georgian Labour Party, cited above, § 101) and that their decisions must be sufficiently reasoned (see Namat Aliyev v. Azerbaijan, no. 18705/06, §§ 81‑90, 8 April 2010).", "71. The Court has also confirmed on a number of occasions the essential role played in a democratic regime by political parties enjoying the rights and freedoms enshrined in Article 11 and also in Article 10 of the Convention. Political parties are a form of association essential to the proper functioning of democracy. In view of the role played by political parties, any measure taken against them affects both freedom of association and, consequently, democracy in the State concerned (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 87, ECHR 2003‑II, and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 25, Reports of Judgments and Decisions 1998‑I).", "At the same time, the Court accepts that, in certain cases, the States’ margin of appreciation may include a right to interfere – subject to the condition of proportionality – with an association’s internal organisation and functioning in the event of non-compliance with reasonable legal formalities applying to its establishment, functioning or internal organisational structure (see, for example, Ertan and Others v. Turkey (dec.), no. 57898/00, 21 March 2006) or in the event of a serious and prolonged internal conflict within the association (see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, nos. 412/03 and 35677/04, § 131, 22 January 2009). (ii) Application to the present case 72. The first and third applicants’ arguments can be summed up as follows: (i) no new facts were discovered after the decisions of the Electoral Commission of 17 and 22 August 2006 that could warrant their revision; (ii) the procedure for the selection of candidates was not in breach of any legal provisions; and (iii) the sanction of cancelling the decisions to register candidates was out of proportion to the breaches alleged.", "73. The Government disputed each of those arguments. 74. The Court first observes that cancelling the registration of the party list and its individual candidates constituted a restriction of the first and third applicants’ rights guaranteed by Article 3 of Protocol No. 1 to the Convention.", "As to the aim of that restriction, the Court must ensure its compatibility with the principle of the rule of law and the general objectives of the Convention in the particular circumstances of the case (see paragraph 68 above). 75. The Court notes that, unlike other provisions of the Convention, such as Article 5, Articles 8 to 11 of the Convention, or Article 1 of Protocol No. 1 to the Convention, the text of Article 3 of Protocol No. 1 to the Convention does not contain an express reference to the “lawfulness” of any measures taken by the State.", "However, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention and its Protocols (see, among many other authorities, Amuur v. France, 25 June 1996, § 50, Reports 1996‑III). This principle entails a duty on the part of the State to put in place a framework of legislation and, as appropriate, subordinate legislation, for securing its obligations under the Convention in general and Article 3 of Protocol No. 1 to the Convention in particular. The interpretation of this legislative framework by the competent national authorities – in the first place, the courts – should not be arbitrary or marked by a lack of proportionality; such decisions must be sufficiently reasoned (see paragraphs 68 in fine and 70 above). 76.", "The first and third applicants’ registration to run for elections was cancelled by the Karelia Supreme Court’s judgment of 15 September 2006 (upheld by the Supreme Court). The judgment was based on two main propositions. First, the Karelia Supreme Court concluded that the procedure for the selection of candidates for the regional party’s assembly had violated the ground rules of democratic representation and majority rule, and second, that the party had submitted invalid version of its charter. Concerning the first conclusion, the Karelia Supreme Court could not rely directly on any provision of domestic legislation since the domestic legislation did not govern internal party procedures to such an extent. Rather, it interpreted the provisions of the Political Parties Act and the Basic Guarantees Act as seen in their entirety.", "It applied the general principles of electoral legislation, such as the characteristics of a democratic regime, the will of the majority and the general principles of elections, to an internal party procedure. That procedure had conferred the right to participate in the selection of the party’s governing bodies only to those members who had chosen to register with the local bodies (see paragraph 24 above). Even though the court acknowledged that the practice had been based on the party’s charter, which had provided for similar rules in both the 2004 and 2006 versions, it failed to respond to the party’s argument that that fact could not be considered a new fact since the procedure had been known to the Electoral Commission on 17 and 22 August 2006, when it had ruled to register the lists. The Court agrees that such an interpretation of the law, both in respect of the contents of the applicable legislation and whether new facts had arisen, did not appear to be foreseeable. 77.", "Moreover, such an interpretation directly affected the internal organisation of the applicant party and thus interfered with its autonomy. The Court has previously held in cases brought under Article 11 of the Convention that State authorities should not interfere with associations’ internal matters too much: it should be up to an association itself to determine the manner in which its conferences are organised. Likewise, it should primarily be up to the association itself and its members, and not the public authorities, to ensure that detailed formalities are observed in the manner specified in its articles of association (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 78, ECHR 2009, and Republican Party of Russia v. Russia, no. 12976/07, § 88, 12 April 2011).", "78. Having said that, the Court does not question the obligation per se for political parties to comply with existing legislative requirements for their internal organisation and the selection of candidates for elections. Nor does it question the corresponding powers of the authorities – in the present case, the competent electoral commissions – to ensure such compliance in practice (see the relevant provisions of the Basic Guarantees Act, cited above in paragraphs 38-40). The existence and enforcement of such requirements are not incompatible with the State’s obligations under the Convention and the Contracting States enjoy a wide margin of appreciation in setting the “implied limitations”, determined by their “own democratic vision” (see the case-law cited above in paragraph 67). The question that remains is where the boundaries of those limitations lie, so that they do not become arbitrary and disproportionate.", "79. Helpful guidance can be obtained from the research codified by the Venice Commission, an expert body in matters of democratic governance (see, on the interpretative role of non-binding Council of Europe instruments, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 74-75, ECHR 2008; and Sitaropoulos and Giakoumopoulos, cited above, § 71). The Commission acknowledges a certain dichotomy between the principles of party autonomy and that of internal democracy within the parties (see paragraph 5 of the Report on the Method of Nomination of Candidates within Political Parties, cited above in paragraph 44). The Guidelines on Political Party Regulation set the limit for State interference with the internal party activities as “the requirements for parties to be transparent concerning their decision-making and to seek input from membership when determining party constitutions and candidates” (see paragraph 98 of the Guidelines on Political Party Regulation, cited above in paragraph 42).", "In its other documents, the Venice Commission recognises the difficulties of regulating questions of internal party democracy too closely (see, for example, paragraph 6 of the Report on the Method of Nomination of Candidates within Political Parties, paragraph 44 above). Nevertheless, it is apparent from those documents that the Venice Commission recognises that both “direct and indirect decision-making” are permissible for members of political parties in issues of internal organisation and the nomination of candidates for elections, so long as the parties guarantee some form of representation for grass-roots party members, responsibility and accountability towards them and transparency in those procedures (see paragraphs 28, 33 and 35 of the Code of Good Practice in the Field of Political Parties, cited above in paragraph 40). The same Code in paragraph 24 speaks of a “not uncommon” practice to establish “different forms of involvement of individuals in [parties’] activities such as members, recognised sympathisers, collaborators, campaigners etc.,” and accepts it, as long as the party charter clearly spells out the rights and duties of each situation (ibid.). 80. Concerning this second argument of the Karelia Supreme Court, that the party had relied on an invalid version of its charter, the Court notes that in the present case the difference in the rights and obligations between members and registered members in so far as it concerned their participation in the party’s internal organisation and the nomination of candidates for elections was clearly spelled out in the applicant party’s charter, both in its 2004 and 2006 versions (see paragraph 11 above).", "The procedure was sufficiently transparent to ensure that every party member could determine the scope of his or her participation in its work by choosing whether or not to register with the local offices. The party charter was applicable at the time of the selection procedure; the applicant party has been registered with the Karelia Registration Service since 2002 and both versions of the charter had been deposited with and accepted by the Federal Registration Authority (see paragraphs 7, 9, 11, 13 and 21 above). Lastly, no complaints have been made by members of the party, and the authorities acted upon their own initiative (compare with Republican Party of Russia, cited above, § 88). As a consequence, taking into account the similar regulations in both versions of the charter of the rules of candidates’ nomination, as well as the fact that the new version had been known to the authorities before the submission of the relevant documents to the Electoral Commission, the decision to annul the Party list of candidates and the individual candidacies for a formalistic reason appears clearly disproportionate. 81.", "Summing up the above arguments, the Court finds that the decision of the Karelia Supreme Court to annul the lists of candidates, as confirmed by the Supreme Court, resulted in an unforeseeable interpretation of the applicable law, both as regards the alleged breach of the legislation in question and the reference to a newly discovered fact. Moreover, it interfered disproportionately with the party’s own internal organisation, which followed the principles of transparency and representation, and resulted in its inability to participate in the regional elections. In those circumstances, the Court finds that there has been a violation of Article 3 of Protocol No. 1 to the Convention in respect of the first and third applicants by the authorities’ decision to annul the lists of candidates. 2.", "The fourth applicant (a) The parties’ arguments 82. The fourth applicant submitted that “the free expression of the opinion of the people is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country’s population, and therefore regard must be had to the broader context in which the right to vote is exercised” (citing the Russian Conservative Party of Entrepreneurs and Others v. Russia, nos. 55066/00 and 55638/00, § 79, 11 January 2007). She pointed to the significant level of support for the applicant party (one poll result had placed Yabloko second after United Russia, with 14% of respondents intending to vote for them) and the absence of any other genuine democratic alternative in the election of October 2006. She stressed that the other parties running for elections had either supported President Vladimir Putin or were hard-line communists and nationalists.", "The removal from the race of Yabloko – one of the strongest regional parties – one month before the elections had made it impossible to have any viable democratic alternative to take its place. The situation had been aggravated by the set-up of the election system which: (i) did not allow voters to add a party or a candidate to the list; (ii) did not permit a vote against all candidates; and (iii) had no requirement for a minimum turnout, so abstention of even a large part of the electorate would have had no impact on the election results. By way of comparison, the applicant pointed to a low turnout in the 2006 elections to the LA and noted that in 2011, when Yabloko had been allowed to run, it had increased significantly (see paragraphs 30 and 31 above). 83. Summing up her arguments, the fourth applicant asked the Court to conclude that, “in the light of the broader context, the removal of the applicant party from the elections, notwithstanding evidence of its strong support among the electorate, as well as a legislative framework that only permitted voting for parties that either supported the ruling regime or which were at the extreme margins of the political spectrum, when all taken together, demonstrate that the Karelian elections of 2006 lacked sufficient conditions to ensure the free expression of the opinion of the people, in breach of Article 3 of Protocol No.", "1”. 84. The Government were of the opinion that the fourth applicant had had the possibility to exercise her active right to free elections without any hindrance. The fact that it had not been possible to add new names to the electoral bulletin or to vote against all the candidates could not be regarded as a failure by the State to guarantee free and fair elections, and such requirements were absent in many European countries. The Government observed that the legislation and the Constitutional Court’s practice established that members of the legislature were representatives of the people, and that therefore people who had not voted or had voted for another candidate could not be seen as having been deprived of representation in elected bodies.", "The Government referred to the position expressed by the Court in the Russian Conservative Party of Entrepreneurs and Others (cited above, §§ 75-79), essentially emphasising that “the right to vote cannot be construed as laying down a general guarantee that every voter should be able to find on the ballot paper the candidate or the party he had intended to vote for”. Lastly, the Government noted that the fourth applicant had never appealed to any authority about the alleged violation of her right to free elections and had thus failed to take any steps to obtain a remedy for the violations alleged at the national level. 85. As to the general context of the elections, the Government pointed to the fact that seven political parties had taken part in the elections of 2006, and that voters could have chosen to vote for any of them. Voters had also been able to make their ballot invalid, as the fourth applicant stated she had done, by leaving all the lines blank, or by other means.", "Such a ballot would not have been attributed to any candidate. Subsequent regional elections in 2011 had proven the absence of prejudice towards any party: the applicant party had complied with all the procedural requirements and had successfully competed for mandates in the LA. (b) The Court’s assessment 86. The Court recalls its findings on a similar complaint in the Russian Conservative Party of Entrepreneurs and Others case (cited above): “75. ...", "The thrust of [the third applicant’s] grievance was not that his right to vote had been taken away but rather that it had been impossible for him to cast his vote for a party of his choosing – the applicant party – which had been denied registration for the election. 76. The Court, however, does not consider that an allegedly frustrated voting intention is capable, by itself, of grounding an arguable claim of a violation of the right to vote. It notes, firstly, the obvious problem of laying down a sufficient evidentiary basis for demonstrating the nature and seriousness of such an intention. An intention to vote for a specific party is essentially a thought confined to the forum internum of an individual.", "Its existence cannot be proved or disproved until and unless it has manifested itself through the act of voting or handing in a blank or spoiled paper (see X v. Austria, Commission decision of 22 March 1972, Yearbook 15, p. 474). Moreover, a voter’s preference is not static but may evolve in time, influenced by political events and electoral campaigning. A sudden and sweeping change in voters’ intentions is a well-documented political and social phenomenon. 77. The Court reiterates that an individual applicant should be able to claim to be actually affected by the measure of which he complains and that Article 34 may not be used to found an action in the nature of an actio popularis (see, among other authorities, Norris v. Ireland, judgment of 26 October 1988, Series A no.", "142, § 30)... 78. On a more general level, the Court is mindful of the ramifications of accepting the claim of a frustrated voting intention as an indication of an interference with the right to vote. Such acceptance would confer standing on a virtually unlimited number of individuals to claim that their right to vote had been interfered with solely because they had not voted in accordance with their initial voting intention. 79. In the light of the above considerations, the Court finds that the right to vote cannot be construed as laying down a general guarantee that every voter should be able to find on the ballot paper the candidate or the party he had intended to vote for.", "It reiterates, nevertheless, that the free expression of the opinion of the people is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country’s population (see Federación Nacionalista Canaria v. Spain (dec.), no. 56618/00, ECHR 2001-VI). Accordingly, it must have regard to the broader context in which the right to vote could be exercised by the third applicant.” 87. For the same reasons as summarised above, the Court confirms the general rule that the absence of a particular party or name on a voting ballot cannot by itself lead to a finding of a violation of Article 3 of Protocol No. 1 to the Convention for an allegedly frustrated voter, even where the procedure for the disqualification raises issues under this provision.", "In other words, a breach of the right to stand for elections for a political party or a candidate does not necessarily result in a violation of the rights of a voter who had intended to cast his ballot for that political actor. A situation such as the fourth applicant complains of could give rise to a finding of a violation of Article 3 of Protocol No. 1 to the Convention only if the restrictions on the free expression of the will of the people had been so serious as to have effectively curbed the very essence of the right in question. 88. It is inevitable that by placing barriers aimed at excluding certain parties or candidates from elections the State limits the range of choices for the voter.", "However, that in itself does not necessarily lead to a finding of a violation of the provision in question. Given the wide margin of appreciation accorded to the States in moulding their democratic institutions, various restrictions of that kind have been found to be permissible, even though as a result they limited voters’ choice. By means of comparison, the Court has previously rejected complaints about alleged violations of the right to free elections resulting from restrictions on the voting of nationals residing abroad for independent candidates, while in-country nationals could vote both for parties and for independents (see Oran v. Turkey, nos. 28881/07 and 37920/07, §§ 66-67, 15 April 2014); refusing to lower the registration criteria for minority parties (see Partei Die Friesen v. Germany, no. 65480/10, § 43, 28 January 2016), or excluding certain candidates on account of their political affiliation or other status (see Ždanoka, cited above).", "89. In so far as the fourth applicant claims that the political spectrum of the parties present during the elections of October 2006 was so narrow that it had the effect of denying her the possibility to express her electoral will altogether, the Court notes that the elections were contested by seven parties. They pursued a number of different political programs and enjoyed a varying rate of success among the voters. Without any particularly weighty evidence to the contrary, that appears to be sufficient grounds to accept the view that the applicant had a reasonable possibility to give her vote to one of the political forces present at the elections, or to choose an available means of expressing her dissatisfaction with the choice, as she claimed she did by rendering her ballot paper invalid. The absence of a formal possibility to vote against all candidates or to add candidates to the ballot could also not be seen as an absence of an electoral choice.", "90. In those circumstances, the Court finds that there has been no violation of the fourth applicant’s right guaranteed under Article 3 of Protocol No. 1 to the Convention. III. ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No.", "1 AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 91. The applicants complained of a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention in that they had been discriminated against in comparison with other political parties. They also alleged that the lack of a refund of the electoral deposit constituted a breach of Article 1 of Protocol No.", "1 to the Convention. 92. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 93. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 94. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaints lodged by the first, third and fourth applicants under Article 3 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention in respect of the first and the third applicants; 3. Holds that there has been no violation of Article 3 of Protocol No.", "1 to the Convention in respect of the fourth applicant. Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "SECOND SECTION CASE OF MILANOVIĆ v. SERBIA (Application no. 44614/07) JUDGMENT STRASBOURG 14 December 2010 FINAL 20/06/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Milanović v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,András Sajó,Nona Tsotsoria,Kristina Pardalos,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 23 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44614/07) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Života Milanović (“the applicant”), on 2 October 2007. 2. The applicant was represented by Ms T. Drobnjak, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.", "The President of the Chamber gave priority to the application in accordance with Rule 41 of the Rules of Court. 4. The applicant complained about a series of religiously motivated attacks perpetrated against him. 5. On 16 November 2009 the Court decided to communicate the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it was also decided that the merits of the application would be examined together with its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant, Mr Života Milanović, was born in 1961 and lives in the village of Belica, Jagodina Municipality, Serbia. Occasionally, however, he stays in his relative's vacant flat in Jagodina, a town comprised of some 35,000 inhabitants.", "A. Introduction 7. The applicant has been a leading member of the Vaishnava Hindu religious community in Serbia, otherwise known as Hare Krishna, since 1984. 8. In 2000 and 2001 the applicant, apparently, began receiving anonymous telephone threats.", "On one such occasion, he was allegedly told that he would be “burned for spreading his Gypsy faith”. 9. Later in 2001 the applicant informed the Jagodina Police Department (SUP Jagodina, hereinafter “the police”) about these threats and expressed his impression that they were made by members of an organisation called Srpski vitezovi, a local branch of a better known far-right organisation called Obraz. B. The attacks of September 2001 and other related facts 10.", "On an unspecified date in September 2001, in the evening hours, the applicant was attacked from behind by an unknown man, in front of his relative's flat in Jagodina, and was hit over the head by what seemed like some sort of a wooden bat. 11. On 24 September 2001, at approximately 12.30 a.m., the applicant was assaulted once again by one of three unidentified men present. The assailant inflicted several cuts to the applicant's head and chest and cut off his pigtail. The attack, once more, occurred in front of his relative's flat in Jagodina.", "12. On the same day, after having received medical assistance, the applicant reported the latter incident to the police. He stated, inter alia, that his attackers probably belonged to an extremist organisation called Srpski vitezovi. 13. Later that day, the police conducted an on-site investigation, and unsuccessfully attempted to contact the applicant.", "The neighbours apparently said that the applicant rarely stayed in his relative's flat. 14. On 25 September 2001 the police re-interviewed the applicant, who stated that the men who had attacked him on 24 September 2001 had been “big and strong”, but that it had been too dark for him to see anything else. He also recounted the earlier attack, but explained that he had not reported it to the police since he had “not seen his attacker”. 15.", "On the same day the police issued an internal document wherein they outlined a “plan of action”. As part of that plan, the police apparently questioned three members of a local skinhead group, but these persons provided them with “no useful information”. 16. On 30 September 2001 and 5 October 2001 the police interviewed all local school headmasters in an attempt to gather information about the organisations referred to by the applicant. Once again, however, “no useful information” was obtained.", "C. The attack of July 2005 and other related facts 17. On the evening of 11 July 2005 the applicant suffered another attack. In the proximity of his relative's flat in Jagodina, one of three unknown youths present stabbed the applicant in his abdomen. The incident was reported to the police by the local hospital which had provided the applicant with urgent medical care. 18.", "The police thereafter arrived at the hospital and interviewed the applicant, who described the attack and insisted that it had been religiously motivated. 19. On five separate occasions between 13 July 2005 and 27 July 2005 the police attempted to contact the applicant at his relative's address in Jagodina, but to no avail. They learned from the neighbours that the applicant mostly lived with his parents in the village of Belica and only rarely spent time in Jagodina. The neighbours also informed the police that they had not seen the incident in question.", "20. In his note of 13 July 2005 a police officer stated that the applicant, when interviewed on 11 July 2005, had failed to give the necessary details concerning the incident. Moreover, despite having had a mobile phone on his person during and after the attack he had not immediately called the police, which would have greatly facilitated the investigation. 21. On 20 July 2005 the police apparently visited several locations in an attempt to “identify” the organisation called “Srpski vitezovi”, but “no useful information was obtained”.", "22. On 31 July 2005 the police briefly talked to the applicant in the village of Belica. In their report of the same date they stated that the applicant, however, “wanted no further contact” and noted his well-known religious affiliation, as well as his “rather strange appearance”. 23. On 4 August 2005 the police again attempted to contact the applicant in the village of Belica.", "As it transpired, the applicant was not to be found there and the police were told by the neighbours that he stayed in the village mostly during the winter months. 24. On 25 August 2005 the police informed the Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova) that they had found no evidence that organisations called Srpski vitezovi and Obraz, respectively, had ever existed in the Municipality of Jagodina. The police further noted that the applicant was a member of a “religious sect” called Hare Krishna. 25.", "On 26 August 2005 and 29 August 2005 the police attempted to contact the applicant at various locations, but to no avail. 26. On 15 September 2005 the police filed a criminal complaint against unknown perpetrators with the Municipal Public Prosecutor's Office (Opštinsko javno tužilaštvo) in Jagodina. The complaint concerned the attack of 11 July 2005 and classified the incident as “a minor bodily injury inflicted by means of a dangerous weapon”. 27.", "On 19 September 2005 the applicant was re-interviewed by the police. 28. Later that month the applicant provided the officers with a copy of the “The Serbian Front” (Srpski front), alleging that the said magazine was published by the nationalist organisations whose members had probably attacked him. 29. On an unspecified date thereafter, the Lawyers' Committee for Human Rights (Komitet pravnika za ljudska prava) addressed the Ministry of Internal Affairs on behalf of the applicant.", "30. On 19 October 2005 the Ministry stated that the local police had indeed failed in their duty to identify the applicant's assailants. The Ministry, however, promised to do so shortly, and to press charges against the individuals responsible. 31. On 15 March 2006 the applicant and the Youth Initiative for Human Rights (Inicijativa mladih za ljudska parva) jointly filed a criminal complaint with the District Public Prosecutor's Office (Okružno javno tužilaštvo) in Jagodina.", "The complaint referred to the incident of 11 July 2005 and alleged that the applicant had been a victim of a crime called “incitement to ethnic, racial and religious hatred and intolerance” (izazivanje nacionalne, rasne i verske mržnje i netrpeljivosti, hereinafter “hate crime”), which crime had been committed by means of ill-treatment. The criminal complaint was supplemented by a medical certificate documenting the applicant's injuries. 32. On 12 April 2006 the District Public Prosecutor's Office informed the police about this criminal complaint and requested that “necessary measures be undertaken”. 33.", "On 11 June 2006 the police attempted to contact the applicant, but to no avail. D. The attacks of June 2006 and other related facts 34. On 18 June 2006, at approximately 2.30 a.m., the applicant was attacked yet again on the doorstep of his relative's flat in Jagodina, this time by a lone, unknown assailant, who stabbed him in his abdomen and scratched a crucifix on his head. The applicant stated that his attacker was hooded, some 180 cm tall, wore a dark sweater, and was accompanied by another man. The applicant was taken by taxi to a hospital, where he was promptly provided with medical assistance, and the doctors reported the incident to the police, who immediately took the applicant's statement and conducted an on-site investigation.", "However, no material evidence was found and no persons fitting the applicant's description of the attackers were identified. 35. On 23 June 2006 the police re-visited the scene of the crime, and talked to a neighbour whose balcony overlooked the street. The neighbour apparently stated that he had not seen the incident and had also never seen the applicant in the company of others. 36.", "Between 1 July 2006 and 8 July 2006 the police canvassed the other neighbours, but again to no avail. 37. On 3 July 2006 the applicant and the Youth Initiative for Human Rights jointly filed a criminal complaint with the District Public Prosecutor's Office concerning the incident of 18 June 2006. The complaint alleged that the applicant had been a victim of a hate crime, as well as the crime of serious bodily injury (teška telesna povreda). The applicant attached a medical certificate documenting his injuries and a number of photographs to the same effect.", "38. On 7 July 2006 the police interviewed the taxi driver who, however, offered no additional insight as regards the incident. 39. On 20 July 2006 the applicant gave a statement to the police, maintaining that the attack against him had been carried out by a “clero-fascist” organisation. In this respect, the applicant invited the police to question the regional head of a political party in Serbia as to whether any of his party's members were skinheads, as well as to visit a local church where, allegedly, the organisation called Obraz “had its premises”.", "40. On 21 July 2006 the District Public Prosecutor's Office informed the police of the criminal complaint filed on 3 July 2006. 41. By August 2006 the police filed a criminal complaint against unknown perpetrators with the Municipal Public Prosecutor's Office (Opštinsko javno tužilaštvo) in Jagodina. The complaint concerned the attack of 18 June 2006 and classified the applicant's injuries as minor in character.", "42. On 22 August 2006 the police interviewed the local priest, who dismissed the assertion that any extremist organisation or informal group had ever had its seat in the church or any of its premises. He further stressed that he had only heard of an organisation called Obraz from the media. 43. By 25 August 2006 two senior members of the local and regional branch of the political party in question told the police that their membership did not include any skinheads or members of Obraz.", "They further emphasised that the applicant may have been manipulated by other political parties. E. The attack of June 2007 and other related facts 44. On 29 June 2007, at approximately 4.20 a.m., the applicant was assaulted once again. Having opened the door of his relative's flat in Jagodina to a man who had said that he was from the police, the applicant was stabbed in his chest, hands and legs. The incident was reported to the police by the local hospital which had provided the applicant with urgent medical care.", "45. The police thereafter arrived at the hospital and interviewed the applicant, who recounted the attack, adding that his assailant had been a big man with a shaved head and had been dressed in dark clothes. 46. The police subsequently conducted an on-site investigation and searched for the applicant's attacker but could not find anyone fitting the description. The police noted that the applicant's clothes had not been slashed or torn and discovered “no material evidence”.", "47. On 2 July 2007 the applicant filed a criminal complaint with the police. 48. On 5 July 2007 the applicant and the Youth Initiative for Human Rights jointly filed an additional criminal complaint with the District Public Prosecutor's Office. The complaint concerned the incident of 29 June 2007 and alleged that the applicant had been a victim of a hate crime, as well as the crime of serious bodily injury.", "Again, the applicant attached a medical certificate documenting his injuries and a number of photographs to the same effect. 49. On 11 July 2007 the District Public Prosecutor's Office informed the police of this criminal complaint and requested that all necessary steps be taken to identify the perpetrator. 50. On 13 July 2007 the same office repeated this request.", "F. Other relevant facts 51. The knives used to attack the applicant had apparently had shortened blades and were designed so as not to inflict fatal injuries. 52. In his report of 27 September 2001 a police officer noted that on 26 September 2001 the applicant had gone to the premises of a local television station to protest against its earlier programme in which the Hare Krishna had been depicted as a dangerous sect. The officer noted that the applicant had apparently been verbally abusive towards the station's chief editor, as well as a journalist, and ultimately had had to be removed from the building by the security staff.", "53. In response to a complaint sent on behalf of the applicant by the Lawyers' Committee for Human Rights, on 28 September 2005 the Inspector General of the Ministry of Internal Affairs stated that, as regards the attacks of September 2001 and July 2005, the police had not acted with the necessary diligence. Based on this conclusion, on 7 November 2005 one of the officers involved in the investigation was sanctioned with a 10% salary reduction. 54. It would appear, from numerous media reports, that in December 2005 the Ministry of Internal Affairs declared several organisations as extremist, including Obraz, which was described as clero-fascist.", "55. On 19 October 2006 the lawyer acting on behalf of the applicant and the Youth Initiative for Human Rights (“the lawyer”) requested an update from the District Public Prosecutor's Office as regards the status of the two criminal complaints filed in respect of the attacks of 11 July 2005 and 18 June 2006. On 31 October 2006 the said office informed the lawyer that the criminal complaints had been forwarded to the police, but that the latter had failed to provide it with any information whatsoever. On 6 March 2007 the lawyer requested another update from the District Public Prosecutor's Office and on 9 March 2007 this office informed her that it was yet to receive any information from the police. 56.", "On 19 July 2007 the District Public Prosecutor's Office informed the applicant that the police had failed to provide it with any information in respect of the three criminal complaints filed as of July 2005. 57. On 7 March 2008 the investigating judge, as part of a preliminary investigation aimed at identifying the perpetrators, heard the applicant in respect of all of the attacks committed against him. The applicant recounted the incidents adding, inter alia, that he believed that he had seen his attacker of 29 June 2007 at some point later that year. The young man in question had been walking down the street with another closely shaved youth, and both had been wearing shirts with the year 1389 printed on them (it would appear that the said year referred to the medieval battle of Kosovo between the Serbs and the Turks, and possibly to a far-right organisation bearing this year as a part of its name, Srpski narodni pokret 1389).", "58. On 23 April 2008 a medical expert diagnosed the physical harm suffered by the applicant as amounting to minor bodily injuries (lake telesne povrede) inflicted with a dangerous weapon. 59. On 7 May 2008 the District Public Prosecutor's Office informed the police of this finding and requested action. 60.", "Between 10 October 2008 and 20 January 2009 the police apparently conducted interviews with six persons suspected of committing knife-related crimes, but “no useful information was obtained”. 61. On 25 November 2008 the police interviewed a certain B.M. whom they had come to suspect as one of the applicant's possible attackers. B.M., however, maintained that he had no knowledge of any of the incidents.", "62. The applicant maintained that on one occasion the police had advised him not to go out in the evenings since this “clearly provoked” others, and had repeatedly seemed more interested in discussing his religious beliefs rather than the incidents in question. The Government submitted that the applicant had provided no substantiation for these particular allegations. 63. In September 2009 the Chief Public Prosecutor (Republički javni tužilac) petitioned the Constitutional Court (Ustavni sud) to ban both Obraz and Srpski narodni pokret 1389, because of, inter alia, their incitement to racial and religious hatred throughout Serbia.", "64. In their report of 12 April 2010, inter alia, the police noted that: (a) most of the attacks against the applicant had been reported around Vidovdan, a major orthodox religious holiday; (b) the applicant had subsequently publicised these incidents through the mass media and, whilst so doing, “emphasised” his own religious affiliation; (c) the nature of the applicant's injuries had been such that their self-infliction could not be excluded; and (d) the injuries had all been very shallow, which could be considered peculiar and would imply great skill on the part of the applicant's attackers who had never managed to hold him down but had “assailed him from a distance”. In the same report, however, the police then went on to recall that the District Public Prosecutor's Office had urged them to explore the hate crime aspect of the attacks and stated that the investigation would continue. More recently, the police apparently questioned several known offenders, informants and drug addicts, as well as a few of the applicant's neighbours, but obtained no useful information. II.", "RELEVANT DOMESTIC LAW 65. Relevant domestic provisions are contained in Articles 19, 20, 46, 61, 223, 235, 241, 242, 433 and 437 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as the Official Gazette of the Republic of Serbia – OG RS – nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09 and 72/09) and Article 317 § 2 of the Criminal Code (Krivični zakonik, published in OG RS nos. 85/05, 88/05 and 107/05).", "66. In accordance with these provisions, formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio, such as the crime of “incitement to ethnic, racial and religious hatred and intolerance” perpetrated by means of ill-treatment, a felony punishable by up to eight years' imprisonment, the authorised prosecutor is the public prosecutor personally. 67. The public prosecutor's authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed.", "It makes no difference whether the public prosecutor has learned of the incident from a criminal complaint filed by the victim or another person, or indeed even if he has only heard rumours to that effect. 68. The public prosecutor shall undertake measures necessary for the preliminary investigation of the crimes subject to prosecution ex officio and the identification of the alleged perpetrators. To that end he is vested with the power to co-ordinate the work of various law enforcement agencies and other government bodies. 69.", "If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to prosecution ex officio, he will request the competent court to institute a formal criminal procedure. 70. If, however, the public prosecutor decides that there is no basis for the institution of such a procedure, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his or her own behalf, in the capacity of a “subsidiary prosecutor”. 71. There is no time-limit within which the public prosecutor, following the submission of a criminal complaint by the victim, must decide on whether to bring formal criminal proceedings.", "Also, as regards crimes punishable by more than five years' imprisonment, without a prosecutorial decision to dismiss a criminal complaint filed by the victim, the victim cannot personally take over the prosecution of the case. In any event, neither a public prosecutor nor a victim acting in the capacity of a subsidiary prosecutor may request the institution of a formal criminal procedure in the absence of information as to the identity of the alleged perpetrator. 72. It is noted, however, that domestic courts have held in the past that as regards the crime of incitement to ethnic, racial or religious hatred and intolerance society as a whole had to be deemed a victim, not the aggrieved individual personally, meaning that the latter could only, following a possible prosecutorial dismissal, take over the prosecution of the case for another, lesser crime (opinion adopted at the joint session of the Federal Court, the Supreme Courts, and the Supreme Military Court of the Socialist Federal Republic of Yugoslavia on 22 June 1989). III.", "RELEVANT INTERNATIONAL FINDINGS AND OPINIONS A. European Commission against Racism and Intolerance (ECRI), Report on Serbia, CRI (2008) 25, adopted on 14 December 2007 and made public on 29 April 2008 73. The relevant paragraphs of this report read as follows: “45. ECRI is concerned to note that ... there is a climate of hostility against religious minorities [in Serbia]. This climate is partly created by certain media outlets and politicians. Members of these groups are also attacked, sometimes by members of neo-Nazi or far-right groups, and their places of worship are vandalised and/or deliberately set on fire.", "Despite a decrease in the number of these attacks over the past few years, NGOs, some of which have counted between 100 and 150 attacks per year, note that they have become more violent. Religious communities appear reluctant to report these attacks or talk about them publicly. This might be because the police and the judicial apparatus do not always respond appropriately to this problem. Religious communities deplore the fact that few persons are brought to justice for perpetrating these acts and that those found guilty are often only sentenced to a fine. ... 52.", "There is currently a certain climate of hostility in Serbia against ... religious groups[,] which is fuelled by a number of media outlets and politicians. Far-right groups also help to generate negative feelings towards these communities ... NGOs condemn a certain tendency on the authorities' part to downplay this climate of intolerance against ... religious minorities and the fact that they have taken few steps to remedy it.” B. Views expressed by Forum 18 74. Forum 18 is a Christian, Norwegian-Danish, charitable web and e-mail initiative. It provides “original reporting and analysis on violations of the freedom of thought, conscience and belief of all people, whatever their religious affiliation, in an objective, truthful and timely manner”.", "1. Serbia: Violence continues against religious communities (article published on 9 October 2007) “... The number of attacks on Serbia's religious communities appears to continue to be declining ... However, the attacks themselves seem to be becoming more violent and, as in previous years, members of religious minorities are especially likely to be attacked. The police continue to be apparently unwilling to protect members of religious minorities or religious sites at risk of attack – even if they have already been attacked.", "Members of religious minorities have in the past year been beaten and stabbed, and places of worship have been the targets of arson attacks. Places of worship of the Orthodox Church have occasionally been robbed, but the vast majority of attacks have been on ... religious minority individuals and property ...” 2. Serbia: Why won't the authorities stop religious violence? (article published on 7 February 2008) “Despite continuing attacks on religious communities over a number of years, Forum 18 News Service has found that Serbian authorities appear to be taking few steps to protect their citizens. An extreme illustration of the unwillingness of the authorities to provide justice to religious minority victims is the case of Života Milanović, the only Hare Krishna devotee in Jagodina ...” 3.", "Serbia: Religious freedom survey, February 2009 (survey published on 26 February 2009) “...The most serious problem affecting religion or belief in Serbia has been violent attacks, along with the problem of the authorities having shown a lack of willingness to catch and convict the attackers. However, annual surveys by Forum 18 News Service have shown that the numbers of attacks are declining, with fewer attacks in 2007 and 2008 compared to previous years. Serbia's desire to join the European Union, along with politicians placing greater weight on Serbia becoming a more open country, appears to be influencing popular attitudes, and hence the possibility of attacks. Many of the attacks and threats against 'non-traditional' religious communities appear to be by extreme nationalists who think that the communities are in some sense traitors to the nation ... There is a lack of consistency in whether attackers are arrested and court proceedings brought against them.", "The 2006 Serbian Constitution guarantees freedom of religion, and bars the fomenting of religious intolerance and hatred. However, members of religious minorities have told Forum 18 that these ideals have yet to become reality in their daily experience.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 75. Under Article 3 of the Convention, the applicant complained about the respondent State's failure to prevent the repeated attacks against him, as well as its unwillingness to conduct a proper investigation into these incidents. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 76.", "The Government maintained that the application could be deemed incompatible with the provisions of the Convention ratione temporis in so far as it concerned events which had taken place prior to the Serbian ratification of the Convention on 3 March 2004. However, they then went on to acknowledge that the events of 2001 might indeed provide for an important context concerning the attacks which had occurred thereafter. 77. The applicant argued that his complaints were compatible with the provisions of the Convention ratione temporis. 78.", "The Court observes that, in accordance with the generally accepted principles of international law, a Contracting Party is only bound by the Convention in respect of events occurring after its entry into force. It further notes that Serbia ratified the Convention on 3 March 2004 and that some of the events referred to in the application in the present case had indeed taken place before that date. The Court therefore has jurisdiction ratione temporis to examine the applicant's complaints only in so far as they concern events as of 3 March 2004. It shall nevertheless, for reasons of context and whilst examining the situation complained of as a whole (see, mutatis mutandis, Šobota-Gajić v. Bosnia and Herzegovina, no. 27966/06, § 45, 6 November 2007), also take into account any and all relevant events prior to that date (see, mutatis mutandis, Salontaji-Drobnjak v. Serbia, no.", "36500/05, § 110, 13 October 2009). Consequently, the Government's objection must be dismissed. 79. The Court notes that the applicant's complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. The parties' submissions 80. The applicant re-affirmed his complaints.", "He added that many years after the attacks the perpetrators have yet to be identified, whilst the police themselves would still appear to entertain the idea that his injuries may have been self-inflicted. There was also very poor co-ordination between the public prosecutor and the police, and the applicant was not kept informed of the course of the investigation. Further, the police mostly spent their time looking for and re-interviewing the applicant despite having already questioned him earlier and, in a similarly pointless exercise, canvassed the applicant's neighbours, as well as the taxi driver, even though these persons clearly had no useful information to offer. Lastly, the applicant pointed out that the competent domestic authorities had taken no substantive steps since January 2009. 81.", "The Government contested the applicant's allegations. They maintained at the outset that the abuse to which the applicant had been exposed had not attained the minimum level of severity required for the application of Article 3. In any event, Serbian prosecuting and law-enforcement authorities had done everything in their power to fully investigate the attacks and identify the perpetrators. Numerous potential witnesses had been heard, expert medical assistance had been obtained, all available leads had been explored, and one police officer had even been disciplined. The applicant's own position, however, seemed ambivalent and his demeanour less than co-operative.", "In particular, he had been difficult to contact and had not reported the attacks in a timely manner. The applicant had also failed to request that his telephone line be monitored following the threats received in 2001, which could have been useful for identification purposes and led to a conviction. Further, the applicant's descriptions of his attackers had been vague, there had been no eyewitnesses, and the applicant had never remained in Jagodina after the attacks, thus precluding a timely on-site investigation in his presence. Finally, the Government submitted that no material traces of the attacks, apart from the injuries sustained by the applicant, had ever been found and provided the Court with several final domestic judgments, in unrelated incidents, arguing that the Serbian judiciary had been perfectly willing to convict individuals of hate crimes whenever the available evidence had so warranted. 2.", "Relevant principles 82. The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002-III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia, Chahal v. the United Kingdom, judgment of 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V). 83.", "In general, actions incompatible with Article 3 of the Convention primarily incur the liability of a Contracting State if they were inflicted by persons holding an official position. However, the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, also requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment administered by other private persons (see A. v. the United Kingdom, judgment of 23 September 1998, § 22, Reports of Judgments and Decisions 1998-VI; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002). 84.", "Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of this positive obligation must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk of ill-treatment, thus, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, 12 October 2006; and Members (97) of the Gldani Congregation of Jehovah's Witnesses v. Georgia, no.", "71156/01, § 96, ECHR 2007‑V; see also, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998‑VIII). 85. The Court further recalls that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with Article 1 of the Convention, requires by implication that there should also be an effective official investigation capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). A positive obligation of this sort cannot, in principle, be considered to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, no.", "39272/98, § 151, ECHR 2003-XII; Šečić v. Croatia, no. 40116/02, § 53, ECHR 2007‑VI). 86. Lastly, the scope of the above obligation is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V).", "A requirement of promptness and reasonable expedition of the investigation is implicit in this context (see, mutatis mutandis, Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2439, §§ 102-104) since a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts); Abdülsamet Yaman v. Turkey, no. 32446/96, § 60, 2 November 2004; and, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 72, ECHR 2002-II). 3.", "The Court's assessment 87. Turning to the present case, the Court considers that the injuries suffered by the applicant, consisting mostly of numerous cuts, combined with his feelings of fear and helplessness, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII). 88. The Court further notes that to date, many years after the attacks, the last one having occurred in 2007, the perpetrators thereof have yet to be identified and brought to justice.", "In this context, the applicant would appear not to have been properly kept abreast of the course of the investigation or afforded an opportunity to personally see and possibly identify his attackers from among a number of witnesses and/or suspects questioned by the police (see, for example, paragraphs 60 and 61 above). At the same time, the police considered that the applicant's injuries may have been self-inflicted (see paragraph 64 above), even though there was no medical or other meaningful evidence, indeed anything but pure conjecture, to that effect. The co-operation between the police and the public prosecution service also left a lot to be desired (see paragraphs 55 and 56 above), and the entire investigation seems to have been focused on Jagodina despite the fact that the suspected far-right organisations were known for operating throughout the country (see paragraphs 24 and 63 above). Indeed, according to the information contained in the case file, the applicant's statement indicating that one of his attackers may have been a member of an organisation called Srpski narodni pokret 1389 (see paragraph 57 above) does not seem to have been followed up at all. 89.", "Finally, as of July 2005, at the latest, it should have been obvious to the police that the applicant, who was a member of a vulnerable religious minority (see, mutatis mutandis, Okkali v. Turkey, no. 52067/99, § 70, ECHR 2006‑XII (extracts)), was being systematically targeted and that future attacks were very likely to follow, particularly in June or July of each year in advance of or shortly after a major religious holiday (see paragraph 64 above). Yet, nothing was done to prevent such attacks on another two occasions. No video or other surveillance was ever put in place in the vicinity of the flat where the incidents had occurred, no police stakeout seems to have even been contemplated, and the applicant was never offered protection by a special security detail which might have deterred his future assailants. 90.", "In view of the foregoing and while the respondent State's authorities took many steps and encountered significant objective difficulties, including the applicant's somewhat vague descriptions of the attackers as well as the apparent lack of eyewitnesses, the Court considers that they did not take all reasonable measures to conduct an adequate investigation. They have also failed to take any reasonable and effective steps in order to prevent the applicant's repeated ill-treatment, notwithstanding the fact that the continuing risk thereof was real, immediate and predictable. 91. In such circumstances, the Court cannot but find that there has been a breach of Article 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 92. Under Article 14 of the Convention, taken together with Article 3, the applicant further complained that the respondent State's failure to properly investigate the attacks against him was due to his religious affiliation. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 93. The Court notes that this complaint is linked to that examined above and must therefore likewise be declared admissible. B.", "Merits 1. The parties' submissions 94. The applicant re-affirmed his complaint, adding that it was clear that the police had considered him “strange”, uncooperative and even anti-social merely because of his religion. Apart from the questioning of a group of skinheads in 2001, the respondent State's authorities seemed more interested in discussing the “suspicious” nature of the Hare Krishna community rather than in uncovering the religious aspect of the attacks in question. 95.", "The Government maintained that the applicant had offered no evidence to the effect that there had been a violation of Article 14 of the Convention. The official investigation into the attacks against the applicant had been impartial and all allegations of religious motivation behind these incidents had been thoroughly checked by the competent domestic authorities. Further, no attacks against any other member of the Hare Krishna community in Jagodina had ever been reported, and any police interest in this community would have been perfectly reasonable given the alleged motivation of the applicant's assailants. 2. The Court's assessment 96.", "The Court considers that, just like in respect of racially motivated attacks, when investigating violent incidents State authorities have the additional duty to take all reasonable steps to unmask any religious motive and to establish whether or not religious hatred or prejudice may have played a role in the events. Admittedly, proving such motivation may be difficult in practice. The respondent State's obligation to investigate possible religious overtones to a violent act is thus an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII; and Members (97) of the Gldani Congregation of Jehovah's Witnesses v. Georgia, cited above, §§ 138-142). 97.", "The Court considers that the foregoing is also necessarily true in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating religiously motivated violence and brutality on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (ibid. ; see also, mutatis mutandis, Šečić v. Croatia, cited above, § 67). 98.", "In the present case it is suspected that the applicant's attackers belonged to one or several far-right organisations which, by their very nature, were governed by an extremist ideology. 99. The Court further considers it unacceptable that, being aware that the attacks in question had most probably been motivated by religious hatred, the respondent State's authorities allowed the investigation to last for many years without taking adequate action with a view to identifying or prosecuting the perpetrators (see paragraphs 87-91 above). 100. Finally, though perhaps most importantly, it is noted that the police themselves referred to the applicant's well-known religious beliefs, as well as his “strange appearance”, and apparently attached particular significance to “the fact” that most of the attacks against him had been reported before or after a major orthodox religious holiday, which incidents the applicant subsequently publicised through the mass media in the context of his own religious affiliation (see paragraphs 22 and 64 above).", "The Court considers, once again, that such views alone imply that the police had serious doubts, related to the applicant's religion, as to whether he was a genuine victim, notwithstanding that there was no evidence to warrant doubts of this sort. It follows that even though the authorities had explored several leads proposed by the applicant concerning the underlying motivation of his attackers these steps amounted to little more than a pro forma investigation. 101. In view of the above, the Court considers that there has been a violation of Article 14 taken in conjunction with Article 3 of the Convention. III.", "OTHER ALLEGED VIOLATIONS 102. Lastly, under Articles 2 and 13 of the Convention, the applicant essentially repeated his complaints already made under Article 3 thereof (see paragraph 75 above). 103. Having regard to its findings under the latter provision (see paragraphs 87-91 above), the Court considers that it is not necessary to examine separately the admissibility or the merits of the applicant's identical complaints made under Articles 2 and 13. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 104. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 105. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 106.", "The Government contested this claim. 107. The Court considers that the applicant has suffered non-pecuniary damage which cannot be sufficiently compensated by its mere finding of a violation of the Convention. Having regard to the character of the violations found in the present case and making its assessment on an equitable basis, the Court therefore awards the applicant EUR 10,000 under this head. B.", "Costs and expenses 108. The applicant also claimed EUR 1,200 for the costs and expenses incurred before the Court. 109. The Government contested this claim. 110.", "According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were also reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award in full the sum sought by the applicant for the proceedings before it. C. Default interest 111. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.", "Declares unanimously the complaints under Articles 3 and 14 of the Convention admissible; 2. Holds unanimously that there has been a violation of Article 3 of the Convention; 3. Holds by 6 votes to 1 that there has also been a violation of Article 14 taken in conjunction with Article 3 of the Convention; 4. Holds unanimously that it is not necessary to examine separately the complaints under Articles 2 and 13 of the Convention; 5. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement: (i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, (ii) EUR 1,200 (one thousand two hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "6. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 14 December 2010, pursuant to Rule 77 § 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Raimondi is annexed to this judgment. F.T.S.H.N.", "PARTIALLY DISSENTING OPINION OF JUDGE RAIMONDI I agree with the majority that in this case there has been a breach of Article 3 of the Convention, and that no separate issue arises from the complaints submitted under Articles 2 and 13 of the Convention, but I cannot join the further conclusion that a distinct violation of the same Article 3 in conjunction with Article 14 of the Convention is to be found. My position is linked to the reasons leading me to find a violation of Article 3. In fact, these reasons do not correspond entirely to those of the majority. Like the majority, I consider that the injuries suffered by the applicant, consisting mostly of numerous cuts, combined with his feelings of fear and helplessness, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention. I also consider with the majority that credible allegations of repeated criminal attacks were made by the applicant, whose physical integrity had been seriously put in danger, and that the response of the authorities did not reach the level of adequateness of the investigation required by the jurisprudence of the Court.", "In fact, the same authorities of the concerned High Contracting Party admitted that the police had not acted with the necessary diligence (see paragraph 53 of the judgment). I do not agree, however, with the majority that the activities of the police amounted to “little more than a pro forma investigation”. In my view on all the relevant occasions (in 2001, 2005, 2006 an 2007), the police made serious attempts to investigate the allegations made by the applicant, even though these attempts did not reach the required level of promptness and reasonable expedition. As the majority recognizes “the respondent State's authorities took many steps and encountered significant objective difficulties, including the applicant's somewhat vague descriptions of the attackers as well as the apparent lack of eyewitnesses” (paragraph 90 of the judgment). I do not concur, furthermore, with the criticism expressed by the majority on the fact that “no video or other surveillance was ever put in place in the vicinity of the flat where the incidents had occurred, no police stakeout seems to have even been contemplated, and the applicant was never offered protection by a special security detail which might have deterred his future assailants” (paragraph 89 of the judgment).", "In my view imposing these measures would result in a disproportionate burden for the authorities. To me, the fact that the police considered the possibility that the applicant's injuries may have been self-inflicted (see paragraphs 64 and 88 of the judgment) does not necessarily show a discriminatory attitude of the authorities. The police took into account the alleged religiously motivated nature of the attacks. With the respondent Government, I find that the allegations of religious motivation behind the relevant incidents have been checked. In particular in 2005 they apparently visited several locations in an attempt to “identify” the organisation called “Srpski vitezovi” which, according to the applicant, was responsible for the attacks.", "For these reasons, I do not find a separate violation of Article 3 combined with Article 14 of the Convention." ]

[ "THIRD SECTION CASE OF SHESTAKOV AND OTHERS v. RUSSIA (Applications nos. 78378/13 and 6 others - see appended list) JUDGMENT STRASBOURG 4 May 2017 This judgment is final but it may be subject to editorial revision. In the case of Shestakov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Branko Lubarda, judges,and Karen Reid, Section Registrar, Having deliberated in private on 30 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention and also raised other complaints under the provisions of the Convention.", "THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6. The applicants complained principally of the inadequate conditions of their detention.", "They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos.", "42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36‑40, 7 April 2005). 8. In the leading case of Sergey Babushkin v. Russia, no.", "5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate. 10.", "These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. REMAINING COMPLAINTS 11. The applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground.", "Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin case (cited above, §§ 38-45). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13.", "Regard being had to the documents in its possession, to its case‑law and the long delay for some of the applicants in filing the application, the Court considers it reasonable to award the sums indicated in the appended table. 14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares the applications admissible; 3. Holds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 4 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Karen ReidLuis López GuerraRegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Number of inmates per brigade Sq. m. per inmate Number of toilets per brigade Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 78378/13 30/09/2013 Aleksey Sergeyevich Shestakov 11/12/1976 Ponaryev Vladimir Aleksandrovich Kirov IK-11 Kirov Region 20/05/2013 pending More than 3 year(s) and 10 month(s) and 11 day(s) 70 inmate(s) 5 toilet(s) 5 washstands for 70 inmates, cold temperatures in winter time (13 degrees Celsius) Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 13,800 33307/14 27/12/2014 Sergey Nikolayevich Kulikov 23/04/1983 Prison hospital no. LIU-51 Sverdlovskiy Region 04/10/2013 to 27/06/2014 8 month(s) and 24 day(s) 75 inmate(s) 2 m² 3 toilet(s) 3 washstands for 75 inmates, insects and mice, one of three toilets had broken flushing system, stench, no privacy when using toilet, possibility to wash himself once in 8 days, no ventilation, low temperature Art.", "13 - lack of any effective remedy in respect of inadequate conditions of detention - 3,900 33405/14 03/07/2014 Lyudmila Mikhaylovna Lysanova 03/11/1975 IK-5 Tver 15/08/2008 pending More than 8 year(s) and 7 month(s) and 16 day(s) 250 inmate(s) 1 m² 11 toilet(s) 10 washstands for 117 inmates, no partition between toilets and thus no privacy, no flushing system, stench, high humidity, insects and rodents, mould, poor requisite medical assistance Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 13,300 33600/14 05/06/2014 Aleksey Alekseyevich Belov 07/02/1982 IK-29 Kirov Region 28/12/2012 pending More than 4 year(s) and 3 month(s) and 3 day(s) 1.8 m² poor lighting, no ventilation, 10 sinks for 208 inmates, poor quality of food, low temperature, rodents, high humidity, no privacy when using toilet Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 13,500 37789/14 19/08/2014 Aleksandr Nikolayevich Filtsov 01/04/1966 IK-5 Republic of Mordovia 23/07/2002 pending More than 14 year(s) and 8 month(s) and 8 day(s) 300 inmate(s) 1.5 m² 15 toilet(s) overcrowding, poor quality of food, no hot water, lack of requisite medical assistance Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 13,000 38078/14 12/08/2014 Aleksandr Nikolayevich Bykov 20/03/1968 IK-12 Sverdlovskiy Region 11/12/2002 pending More than 14 year(s) and 3 month(s) and 20 day(s) 2 m² poor lighting, poor quality of food, no ventilation, lack of requisite medical assistance Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 13,000 51194/15 01/11/2011 (4 applicants) Kotik Usubovich Ameyan Vyacheslav Mironovich Gavrilin Gagik Vaniyayevich Piroyev Aleksandr Aleksandrovich Yudin Maryin Sergey Trofimovich Saransk IK-7 Republic of Mordovia 01/11/2011 pending More than 5 year(s) and 4 month(s) and 30 day(s) 2 m² One hour of daily outdoor exercises, poor sanitary conditions, poor lighting, high humidity and mould, insects, no drinking water, tuberculosis and hepatitis-infected inmates in the cell Art.", "13 - lack of any effective remedy in respect of inadequate conditions of detention - 18,300 [1]. Plus any tax that may be chargeable to the applicants." ]

[ "FIRST SECTION CASE OF DAOUKOPOULOS v. GREECE (Application no. 44711/16) JUDGMENT STRASBOURG 12 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Daoukopoulos v. Greece, The European Court of Human Rights (First Section), sitting as a Committee composed of: Kristina Pardalos, President,Ksenija Turković,Pauliine Koskelo, judges,and Abel Campos, Section Registrar, Having deliberated in private on 19 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 44711/16) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Miltiadis Daoukopoulos (“the applicant”), on 28 July 2016.", "2. The applicant was represented by Mr C. Lampakis, a lawyer practising in Thessaloniki. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr K. Georgiadis and Mrs K. Karavasili, Senior Advisor and Legal representative respectively at the State Legal Council. 3. On 8 November 2016 the complaints concerning the conditions of the applicant’s detention in Diavata Prison from 9 May 2016 onwards and the lack of a legal remedy in this respect were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1971 and at the time of introduction of the application to the Court he was detained in Diavata Prison. 6. The applicant is serving a life sentence for drug dealing. He was initially placed in Diavata Prison from 1 October 2014 until 24 November 2015. On that date he was transferred to Malandrino Prison, from where he was transferred back to Diavata Prison on 9 May 2016.", "Lastly, on 20 December 2016 he was transferred back to Malandrino Prison. A. The applicant’s description of the conditions of his detention in Diavata Prison from 9 May 2016 until 20 December 2016 7. The applicant alleged that he had been detained initially in cell no. B 14, which had measured 9 sq.", "m and had held four detainees in total. On 7 August 2016 he had been placed in cell no. GR 2 on the ground floor, which had measured 24 sq. m and had held ten detainees. In both cases, therefore, the living space afforded to him had been less than 3 sq.", "m. Overcrowding had exposed him to infectious diseases and he had suffered from passive smoking. In addition, detainees had had barely any space to move within their cell and their bunk beds had been low, not allowing them to sit up comfortably. 8. Apart from the overcrowding, the applicant submitted that the conditions of his detention had been very poor. Access to natural light and ventilation had been inadequate.", "Sanitary facilities and supplies had been old, broken and insufficient to ensure the detainees’ well‑being and personal hygiene. Heating had been provided only for one hour per day from 9 p.m. to 10 p.m., while hot water during winter had been provided for two hours per day and had not sufficed for all detainees. They had been forced to wash themselves using buckets of water, as the water pressure in showers had been insufficient. In each ten-person cell there had been five bunk beds, five stools, a small table and five side tables but no lockable space for personal belongings. In the four-person cell there had been two bunk beds and two stools.", "The mattresses had been old, mouldy and smelly, and sheets and towels had not been provided. 9. In general, detainees had lacked access to cultural, recreational and sports activities. They had had to rely on visits from friends and family in order to obtain any newspapers or magazines, which had intensified their feeling of isolation. The hours that they had been allowed to spend in the corridors had been insufficient, taking into account that they had coincided with the meal times as well as with the times they had been allowed to receive visits or make phone calls.", "The yard had included a football field but no balls had been provided to the detainees and the yard had not offered any opportunities for spending time creatively. The applicant further complained of the quantity and the quality of the food, claiming that it had been repetitive and lacking any nutritional value. 10. Lastly, the applicant submitted that the conditions of his detention had led him having several cardiac arrests. B.", "The Government’s description of the conditions of the applicant’s detention in Diavata Prison from 9 May 2016 until 20 December 2016 11. The Government, referring to a document provided by the prison authorities, submitted that Diavata Prison had a capacity of 358 detainees on the basis of allocation of 4 sq. m per detainee according to the minimum standards set by the CPT. At the time the applicant had been detained, the prison facility had exceeded its capacity by accommodating 460 to 500 detainees. The applicant had been detained in cell no.", "11 on the first floor, which had measured 24 sq. m, including a toilet measuring 2 sq. m. The cell had had a capacity of ten detainees; however, following a new law in April 2015 aimed at relieving overcrowding in prisons, many detainees had been released and that had resulted in the applicant sharing the cell with four to six detainees. Therefore, the living space afforded to the applicant had ranged from 3.14 to 4.4 sq. m. 12.", "As regards the rest of the applicant’s complaints, the Government argued that the prison had had a central heating system, in addition to the electric heating devices that had been provided to each cell. The cell in which the applicant had been detained had had large windows. Detainees had had access to hot water and had been provided regularly with personal hygiene products. The cells had been regularly disinfected. As regards prisoners’ meals, the Government submitted the menu of various random weeks to demonstrate that they had been comprised of a variety of food.", "13. The Government submitted the applicant’s medical file in order to prove that the applicant had already suffered from cardiac conditions when his incarceration had started. The applicant’s medical needs had been fully fulfilled during the time he had spent in Diavata Prison either by visits to the prison doctor or by his transfer to nearby hospitals. Lastly, the applicant had been granted fifteen days of leave in order to take matriculation exams. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 14. The relevant domestic law and practice is described in the decision in the case of Chatzivasiliadis v. Greece (no. 51618/12, §§ 17-21, 26 November 2013). III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE (CPT) 15.", "In its report of 16 October 2014, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), following its visit to Greece from 4 to 16 April 2013, noted the following as regards Diavata Prison: “Diavata Judicial Prison, in Thessaloniki, has a capacity of 250 places, but at the time of the visit held 590 inmates. The establishment has 53 dormitories measuring 24 m² and holding up to 10 inmates each, 10 cells of 11 m² holding on average four inmates each, and three dormitories accommodating 34 female prisoners. The dormitories for female prisoners, located on the ground floor, were separated from the sections accommodating male prisoners. However, like the rest of the inmate accommodation, they offer cramped conditions, with 24 m² of space for five sets of bunk beds. Access to natural light and ventilation was adequate and there were a few stools, but no lockable space for personal belongings.", "The sanitary annexes contained floor-level toilets and a sink, which also had to be used for washing clothes and dishes; however, on a positive note, the annexes were fully partitioned.” 16. In its report of 1 March 2016, following its visit from 14 to 23 April 2015, the CPT found that the situation in Diavata Prison had remained essentially the same since its last visit in 2013; on the day of the visit, it had had a capacity of 370 places but held 588 prisoners; the official capacity had been increased by more than 100 by re-designating rooms of 24 sq. m for six prisoners instead of four. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 17.", "The applicant complained that the conditions of his detention in Diavata Prison had violated his right not to be subjected to inhuman or degrading treatment, as provided for in Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 19. Referring to his description, the applicant complained of the conditions of his detention, mainly drawing the Court’s attention to the problem of overcrowding in Diavata Prison. He argued that the legislative measures that had been taken to diminish the number of detainees in prison had resulted only in temporary relief and, as the relevant Law had entered into force one year prior to his detention in Diavata Prison, it had had no bearing on the conditions of his detention. Lastly, the applicant submitted that even if the Government’s argument that he had been detained with another five or six people in the cell measuring 24 sq.", "m had been true, he would still have had living space below the 6 sq. m that are mandatory pursuant to the Penal Code. 20. Referring to their own description, the Government claimed that the conditions of the applicant’s detention had been adequate and in any event they had not reached the minimum threshold of severity required to constitute inhuman or degrading treatment. They pointed out that Law no.", "4322/2015, which aimed at relieving overcrowding in prisons, had resulted in diminishing the total number of detainees and thus the applicant had not suffered from overcrowding. 2. The Court’s assessment 21. The applicable general principles are set out in Muršić v. Croatia ([GC] no. 7334/13, §§ 96-141, 20 October 2016).", "22. The Court notes at the outset that the parties devote a large part of their submissions to the conditions of the applicant’s detention in Diavata Prison the first time he was incarcerated there, from 1 October 2014 until 24 November 2015, and to the conditions of the applicant’s detention in Malandrino Prison from 24 November 2015 until 9 May 2016. The Court notes however that the Government were given notice only of the part of the application referring to the applicant’s incarceration in Diavata Prison from 9 May 2016 until 20 December 2016, as the remainder of the application had been dismissed at the communication stage. Therefore, the parties’ submissions in respect of the other complaints will not be considered by the Court. 23.", "Turning to the applicant’s complaints concerning the period from 9 May 2016 until 20 December 2016, the Court notes that the parties provided conflicting descriptions of the conditions of the applicant’s detention in Diavata Prison, especially as regards the number of detainees in the cell in which the applicant was held. In particular, the Government adduced a document prepared by the prison authorities asserting that the applicant had been detained with another four of five inmates as a result of Law no. 4322/2015, which had included measures aimed at alleviating overcrowding in prisons (see paragraphs 11 and 20 above). On the contrary, the applicant claimed that he had shared the cell with another nine detainees which had resulted in a living space of 2.2 sq. m per detainee and that he had not benefitted from the provisions of the new law which had entered into force one year prior to his detention in Diavata Prison (see paragraphs 7 and 19 above).", "24. In this regard, the Court reiterates that is particularly mindful of the objective difficulties experienced by applicants in collecting evidence to substantiate their claims about conditions of their detention. Still, in such cases applicants must provide a detailed and consistent account of the facts complained of (see Muršić, cited above, § 127, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 122, 10 January 2012). Once a credible and reasonably detailed description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment, has been made, the burden of proof is shifted to the respondent Government, who alone have access to information capable of corroborating or refuting these allegations.", "They are required, in particular, to collect and produce relevant documents and provide a detailed account of an applicant’s conditions of detention. Relevant information from other international bodies, such as the CPT, on the conditions of detention, as well as the competent national authorities and institutions, should also inform the Court’s decision on the matter (see further Ananyev and Others, cited above, §§ 122-25). 25. Turning to the circumstances of the present case, the Court observes that the applicant argued that he had had at his disposal personal space of 2.2 sq. m as he had shared a cell measuring 22 sq.", "m (excluding the sanitary facilities) with another nine inmates. The Government initially stated that the applicant had had at his disposal personal space ranging from 3.14 to 3.66 sq. m, as he had shared the cell with another five or six detainees. They later slightly changed that figure, submitting that the applicant had had at his disposal personal space ranging from 3.14 to 4.4. sq. m, as he had shared the cell with four to six detainees.", "They further provided the Court with a document stating that the total number of detainees during the applicant’s seven-month stay in Diavata Prison varied between 460 and 500 detainees, a lower figure than at the time of the CPT report, thanks to measures taken in accordance with Law no. 4322/2015. In view of the total number of detainees at the material time, which had exceeded by at least 100 inmates the capacity of Diavata Prison (capacity of 358 detainees on the basis of allocation of 4 sq. m per detainee), the Court notes that the applicant could not possibly have had more than 4 sq. m at his disposal.", "It further notes that the applicant’s allegations are corroborated by the CPT, which had visited Diavata Prison a year prior to the applicant’s entry into it. In view, however, of the Government’s argument that in the meantime measures aimed at alleviating prison overcrowding had been taken and had resulted in more than 3 sq. m being put at the disposal of each detainee, the Court will turn to the examination of the rest of the conditions of the applicant’s detention. 26. The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purposes of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 of the Convention, and may disclose a violation, either alone or taken together with other shortcomings.", "In particular, in cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Muršić, cited above, §§ 106 and 139). 27. The Court notes that neither of the parties specified how much time the applicant had spent locked up in his cell each day.", "At the same time, the Government failed to rebut other well-detailed and precise elements relevant for the assessment of the conditions of the applicant’s detention, such as for example the lack of sufficient heating and the cleanliness of the premises. In this regard, the Court notes that the Government’s observations in that connection were particularly vague, arguing that the prison had had a central heating system and that the cells had been regularly disinfected, without providing any arguments to rebut the applicant’s allegations that the central heating system had operated only an hour per day, that the hot water had been insufficient and that the sanitary facilities had been dilapidated. The Court therefore accepts the applicant’s description of the relevant facts. 28. In view of these findings and in the light of the test set out in the above-mentioned Muršić judgment (see paragraph 26 above), the Court concludes that, even assuming that the applicant had 3 to 4 sq.", "m of personal space at his disposal as suggested by the Government, there were other aggravating elements of his confinement that, coupled with the personal space available to him, went beyond the unavoidable level of hardship inherent in detention and reached a threshold of severity contrary to Article 3 of the Convention. 29. Accordingly, there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 30.", "Relying on Article 13 of the Convention, the applicant complained of a violation of his right to an effective domestic remedy in respect of his complaint under Article 3. 31. The Government contested that the applicant had had an arguable claim for the purposes of Article 13. In addition, they argued that the applicant could have availed himself of the remedies provided for in domestic legislation, specifically lodging a complaint with the public prosecutor under Article 572 of the Code of Criminal Procedure, or with the Prison Board under Article 6 of the Penal Code, which would have allowed the competent authorities to assess the applicant’s conditions of detention and, if necessary, order his transfer to a different cell or a different prison. In fact, the applicant had made use of the remedy involving the public prosecutor and by his petitions dated 11 October 2016, 3 November 2016 and 10 November 2016 had requested a hearing in order to be transferred to Malandrino Prison.", "His requests were granted and he was transferred on 20 December 2016. A. Admissibility 32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 33. Regarding conditions of detention, the Court has ruled in some cases (see Vaden v. Greece, no. 35115/03, §§ 30-33, 29 March 2007, and Tsivis v. Greece, no. 11553/05, §§ 18-20, 6 December 2007) that the applicants had not exhausted domestic remedies owing to a failure to make use of the remedies provided by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code (Law No.", "2776/1999). In those cases, the applicants complained of particular circumstances which had affected them personally as individuals and to which the prison authorities could put an end by taking the appropriate measures. On the other hand, the Court has ruled on many occasions that when applicants claim to have been personally affected by the conditions prevailing in a prison, the remedies provided by Article 572 of the Code of Criminal Procedure and by Article 6 of the Penal Code are not effective (see, among other authorities, Igbo and Others v. Greece, no. 60042/13, § 35, 9 February 2017). 34.", "The Court sees no reason to depart from its previous case-law in the present case. Accordingly, the Court finds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention due to the absence of effective remedies in respect of the complaint concerning the applicant’s conditions of detention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 35. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 36. The applicant claimed 50,000 euros (EUR) in respect of nonpecuniary damage, requesting that the sum awarded to him be paid to a bank account indicated by his representative. 37. The Government contested those claims. They argued that the sum claimed by the applicant was excessive and unsubstantiated.", "In the Government’s view, the mere finding of a violation would constitute sufficient just satisfaction. In any event, if the Court wished to award a sum of money to the applicant, it should take into account that he had been given fifteen days of leave in order to take matriculation exams and had also worked for four days with a beneficial reduction in his sentence. The Government also contested the need for any sums awarded to be paid into a single bank account indicated by the applicants’ representative. 38. The Court finds that the applicant must have experienced suffering and frustration as a result of the breach of his rights under Article 3.", "By contrast, the finding of a violation may in itself constitute sufficient just satisfaction for a breach of Article 13 of the Convention flowing from the lack of effective domestic remedies in respect of such conditions (see Ananyev and Others, cited above, § 173). Ruling in equity, as required under Article 41 of the Convention, it awards the applicant EUR 4,500 in respect of non-pecuniary damage. B. Costs and expenses 39. The applicant also claimed EUR 1,350 for the costs and expenses incurred before the Court based on a private services agreement concluded with his representative on 26 July 2016, and a further EUR 150 for translation costs.", "He also asked for the relevant sum to be deposited directly to his representative’s bank account. 40. The Government submitted that only documented claims should be reimbursed and therefore considered that the applicant’s request should be rejected. In this regard, they considered that the applicant had failed to produce the required documents which would have proven that he had actually incurred these costs. In any event, they found this claim excessive and unsubstantiated.", "41. The Court restates its established case-law to the effect that an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, X and Others v. Austria [GC], no. 19010/07, § 163, 19 February 2013). Under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, the Court notes that that the applicant concluded an agreement with his counsel concerning their fees.", "Agreements of this nature – giving rise to obligations solely between lawyer and client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs are actually incurred but also to whether they have been reasonably incurred (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 55, ECHR 2000‑XI, and Stergiopoulos v. Greece, no. 29049/12, § 63, 7 December 2017). 42. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 800 for the proceedings before the domestic courts and the Court.", "This amount is to be deposited to the bank account indicated by the applicant’s representative. C. Default interest 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 3, in so far as the applicant’s detention in Diavata Prison from 9 May 2016 onwards is concerned, and Article 13 admissible; 2.", "Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in Diavata Prison from 9 May 2016 to 20 December 2016; 3. Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective domestic remedies regarding the complaints about the conditions of the applicants’ detention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be deposited to the bank account indicated by the applicant’s representative; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Abel CamposKristina PardalosRegistrarPresident" ]

[ "FIRST SECTION CASE OF JOSEPHIDES v. CYPRUS (Application no. 33761/02) JUDGMENT STRASBOURG 6 December 2007 FINAL 02/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Josephides v. Cyprus, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsN. Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrG.", "Malinverni, judges, MrS. Nielsen, Section Registrar, Having deliberated in private on 15 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33761/02) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Christos Josephides (“the applicant”), on 11 September 2002. 2. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.", "3. On 15 December 2005 the Court decided to communicate to the Government the applicant's complaint under Article 6 § 1 of the Convention as to the length of the proceedings firstly, concerning the appointment of the applicant to the post of First Officer of Town Planning and secondly, concerning the post of Director of Town Planning. Furthermore, the Court decided to communicate to the Government the applicant's complaint under the same provision concerning lack of impartiality in the second set of the proceedings due to the participation of two judges on both the Supreme Court bench examining the interim appeal and the final appeal. Applying Article 29 § 3 of the Convention, the Court decided to rule on the admissibility and merits of the application at the same time. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1944 and lives in Athienou. A. Proceedings concerning the withdrawal of the proposal for the filling of the post of First Officer of Town Planning by the Public Service Commission. 5.", "On 8 March 1989 the applicant applied for the vacant post of First Officer of Town Planning. On 8 June 1989 the Public Service Commission (hereinafter “the Commission”), responsible for the recruitment of officers in the public service, decided to appoint the applicant to the post. However, before the decision was communicated, it was suspended and then, on 14 August 1990 the applicant was informed that the Commission had decided to withdraw the proposal for the filling of the above post. 1. Proceedings before the Supreme Court (first instance administrative jurisdiction) - recourse no.", "795/90 6. The applicant filed a recourse (recourse no. 795/90) for the annulment of this decision before the Supreme Court (first instance administrative jurisdiction). 7. On 3 December 1992 the Supreme Court declared the above decision null and void.", "It found that the decision to withdraw the proposal for the filling of the post had been ultra vires since it had had the clear purpose of preventing the applicant's appointment to that post. 2. Proceedings before the Supreme Court (revisional administrative jurisdiction) - appeal no. 1720 8. The Government lodged an appeal (no.", "1720) before the Supreme Court (revisional administrative jurisdiction). 9. In the meantime, the Commission in a decision dated 8 March 1993 noted that if the appeal was unsuccessful the procedure for filling of the post of First Officer of Town Planning would have to be re-examined and any possible decision of the Commission that the applicant was qualified would be binding also for the procedure for the post of Director of Town Planning. 10. On 5 October 1994 the appeal was dismissed.", "The Supreme Court upheld the first instance judgment. 3. Subsequent events 11. The composition of the Commission changed and the new Commission members requested the Law Office of the Republic for advice concerning the procedure to be followed in the light of the Supreme Court's judgment of 5 October 1994. 12.", "The Attorney-General of the Republic provided the Commission with an advisory opinion in two letters dated 22 December 1995 and 4 January 1996. 13. On 5 January 1996 the Commission, considering that it was bound both by the Supreme Court's judgment of 5 October 1994 and the advisory opinion given by the Attorney-General, appointed the applicant to the post of First Officer of Town Planning retrospectively as from 1 July 1990. This was in spite of the fact that in its decision it noted that it disagreed with the former Commission that the applicant had the required qualifications for the post. In the relevant letter dated 9 January 1996 the applicant was informed that he would be compensated for the period from 1 July 1990 until the date he took over his new duties for the difference between the salaries.", "Following a successful recourse before the Supreme Court, the date of commencement of his new appointment was set as 1 July 1989. The applicant claimed that only one third of the due salaries had been paid to him. 14. On 16 February 1996 the applicant's appointment was published in the Official Gazette of the Republic. B.", "Proceedings concerning the appointment of the applicant to the post of First Officer of Town Planning 1. Proceedings before the Supreme Court (first instance administrative jurisdiction) - recourse nos. 348/96, 349/96 and 365/96 15. In 1996 the Cyprus Association of Town and Country planning and two other candidates for the post of First Officer of Town Planning filed three recourses (nos. 348/96, 349/96 and 365/96) before the Supreme Court (first instance administrative jurisdiction) against the Government, through the Commission, seeking the annulment of the applicant's appointment.", "The recourses were filed on 25 April 1996, 30 April 1996 and 20 November 1996 respectively. The applicant took part in the proceedings as an interested party. 16. The Government filed their opposition on 23 October 1996 and the applicant on 20 November 1996. 17.", "On 16 December 1996 the Supreme Court joined all the above recourses. Furthermore, on that date, the Supreme Court ordered the reinstatement of recourse 348/96 which it had dismissed earlier. The proceedings were then fixed for instructions for 25 February 1997. 18. The applicants in the recourses filed their written addresses on 25 February 1997, the Government on 29 May 1997 and the applicant on 7 July 1997.", "The applicants in the recourses filed their reply on 6 October 1997. 19. On 15 December 1997 the applicant raised a preliminary objection that the recourses had not been lodged within the prescribed time-limit. The court fixed the objection for a hearing for 4 February 1998. The hearing took place on that date and on 24 February 1998, the Supreme Court rejected his objection by an interim judgment.", "20. On 6 March 1998 the applicant filed an appeal challenging this interim judgment (appeal no. 2594). The Chamber was composed of five judges, namely, President Nikitas and Judges Constantinides, Nicolaides, Kallis and Gavrielides. The applicant submitted that the latter judge had been his colleague at the Law Office of the Republic and that their relations had been cold for reasons unknown to the applicant.", "21. On 13 April 1998, at the hearing of the main recourse, the applicant's representative invited the Supreme Court to adjourn the first instance proceedings pending the outcome of the appeal concerning the interim judgment in order to avoid a conflict. The court considered that it would be more correct to fix the main recourse for trial once the appeal against the interim judgment was decided on. It therefore requested that the recourses be put before the court for the purpose of fixing a hearing after the determination of the appeal. 22.", "On 22 December 1999 the Supreme Court dismissed the appeal. In its judgment the Supreme Court only dealt with the question of whether a right of appeal existed against an interim decision. In this respect it noted that in line with the well-established jurisprudence such a right existed only in relation to interim decisions which were determinative of the rights or obligations of the litigants. Otherwise, interim decisions which were not determinative of the rights or obligations of the litigants, as long as they could affect the result, could be reviewed in the context of an appeal against the final first instance judgment. It then found that the interim decision challenged by the applicant fell in the latter category and dismissed the arguments advanced by the applicant to the contrary.", "The Supreme Court's judgment was confined to this question. 23. On 28 February 2000 the Supreme Court (first instance) fixed the recourses for directions for 23 March 2000. 24. On 19 May 2000 the applicants in the recourses filed their reply and the case was fixed for 13 October 2000 for any oral addresses.", "On the latter date the relevant administrative files were deposited before the court and the hearing of the oral addresses was adjourned until 23 October 2000 in view of the fact that the lawyer of the applicants in the recourse had been injured. 25. On 23 October 2000 the Supreme Court heard the parties' oral addresses and reserved its judgment. 26. On 31 January 2001 the Supreme Court annulled the decision of the Commission to appoint the applicant.", "It found that the newly composed Commission had wrongly considered that it had been bound to follow the Attorney-General's advisory opinion (see paragraphs 13 and 14 above) and had misinterpreted the ratio decidendi of the Supreme Court's judgment of 5 October 1994 (see paragraph 11 above) and its legal effects. In particular, it was clear that the Commission had acted contrary to its judgment concerning the applicant's qualification because it had considered that it had been bound to appoint the applicant. The Commission, however, had not been obliged to follow the decision by the former Commission, which had remained an internal decision, and no such obligation could be derived from the Supreme Court's judgment. It had been open to the newly composed Commission to hold a new inquiry with respect to the qualifications of the applicant for the purpose of deciding whether the applicant was qualified for the relevant post. 27.", "The applicant submitted that he had then been informed that he had lost his post and that he had been offered a temporary employment contract instead. 2. Proceedings before the Supreme Court (revisional administrative jurisdiction) – appeal nos. 3190 and 3194 28. On 13 February 2001 the applicant and the Cypriot Government lodged appeals (nos.", "3190 and 3194) against the above judgment before the Supreme Court (revisional administrative jurisdiction). 29. In his appeal the applicant challenged the first instance judgment and the interim decision of 24 February 1998 dismissing his preliminary objection. 30. On 5 April 2001 the appeals were set for pre-trial directions for 11 June 2001 before Judges Pikis, Artemides, Nicolaides, Iliades and Gavrielides.", "31. The parties filed their written address outlines: the appellant Government on 6 July 2001, the applicant on 24 July 2001 and the respondents on 3 August 2001. 32. The appeals were then fixed for hearing for 2 November 2001 before Judges Pikis, Artemides, Nicolaou, Kallis and Kronides. According to the applicant, on that date Judge Kallis withdrew from the Chamber.", "He submitted that no explanations were given in this respect. As a result the hearing of the appeals was adjourned. 33. On 10 December 2001 the appeals were fixed for hearing for 1 February 2002 before Judges Artemides, Constantinides, Iliades, Gavrielides and Hadjihambis. The applicant submitted that just before the pleadings he had orally requested the exclusion of Judges Constantinides and Gavrielides from the Chamber since they had been part of the Supreme Court bench that had delivered the judgment of 22 December 1999 in interim appeal no.", "2594 while the lawyer of the other parties had requested the exclusion of Judge Hadjihambis. The Supreme Court rejected these objections. 34. On 12 March 2002 the Supreme Court delivered its judgment by which it dismissed the appeals by majority (Judges Artemides, Constantinides, Iliades and Gavrielides). Judge Gavrielides pronounced the judgment.", "The Supreme Court upheld the interim judgment of 24 February 1998 (see paragraph 20 above) that the recourses had been lodged within the required time-limit. Furthermore, it upheld the findings of the first instance court in this respect finding that the newly composed Commission had not been bound by the conclusions or the decisions of the former Commission concerning the applicant's qualifications. Finally, it noted that it was not for the court to decide whether the applicant had the required qualifications but for the Commission. 35. Following the above judgment annulling the Commission's decision to appoint the applicant to the post of First Officer of Town Planning, the Commission held a new procedure for the filling of the post and decided that the applicant did not have the required qualifications and therefore debarred him from competing for the post.", "36. The applicant submitted that he had been informed that the wife of one of his brothers had sent a letter dated 25 January 1996 to Judge Gavrielides demanding the payment of rents concerning an apartment in Nicosia for which that judge had the keys and made personal use of following the departure of the tenant. The judge never replied to the letter and stopped using the apartment. The applicant also stated that the judge had some personal economic interests in the Town Planning Department and thus did not want the applicant to hold such a key post. He claimed that in another judgment adopted by the full bench of the Supreme Court in a different case Judge Gavrielides had not participated on the grounds that he had been a former colleague of the plaintiff.", "C. Proceedings concerning the post of Director of Town Planning 37. On 11 September 1992 the post of Director of Town Planning was published and the applicant submitted an application. The required qualifications were the same as those of the First Officer of Town Planning. 38. On 21 April 1993 the Commission, whose composition had in the meanwhile changed (see paragraph 11 above), decided to exclude the applicant as non-qualified.", "By decision dated 14 July 1993 the Commission appointed another candidate to the post. 1. Proceedings before the Supreme Court (first instance administrative jurisdiction) - recourse no. 816/93 39. The applicant filed a recourse (no.", "816/93) on an unspecified date in 1993 before the Supreme Court challenging this appointment. 40. On 14 March 2000 the Supreme Court declared the decision appointing the respondent as null and void. The court found that the Commission had been bound to consider the applicant as qualified for the post of Director in view of its decision of 8 March 1993 (see paragraph 9 above). By deciding to appoint the applicant to the post of First Officer of Town Planning, the Commission had reversed its decision that he had not been qualified and had decided at the same time that he had had the qualifications for the post of Director as well.", "2. Proceedings before the Supreme Court (revisional administrative jurisdiction) - appeal no. 3033 41. The respondent then lodged an appeal (no. 3033) before the Supreme Court.", "42. On 2 October 2002 the Supreme Court delivered its judgment dismissing the appeal. The court noted that it disagreed with the meaning given by the majority of Supreme Court in its judgment of 12 March 2002 (see paragraph 34 above) of the judgment of the Supreme Court in its judgment of 5 October 1994 (see paragraph 10 above). Upholding the findings of the first instance court, it found that the Commission had bound itself to consider the applicant as qualified for the post of Director. In particular the Supreme Court observed that it respected the opposite view of the full court in its judgment of 12 March 2002 with regard to the significance of the decision by the Supreme Court in its judgment of 5 October 1994.", "In particular they noted the following: “We do not question the power which is recognised by the case law in the appointing body to re-investigate when a reason is established. This power, however, comes within the ambit of the principle of good faith and is not of unlimited scope. It depends on the circumstances. Our disagreement with the decision ... centres on the consideration and appraisal of the circumstances which form the foundation of the interpretation of the previous decision of the Full Court ... and not on a more general principle of jurisprudence”. 43.", "The Supreme Court observed that the judgment of the full court of 12 March 2002 delivered in appeal no. 3190 concerning the procedure for the post of First Officer of Town Planning did not bind it as regards its judgment in relation to the procedure for the post of Director of Town Planning since it had examined its connection with the former judgment with reference to a prior time, on the basis of its understanding of the full court's judgment of 5 October 1994. The difference in the result, however undesirable, had been nevertheless unavoidable. II. RELEVANT DOMESTIC LAW AND PRACTICE 44.", "Article 30 (2) of the Cypriot Constitution provides as follows, in so far as relevant: “In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by an independent, impartial and competent court...”. 45. In the case of A. Constantinides and Alithia Publishing Company v. T. Papadopoulos (Supreme Court judgment of 22 June 1999, civil appeal no. 9903) the appellants claimed, inter alia, that the first instance court should have dismissed the action because there had been a violation of the “reasonable time” requirement as safeguarded by Article 30 (2) of the Constitution. The Supreme Court after examining the minutes of the proceedings found that the appellants' complaint in this respect had been unfair and unfounded.", "The court concluded that the delay in the trying of the action had been primarily due to the appellants' applications for the adjournment of the case. Furthermore, the Rules of Civil Procedure contained detailed provisions which a litigant could rely upon if he or she sought to have expeditious proceedings. Finally, the court noted the following: “The breadth of application and the consequences of violation, in a specific case, of the provisions of Article 30 (2) of the Constitution were examined in number of decisions of the Supreme Court, to which the advocates referred. In the case of Victoros v. Christodoulou, (1992) 1 A.A.D. 512 the Supreme Court quashed the judgment at first instance because it had been issued 5 years and 3 months after the completion of the hearing, without any justification by the trial court.", "For this reason the Court of Appeal also judged that the delay was detrimental to the rights of the parties and consequently there was a violation of the provisions of Article 30 (2) of the Constitution. Of course, in the case we are examining nothing of this kind has occurred. In a recent decision of the Court of Appeal in the civil appeal no. 9520 Nikos Shacolas and Federal bank of Lebanon (S.A.L. ), of 7.7.98, extensive mention is made of the most recent jurisprudence of the Supreme Court, with particular reference to the case of The Police v. Akis Fantis and others (1994) 2 A.A.D.", "160 and The Republic v. Alan Ford and another (no.2) (1995) 2 A.A.D. 232. The appellants' advocate alleged that as a result of the delay observed in the hearing of the case his clients suffered damage because in the meantime, on 19.11.93, the judgment of the Court of Appeal was published in the case of United Journalists DIAS Ltd and others v. Stavros Nathanael (1993) 1 A.A.D. 893, in which the damages awarded in cases of slander and libel were increased. Independently of what we have already stated, the above suggestion of the appellants' advocate is erroneous in law.", "The right of the claimant to damages arising from a civil wrong is created at the perpetration of the wrong. The calculation of the damages is made, according to settled jurisprudence, on the day of the trial, when consideration is given to all the factors which have intervened and affect the calculation of the damages which, whatever they are, go back to the time when the right arose. Theoretically the damages can also be reduced according to the jurisprudence of the Supreme Court”. 46. In the case of A. Sofokleous v. C. Taveloudi and A. Taveloudi (civil appeal no.", "11266) the appellant, before the hearing of the appeal had begun, filed an interim application requesting the exclusion of one of the judges sitting on the bench. The appellant claimed that the judge in question had participated in another appeal against another interim decision in the context of the same recourse. The Supreme Court by interim judgment of 27 June 2003 found that the application was unfounded and that the mere participation of the judge in question in a previous appeal procedure with a bench of a different composition did not exempt him from the present procedure. The issues in question were completely different and concerned interim procedures. The substance of the recourse which would be the subject matter of the hearing had not yet been examined.", "The Supreme Court therefore dismissed the appellant's objection. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LENGTH OF THE PROCEEDINGS 47. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows, in so far as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by by an independent and impartial tribunal established by law”. 48.", "In this respect the applicant argued that all the proceedings had been fundamentally linked and that for the purposes of examining the reasonableness of their length they should be taken together. A. Admissibility 49. At the outset, the Court notes that although all sets of proceedings involved the applicant they concerned different recourses against different administrative acts and were examined separately by the Supreme Court. Accordingly, it cannot accept the applicant's argument in this respect and will proceed to examine each set of proceedings individually. 1.", "Proceedings concerning the withdrawal of the proposal for the filling of the post of First Officer of Town Planning by the Public Service Commission 50. The Court observes that these proceedings ended on 5 October 1994 when the Supreme Court's judgment on appeal was delivered (see paragraph 10 above). 51. It follows that this part of the application is inadmissible for non-compliance with the six months' rule set out in Article 35 § 1 of the Convention, and that it must be rejected pursuant to Article 35 § 4. 2.", "Proceedings concerning the appointment of the applicant to the post of First Officer of Town Planning and proceedings concerning the post of Director of Town Planning (a) Applicability of Article 6 52. Referring to the Court's jurisprudence (Pellegrin v. France [GC], no. 28541/95, ECHR 1999‑VIII) the Government submitted that Article 6 § 1 of the Convention was not applicable to the proceedings in question. They emphasised that the posts for which the applicant had been a candidate were high in the hierarchy of the public service and entailed duties and responsibilities which involved both direct and indirect participation in the exercise of powers conferred by public law concerning the formulation of state policies and safeguarding the state's general interests. 53.", "The applicant contested the Government's submissions in this respect. He submitted that the posts in question did not come within the ambit of Pellegrin (cited above). He therefore argued that Article 6 § 1 was applicable. 54. The Court notes that in its recent judgment in the case of Vilho Eskelinen and Others v. Finland ([GC], no.", "63235/00, 19 April 2007), it found that the functional criterion, adopted in the Pellegrin judgment (cited above), did not simplify the analysis of the applicability of Article 6 in proceedings to which a civil servant was a party or brought about a greater degree of certainty in this area as intended (§ 55). For these reasons the Court decided to further develop the functional criterion set out in Pellegrin and adopted the following approach: “62. To recapitulate, in order for the respondent State to be able to rely before the Court on the applicant's status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State's interest.", "The mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists, to use the words of the Court in the Pellegrin judgment, a “special bond of trust and loyalty” between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies.", "It will be for the respondent Government to demonstrate, first, that a civil-servant applicant does not have a right of access to a court under national law and, second, that the exclusion of the rights under Article 6 for the civil servant is justified (Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, 19 April 2007)”. 55. Turning to the facts of the present case, the Court notes that the applicant had access to a court under national law. Accordingly, on the basis of the test developed in the case of Vilho Eskelinen and Others (cited above, § 63) the Court finds that Article 6 is applicable to the present case and dismisses the Government's plea in this respect.", "(b) Exhaustion of domestic remedies 56. The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and consequently, that the applicant's complaints under this head should be declared inadmissible. In particular, they stated that the applicant had not complained about the length of the proceedings before the Supreme Court, both at first instance and on appeal. In connection to the latter they emphasised that the applicant should have included the question of a violation of Article 6 § 1 of the Convention and Article 30 (2) of the Constitution in his grounds of appeal and therefore, given an opportunity to the Supreme Court to address his complaint in this respect. The Supreme Court did not examine constitutional matters ex proprio motu.", "The Government pointed out that the Supreme Court, as an appeal court, had the power to set aside judgments, to order a retrial or deliver any judgment it considered appropriate. This was applicable whether it sat as an appeal court in an administrative recourse or a civil case. In this respect the Government relied on the Supreme Court's judgment in the case of A. Constantinides and Alithia Publishing Company v. T. Papadopoulos in which the Supreme Court duly examined the appellants' complaints about the length of the proceedings (see paragraph 45 above). 57. The applicant disputed the Government's submissions and submitted that he had exhausted the available domestic remedies.", "58. The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp.", "11–12, § 27; and Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 87-88, § 38). Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003). 59.", "The Court notes that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 69). 60. Finally, the Court reiterates that the decisive question in assessing the effectiveness of a remedy concerning procedural delay is whether or not there is a possibility for the applicant to be provided with direct and speedy redress, rather than the indirect protection of the rights guaranteed under Article 6 (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no.", "36813/97, § 195, ECHR 2006; and Sürmeli v. Germany [GC], no. 75529/01, § 101, 8 June 2006). In particular, a remedy shall be “effective” if it can be used either to expedite the proceedings at issue or to provide the litigant with adequate redress for delays which have already occurred (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, §§ 157-159, ECHR 2000-XI; Mifsud v. France (dec.), [GC], no. 57220/00, § 17, ECHR 2002-VIII; and Sürmeli, cited above, § 99).", "61. In the present case, the Court notes that the case relied on by the Government demonstrates that, at least on appeal, a party to the proceedings can raise a complaint concerning the length of the proceedings and a violation of his rights in this respect and that the Supreme Court will examine and decide on the issue in its final judgment. However, firstly, it is obvious that this remedy cannot expedite the determination of an applicant's case. Secondly, this case does not indicate whether and if so, how an applicant could in reality obtain compensatory relief in respect of his or her length complaint by raising this complaint in the context of his appeal. In particular, in the case cited by the Government the Supreme Court did not find a violation of this right and its judgment does not clearly indicate, in the event of the finding of a violation, that this remedy could provide an applicant with adequate redress for delays that had already occurred.", "The Government did not supply any example from domestic practice showing that, by using the means in question, it was possible for the applicant to obtain such a relief (see Kudła, cited above, § 159). They merely made a general reference to the Supreme Court's powers as an appeal court. 62. Bearing in mind the above, the Court considers that the case cited by the Government does not suffice to show the existence of settled domestic case-law that would prove the effectiveness of the remedy. 63.", "Accordingly, the Court concludes that, in the absence of convincing submissions from the Government, this part of the application cannot be rejected for failure to exhaust domestic remedies. The Court thus dismisses the Government's objection on this point. 64. Finally, the Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 65. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "66. The Court further recalls that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial system in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see Pélissier and Sassi v. France [GC], no. 25444/94, § 74 ECHR 1999‑II; and Frydlender, § 45, cited above). 1. Proceedings concerning the appointment of the applicant to the post of First Officer of Town Planning 67.", "The Court notes that the three relevant recourses which were subsequently joined were filed on 25 April, 30 April and 20 November 1996 before the Supreme Court (first instance administrative jurisdiction). The applicant took part in the proceedings as an interested party (see paragraph 15 above). The parties, however, have not indicated on which date the applicant joined the proceedings. In view of this, the Court, for practical reasons, will take the date the first recourse was lodged as the starting point for the assessment of the length of the proceedings. Consequently, the period to be taken into consideration began on 25 April 1996 and ended on 12 March 2002 with the Supreme Court's dismissal (revisional administrative jurisdiction) of the appeals (see paragraph 34 above).", "It thus lasted five years, ten months and eighteen days over two levels of jurisdiction. 68. The Government submitted that they did not have the court record of the proceedings but maintained that the length of the proceedings had been compatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. In this connection they noted that the proceedings comprised of three administrative recourses which had been joined together and that within the relevant period interim proceedings had also taken place both at first instance and on appeal. 69.", "The applicant argued that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. 70. The Court notes that while the total length of proceedings does not appear on the face of it to be excessive, there was considerable delay at first instance. The proceedings at this stage lasted approximately four years and nine months. Within this period the Supreme Court dealt with an interim application at first instance and on appeal.", "Although the interim proceedings at first instance were prompt (approximately two months), at the appeal stage they lasted about one year and nine months. The main recourse was adjourned during this period (see paragraph 21 above). Admittedly, interim proceedings and the use of interim procedural possibilities do result in certain acceptable delay in the proceedings. Nonetheless, the Court cannot ignore the excessive delay that occurred during the examination of the interim appeal and which contributed significantly to the prolongation of the main proceedings. In this connection, the Court notes that there is no indication that the issue raised was of particular legal complexity.", "The Government did not supply any explanation for this delay. Furthermore, the Court has not identified any periods of inactivity or adjournments that took place in the proceedings for which the applicant should be held responsible. 71. This being so and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.", "2. Proceedings concerning the post of Director of Town Planning 72. The Court notes that the parties have not indicated the exact date on which the initial recourse was lodged by the applicant before the Supreme Court (first instance administrative jurisdiction). On the basis of the information available to the Court the applicant filed the recourses sometime in 1993 and the proceedings ended on 2 October 2002 with the Supreme Court's dismissal (revisional administrative jurisdiction) of the appeal (see paragraph 42 above). Therefore, the Court's assessment of the duration of the proceedings can only be approximate.", "On the basis of the given information the period to be taken into consideration lasted more or less nine years over two levels of jurisdiction. 73. The Government submitted that they did not have the court record of the proceedings and did not make any comments concerning the applicant's complaint about the length of these proceedings. 74. The applicant argued that the delays in the proceedings had been attributable to the domestic courts and that the overall length of proceedings had been excessive.", "75. The Court observes that the principal delay in the proceedings was at first instance, the proceedings at this stage lasting about seven years. In the Court's opinion, the time taken by the Supreme Court in examining the recourse at first instance, appears to be exceptionally long especially bearing in mind that the recourse does not appear to have involved any particular factual or legal complexity. In this respect, the Court notes that the Government have not provided the Court with any explanations concerning the delay or with a court record of the proceedings which would enable the Court to identify the reasons for this delay. 76.", "This being so and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE PROCEEDINGS 77. The applicant raised a number of complaints under Article 6 § 1 concerning the fairness of the proceedings.", "In particular the applicant complained about the following: (a) The applicant complained about the manner in which the formation of the Chamber in appeal (nos. 3190 and 3194) had been changed without explanations, resulting in the participation of Judges Constantinides and Gavrielides who had been part of the bench who had taken the appeal judgment concerning the interim decision on the applicant's preliminary objections (see paragraphs 20 and 32-34 above). In this respect, he complained that the latter judge in particular, should not have been, in view of the circumstances (see paragraphs 20 and 36 above), on the bench that had examined his case. However, the Supreme Court had dismissed his request to exclude the above judges from the bench (see paragraph 33 above). (b) The applicant complained that the judgments taken in respect of appeals nos.", "3190 and 3194 on 12 March 2002 and appeal no. 3033 on 2 October 2002 had been contradictory as regards his qualifications for the relevant posts. A. Complaints concerning lack of impartiality 78. The Government argued that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.", "In particular, they submitted that the applicant had failed to file an application in the relevant appeal proceedings requesting the exclusion of these judges which would have afforded the Supreme Court the opportunity to examine and decide on the matter. They relied on the case of A. Sofokleous v. C. Taveloudi and A. Taveloudi in this respect (see paragraph 46 above). 79. As to the substance of the applicant's complaints the Government submitted that they were manifestly ill-founded. Firstly, they noted that the issue determined by the bench in the interim appeal had been a preliminary issue that had not touched upon the substance of the appeal.", "Therefore in their view the applicant's allegation of a lack of impartiality of the relevant judges was not objectively justified. Secondly, as regards Judge Gavrielides they noted that no proof had been submitted by the applicant showing personal bias or interest in the case or that this judge had arranged to participate in the bench for personal reasons or otherwise. The applicant's assertions were unsubstantiated and related to alleged display of hostility or ill-will towards him outside the proceedings. 80. In reply the applicant emphasised that he had requested the exclusion of the both judges just before the pleadings while the lawyer of the other parties had requested the exclusion of one of the other judges (see paragraph 33 above).", "The court had examined the oral requests and then rejected them. The oral requests had been admissible; the court had not dismissed them on the basis that they had not been submitted in writing as the Government suggested. The applicant therefore argued that the Government's objection in this respect should be dismissed. 81. With regard to the substance of his complaint the applicant submitted that in the circumstances the participation of the two judges in both the interim appeal proceedings and the main appeal proceedings was contrary to requirement of impartiality guaranteed under Article 6 of the Convention, at least from an objective standpoint.", "In this connection, he maintained that the interim appeal formed an integral part of the whole proceedings. Furthermore, he argued that Judge Gavrielides should have excluded himself on additional personal grounds. 82. At the outset the Court notes that the Government do not contest that the applicant made an oral request for the exclusion of the two judges. In fact they make no comment in this respect.", "They merely argue that the applicant did not file an application, that is, a written request and rely on a case in which such an application was filed (see paragraphs 46 and 78 above). The Court observes that although the case cited demonstrates that it is open a party in proceedings to file a written application seeking the exclusion of judge it does not provide authority that such requests can be only made in writing. The Government do not make reference to any rule or other jurisprudence in this regard. Furthermore, the Court notes that the Government have not provided a record of the proceedings and therefore there is no transcript of the procedure that took place concerning the objections. This cannot be held against the applicant.", "83. In these circumstances and bearing in mind the principles pertaining to the domestic remedies rule contained in Article 35 § 1 of the Convention (see paragraphs 58-60 above) the Court considers that the Government have failed to show that these complaints should be rejected for failure to exhaust domestic remedies. The Court thus dismisses the Government's objection on this point. 84. Notwithstanding the above, the Court considers that the applicant's complaints under this head are manifestly ill-founded for the reasons elaborated below.", "85. As regards the applicant's first complaint the Court notes that in spite of changes in the composition of the bench at the pre-hearing stage of the appeal, there were no changes at the stage of the hearing and examination of the appeal. Furthermore, the mere fact that the bench that examined the appeal against the first instance judgment (appeal no. 3190) included two judges that had also been part of the bench that had decided the interim appeal (appeal no. 2594), does not in the Court's view, in the circumstances of the present case, constitute a ground for requiring their exclusion from deciding on the merits of the case.", "In particular the Court observes that the issues the judges examined when considering the interim appeal in relation to the preliminary objection were not the same as those which were examined and decided by the final judgment. The question that was examined by the Supreme Court at the interim appeal proceedings was whether an appeal could be lodged against the relevant interim decision. The interim appeal was rejected on the basis that the interim decision was not determinative of the rights or obligations of the litigants and that the interim decision could be considered in the context of an appeal against the first instance judgment. The Supreme Court's judgment was confined to this question; it did not consider the matter raised by the applicants as to whether the recourses had been out of time (see paragraph 21 above). This question was considered by the Supreme Court in the main appeal proceedings (see paragraph 34 above).", "86. Secondly, as to the applicant's complaint regarding bias on the part of Judge Gavrielides, the Court notes that this is unsubstantiated. The documents and information submitted by the applicant do not indicate that this judge had any preconceived ideas or personal convictions about the case. Accordingly, in the Court's opinion the applicant has failed to substantiate his allegations and to lay the basis of an arguable claim of a breach of Article 6 § 1 in this respect. 87.", "Accordingly, it follows that the applicant's complaints under this head must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. B. Complaints about the Supreme Court's judgments 88. The applicant complained that the judgments of the Supreme Court (revisional administrative jurisdiction) in the recourses concerning the appointment of the applicant to the post of First Officer of Town Planning and his candidature for the post of Director of Town Planning (see paragraphs 34, 42 and 43 above) were contradictory as regards his qualifications for the relevant posts. In his view, the most recent judgment of 12 October 2002 was binding on the Government who as a result had to consider him as qualified for both posts and proceed with the necessary appointment and promotion.", "89. The Court reiterates that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance, from the decisions of domestic courts. It is the role of the latter to interpret and apply the relevant rules of national procedural and substantive law. Furthermore, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).", "90. In the present case the applicant is in essence requesting the Court to review the findings of the Supreme Court in the two sets of proceedings and in particular to review the findings of the judgment with which he disagrees vis-à-vis the judgment which he considers to be correct. In this connection the Court notes that the mere fact that the applicant is dissatisfied with the outcome of the proceedings concerning his appointment to the post of First Officer of Town Planning cannot in itself raise an issue under Article 6 of the Convention. Furthermore, although the Supreme Court bench in its judgment of 2 October 2002 concerning the post of Director of Town Planning disagreed with the meaning given by the majority of the Supreme Court in its judgment of 12 March 2002 concerning the post of First Officer of Town Planning of the judgment of the Supreme Court of 5 October 1994, this disagreement did not extend to nor affected the cases decided by the judgment of 12 March 2002 (see paragraph 42 above). Moreover, it held that the latter judgment did not bind it as regards its judgment in relation to the procedure for the post of Director of Town Planning (see paragraph 43 above).", "91. In respect to the above, the Court further notes that the Supreme Court's judgment of 2 October 2002 was taken in the context of different proceedings concerning another post and was confined to the issue of whether the applicant should have been considered as qualified for the post and not as to whether he should have been appointed to that post. 92. This being so, the Court finds that there is no indication of arbitrariness stemming from the differing outcomes of the proceedings which could raise an issue under Article 6. It follows this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 93. The applicant complained under Article 13 of the Convention about a lack of an effective remedy in respect of the two contradictory judgments given by the Supreme Court on 12 March 2002 and on 2 October 2002 on the same issue (see paragraphs 34, 42 and 43 above). In this regard, he pointed out that the Commission had followed the first judgment by annulling his appointment of First Officer of Town Planning and totally ignored the second one by not appointing him as Director of Town Planning. 94.", "Furthermore the applicant complained that the conduct of the Commission and the Government authorities and the multiple recourses which concluded in contradicting judgments constituted an abuse of power, of which he was a victim, contrary to Article 14 of the Convention. Lastly, he complained of a violation of Article 1 Protocol No. 1 in that the Government had not paid him the remainder of the money that had been due to him as part of the salaries that had been promised to him (see paragraph 13 above) and that he had been deprived of a permanent public post and therefore, of all earnings that would have resulted from such a post and related promotions. 95. Firstly, the Court notes that the applicant's complaint under Article 13 of the Convention, concerns his complaint under Article 6 § 1 about the alleged contradictory judgments of the Supreme Court.", "In light of the Court's conclusions above and consequently the absence of an arguable claim under Article 6 § 1 in this respect, Article 13 is not engaged (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). Accordingly, the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 96. Secondly, as regards the applicant's complaint under Article 14 the Court observes that is not clearly formulated and relates to abuse of power by the authorities.", "The Court further notes that no reference was made by the applicant to discriminatory treatment. Even if this claim concerning abuse of power could be taken to have discriminatory effects the applicant does not in any way substantiate his complaint under this head. Consequently, this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 97. Thirdly, as regards the first part of the applicant's complaint under Article 1 of Protocol No.", "1 the Court notes that the applicant did not raise this complaint before the domestic courts. He has thus not exhausted domestic remedies in this respect in accordance with Article 35 § 1 of the Convention. 98. Finally, regarding the second part of the applicant's complaint under Article 1 of Protocol No. 1, the Court notes that in so far as the applicant can be taken to complain about the annulment of his appointment to the post of First Officer of Town planning, the Court observes that Article 1 of Protocol No.", "1 applies only to a person's existing possessions. Thus, future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable (see, inter alia, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007‑...; Denimark v. the United Kingdom, no. 37660/97, decision of 26 September 2000; and Ian Edgar [Liverpool] Ltd. v. the United Kingdom, no. 37683/97, decision of 25 January 2000) which was not the situation in the present case.", "It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. In so far as the applicant is complaining about the post of Director of Town Planning the Court observes that the applicant was never appointed to that post and therefore his complaint in this respect is about a speculative loss of income that is based on the assumption that he ought to have been appointed. Consequently, this complaint is manifestly ill-founded within the meaning of Article 35 § 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 100. In sum, the applicant claimed the amount of CYP 1,231,000 in respect of pecuniary damage. This amount included, inter alia, damages in the form of salaries, salary arrears for the post of First Officer of Town Planning, salary supplements linked to the above post and the post of Director of Town Planning, damages for the loss of opportunity to have and serve in the above posts and pension from 21 January 2004. As regards pension, the applicant claimed that he could accept monthly payments as an alternative to a lump sum.", "Finally, the applicant claimed the sum of CYP 50,000 in respect of non-pecuniary damage. 101. The Government contested these claims. 102. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 12,000 euros under that head plus any tax that may be chargeable on that amount. B. Costs and expenses 103. The applicant also claimed CYP 14,000 for the costs and expenses incurred before the domestic courts and before the Court.", "This sum included (a) CYP 8,000 for the costs and expenses incurred before the domestic courts in a total of twenty-two recourses; a sum based on the applicant's own estimation; (b) CYP 5,000 in respect of costs and expenses incurred by him for work he personally carried out both for the procedures before the domestic courts and before this Court; and (c) CYP 1,000 for various other expenses. The applicant submitted that he did not have any bills or receipts in this connection. 104. The Government contested these claims. 105.", "According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In so far as the costs before the domestic courts are concerned, the Court notes that the duration of the proceedings can increase a litigant's legal expenses, a point which should be taken into account when assessing an applicant's claim under this head (see Capuano v. Italy, judgment of 25 June 1987, Series A no. 119, p. 15, § 37).", "106. The Court notes that the applicant's claim in respect of the costs incurred in the domestic proceedings is based on his own calculations and is in respect of far more proceedings that those examined in the present application. Furthermore, the applicant has not submitted any evidence in support of his claims for costs and expenses. It therefore rejects this part of the applicant's claim. However, in the circumstances, it considers reasonable to award the applicant the sum of EUR 500 for the proceedings before the Court plus any tax that may be chargeable on that amount.", "C. Default interest 107. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings in respect of the applicant's appointment to the post of First Officer of Town Planning and in respect of the post of Director of Town Planning admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings concerning the applicant's appointment to the post of First Officer of Town Planning; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings concerning the post of Director of Town Planning; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 6 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisSection RegistrarPresident" ]

[ "FIRST SECTION CASE OF SULTYGOV AND OTHERS v. RUSSIA (Applications nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11) JUDGMENT STRASBOURG 9 October 2014 FINAL 16/02/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sultygov and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 16 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in twelve applications (see details in Appendix I) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals (“the applicants”), on the dates indicated below in Appendix I.", "2. The applicants were represented before the Court by Mr D. Itslayev, a lawyer practising in Russia, lawyers from the Stichting Russian Justice Initiative (SRJI) (in partnership with NGO Astreya), an NGO based in the Netherlands with a representative office in Russia, lawyers from the Memorial Human Rights Centre/the European Human Rights Advocacy Centre (EHRAC), an NGO based in Russia and the UK and lawyers from Materi Chechni, an NGO based in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants alleged that on various dates between 2000 and 2005 their eighteen relatives had been abducted by State servicemen in Chechnya and Ingushetia and that no effective investigation into the matter had taken place.", "4. On the dates indicated in Appendix I the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are Russian nationals who are close relatives of persons who disappeared after allegedly being arrested by servicemen.", "In each of the applications the events took place in areas under the full control of the Russian federal forces. 6. The applicants complained to law-enforcement bodies and official investigations were opened. The proceedings were repeatedly suspended and resumed, and have remained pending for several years without achieving any tangible results. The investigations consisted mainly of the authorities making requests for information and formal requests to their counterparts in various parts of Chechnya and Ingushetia and other regions of the North Caucasus to take operational search measures.", "The requests received negative responses or no replies at all. 7. From the documents submitted it appears that the relevant State authorities were unable to identify the State servicemen allegedly involved in the arrests or abductions. 8. In their observations the Government did not challenge the allegations as presented by the applicants.", "At the same time, they stated that there was no evidence to prove beyond reasonable doubt that State agents had been involved in the abductions. 9. Below are summaries of the facts relevant to each individual application. They are based on the statements provided by the applicants, their relatives and neighbours and copies of the contents of the criminal investigation files furnished by the Government. The personal data of the applicants and their disappeared relatives, and some other key facts, are summarized below and in the attached table (Appendix I).", "A. Application no. 42575/07, Sultygov and Others v. Russia 10. The applicants are: (1) Mr Gerikhan Sultygov, born in 1972; (2) Ms Fatima Sultygova, born in 1966; (3) Mr Musadi Samrailov, born in 1943, and (4) Ms Maus Nasayeva, born in 1953. The first applicant resides in Chippis, Switzerland.", "The second applicant lives in Boras, Sweden. The fourth applicant resides in Grozny, Chechnya; prior to his death, the third applicant also lived there. 11. The third applicant, Mr Musadi Samrailov, passed away on 3 February 2013. Mr Viskhan Samrailov, his grandson and the son of Mr Visadi Samrailov, expressed his wish to pursue the application.", "12. The first and second applicants are the siblings of Mr Alikhan Sultygov, who was born in 1969. The third and fourth applicants are the father and stepmother of Mr Visadi Samrailov, who was born in 1964. 1. Abduction of the applicants’ relatives and subsequent events 13.", "In 2000 the Sultygov family, including the first and second applicants and their children, moved from Grozny to Ingushetia owing to armed hostilities. In the summer of 2000 Mr Alikhan Sultygov returned to Grozny to check on the family house left behind. 14. On the morning of 4 August 2000 Mr D.U. and Mr Alikhan Sultygov drove in the latter’s Volga car to the house of the Samrailov family through checkpoint no.", "7 on the outskirts of Grozny. The checkpoint was manned by servicemen of Special Police Forces Unit (OMON) from the Sverdlovsk Region. The servicemen checked Mr Alikhan Sultygov’s and Mr D.U.’s identity documents and let them through. 15. On the way back, after having picked up Mr Visadi Samrailov, the three men were stopped at the checkpoint and detained.", "Mr Alikhan Sultygov, Mr Visadi Samrailov and Mr D.U. were placed in a UAZ vehicle and taken to the Leninskiy district military commander’s office which was situated in the same building as the Leninskiy district department of the interior (the ROVD). Mr Alikhan Sultygov’s car was driven by one of the servicemen. At the office the three men were blindfolded, their hands were bound and they were put in an APC which took them to the main base of the federal military forces in Khankala. 16.", "Upon their arrival at the base the three men were put into a pit measuring about two or three metres in depth and about one and a half metres in diameter. The bottom of the pit was covered with stones and broken glass. The three men were not allowed to remove the blindfolds and their hands remained bound; they were not fed, and only given water. The soldiers threw stones at them. 17.", "On the next day several servicemen took Mr Alikhan Sultygov out of the pit. He never returned. Two days later the servicemen took away Mr Visadi Samrailov. Later on the same date Mr D.U. was also taken out of the pit, driven for about thirty minutes and released on a highway.", "The abductors told him to keep his blindfold on for thirty minutes and threatened to kill him if he shared any information about the detention. Then Mr D.U. walked to Grozny. 18. The applicants have not seen their relatives Mr Alikhan Sultygov and Mr Visadi Samrailov since 4 August 2000.", "2. Official investigation (a) Main witness statements taken in the course of the investigation 19. On an unspecified date in September 2000 the third applicant was questioned about the abduction. He informed the investigators about the details of the events, as related by Mr D.U., including the arrest at the checkpoint and subsequent detention in a pit in Khankala. 20.", "On 17 March 2001 the investigators questioned the wife of Mr Visadi Samrailov, Ms M.S., whose statement was similar to the one submitted by the applicants to the Court. In addition, she stated that along with her husband the servicemen had also arrested Mr Alikhan Sultygov and kept him in the pit and that the first and second applicants were searching for him. 21. On 22 October 2004 the investigators questioned Mr Visadi Samrailov’s sister, Ms M.I., who stated that on 4 August 2000 an employee of the Leninskiy district military commander’s office, Ms Ya.Ya., had told her that Mr Visadi Samrailov had been brought over to their office and then taken to the military base in Khankala. 22.", "On the same date, 22 October 2004, the investigators also questioned Mr Visadi Samrailov’s mother, Ms A.I., whose statement was similar to that of Ms M.I. In addition, she stated that on 4 August 2000 the district military commander had personally confirmed to her that her son had been brought to their office and detained there until 4 p.m. and then taken to Khankala. 23. On the same date, 22 October 2004 the investigators also questioned the third applicant, whose detailed statement was similar to the ones given by Ms M.I. and Ms A.I.", "In addition, he stated that at the military base his son, Mr Alikhan Sultygov and Mr D.U. had been kept for several days in a pit and that he had learnt about the details of their detention from Mr D.U. 24. On 25 October 2004 the investigators questioned Ms Ya.Ya., who stated that in 2000 she had worked at the Leninskiy district military commander’s office and that on an unspecified date in August 2000 she had seen, on the premises, Mr Visadi Samrailov, who had been standing in the hallway with his hands above his head against the wall. At the time the district military commander was officer S. Pe.", "25. On 10 November 2004 the investigators questioned Mr Alikhan Sultygov’s mother, Ms A.S., whose statement was similar to the one given by the third applicant. In addition, she stated that she had learnt the details of the arrest and the subsequent detention from Mr D.U. 26. On 19 March 2007 Mr D.U.", "wrote to the investigators providing details of his arrest at the checkpoint and the subsequent detention in Khankala with the applicants’ relatives Mr Visadi Samrailov and Mr Alikhan Sultygov. This information was included in the case file; he was not questioned by the investigators. (b) The main investigative steps taken by the authorities 27. On 7 August 2000 the third applicant was informed by Mr D.U. of the abduction of Mr Visadi Samrailov.", "From the documents submitted it follows that on an unspecified date prior to 13 September 2000 he complained about the abduction in writing to the Leninskiy district prosecutor’s office and the Leninskiy ROVD stating that his son had been detained at the checkpoint and then taken to the ROVD and the military commander’s office. 28. At the end of August 2000 Mr Alikhan Sultygov’s mother, Ms A.S., received a note from Mr D.U. stating that her son had been arrested. She immediately went to speak with him; having learnt the details of the arrest and subsequent detention in the pit, she complained thereof to the Grozny military commander’s office.", "29. On 17 March 2001 the district prosecutor’s office opened criminal case no. 11094 to investigate the abduction of Mr Alikhan Sultygov and Mr Visadi Samrailov. 30. On 17 March 2001 Mr Visadi Samrailov’s wife, Ms M.S., was granted victim status in the criminal case.", "31. On 17 May 2001 the investigation was suspended and on 5 June 2001 it was resumed. The applicants were not informed thereof. 32. On 6 July 2001 the investigators examined the detainee registration log of the Leninskiy ROVD.", "According to entry no. 262, on 4 August 2000 Mr Visadi Samrailov had been taken to the ROVD and then handed over to colonel Korolev. 33. On 13 August 2003 Mr Alikhan Sultygov’s mother, Ms A.S., wrote to the investigators describing the circumstances of her son’s arrest at the checkpoint, his transfer from the ROVD by colonel Korolev to the military base in Khankala and his subsequent detention with Mr D.U. 34.", "On 10 November 2004 (in the documents submitted the date was also referred to as 7 August 2006) Ms A.S. was granted victim status in the criminal case. 35. On 29 March 2007 the third applicant wrote to the investigators asking them to resume the proceedings. He also stated that Mr D.U., who had previously refused to give statements to the authorities out of fear for his life, had agreed to be questioned. 36.", "Between 2001 and 2007 the investigation was suspended and resumed on several occasions. It was last suspended on 5 May 2007. The applicants were not informed thereof. 37. From the documents submitted it follows that on various dates between 2001 and 2007 the applicants and their relatives sent numerous requests to various authorities asking for assistance and information on the search for their relatives.", "38. On 9 June 2007 the third applicant requested an update on the progress of the investigation. No reply was received. 39. On 26 October 2009 the investigation was resumed.", "It is still pending. B. Application no. 53679/07, Bekova v. Russia 40. The applicant, Ms Fatima Bekova, was born in 1963 and lives in Nazran, Ingushetia.", "41. The applicant is the mother of Mr Ruslan Yandiyev, who was born in 1982. 1. Abduction of the applicant’s son and subsequent events (a) Abduction of Mr Ruslan Yandiyev 42. At the material time the applicant and her son, Mr Ruslan Yandiyev resided in a block of flats at 19 Moskovskaya Street in Nazran, Ingushetia.", "A block of flats was under construction nearby. 43. On the morning of 29 September 2005 the applicant left for work. At about 9 a.m. on 29 September 2005 Mr Ruslan Yandiyev went to the construction site and met Mr M.-A.B., an acquaintance who worked there. After a while they were joined by Mr I.Kh., another worker from the site, who had arrived in his “Moskvitch” vehicle.", "The three men went to the workers’ trailer situated at the site. 44. Shortly afterwards two vehicles arrived at the construction site: a silver VAZ-21099 vehicle with a registration number containing the digits “06” and a red VAZ-2107 vehicle with the registration number “586 mr 95”. A group of armed men in camouflage uniforms got out of the vehicles and broke into the trailer. Most of the armed men were of Slavic appearance and spoke unaccented Russian.", "Some others wore civilian clothing and spoke Ingush. 45. Having broken into the trailer, the armed men immediately started beating Mr I.Kh. and dragged him outside. When Mr M.-A.B.", "and Mr Ruslan Yandiyev tried to intervene the armed men took them outside and forced them into their vehicles. They then put Mr I.Kh., unconscious and bleeding, into the boot of one of the vehicles and drove away with the three men. The abduction took place in the presence of several witnesses. 46. The applicant has not had any news from her son, Mr Ruslan Yandiyev since that day.", "(b) Subsequent events 47. On the following day, 30 September 2005, the applicant arrived at the construction site and learnt about the abduction. She immediately complained thereof to various law-enforcement authorities, including the Ministry of the Interior, the Federal Security Service (“the FSB”) and the Nazran town prosecutor. 48. On 14 October 2005 a convoy of four white Gazel minivans, a UAZ minivan (“таблетка”) and some other vehicles, arrived at the construction site.", "A large group of representatives of law-enforcement agencies searched the site looking for hidden explosives and ammunition. Mr P.E. and Mr P.A., who had been present at the site on 29 September 2005, recognised some of the officers as the latter had participated in the abduction of Mr Ruslan Yandiyev. 49. The Government submitted that on 14 October 2005 a large group of law-enforcement officers had searched the construction site looking for explosives and that on 29 September 2005 no special operations had been conducted to detain Mr Ruslan Yandiyev.", "2. Official investigation into the abduction (a) Main witness statements taken by the investigators 50. On 9 October 2005 the investigators questioned the applicant, whose statement was similar to the one submitted to the Court. In particular, she stated that she had learnt from workers at the construction site that on 29 September 2005 a group of armed men speaking unaccented Russian had arrived at the site in two vehicles, had beaten Mr I.Kh., Mr M.-A.B. and her son up and taken them away.", "51. On 28 November 2005 the applicant informed the investigators that she had information concerning the possible identities of the police officers from the special forces unit who on 29 September 2005 had taken away her son and two other men from the construction site and on 14 October 2005 had returned to the site. She requested that those officers be questioned. 52. On 11 August 2006 the investigators questioned Ms F.A., whose statement concerning the abduction was similar to the one furnished by the applicant to the Court.", "In addition, she stated that on 14 October 2005 a large group of policemen had searched the construction site and that among them had been several officers who had participated in the arrest of the applicant’s son on 29 September 2005 and whom she would be able to identify. On 30 October 2005 another group of policemen had searched the site with metal detectors. 53. On 30 August 2006 the investigators questioned the senior investigator of the Directorate of the Federal Drug Control Service (“the FDCS”), Mr T.S., who submitted that in the autumn of 2005 he had received information concerning explosives hidden at the construction site. He had gone and inspected the site and the trailers with a number of other officers, including officer I.T.", "They had found nothing of interest. On that date the FDCS officers had used a UAZ-452 minivan (“таблетка”), an armoured Gazel minivan and a VAZ-2105 car. 54. On 10 September 2006 the investigators questioned the deputy head of the FDCS, officer I.T., whose statement was similar to that of the senior investigator T.S. In addition, he stated that upon receiving information concerning hidden ammunition or explosives at the construction site, he had informed his superiors and the regional department of the Federal Security Service about it.", "Then he had gone to the site with Mr Ib.T., the senior investigator Mr T.S., an expert and officers from the special forces unit of the FDCS. At the site they had been joined by officers from the regional department of the Federal Security Service and the Ingushetia Ministry of the Interior. Nothing of interest had been found during the search and the law-enforcement officers had left the site. About a month later he had again searched the trailer and the site with a group of officers from the service and the police but had found nothing of interest. According to the witness, he had learnt of Mr Ruslan Yandiyev’s abduction at some point later.", "55. On 15 September 2006 the investigators again questioned Ms F.A., who confirmed her previous statement and specified that she would be able to identify the abductors. 56. On an unspecified date in September 2006 the investigators questioned officer M.D., the head of the FDCS special forces unit, who stated that in September 2005 his unit had received an order to search the construction site. He had gone there with his group of officers, about forty in total.", "They had inspected the trailers at the site and the adjacent area. The witness stated that he had no information concerning the abduction. At some point later he had heard that the officers had subsequently returned to the construction site. 57. On 4 April 2008 the investigators again questioned the applicant, who reiterated her previous statements and pointed out that two witnesses, Ms F.A.", "and Ms P.E., had seen the perpetrators at the construction site during the abduction and then during the search on 14 October 2005 and that both of them could identify the culprits. 58. On 23 April 2008 the investigators again questioned officer M.D., who reiterated his previous statement. 59. On 14 April 2008 the investigators questioned Ms E.P.", "A copy of her complete statement was not furnished to the Court; its partial contents did not contain information pertinent to Mr Ruslan Yandiyev. 60. On 21 April 2008 the investigators again questioned officer I.T., who reiterated his previous statement. 61. On 22 April 2008 the investigators again questioned Ms F.A., who reiterated her previous statements, gave a detailed description of three of the abductors who spoke Ingush and stressed that she would definitely be able to identify them.", "62. On 13 May 2008 the investigators held an identification parade by showing photographs of the potential suspects to Ms F.A. She identified one of them as one of the officers who had been in charge of the search and the abduction of the applicant’s son on 29 September 2005 and who had subsequently returned to the construction site on 5 October 2005. 63. On 21 May 2008 the investigators arranged a confrontation between Ms F.A.", "and officer M.D., whom the former had identified as one of the perpetrators. Ms F.A. reiterated her previous statements and stressed that she was sure that this officer had participated in the abduction. The latter stated that he had indeed participated in the search of the construction site in October 2005 but denied any involvement in the abduction. 64.", "On 26 May 2008 the investigators questioned the applicant, who stated that two men had arrived at her home and threatened to blow her house up if she insisted on further investigation into her son’s abduction. The applicant stated that four officers, that is, Mr M.D., Mr T.S., Mr A.Kh. and the investigator Mr I.T. were suspected of her son’s abduction and that they could have been behind those threats. 65.", "On 28 May 2008 the investigators questioned a relative of the applicant, Mr M.B., who stated that his nephew Mr Ruslan Yandiyev and two other men had been abducted by law-enforcement officers and that officer I.T. had been in charge of the operation. 66. On 28 May 2008 the investigators held another identification parade by showing photographs of the potential suspects to Ms F.A. She identified one of them as one of the officers who had been in charge of the search at the construction site and the abduction of the applicant’s son on 29 September 2005 and who had subsequently returned to the site on 5 October 2005.", "67. On 29 May 2008 the investigators arranged a confrontation between Ms F.A. and officer I.T., whom the former had identified as one of the perpetrators. Ms F.A. reiterated her previous statements and stressed that she was sure that he had participated in the abduction.", "The latter stated that he had indeed participated in the search of the construction site in September and October 2005 but denied any involvement in the abduction. 68. On 2 June 2008 the investigators questioned Mr M.B., who stated that he had witnessed the abduction and provided a detailed description of the events similar to the one submitted by the applicant to the Court. In addition, he stressed that the abduction had been perpetrated by law‑enforcement officers M.D. and I.T.", "69. On 2 June 2008 the investigators arranged a confrontation between Ms F.A. and officer T.S., whom the former had identified as one of the perpetrators. Ms F.A. reiterated her previous statements and stressed that she was sure that he had also participated in the abduction along with officers M.D.", "and I.T. Officer T.S. stated that he had indeed participated in the search of the construction site in October 2005 but denied any involvement in the abduction. (b) Main investigative steps taken by the authorities 70. On 9 October 2005 the Nazran town prosecutor’s office instituted a criminal investigation into the abduction of Mr Ruslan Yandiyev, Mr M.‑A.B.", "and Mr I.Kh. The case file was given the number 05560115. 71. On the same date, 9 October 2005, the applicant was granted victim status in the criminal case. 72.", "On 1 December 2005 the investigators decided to follow up on the applicant’s information of 28 November 2005 concerning the perpetrators’ identities. 73. On 15 September 2006 the investigators informed the applicant that the steps taken had not led to the identification of the perpetrators. 74. On 15 September 2006 the Ingushetia prosecutor’s office, the supervisor of the investigators, informed the applicant that all possible steps to solve the crime had been taken.", "In particular, from the statements of the FDCS officers questioned by investigators it followed that on 14 October 2005 the officers had indeed inspected the trailer and the site but had not arrested the applicant’s son. 75. On an unspecified date between October 2006 and February 2007 the investigation was resumed and then suspended again on 19 March 2007 76. On 20 August 2007 the applicant was allowed to access the case file. 77.", "The documents submitted show that on numerous occasions between October 2005 and August 2007 the applicant complained to various law‑enforcement agencies about her son’s abduction by officers of the Ministry of the Interior, stating that a number of witnesses could identify the abductors, requesting that the investigators take a number of urgent steps to solve the crime and asking to be kept abreast of the progress of the investigation. 78. On 26 May 2008 the applicant complained to the head of the Nazran Town Department of the Interior that the night before two unidentified persons had threatened to blow her house up if she continued to persist with the investigation into her son’s abduction. 79. On 1 July 2008 the FDCS informed the investigators that their internal inquiry had not confirmed that the three officers who, according to witness Ms F.A., had participated in the abduction on 29 September 2005 had actually been present at the construction site on that date.", "80. The investigation into the abduction was suspended and resumed on numerous occasions. It was last suspended on 26 June 2009. The investigation is still pending. C. Application no.", "311/08, Isayevy v. Russia 81. The applicants, Ms Zeyna Isayeva and Ms Raisa Isayeva, were born in 1950 and 1981 respectively and live in the village of Valerik, Chechnya. 82. The first applicant is the mother and the second applicant is the sister of Mr Nurdi Isayev, who was born in 1979. According to the information submitted by the applicants, Mr Nurdi Isayev suffered from mental problems which had arisen as a result of a head wound sustained during the first military campaign in Chechnya in the 1990s.", "1. Abduction of the applicants’ relative and subsequent events 83. On the morning of 3 February 2000 Russian security forces started a special operation in Valerik aimed at identifying members of illegal armed groups. As part of the operation the servicemen blocked the perimeter of the village. 84.", "On the morning of that day about thirty to thirty-five armed servicemen in camouflage uniforms arrived at the applicants’ house in three APCs with obscured registration numbers. The servicemen checked the applicants’ identity documents and opened gunfire. On hearing the shots, Mr Nurdi Isayev ran away and the servicemen started shooting at him. The first applicant ran to the servicemen, asking them not to shoot at her son as he was mentally ill. However, the servicemen did not stop firing and the first applicant saw him fall to the ground.", "She fainted and was taken by her relatives to a neighbour’s house. 85. On the evening of 3 February 2000, after the servicemen had left the village, the applicants returned home. Their house and their car had been burnt. They did not find Mr Nurdi Isayev at home and did not know what had happened to him.", "86. Between 4 and 9 February 2000 the first applicant searched for Mr Nurdi Isayev, but only in Valerik, as the village was blocked for the large‑scale special operation being carried out by the federal forces in the district, including the nearby village of Katyr-Yurt (for the details of the operation see Isayeva v. Russia, no. 57950/00, § 74, 24 February 2005, and Abuyeva and Others v. Russia, no. 27065/05, § 8, 2 December 2010). 87.", "On 9 February 2000 the first applicant found several items of Mr Nurdi Isayev’s clothing with traces of blood on them and first-aid materials next to them in a field adjacent to the village. The first applicant inferred that her son had been given medical aid. She collected all those objects and subsequently submitted them to the investigators. 88. On an unspecified date in 2002 a neighbour of the applicants’ who had been detained in Chernokozovo remand prison, Ms I., returned home.", "According to a statement by Ms I. produced by the applicants, while in detention in Chernokozovo she had seen two inscriptions made with a sharp object on the cell wall reading “Nurdi Isayev, village of Valerik” and “3 February 2000”. 89. The applicants have not seen Mr Nurdi Isayev since 3 February 2000. 2. Official investigation into the abduction (a) Main witness statements taken by the investigators 90.", "On 26 February 2001 the investigators questioned the first applicant, whose detailed description of the circumstances of her son’s abduction was similar to the one submitted to the Court. In addition, she stated that her neighbour, Mr U.Kh., had also been taken away with her son in the same APC and that the special sweeping-up operation had been conducted by servicemen from the Police Special Task Units of the Penza and Yaroslavl regions. 91. On 26 February 2001 the investigators questioned one of the first applicant’s daughters, Ms R.I., whose statement concerning the abduction was similar to the one given by the first applicant. 92.", "On various dates in February and March 2001 the investigators questioned several of the applicants’ neighbours, whose statements concerning the circumstances of the abduction were similar to that of the first applicant. 93. On 9 June 2005 the investigators again questioned the first applicant, who reiterated her previous statement. 94. On 9 June 2005 the investigators questioned the applicants’ neighbour Mr U.Kh., who confirmed that he had been abducted by military servicemen along with Mr Nurdi Isayev and taken away in an APC.", "According to the witness, in the APC he had seen that Mr Nurdi Isayev was in a serious condition as he had sustained gunshot wounds to the head and chest. Mr U.Kh. had been detained for about six days and then released. 95. On 14 March 2007 the investigators again questioned the first applicant, who reiterated her previous statements.", "(b) Main investigative steps taken by the authorities 96. On various dates in 2000 the first applicant complained in person about her son’s disappearance to various State authorities. She described the details of the events and requested assistance in the search for him. Her complaints remained unanswered. 97.", "On 23 February 2001 the Achkhoy-Martan district prosecutor’s office opened criminal case no. 27009. 98. On 7 April 2002 the investigation was suspended. 99.", "On 6 June 2005 the investigation was resumed and then suspended again on 6 July 2005. 100. On 11 June 2005 the investigators examined the crime scene. No evidence was collected. 101.", "The documents submitted show that on numerous occasions between 2001 and 2007 the applicants complained of their relative’s abduction to various authorities and requested assistance in the search for him. They received either no replies or replies to the effect that the investigation was in progress. 102. The investigation was further suspended and resumed on several occasions in 2007 and 2008 and for the last time on an unspecified date in 2010. D. Application no.", "424/08, Idigov v. Russia 103. The applicant, Mr Tukhan Idigov, was born in 1933, and lived in the village of Shalazhi, Urus-Martan district, Chechnya. On 5 January 2013 the applicant passed away; his daughter, Ms Tamara Idigova, who was born in 1964 and lives in Grozny, expressed her wish to pursue the application on his behalf. 104. The applicant is the father of Mr Anzor Idigov, who was born in 1976.", "Ms Tamara Idigova is his sister. 1. Abduction of the applicant’s son 105. On the night between 3 and 4 May 2003 Mr Anzor Indigov, his parents and wife were sleeping in the applicant’s house on Lenina Street in Shalazhi (also spelt as Salazhi and Shalazi). 106.", "At about 2 a.m. on 4 May 2003 a group of armed men in camouflage uniforms and masks who spoke unaccented Russian broke into the house. The applicant and his relatives thought that the intruders were federal servicemen. Holding the applicant at gunpoint, the servicemen grabbed Mr Anzor Idigov, who was undressed and barefoot, bound his hands, sealed his mouth with adhesive tape and took him away to an unknown destination. Immediately after that two perpetrators returned and ordered the applicant to hand over Mr Anzor Indigov’s identity documents, saying that they were in a pocket of his jacket. 107.", "The applicant has not seen his son since that day. 2. Official investigation into the abduction (a) Main witness statements taken by the investigators 108. On 4 May 2003 the investigators questioned the applicant and the wife of Mr Anzor Idigov, Ms Kh.E., both of whom provided detailed descriptions of the abduction and stated that the abductors had been military servicemen. 109.", "On the same date, 4 May 2003, the investigators also questioned the applicant’s other son, Mr B.I., whose statement concerning the circumstances of the abduction was similar to those given by the applicant and Ms Kh.E. 110. On 23 May 2003 the investigators again questioned the applicant, Mr B.I. and Ms Kh.E., all of whom reiterated their previous statements. 111.", "On 15 June 2006 the investigators again questioned the applicant, Mr B.I. and Ms Kh.E., all of whom reiterated their previous statements. (b) Main investigative steps taken by the authorities 112. On 4 May 2003 the investigators examined the crime scene. No evidence was collected.", "113. On 18 May 2003 the Urus-Martan district prosecutor’s office opened criminal case no. 34059. 114. On 23 May 2003 the applicant was granted victim status.", "115. On 18 July 2003 the investigation was suspended. The applicant was not informed thereof. 116. On 13 June 2006 the investigation was resumed.", "The applicant was informed thereof. 117. On 13 July 2006 the investigation was suspended. The applicant was not informed thereof. 118.", "On 14 August 2007 the applicant complained to the Urus-Martan Town Court that the investigation was ineffective and requested that the investigators take a number of necessary steps. 119. On 28 August 2007 the court dismissed the applicant’s complaint, finding that the investigators had taken all the relevant steps. 120. From the documents submitted it follows that on several occasions between 2003 and 2007 the applicant complained about the abduction to various authorities.", "In reply he was either informed that the proceedings were in progress or that his request had been forwarded to another authority. 121. The investigation is still pending. E. Application no. 3375/08, Saayeva and Others v. Russia 122.", "The applicants are: (1) Ms Larisa Saayeva, born in 1971, (2) Ms Mariyat Beksultanova, born in 1953, (3) Mr Islam Saayev, born in 2001, (4) Ms Lala Saayeva, born in 2003, and (5) Ms Iman Saayeva, born in 2005. The applicants live in Grozny, Chechnya. 123. The first applicant is the wife and the third to fifth applicants are the children of Mr Idris Saayev, who was born in 1978. The second applicant is his mother.", "1. Abduction of the applicants’ relative and subsequent events 124. At the material time the applicants resided at 14/1 Stantsionnaya Street in Grozny. Their property consisted of two houses with a shared courtyard. 125.", "On the night between 2 and 3 March 2006 the second applicant and her son Mr Idris Saayev were in one house, whilst the second applicant’s husband, Mr Kh.S., was in the other one. 126. At about 5 a.m. on 3 March 2006 the second applicant woke up and saw a group of six armed men in camouflage uniforms. All of them but one, who was in charge of the group, were masked and wearing bulletproof jackets and spherical helmets. They were armed with submachine guns with silencers and pistols secured at the thighs by special rifle belts.", "The applicants thought they were federal servicemen. 127. Without any explanation the servicemen requested in unaccented Russian that Mr Idris Saayev produce his identity papers and mobile telephone. They also asked the second applicant about her other son, Mr A.S. Shortly thereafter they took Mr Idris Saayev outside without letting him put on any clothing.", "When the second applicant and her husband got outside, she saw the perpetrators’ UAZ minivan driving away. 128. At about 6 a.m. on 3 March 2006 the second applicant, her husband Mr Kh.S. and a relative went to the Staropromyslovskiy department of the interior in Grozny (“the ROVD”) to complain about the abduction of Mr Idris Saayev. A police officer told them that Mr Idris Saayev had been detained by the security forces and that he would return home if he cooperated with them and if the applicants did not lodge any official complaints.", "The second applicant then decided not to lodge a formal complaint, as suggested by the police officer. 129. In the days that followed the applicants applied in person to various State authorities seeking assistance in the search for their relative; none of the law-enforcement agencies admitted arresting or detaining Mr Idris Saayev. 130. About a week later the police officer from the ROVD told the applicants that Mr Idris Saayev had been transferred to Operational Search Bureau no.", "2 (“ORB-2”) in Grozny. On the same day the applicants requested information at the bureau but were told that their servicemen had not arrested Mr Idris Saayev. 131. On an unspecified date a certain Mr R.K. told the applicants that Mr Idris Saayev had been abducted by officers of the Federal Security Service (“the FSB”). Subsequently, the applicants provided Mr R.K.’s phone number to the investigators (see paragraph 138 below).", "132. The applicants have not seen Mr Idris Saayev since 3 March 2006. 2. Official investigation into the abduction (a) Main witness statements taken by the investigators 133. On 5 April 2006 the investigators questioned the second applicant, whose statement was similar to the one submitted by the applicants to the Court.", "She pointed out that the perpetrators had been Russian servicemen and that she had tried to find her son without recourse to an official investigation but to no avail. She stated that the abductors had called her neighbours’ phone, asked to speak to her, and told her that they would discuss the details of her son’s release with her. When at the end of March 2006 she had arrived at the place of the meeting suggested by them, she had seen a vehicle with servicemen in it who had filmed her and left without demanding anything. Having realised that her efforts to find her son were unproductive, about four weeks after the abduction she decided to lodge an official complaint about it. 134.", "On the same date, 5 April 2006, the investigators questioned the applicants’ neighbours Ms Z.I., Mr R.Zh., Mr A.M., Ms A.D. and Mr R.A., all of whom stated that they had not witnessed the abduction but had learnt about it from the applicants. 135. On 12 April 2006 the investigators again questioned the same neighbours, who reiterated their previous statements. 136. On 20 July 2007 the investigators questioned the first applicant, whose statement was similar to the one given by the second applicant.", "(b) Main investigative steps taken by the authorities 137. On 5 April 2006 the investigators examined the crime scene. No evidence was collected. The applicants provided the investigators with Mr Idris Saayev’s photo. 138.", "On 6 April 2006 the Staropromyslovskiy district prosecutor’s office (“the district prosecutor’s office”) opened criminal case no. 53037. 139. On 12 April 2006 the second applicant was granted victim status in the criminal case. 140.", "On 6 August 2006 the investigation was suspended. 141. On 26 June 2007 the investigation was resumed. 142. On 20 July 2007 the first applicant was granted victim status in the criminal case.", "143. On 11 August 2007 the investigation in the criminal case was again suspended. 144. On 15 August 2007 the first applicant complained to the Staropromyslovskiy District Court (“the district court”) stating that the investigation had been unlawfully suspended and requested that the court order the investigators to take effective steps to solve the crime. 145.", "On 18 August 2006 the investigation was resumed. 146. On 11 September 2007 the district court dismissed the first applicant’s complaint, stating that the investigation had been resumed on 18 August 2007. 147. On 18 September 2007 the investigation was suspended again and on 24 October 2007 it was resumed.", "148. On various dates in 2008 and 2009 the investigation was suspended and resumed; it was last suspended on 29 July 2009. 149. The proceedings are still pending. F. Application no.", "4560/08, Amerkhanova v. Russia 150. The applicant, Ms Dzayanu Amerkhanova, was born in 1954 and lives in Grozny, Chechnya. 151. The applicant is the mother of Mr Rustam Amerkhanov, who was born in 1978. 1.", "Abduction of the applicant’s son 152. In 2002 the applicant and Mr Rustam Amerkhanov, who suffered from a brain tumour, resided in the village of Shalazhi (also spelt Shalazi), in the Urus-Martan district. At the material time the settlement was under the full control of the federal forces; a number of military units and law‑enforcement agencies were stationed therein. 153. At about 8 p.m. on 3 November 2002 Mr Rustam Amerkhanov left to visit Mr A., a friend who lived nearby, and did not return.", "154. On the morning of 4 November 2002 the applicant found out that her son had not visited his friend’s house and that on the night between 3 and 4 November 2002 he had been detained by servicemen from the 47th unit of the Special Task Force Division (DON-2) of the Internal Troops of the Russian Ministry of the Interior. 155. On 5 November 2002 the applicant lodged an abduction complaint with the Urus-Martan district prosecutor’s office. On the same date the interim district prosecutor, Mr D.Z., obtained confirmation from the Urus‑Martan district department of the interior (ROVD) that Mr Rustam Amerkhanov had been brought by servicemen to the ROVD at about 8 a.m. on 4 November 2002 for an identity check and released about three hours later.", "156. On the same date the applicant, with two of her relatives and the interim district prosecutor, spoke to the officer in charge of the military unit who had detained the applicant’s son. At first the officer stated that Mr Rustam Amerkhanov had been released shortly after the arrest, but then admitted that he had been taken to the ROVD. 157. On the morning of 6 November 2002 (in the documents submitted the date is also referred to as 4 and 9 November 2002) the interim district prosecutor Mr D.Z.", "confirmed to the applicant that her son was detained on the premises of the ROVD and that he would be released shortly. The applicant was told to wait for her son outside the ROVD. 158. Later on the same day, at about 4 p.m. the applicant, who had waited since the morning, spoke to the interim district prosecutor Mr D.Z., who told her that her son was not in fact in the ROVD and that his whereabouts were unknown. A week later Mr D.Z., who had been on a service mission in Chechnya, left the Republic to return to the place of his permanent employment.", "Prior to his departure he told the applicant that the deputy head of the ROVD, Mr V.B., had questioned Mr Rustam Amerkhanov after the arrest. 159. On an unspecified date the applicant contacted Mr V.B. and he confirmed to her that he had interviewed her son, that it had been established that the latter had not participated in illegal armed groups and that therefore her son had been released. 160.", "The applicant has not seen Mr Rustam Amerkhanov since 3 November 2002. 161. In their submission on the facts the Government submitted that Mr Rustam Amerkhanov had been detained by the 47th military unit on the night between 3 and 4 November 2002 and at 7 or 8 a.m. on 4 November 2002 he had been taken to the Special Task Unit (OMON), which was staffed by servicemen from the Omsk region of Russia and was stationed on the premises of the former fruit canning factory. Mr Rustam Amerkhanov was handed over to the head of the OMON unit, officer V.G. 162.", "At about 9.15 a.m. on 4 November 2002 Mr Rustam Amerkhanov was taken to see the deputy head of the Urus-Martan ROVD, officer V.B., who signed a statement to that effect. At the ROVD the identity of the applicant’s son was verified and he was interviewed. Shortly thereafter, as his involvement in illegal armed groups had not been confirmed, on the same date, 4 November 2002, Mr Rustam Amerkhanov was released. His whereabouts have been unknown since. 2.", "Official investigation into the abduction (a) Main witness statements taken by the investigators 163. On 6 November 2002 the investigators questioned officer V. G., who confirmed that his unit had detained Mr Rustam Amerkhanov at about 2 a.m. on 4 November 2002. The officer personally interviewed him and concluded that he was not involved in illegal activities. At about 8 a.m. on 4 November 2002 he received an order from the deputy head of the Urus‑Martan ROVD to hand Mr Rustam Amerkhanov over to the police. At about 9.15 on the same morning the witness brought Mr Rustam Amerkhanov to the deputy head of the ROVD, officer V.B.", "The witness explained that he had initially told the applicant that her son had not been arrested by his unit as he had been concerned that “it would lead to disturbances among the local residents”. 164. On 6 November 2002 the investigators questioned the applicant, whose statement was similar to the one submitted to the Court. 165. On 11 November 2002 the investigators questioned the deputy head of the ROVD, officer V.B., who stated that between 9 a.m. and 11 a.m. on 4 November 2002 he had interviewed Mr Rustam Amerkhanov and then released him.", "Operational search officer I.O. had taken Mr Rustam Amerkhanov to the entrance and the latter had left. 166. On 12 November 2002 the investigators questioned the operational search officer Mr I.O., who stated that on the morning of 4 November 2002 Mr Rustam Amerkhanov had been brought to the ROVD and taken to the office of officer V.B., who had interviewed him. After the interview officer V.B.", "had asked the witness to take Mr Rustam Amerkhanov to the gates and release him. The witness had taken the applicant’s son to the gates and the latter had left. 167. On 15 November 2002 the investigators questioned the applicant, who reiterated her previous statement. In addition, she stated that the deputy head of the ROVD officer V.B.", "had “blatantly lied” to the investigators that he had released her son on 4 November 2002 as she and two of her relatives, Ms T.A. and Ms Kh.A., and a friend had spent the entire day at the entrance to the building to no avail. 168. On 15 November 2002 the investigators questioned the applicant’s sister, Ms T.A., who confirmed the statement the applicant had given on the same date. 169.", "On 13 April 2004 the head of the Shalazhi village administration, Mr R.M., submitted a written statement to the investigators which was similar to the one the applicant had given on 15 November 2002. He stressed that for two days officer V. B. had deliberately lied to him and the applicant, denying Mr Rustam Amerkhanov’s arrest, and that this officer must have been responsible for the disappearance of the applicant’s son. 170. On 29 April 2004 the investigators again questioned the applicant’s sister Ms T.A., who reiterated her previous statement. In addition, she stated that a few days after the disappearance of Mr Rustam Amerkhanov officer V.B.", "had told her husband, Mr N.A., that Mr Rustam Amerkhanov had been transferred to another law-enforcement agency. 171. On 28 May 2004 the investigators again questioned officer V.G., who reiterated his statement of 6 November 2002 and added that on the evening of 4 November 2002 he had spoken to the applicant and confirmed that Mr Rustam Amerkhanov had been apprehended by his unit. (b) Main investigative steps taken by the authorities 172. On 12 November 2002 the Urus-Martan district prosecutor’s office opened criminal case no.", "61151 under Article 105 of the Criminal Procedure Code (murder) (in the documents submitted also stated as under Article 126 of the Criminal Procedure Code (abduction)). 173. On 15 November 2002 the applicant was granted victim status in the criminal case. 174. On 12 January 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators.", "175. On 25 September 2003 the investigation was resumed and then again suspended on 25 October 2003. The applicant was not informed thereof. 176. On 13 April 2004 the investigation was resumed and then again suspended on 15 May 2004.", "The applicant was not informed thereof. 177. On 24 June 2004 the investigation was resumed. 178. On 1 July 2004 the investigators examined two registration logs for the period between August 2003 and July 2004: the first log contained the names of persons taken to the Urus-Martan ROVD and the second log contained the names of those detained on its premises.", "No entries concerning Mr Rustam Amerkhanov were found. 179. On 26 July 2004 the investigation was suspended. The applicant was not informed thereof. 180.", "On 5 August 2004 the investigators questioned several of the applicant’s neighbours, all of whom stated that they had learnt of Mr Amerkhanov’s disappearance from others. 181. The documents submitted show that on numerous occasions between 2002 and 2007 the applicant wrote to various law-enforcement agencies and military authorities, describing the circumstances of her son’s disappearance and the acknowledgement of his arrest by the military and police officers and asking for assistance in establishing his whereabouts. 182. On 6 April 2010 the head of the Urus-Martan ROVD informed the investigators that the registration log of detainees in the ROVD for the year 2002 could not be examined as it had been lost.", "183. The investigation of the criminal case is still pending. G. Application no. 35569/08, Dubas and Others v. Russia 184. The applicants are: (1) Ms Lyubov Dubas, born in 1959; (2) Mr Bislan Magomadov, born in 1954; (3) Ms Sara Ozdoyeva, born in 2001, and (4) Mr Riyyadus-Solikhiyn Ozdoyev, born in 2003.", "The applicants live in the village of Katyr-Yurt, Chechnya. 185. The first and second applicants are the parents of Ms Milana Ozdoyeva, who was born in 1982. The third and fourth applicants are her children. 1.", "Abduction of the applicants’ relative (a) Events preceding the abduction 186. At the material time the village of Katyr-Yurt (in the documents submitted also referred to as Katar-Yurt) was under curfew. 187. At about 5 p.m. on 26 December 2003 a group of servicemen from a State agency arrived at the applicants’ house in Katyr-Yurt looking for Ms Milana Ozdoyeva. The servicemen had a copy of Ms Milana Ozdoyeva’s identity card with them and asked about her whereabouts.", "The first applicant explained that her daughter and her husband were living on Sadovaya Street in the village of Sleptsovskaya, Ingushetiya. Then the servicemen left. 188. On 27 December 2003 the first applicant complained to the Achkhoy-Martan Department of the Interior (“the ROVD”) about the servicemen’s visit. The deputy head of the ROVD assured her that it had been a mistake.", "189. On an unspecified date at the beginning of January 2004 Ms Milana Ozdoyeva returned to her parents’ house in Katyr-Yurt. 190. On 10 January 2004 the first applicant learnt that while she had been at work with her daughter Ms Milana Ozdoyeva at the Achkhoy‑Martan administration, the servicemen had again visited her house looking for her daughter. Then they had gone to the administration and questioned Ms Milana Ozdoyeva on its premises for about thirty minutes.", "The first applicant learnt from one of the police officers, Mr M.E., that her daughter Ms Milana Ozdoyeva was suspected of planning to become a suicide bomber. (b) Abduction of Ms Milana Ozdoyeva 191. On the night between 18 and 19 January 2004 the applicants, Ms Milana Ozdoyeva and a relative, Mr A.M., were at home at 68 Lenina Street, Katyr-Yurt. 192. At about 2 a.m. on 19 January 2004 a group of about fifteen armed men in camouflage uniforms and masks broke into the applicants’ house.", "The intruders arrived in several vehicles which they parked nearby; some of them carried portable radios. All the intruders spoke unaccented Russian. The applicants inferred that they were federal servicemen. Having searched the house without giving explanations, the servicemen ordered Ms Milana Ozdoyeva to leave with them. One of the servicemen told the first applicant that her daughter would return later in the morning.", "193. The first applicant and Mr A.M. followed the servicemen outside and tried to follow the abductors but they had to return to the house due to the curfew. 194. The applicants have had no news of Ms Milana Ozdoyeva since 19 January 2004. (c) Subsequent events 195.", "Shortly after Ms Milana Ozdoyeva had been taken away, early in the morning on 19 January 2004 the first and second applicants complained to the head of the local administration about their daughter’s abduction. 196. Later that morning the first applicant and a relative, Ms A.A., went to the ROVD, where police officers told them that nobody had been brought to the police station that night. The first applicant lodged a written complaint about the abduction with the on-duty officer and then with the Achkhoy-Martan district prosecutor’s office. 197.", "On the evening of 19 January 2004 the applicants learnt that the servicemen who had taken Ms Milana Ozdoyeva away had also raided the house of another resident of the village, Mr M.T., but the latter had not been at home. They also learnt that their daughter’s abductors had arrived in a military Ural lorry, which they had parked in the centre of Katyr-Yurt before proceeding to the house on foot. 198. On 26 January 2004 the first applicant saw one of the servicemen who had visited her house on 10 January 2004, Mr S., at the offices of the local administration. He told her that the theory that Ms Milana Ozdoyeva was a suicide bomber had not been confirmed.", "2. Official investigation into the abduction (a) Main witness statements taken by the investigators 199. On 19 January 2004 the investigators questioned the first and second applicants, whose description of the abduction was similar to the one submitted to the Court. 200. On 19 January 2004 the investigators also questioned the applicants’ relative Mr A.M., whose statement concerning the circumstances surrounding the abduction was similar to that of the first and second applicants.", "201. On the same date, 19 January 2004, the investigators questioned the applicants’ neighbours Mr Sh.M., Mr M.M., and Mr A.-Ya. M., all of whom stated that they had learnt of the abduction from the applicants. 202. On 30 January 2004 the investigators again questioned the first applicant, who reiterated her previous statement and stressed that among the servicemen who had visited the house in December 2003 looking for Ms Milana Ozdoyeva had been a police officer from the ROVD, Mr M.E., who had told her that Ms Milana Ozdoyeva’s late husband had been an active member of illegal armed groups and that Ms Milana Ozdoyeva herself had decided to become a suicide bomber.", "203. On 30 January and 1 February 2004 the investigators again questioned the applicants’ relative Mr A.M., whose statement was similar to that of the first applicant given on 30 January 2004. 204. Between 30 January and 5 February 2004 the investigators questioned the applicants’ neighbours Ms R.K., Mr T.M. and Ms M.I.", "as well as previously questioned Mr A.-Ya. M., all of whom stated that they had learnt of the abduction from the applicants. 205. On 2 February 2004 the investigators again questioned the second applicant, who reiterated his previous statement. 206.", "On various dates in February 2004 the investigators questioned three operational-search officers from the Achkhoy-Martan ROVD, Mr V.Ch., Mr M.E. and Mr D.I., all of whom stated that on 5 January 2004 officers from a special security service had arrived at their police station and asked the deputy head of the ROVD, officer Sh.P., to assign local police officers to go with them to Katyr-Yurt to speak with Ms Milana Ozdoyeva. Following the orders of the head of the ROVD, the police officers had accompanied the officers from the security service to the applicants’ house, where the latter had questioned Ms Milana Ozdoyeva about her life in Ingushetia, her late husband and whether she had been pressurised to become a suicide bomber. 207. On an unspecified date in February 2004 the investigators questioned the deputy head of the ROVD, officer Sh.P., whose statement was similar to those given by police officers Mr V.Ch., Mr M.E.", "and Mr D.I. In addition, he stated that the theory of the involvement of the Federal Security Service in Ms Milana Ozdoyeva’s abduction had not been confirmed. (b) Main investigative steps taken by the authorities 208. On 19 January 2004 investigators from the Achkhoy-Martan district prosecutor’s office examined the crime scene. No evidence was collected.", "209. On 29 January 2004 the investigators opened criminal case no. 38004. 210. On 30 January 2004 the first applicant was granted victim status in the proceedings.", "211. On 14 February 2005 the Achkhoy-Martan District Court granted the first applicant’s claim and declared Ms Milana Ozdoyeva a missing person. On 14 August 2009 it declared her dead. 212. The documents submitted show that on numerous occasions between 2004 and 2008 the applicants contacted various law-enforcement agencies, military authorities and local courts, asking for assistance in establishing the whereabouts of Ms Milana Ozdoyeva and trying to obtain information about the progress of the investigation.", "For instance, on 26 February 2008 the first applicant complained to the Achkhoy-Martan District Court about the investigators’ refusal to provide her with full access to the case file. On 30 April 2008 the Supreme Court partially allowed the complaint. 213. The investigation in the criminal case was suspended and resumed on several occasions. The last suspension of the proceedings took place on 10 July 2008.", "214. On 25 April 2011 the investigation was resumed. The proceedings are still pending. H. Application no. 62220/10, Shakhbiyeva and Others v. Russia 215.", "The applicants are: (1) Ms Tamara Shakhbiyeva, who was born in 1955, (2) Mr Khuseyn Shakhbiyev, who was born in 1950, (3) Mr Saifulla Shakhbiyev, who was born in 2000, and (4) Ms Khedi Khizrayeva, who was born in 1980. The first and second applicants live in Tsotsi-Yurt (also referred to as Oktyabrskoe), Kurchaloy district, Chechnya; the third and fourth applicants live in Grozny. 216. The first and second applicants are the parents of Mr Ezir-Ali Shakhbiyev, who was born in 1974, Mr Abzu (also spelt Abza) Shakhbiyev, who was born in 1977 and Mr Sayd-Magomed Shakhbiyev, who was born in 1978. The third applicant is the son of Mr Ezir-Ali Shakhbiyev and the fourth applicant is his wife.", "1. Abduction of the applicants’ relatives and subsequent events 217. At the material time the applicants resided in a family house together with Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev and Mr Said‑Magomed Shakhbiyev. Mr N. Ochayev was also staying in their house as he had been hired by the first and second applicants to work in his excavator on their property. 218.", "Early in the morning on 4 September 2000 Russian servicemen launched a “sweeping-up” operation in the settlement of Tsotsi-Yurt. The settlement was surrounded by servicemen riding in URAL lorries and military UAZ cars. Helicopters were flying over the area. 219. At around 5 a.m. on 4 September 2000 an APC and several UAZ cars and URAL lorries arrived at the applicants’ house.", "A group of twenty‑five to thirty masked servicemen in camouflage uniforms broke in. They blindfolded Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev, Mr Said‑Magomed Shakhbiyev and Mr N. Ochayev with torn sheets and took them outside. The servicemen put Mr Ezir-Ali Shakhbiyev in his own VAZ‑2106 car and the other three men in a URAL lorry and drove away. 220. It appears that at least four other men were arrested in Tsotsi-Yurt that morning, including the second applicant’s brother, Mr Khizir Agamerzayev (also referred to as Agmurzayev).", "A URAL lorry had driven him to the centre of the settlement. 221. Several days later the applicants learnt from anonymous sources that the three Shakhbiyev brothers and Mr N. Ochayev had been taken to the Main Federal Military Base in Khankala, Chechnya. 222. On 13 September 2000 Mr N. Ochayev and Mr Khizir Shakhbiyev and three other Tsotsi-Yurt residents were released at a crossroads on the Rostov-Baku highway in the vicinity of Mesker-Yurt, where they had been brought in an APC.", "A man from a neighbouring village drove them home. 223. According to Mr Khizir Agamerzayev, after the arrest he, Mr Ezir‑Ali Shakhbiyev, Mr Abzu Shakhbiyev, Mr Said-Magomed Shakhbiyev and Mr N. Ochayev were put in separate cells in a basement. Mr Khizir Agamerzayev was beaten up and questioned about a certain Mr Yakub from Tsotsi-Yurt, the Barayevs and the Akhmadovs, allegedly members of illegal armed groups. On 12 September 2000 in the morning Mr Khizir Agamerzayev had seen the servicemen take the three Shakhbiyev brothers outside and put them in military vehicles.", "224. The applicants have not seen their three relatives since their abduction on 4 September 2000. 2. Official investigation (a) Main witness statements taken by the investigators 225. On 14 December 2003 the investigators questioned the first applicant, whose statement concerning her sons’ abduction was similar to the one submitted to the Court.", "She pointed out that in her opinion the abduction had been perpetrated by military servicemen. 226. On 15 December 2003 the investigators questioned the second applicant, whose statement was similar to the one given by the first applicant. 227. On 25 May 2005 the investigators again questioned the second applicant, who reiterated his previous statement and added that Mr Khizir Agamerzayev had been arrested together with his sons but released sometime later.", "At some point later Mr Khizir Agamerzayev had moved to Nazran, Ingushetia. 228. On 4 and 5 February 2010 the investigators again questioned the first and second applicants, who reiterated their previous statements. 229. On 9 February 2010 the investigators questioned the son of the first and second applicants, Mr A.Sh., whose statement concerning his brothers’ abduction was similar to the ones given by his parents, the first and second applicants.", "230. On various dates between 9 and 24 February 2010 the investigators questioned a number of witnesses, including the first and second applicants’ relatives and neighbours, the fourth applicant, Mr Khizir Agamerzayev and Mr N. Ochayev. All of them gave statements corraborating those given by the first and second applicants. In addition, Mr N. Ochayev and Mr Khizir Agamerzayev provided a detailed description of their detention on the premises of the military base in Khankala after the abduction. Both of them stated that they had been beaten and questioned about their alleged involvement in illegal armed groups and that the Shakhbiyev brothers had remained in detention while they had been released.", "(b) Main investigative steps taken by the authorities 231. On 11 November 2000 the Kurchaloy ROVD refused to initiate criminal proceedings in connection with the abduction of the three Shakhbiyev brothers as their arrest had taken place during a “sweeping-up” operation. 232. On 11 July 2001 the first applicant again complained about her sons’ abduction. On 13 August 2001 the Kurchaloy district prosecutor’s office opened criminal case no.", "39051. 233. On 13 October 2001 the investigation was suspended and then resumed on 18 November 2003 upon the supervising prosecutor’s orders. 234. On 18 December 2003 the investigation was suspended again and then resumed on 20 April 2005 upon the supervising prosecutor’s orders.", "235. On 25 May 2005 (in the documents submitted the date is also given as 27 May 2005) the investigators examined the crime scene. No evidence was collected. 236. On 25 May 2005 the investigation was suspended again.", "The applicants were not informed thereof. 237. On 14 January 2010 the first applicant requested information on the progresss of the investigation and permission to access the investigation file. 238. On 28 January 2010 the investigators resumed the proceedings but refused to grant the first applicant permission to access the case file as she did not have victim status in the criminal case.", "239. On 4 February 2010 the first applicant was granted victim status upon her request to that end. 240. On 28 February 2010 the investigation was suspended. 241.", "On 28 April 2010 the investigators granted the first applicant’s request for access to the case file by letting her consult a few documents. 242. The criminal proceedings are currently pending. I. Application no.", "3222/11, Dubayevy v. Russia 243. The applicants are: (1) Ms Saykhat Dubayeva, who was born in 1953, (2) Mr Shirvani Dubayev, who was born in 1952, (3) Ms Zalina Dubayeva, who was born in 1996, (4) Mr Shamkhan Dubayev, who was born in 1999 and (5) Mr Shamil Dubayev, who was born in 1986. The applicants live in Berkat-Yurt, Chechnya. 244. The first and second applicants are the parents of Mr Sharpudi (also spelled as “Sharfutdi”) Dubayev, who was born in 1977.", "The third and fourth applicants are his children and the fifth applicant is his brother. 1. Abduction of the applicants’ relative 245. On 20 November 2002 Mr Sharpudi Dubayev and four other men, including Mr R.A. and Mr A.I., were driving in a VAZ-2106 car with the registration number X582 AB95 when, about one and a half kilometres from the village of Berkat-Yurt, they were stopped by a group of about twenty or twenty-five masked military servicemen in camouflage uniforms driving in two APCs. The servicemen belonged to the 34th brigade of the military forces which at the material time guarded the oil pipeline which ran adjacent to the settlement.", "246. The servicemen asked the car passengers for their identity documents; then they dragged the men out of the vehicle, forced them into the APCs and took them to the military base where the 34th brigade was stationed. 247. The applicants’ relative, Mr Sharpudi Dubayev, was detained at an unidentified location in the same cell as Mr R. A. According to the latter, both of them were tortured and questioned.", "248. On 23 November 2002 all of the detained men, save for the applicants’ relative, were blindfolded, taken to an unidentified location and released, whereas Mr Sharpudi Dubayev has been missing ever since. 2. Official investigation (a) Main witness statements taken in the course of the investigation 249. On 8 September 2003 the investigators questioned the first and second applicant and Mr R.A. Their statements concerning the circumstances surrounding the abduction were similar to those submitted to the Court.", "250. On 12 November 2003 the second applicant was questioned again; she reiterated her previous statement. 251. On 8 January 2004 the investigators questioned Mr A.I. and Mr R.A. Their statements concerning the abduction were similar to the ones submitted to the Court.", "252. On various dates in February and March 2011 the investigators questioned the first applicant and two police officers, whose statements did not provide new information. (b) The main investigative steps taken by the authorities 253. On 28 September 2003 the Grozny district prosecutor’s office initiated a criminal investigation into the abduction under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 42169.", "254. In October 2003 the investigators sent information requests to various authorities. On 15 October 2003 the Grozny district department of the Federal Security Service (FSS) informed the investigators that Mr Sharpudi Dubayev was a member of illegal armed groups who had undergone specialized explosives training in a terrorist camp. 255. On 12 November 2003 the second applicant was granted victim status in the criminal case.", "256. On 8 January 2004 Mr A.I. and Mr R.A. were granted victim status. 257. On 3 and 7 December 2005 the investigator examined the crime scene next to the military base.", "258. On 12 April 2008 the investigator examined the cells of the military base where Mr Sharpudi Dubayev and the four other men had been detained in November 2002. 259. On various dates between January 2003 and November 2009 the applicants lodged numerous requests with various prosecutors’ offices and other authorities asking for information on the progress of the criminal investigation and assistance in the search for Mr Sharpudi Dubayev. The replies to their requests were either to the effect that the proceedings were in progress or that the request had been forwarded to another authority.", "260. The investigation was suspended on several occasions. It was last suspended on 29 June 2011. The investigation is still pending. J.", "Application no. 22257/11, Tekhiyeva v. Russia 261. The applicant, Ms Malkan Tekhiyeva, was born in 1950 and lives in Serzhen-Yurt, Shali district, Chechnya. 262. The applicant is the mother of Mr Magomed-Salakh Tekhiyev, who was born in 1983.", "1. Abduction of the applicant’s son 263. On 3 May 2004 Mr Magomed-Salakh Tekhiyev was staying at Mr Umar Mukhadiyev’s house in Serzhen-Yurt. 264. On 4 May 2004 at 6 a.m. a large group of armed and masked servicemen in camouflage uniforms arrived at Mr Umar Mukhadiyev’s house in two APCs with obscured registration numbers and broke in.", "Pointing their guns at Mr Magomed-Salakh Tekhiyev and Mr Umar Mukhadiyev, the intruders asked them for their passports. Since Mr Magomed-Salakh Tekhiyev had no passport on him, the servicemen tied his hands behind his back, put him in their APC and drove away in the direction of Avtury. 265. On the same day the servicemen took away Mr Umar Mukhadiyev’s neighbour, Mr Abdulvakhab Chevchiyev. 266.", "The applicant learnt about the abduction of her son on the same date. She immediately went to the Shali district military commander’s office. Officer Dubovik, the deputy military commander, acknowledged his arrest. He told the applicant that her son and Mr Abdulvakhab Chevchiyev were being detained in Avtury and would be released in three days; however, three days later he said that both men had been taken to the Main Federal Military Base in Khankala and would be released in fifteen days. Fifteen days later officer Dubovik informed the applicant that her son and Mr Abdulvakhab Chevchiyev had absconded on the way to the military base.", "267. The applicant has not seen Mr Magomed-Salakh Tekhiyev since 4 May 2004. 2. Official investigation (a) Main witness statements taken in the course of the investigation 268. On 5 May 2004 the investigators questioned the mother of Mr Abdulvakhab Chevchiyev, Ms Ya.Ch., who stated that her son and his friend Mr Magomed-Salakh Tekhiyev had been abducted early in the morning on 4 May 2004 by military servicemen who had arrived in two APCs.", "269. On the same date, 5 May 2004, the investigators questioned the applicant, who stated that she had learnt from her relatives and neighbours of the abduction of her son and Mr Abdulvakhab Chevchiyev by military servicemen in APCs. 270. On 8 June 2004 (in the documents submitted the date is also referred to as 8 June 2006) the investigators questioned Mr Abdulvakhab Chevchiyev’s sister, Ms R.D., who provided a detailed description of the abduction which was similar to the applicant’s account submitted to the Court. In addition, she stated that in the afternoon of 4 May 2004 the abductors had returned to the house with her brother Mr Abdulvakhab Chevchiyev, whom they had subjected to beatings in front of their mother, Ms Ya.Ch.", "They had then searched the garden and left with him again. 271. On 15 and 17 June 2004 the investigators again questioned Ms Ya.Ch. and the applicant, both of whom reiterated their previous statements. Ms Ya.Ch.", "added that the abductors had returned with her son later the same day and had searched their vegetable garden. 272. On 7 September 2004 the investigators questioned the applicant’s daughter, Ms F.T., and neighbours, Ms T.A. and Ms A.Kh., both of whom gave statements similar to those of the applicant and Ms Ya.Ch. 273.", "On 16 September 2004 the investigators questioned the Shali district deputy military commander, officer Dubovik, who stated that around 10 May 2004 the applicant and Ms Ya.Ch. had arrived at his office and requested assistance in the search for their sons. He had promised to assist them in the search but had not made any other promises. 274. On 3 December 2004 the investigators questioned the head of the Serzhen-Yurt town administration, Mr Sh.Ch., who stated that after the abduction of Mr Magomed-Salakh Tekhiyev and Mr Abdulvakhab Chevchiyev he and representatives of the prosecutor’s office had tried to gain access to the military unit stationed on the outskirts of Avtury as the two abducted men could have been being detained there.", "However, they had not been allowed to enter the premises. For the description of the military unit see also Gakayeva and Others v. Russia, nos. 51534/08, 4401/10, 25518/10, 28779/10, 33175/10, 47393/10, 54753/10, 58131/10, 62207/10 and 73784/10, § 154, 10 October 2013, Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, § 25, 24 October 2013. 275.", "On 29 April 2011 the investigators again questioned the applicant, who reiterated her previous statements. 276. On 30 April 2011 the investigators questioned the applicant’s son, Mr I.T., whose statement was similar to those of the applicant. In addition, he stated that on the date of the abduction a fellow resident, Mr Bu., had also been abducted and taken to the military unit in Avtury, where he had been detained for three days together with Mr Magomed-Salakh Tekhiyev and Mr Abdulvakhab Chevchiyev. The head of the military unit had been called Sergey and his code name was “Terek-FSB”.", "According to the witness, at some point later Mr Bu. had left Russia and moved abroad. (b) Main investigative steps taken by the authorities 277. On 5 May 2004 the investigators examined the crime scene. No evidence was collected.", "278. On 5 June 2004 the Shali district prosecutor’s office opened criminal case no. 36051. 279. On 5 August 2004 the investigation was suspended and then resumed on 22 August 2004.", "280. On 30 September 2004 the investigation was suspended again and then resumed on 25 November 2004. 281. On 25 December 2004 the investigation was suspended again. The applicant was informed thereof.", "282. The documents submitted show that on numerous occasions between December 2004 and November 2009 the applicant requested the authorities to assist her in the search for her son, expedite the investigation and provide her with information on the progress of the proceedings. In reply she was either informed that measures were being taken to solve the crime or that her complaints had been forwarded to another authority. 283. On 24 December 2009 the investigators resumed the proceedings.", "284. On 25 December 2009, upon a request lodged by the applicant on 18 November 2009, the investigators granted her victim status in the criminal case. 285. On 26 December 2009 the investigation was suspended again. The applicant was not informed thereof.", "286. On 28 April 20011 the applicant requested the investigators to provide her with information on the progress of the proceedings. 287. On 29 April 2011 (in the documents submitted the date was also referred to as 29 April 2009) the investigation was resumed and then suspended on 1 May 2011. 288.", "On 20 December 2011 the investigation was resumed. The criminal proceedings are currently pending. K. Application no. 24744/11, Cholayevy v. Russia 289. The applicants are: (1) Ms Khava Cholayeva, who was born in 1956, (2) Mr Aslan Cholayev, who was born in 1981, and (3) Ms Eliza Cholayeva, who was born in 1980.", "The applicants live in Argun, Chechnya. 290. The first applicant is the mother of Mr Timerlan Cholayev, who was born in 1978. The second applicant is his brother and the third applicant is his wife. 1.", "Abduction of the applicants’ relative 291. At around 7.30 a.m. on 12 October 2001 a group of masked servicemen in camouflage uniforms, armed with machineguns, arrived at the applicants’ house in Argun in two APCs without registration numbers and broke in. They woke up Mr Timerlan Cholayev, handcuffed him, forced him into one of the APCs and departed to an unknown destination. 292. On the same day an officer of the Argun district military commander’s office acknowledged to the applicants that Mr Timerlan Cholayev had been arrested by their servicemen and taken to the Main Federal Military Base in Khankala.", "293. The applicants have not seen Mr Timerlan Cholayev since 12 October 2001. 2. Official investigation (a) Main witness statements taken in the course of the investigation 294. On 4 November 2001 the investigators questioned the applicants’ neighbour, Ms Ya.I., who stated that on 12 October 2001 a group of military servicemen in APCs had arrived at the applicants’ house and abducted Mr Timerlan Cholayev.", "295. On 4 November 2001 the investigators also questioned the applicants’ relatives Mr R.Ch. and Ms R.D., both of whom stated that their nephew Mr Timerlan Cholayev had been abducted by military servicemen. 296. On 29 November 2001 the investigators questioned the third applicant, whose statement about the circumstances of the abduction was similar to one submitted to the Court.", "In addition, she stated that she and her relatives had followed the abductors and had seen that after having taken her husband they had driven to the Argun military commander’s office. 297. On 11 January 2002 the investigators questioned the first applicant, whose statement was similar to the one submitted to the Court. In addition, she stated that the abductors had told her that they were taking her son in for questioning and would release him afterwards. 298.", "On 11 January 2002 the investigators again questioned the third applicant and Ms Ya.I., both of whom reiterated their previous statements. 299. On 2 December 2002 the investigators again questioned the first and third applicants, who reiterated their previous statements. In addition, they stated that after the abduction the perpetrators had driven to the premises of special military task force brigade no. 34 of the internal troops (34 ОБРОН).", "300. On 3 December 2002 the investigators again questioned the applicants’ relatives Mr M.Ch., Ms R.D. and Ms Ya.I., all of whom reiterated their previous statements. Ms R.D. added that to his knowledge, from the military commander’s office Mr Timerlan Cholayev had been taken to the main military base in Khankala.", "301. On 29 September 2003 the investigators again questioned the first applicant, who reiterated her previous statements. 302. On 14 September 2004 the investigators again questioned the first applicant, who reiterated her previous statements. In addition, she stated that the abductors had been a group of about thirty servicemen who had spoken unaccented Russian.", "303. On 17 September 2004 the investigators again questioned the applicants’ relative Mr M.Ch., who reiterated his previous statements. 304. On 11 June 2007 the investigators questioned the applicants’ relative Ms Z.Ch., whose statement concerning the abduction was similar to the one submitted by the applicants to the Court. 305.", "On 11 June 2007 the investigators also questioned the applicants’ neighbours Mr Sh.S., Mr Kh.I. and Ms Z.Zh., whose statements were similar to that of the first and third applicants. 306. On 14 June 2007 the investigators questioned the applicants’ neighbour Ms B.E., whose statement did not provide any new information. 307.", "The documents submitted show that on various dates in June 2007 the police also questioned at least three of the local residents, including the head of the local council of the elders, Mr I.B. None of the statements provided new information. 308. On 19 and 22 October 2010 the investigators again questioned the first and third applicants, both of whom reiterated their previous statements. 309.", "Between 6 and 12 November 2010 the investigators questioned the second applicant, the applicants’ neighbours Ms M.I. and Mr Kh.I. and the applicants’ relative Ms Z.Ch., whose statements concerning the abduction were similar to that of the first and third applicants. (b) Main investigative steps taken by the authorities 310. On 15 October 2001 the first applicant lodged a written complaint about her son’s abduction with the Shali district prosecutor’s office (in the documents submitted also referred to as the Argun prosecutor’s office).", "311. On 9 January 2002 the Shali district prosecutor’s office opened criminal case no. 78012. 312. On 11 January 2002 the first applicant was granted victim status.", "313. On 23 August, 14 September and 10 November 2004 the military commander’s office of military unit no. 20102 informed the investigators that the involvement of servicemen in the abduction had not been established. 314. On 9 March 2002 the investigation was suspended and on 19 November 2002 it was resumed.", "315. On 30 December 2002 the investigation was suspended and on 10 September 2003 it was resumed. 316. On 12 September 2003 the investigators examined the crime scene. No evidence was collected.", "317. On 10 October 2003 the investigation was suspended and on 12 September 2004 it was resumed. The applicants were informed thereof. 318. On 12 October 2004 the investigation was suspended.", "From the documents submitted it follows that on an unspecified date in June 2007 it was resumed and then again suspended. 319. On 2 June 2010 the investigators allowed the first applicant’s request to access the investigation file. 320. On 6 October 2010 (in the documents submitted the date is also referred to as 15 October 2010) the investigation was resumed.", "321. From the documents submitted it follows that on numerous occasions between 2002 and 2010 the applicants contacted the authorities asking for assistance in the search for Mr Timerlan Cholayev and asking for an effective investigation to be conducted into his disappearance. 322. On 23 September 2010 the first applicant complained to the Argun Town Court alleging that the investigation into her son’s abduction was ineffective. On 13 October 2010 the Shali Town Court rejected the complaint on the grounds that the proceedings had been resumed.", "323. The criminal proceedings are currently pending. L. Application no. 36897/11, Titiyeva and Others v. Russia 324. The applicants are: (1) Ms Layla Titiyeva, who was born in 1943, (2) Ms Khava Medzhidova, who was born in 1998, (3) Ms Medina Akhamdova, who was born in 1962, (4) Ms Zulay Dudurkayeva, who was born in 1940, (5) Mr Ruslan Dudurkayev, who was born in 1968, (6) Ms Makka Dokuyeva, who was born in 1967, (7) Mr Ramazan Dokuyev, who was born in 1973, (8) Ms Zina Akhmedova, who was born in 1968, (9) Ms Khedi Bultayeva, who was born in 1990, (10) Ms Khadizhat Bultayeva, who was born in 1995, (11) Ms Gistam Bultayeva, who was born in 1999 and (12) Ms Khava Dokuyeva, who was born in 1998.", "The first, second and third applicants live in the settlement of Goryacheistochnenskaya in the Grozny district; the sixth applicant lives in Grozny and the fourth, fifth, seventh, eighth, ninth, tenth, eleventh and twelfth applicants live in Tolstoy-Yurt, Grozny district, Chechnya. 325. The applicants are close relatives of Mr Apti Medzhidov, who was born in 1975, Mr Akhmed Dudurkayev, who was born in 1979, Mr Visarkhan Dokuyev, who was born in 1971, and Mr Alu (in the documents submitted also referred to as Adlan) Bultayev, who was born in 1968. The first applicant is the mother of Mr Apti Medzhidov, the second applicant is his daughter and the third applicant is his sister. The fourth applicant is the mother of Mr Akhmed Dudurkayev and the fifth applicant is his brother.", "The sixth and seventh applicants are the siblings of Mr Visarkhan Dokuyev and the twelfth applicant is his daughter. The eighth applicant is the wife of Mr Alu Bultayev and the ninth, tenth and eleventh applicants are his daughters. 1. Abduction of the applicants’ relatives 326. At the material time Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev were policemen of the Road Patrol Service (патрульно-постовая служба) of the Chechnya Ministry of the Interior (the Chechnya MVD).", "They resided with their families in Tolstoy-Yurt, in the Grozny district. 327. In July 2000 the four men were in Grozny. The town was under curfew and only Russian military vehicles could move around freely. Mr Apti Medzhidov, Mr Akhmed Dudurkayev and Mr Visarkhan Dokuyev were staying at Ms Markha Tatsuyeva’s flat and Mr Alu Bultayev was staying in another flat in the same block of flats.", "328. Early in the morning on 16 July 2000 (in the documents submitted the date is also referred to as 17 July 2000) three or four APCs and several UAZ minivans arrived at the block of flats. A group of fifteen servicemen in camouflage uniforms and helmets stormed into the flat where Mr Alu Bultayev was staying, blindfolded and handcuffed him and put him in one of their APCs. The servicemen also arrested Ms Satsyta Sadykova, his neighbour, and put her in the same APC. 329.", "After that the servicemen broke into Ms Markha Tatsuyeva’s flat to arrest her, Mr Apti Medzhidov, Mr Akhmed Dudurkayev and Mr Visarkhan Dokuyev. The servicemen put the four of them in the same APC with Mr Alu Bultayev and Ms Satsyta Sadykova. They then drove the APC to Khankala. Ms Sadykova heard the sounds of helicopters and military vehicles throughout the one‑hour drive. 330.", "In Khankala the six arrestees were placed in a detention centre. According to the applicants, the four men were detained there until August 2001 without any official record of their detention. Only Ms Satsyta Sadykova and Ms Markha Tatsuyeva were officially registered as detainees. All of the detainees were kept in pits. Ms Satsyta Sadykova shared her pit with Mr Alu Bultayev.", "Once they managed to see Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Ms Markha Tatsuyeva. 331. On 16 July 2000 Ms Satsyta Sadykova was transferred to another detention centre in Khankala and two days later to a remand prison (SIZO) in Rostov‑on-Don. On 21 July 2000 by a decision of the Rostov-on-Don Investigations Unit of the Federal Security Service (the FSB) she was released from detention. According to the decision, Ms Satsyta Sadykova had been arrested on suspicion of terrorist activities, in particular, blowing up a block of flats in Volgodonsk, in the Rostov Region, in September 1999.", "Ms Markha Tatsuyeva was released from detention on 21 July 2000. 332. Sometime later the applicants were informed by anonymous sources that after August 2001 their four relatives had allegedly been detained in remand prions in Rostov-on-Don, Volgograd, Krasnodar and Chernokozovo. 333. The applicants have not seen their four relatives since 16 July 2000.", "2. Official investigation (a) Main witness statements taken in the course of the investigation 334. On 25 December 2000 the investigators questioned the sixth applicant, whose statement concerning the abduction was similar to the one submitted by the applicants to the Court. 335. On 30 December 2000 the investigators questioned the brother of Mr Alu Bultayev, Mr A.B., whose statement concerning the abduction was similar to the one submitted by the applicants to the Court.", "336. On 26 January 2001 the investigators again questioned the sixth applicant, who reiterated her previous statement and added that Ms Tatsegova had told her that she had been detained in a pit in Khankala and then in a lorry for three days and had then been taken to the remand prison in Rostov-on-Don. According to the witness, she had learnt that her brother Mr Visarkhan Dokuyev had been abducted by servicemen from the Special Task Force Unit staffed by policemen from the Khanty-Mansiyisk Region of Russia. 337. On 2 May 2003 the investigators questioned the first applicant, whose statement concerning the abduction was similar to the one furnished to the Court.", "In addition, she stated that immediately after the abduction she had spoken to her son’s supervisor, officer A.M., who had told her that her son, along with three colleagues Mr Visarkhan Dokueyv, Mr Alu Bultayev and Mr Akhmed Dudurkayev, had been arrested by servicemen from the Main Intelligence Service (the GRU) and that the four men had been taken along with several women, including Ms Satsyta Sadykova, to the premises of the main military base in Khankala and detained in pits. 338. On 15 August 2004 the investigators questioned the eighth applicant, whose statement concerning the abduction was similar to the one submitted to the Court. In addition, she stated that as soon as they had been released from detention, Ms Satsyta Sadykova and Ms Markha Tatsegova had gone to the applicants’ houses and informed them of their detention, together with their relatives, in pits in Khankala. 339.", "On 16 August 2004 the investigators questioned the fourth applicant, whose statement concerning the abduction was similar to the one submitted to the Court. 340. On various dates in May and June 2005 the investigators questioned several of the applicants’ fellow villagers. No new information was obtained. 341.", "On various dates in July 2007 the investigators questioned several of the applicants’ relatives. No new information was obtained. 342. On 26 July 2007 the investigators questioned Ms Satsyta Sadykova, who provided a detailed description of the abduction and her subsequent detention in a pit in Khankala, where she had seen Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Ms Markha Tatsuyeva. 343.", "On various dates in September and October 2007 the investigators questioned several of the applicants’ neighbours and the residents of the block of flats where the abduction had taken place. No new information was obtained. 344. On various dates in August 2009 the investigators questioned several people living in the area where Mr Apti Medzhidov had lived in 2000. No new information was obtained.", "(b) Main investigative steps taken by the authorities 345. On 6 November 2000 the Grozny town prosecutor’s office opened criminal case no. 12239 on account of Mr Alu Bultayev’s abduction. 346. On 25 December 2000 the prosecutor’s office opened criminal case no.", "12355 on account of the abduction of Mr Viskharan Dokuyev. On the same date the sixth applicant was granted victim status in the criminal case. 347. On 3 January 2001 the investigation of both criminal cases was joined under no. 12239.", "348. On 2 May 2003 the first applicant was granted victim status in the criminal case. 349. The documents submitted by the Government show that at some point between 2000 and 2004 the investigation of the criminal case was extended to include the abduction of Mr Apti Medzhidov and Mr Akhmed Dudurkayev. The investigation files were referred to under numbers 12239, 12355 and 10075.", "350. On 15 August 2004 the investigators granted the eighth applicant victim status in the criminal case. 351. On 16 August 2004 the investigators granted the fourth applicant victim status in the criminal case. 352.", "Between 2001 and 2005 the investigation into the abductions was suspended on several occasions. For instance, the investigation was suspended on 28 May 2005, resumed on 15 June 2005 and suspended again on 15 July 2005. 353. On 6 May 2006 the investigators stated in a procedural decision that it was established that the applicants’ four relatives had been “abducted by unidentified servicemen belonging to power structures and then taken to [the main military base in] Khankala”. The investigators stated that Ms Satsyta Sadykova and Ms Markha Tatsuyeva had been arrested together with the four men, detained in Khankala and then transferred to the premises of the Rostov-on-Don FSB and that on 21 July 2000 both women had been released.", "354. On 31 May 2007 the investigation was resumed. 355. On 15 July 2007 the investigators examined the crime scene. No evidence was collected.", "356. On 16 July 2007 the investigation into the abduction of the applicants’ four relatives was joined to the investigation into the abduction of Ms Satsyta Sadykova. The joint investigation file was given the number 12239. 357. On 16 July 2007 the investigation was suspended.", "It was resumed on 25 July 2007. 358. On 25 August 2007 the investigation was suspended and then resumed on the following day, 26 August 2007. 359. On 26 September 2007 the investigation was suspended and then resumed on 13 October 2007.", "360. On 15 November 2007 the investigation was suspended again. The applicants were informed thereof. 361. On an unspecified date in July 2009 the first applicant wrote to a local human rights organisation asking for assistance in the search for her son Mr Apti Medzhidov.", "On 11 August 2009 that request was forwarded to the investigators. 362. On an unspecified date in June 2011 the eighth applicant wrote to a local human rights organisation asking for assistance in the search for her husband, Mr Alu Bultayev. On 27 June 20011 the request was forwarded to the investigators. 363.", "On 20 December 2011 the investigation was resumed. It is still pending. II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL MATERIALS 364. For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia, (nos.", "2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and §§ 69-84, 18 December 2012). THE LAW I. JOINDER OF THE APPLICATIONS 365. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background. II. THE APPLICANTS’ COMPLIANCE WITH THE SIX-MONTH RULE A.", "The parties’ submissions 1. Government 366. The Government did not comment on the applicants’ compliance with the six‑month rule. 2. The applicants 367.", "The applicants argued that they had complied with the six-month rule and there had been no excessive and unexplained delays in the submission of their applications to the Court. In particular, they submitted that after the initiation of the criminal investigations they had had no reason to doubt their effectiveness. They pointed out that the armed conflict in the region had led them to believe that delays in the investigation were inevitable. Moreover, owing to their poor command of Russian, their lack of legal knowledge and lack of funds to hire a lawyer, and in the absence of domestic provisions enabling victims of enforced disappearances to obtain free legal assistance, they had been unable to assess the effectiveness of the investigation. As soon as the applicants had been able to obtain legal advice, they had realised that the investigations were ineffective owing to the delays in their completion and they had applied to the Court.", "368. Referring to Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, the applicants argued that the six-month rule did not apply to “continuing situations” such as cases of enforced disappearances. B. The Court’s assessment 1.", "General principles 369. The Court reiterates that the purpose of the six-month rule is to promote legal certainty, to ensure that cases are dealt with within a reasonable time and to protect the parties from uncertainty for a prolonged period of time. The rule also provides the opportunity to ascertain the facts of the case before memory of them fades away with time (see Abuyeva and Others v. Russia, cited above, § 175). 370. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies.", "In the absence of any such decision, the period runs from the date of the acts or measures complained of. Where an applicant avails himself of an existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the six-month time‑limit is calculated from the date when the applicant first became, or ought to have become, aware of those circumstances (see, among others, Zenin v. Russia (dec.), no. 15413/03, 24 September 2009). 371. In cases concerning disappearances, unlike in cases concerning ongoing investigations into the deaths of applicants’ relatives (see, for example, Elsanova v. Russia (dec.), no.", "57952/00, 15 November 2005, and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009), the Court has held that taking into account the uncertainty and confusion typical of such situations, the nature of the ensuing investigations implies that the relatives of a disappeared person may be justified in waiting lengthy periods of time for the national authorities to conclude their proceedings, even if those proceedings are sporadic and plagued by problems. As long as there is some meaningful contact between families and the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a time when the relatives must realise that no effective investigation has been, or will be, provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case.", "Where more than ten years have elapsed since the incident, the applicants have to justify such a delay in lodging their application with the Court (see Varnava, cited above, §§ 162‑63). 372. Applying the Varnava principles, the Court recently found in the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) that the applicants, who had waited for a period of almost ten years after the disappearance of their relative before lodging their application, had complied with the six-month rule because an investigation was being conducted at the national level. The Court reached a similar conclusion in another case, where the domestic investigation into the events had been pending for more than eight years and where the applicants were doing all that could be expected of them to assist the authorities (see Bozkır and Others v. Turkey, no.", "24589/04, § 49, 26 February 2013). 373. In the cases concerning enforced disappearances in Chechnya and Ingushetia, the Court has examined applications lodged between nine and ten years after the disappearances and the initiation of the criminal investigation (see, for example, Kaykharova and Others v. Russia, nos. 11554/07, 7862/08, 56745/08 and 61274/09, §§ 128 and 129, 1 August 2013; Saidova v. Russia, no. 51432/09, §§ 52 and 53, 1 August 2013; and Gakayeva and Others v. Russia, cited above, §§ 312 and 315,), where certain lulls in the ongoing investigations comprised up to four and a half years.", "The Court found that the applicants had justified the delays in lodging their applications with the Court by demonstrating that they had maintained reasonable contact with the authorities, sought information on the progress of the investigation and lodged their applications shortly after having obtained information casting reasonable doubt on the effectiveness of the ongoing proceedings. 374. By contrast, the Court has declared inadmissible applications where the applicants waited for more than ten years to lodge their applications with the Court, and where there had been, for a long time, no evidence allowing them to believe that the investigation would be effective. For instance, in the case of Yetişen and Others v. Turkey ((dec.), no. 21099/06, 10 July 2012), the applicants waited for four years after the disappearance before lodging an official complaint with the competent investigating authorities and for eleven-and-a-half years before bringing their application to Strasbourg; in the case of Findik and Omer v. Turkey ((decs.", "), nos. 33898/11 and 35798/11, 9 October 2012), the applications were brought to Strasbourg more than fifteen years after the events; and in the case of Taşçi and Duman v. Turkey ((dec.), no. 40787/10, 9 October 2012), the applicants applied to Strasbourg twenty-three years after the disappearance. In those cases, as in the case of Açış v. Turkey (no. 7050/05, §§ 41-42, 1 February 2011), where the applicants complained to Strasbourg more than twelve years after the disappearance, the Court rejected their complaints under Article 2 of the Convention as out of time for failure to demonstrate any concrete advance in the domestic investigation that would justify their delay of more than ten years.", "2. Application of the principles to the present case 375. Turning to the circumstances of the cases at hand, the Court notes that in nine cases the applicants lodged their complaints with the Court within a period ranging from less than two years after the disappearance in the application of Saayeva and Others (no. 3375/08) to almost eight years in the application of Dubayevy (no. 3222/11).", "In each of these cases the investigations were formally pending at the time when the applications were lodged with the Court. The criminal proceedings in all the cases were suspended and resumed on several occasions at various time intervals throughout the periods concerned. Each and every time the investigations were suspended and then resumed following criticism of the investigation by supervisors, and the applicants were not always informed thereof. They, in turn, maintained a reasonable level of contact with the authorities, cooperated with the investigation and, where appropriate, took steps to inform themselves of the progress of the proceedings and to speed them up, in the hope of a more effective outcome. 376.", "As for the three applications lodged within a period of between nine and almost eleven years after the alleged abductions, the Court notes the following. In the application Shakhbiyeva and Others (no. 62220/10), lodged ten years after the abduction and the initiation of the investigation, the applicants took an active role from the beginning and convinced the authorities to investigate their allegations in spite of their initial refusal to do so (see paragraphs 231 and 232 above). For the next several years the applicants cooperated with the investigators by giving statements and providing necessary information. Then, between May 2005 and January 2010, that is, for almost four years and eight months, the investigation was dormant and was resumed only upon the applicants’ request (see paragraph 237 above).", "From the documents submitted it can be ascertained that the applicants, who were not informed of the suspension, did not officially contact the investigation themselves during this period. Such a lengthy period of inactivity could be considered significant enough to raise doubts as to whether the investigation was still effective. However, taking into account the fact that the applicants were not duly informed of the suspension and that the proceedings were resumed as a result of their request and the first applicant having gained access to the investigation file (see paragraphs 237 and 241 above) which allowed them to assess the progress of the criminal proceedings and led to their prompt application to Strasbourg, the Court, bearing in mind the specific context of disappearance cases, accepts the applicants’ explanation for the delay in bringing their application to Strasbourg. 377. Turning to the application Cholayevy (no.", "24744/11) lodged with the Court nine years and five months after the abduction and the start of the investigation, the Court observes that throughout the entire period there were no significant lulls in the investigation and that the applicants maintained regular contact with the authorities. 378. As for the application Titiyeva and Others (no. 36897/11) lodged ten years and eleven months after of the abduction, the Court observes that in spite of the lengthy period of the ongoing criminal investigation, no significant lulls in the proceedings occurred and that the applicants remained in contact with the authorities throughout. 379.", "Having examined the documents submitted by the parties, the Court finds that the conduct of the applicants in each application vis-à-vis the investigation has been determined not by their perception of the remedy as ineffective, but rather by their expectation that the authorities would, of their own motion, provide them with an adequate answer to their serious complaints. They furnished the investigating authorities with timely and sufficiently detailed accounts of their relatives’ abductions and cooperated with them. They thus reasonably expected further substantive developments from the investigation. It could not be said that they failed to show the requisite diligence by waiting for the pending investigation to yield results (see, mutatis mutandis, Abuyeva and Others, cited above, § 179). 380.", "The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the periods in question in each of the cases, and that the applicants did all that could be expected of them to assist the authorities (see Varnava and Others, cited above, § 166, and Er and Others, cited above, § 60). In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit. III. THE GOVERNMENT’S PRELIMINARY OBJECTIONS A. Locus standi 1. The parties’ submissions 381.", "Mr Musadi Samrailov, the third applicant in application Sultygov and Others (no. 42575/07), died on 3 February 2013. Mr Viskhan Samrailov, his grandson and the son of the disappeared Mr Visadi Samrailov, expressed his wish to pursue the proceedings before the Court in his stead. 382. Mr Tukhan Idigov, the applicant in Idigov ( no.424/08), died on 5 January 2013.", "Ms Tamara Idigova, his daughter and the sister of the disappeared Mr Anzor Idigov, expressed her wish to pursue the proceedings before the Court in his stead. 383. The Government contended in respect of both applications that neither Mr Viskhan Samrailov nor Ms Tamara Idigova had standing in the proceedings before the Court owing to their “lack of a legitimate interest in the examination of the case”. 2. The Court’s assessment 384.", "The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see Lüdi v Switzerland, 15 June 1992, § 34, Series A no. 238). The Convention institutions have always and unconditionally considered in their case-law that the parent, sibling or nephew of a person whose death is alleged to engage the responsibility of the respondent Government can claim to be the victim of an alleged violation of Article 2 of the Convention, even where closer relatives, such as the deceased person’s children, have not submitted applications (see Velikova v. Bulgaria (dec.), no. 41488/98, 18 May 1999, with further references). 385.", "The Court also notes that in a number of cases in which an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing a wish to pursue the proceedings before the Court. It has done so most frequently in cases which primarily involved pecuniary, and, for this reason, transferable claims. However, the question of whether such claims are transferable to the individuals seeking to pursue an application is not the exclusive criterion. In fact, human rights cases before the Court generally also have a moral dimension, and people close to an applicant may have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see, among other authorities, Horváthová v. Slovakia, no. 74456/01, § 26, 17 May 2005, and Ječius v. Lithuania, no.", "34578/97, § 41, ECHR 2000-IX). 386. Having regard to the above, the Court accepts that the applicants’ close relatives have a legitimate interest in pursuing the application in their stead. It will therefore continue dealing with the case at their request. B. Exhaustion of domestic remedies 1.", "The parties’ submissions 387. The Government submitted that the criminal investigations into the disappearances were still in progress. It was therefore premature to draw any conclusions concerning the alleged ineffectiveness of the domestic criminal proceedings. They also pointed out that the applicants could have claimed civil damages and appealed against the investigators’ decisions in the national courts. 388.", "The applicants submitted that they were not obliged to pursue civil remedies and that lodging complaints against the investigators would not have remedied the investigations’ shortcomings. They all submitted that the only effective remedy in their cases – a criminal investigation into the abduction – had proved to be ineffective. 2. The Court’s assessment 389. As regards a civil action to obtain redress for damage sustained as a result of the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos.", "57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77). Accordingly, the Court confirms that the applicants were not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed. 390.", "As regards criminal-law remedies, in a recent judgment the Court concluded that the ineffective investigation of disappearances that occurred in Chechnya and Ingushetia between 2000 and 2006 constituted a systemic problem and that criminal investigations were not an effective remedy in this respect (see Aslakhanova and Others, cited above, § 217). IV. THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A. The parties’ submissions 1. The Government 391.", "The Government did not contest the essential facts underlying each application. However, they noted that some of the applicants had not been consistent in their descriptions of the abductors and that the abductions had taken place on various dates and in different districts. The Government pointed out that the abductions could have been perpetrated by members of illegal armed groups in the guise of State servicemen, using uniforms and documents similar to those used by the latter. They further claimed that none of the investigations had obtained evidence proving beyond reasonable doubt that State agents had been involved in the abductions and alleged deaths of the applicants’ relatives. 2.", "The applicants 392. The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives away had been State agents. In support of that assertion they referred to the ample evidence contained in their submissions and the criminal investigation files. They also submitted that they had each made a prima facie case that their relatives had been abducted by State agents and that the essential facts underlying their complaints had not been challenged by the Government. In view of the absence of any news of their relatives for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, they asked the Court to consider their relatives dead.", "B. The Court’s assessment 1. General principles 393. The Court shall examine the applications at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR‑2012).", "394. The Court has addressed a whole series of cases concerning allegations of disappearances in Chechnya and Ingushetia. Applying the above‑mentioned principles, it has concluded that if applicants make a prima facie case of abduction by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, no.", "26974/06, §§ 77-81, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012). 395. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead.", "Having regard to the numerous cases of disappearances in Chechnya and Ingushetia which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life‑threatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013, and Dovletukayev and Others v. Russia, cited above). 396. The Court has made findings of presumptions of deaths in the absence of any reliable news about the disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years.", "2. Application of the principles to the present cases (a) Application no. 42575/07, Sultygov and Others v. Russia 397. A number of witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 19-26 above), demonstrate that the applicants’ relatives, Mr Alikhan Sultygov and Mr Visadi Samrailov, were abducted on 4 August 2000 by a group of armed servicemen at the checkpoint on the outskirts of Grozny. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them.", "398. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 399. Bearing in mind the general principles enumerated above, the Court finds that Mr Alikhan Sultygov and Mr Visadi Samrailov were taken into custody by State agents on 4 August 2000 in Grozny.", "In view of the absence of any news of them since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Alikhan Sultygov and Mr Visadi Samrailov may be presumed dead following their unacknowledged detention. (b) Application no. 53679/07, Bekova v. Russia 400. A number of witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 50-52, 55, 57 and 62-63 above), demonstrate that the applicant’s son, Mr Ruslan Yandiyev, was abducted on 29 September 2005 by a group of armed servicemen during a special operation in Nazran. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her son was abducted by State agents in the circumstances as set out by her.", "401. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 402. Bearing in mind the general principles enumerated above, the Court finds that Mr Ruslan Yandiyev was taken into custody by State agents on 29 September 2005 in Nazran.", "In view of the absence of any news of him since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Ruslan Yandiyev may be presumed dead following his unacknowledged detention. (c) Application no. 311/08, Isayevy v. Russia 403. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 90-95 above), demonstrate that the applicants’ relative, Mr Nurdi Isayev, was abducted on 3 February 2000 by a group of armed servicemen during a special operation in Valerik. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them.", "404. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 405. Bearing in mind the general principles enumerated above, the Court finds that Mr Nurdi Isayev was taken into custody by State agents on 3 February 2000 in Valerik.", "In view of the absence of any news of him since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Nurdi Isayev may be presumed dead following his unacknowledged detention. (d) Application no. 424/08, Idigov v. Russia 406. A number of witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 108-11 above), demonstrate that the applicant’s son, Mr Anzor Idigov, was abducted on 4 May 2003 by a group of armed servicemen in Shalazhi. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that his son was abducted by State agents in the circumstances as set out by him.", "407. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 408. Bearing in mind the general principles enumerated above, the Court finds that Mr Anzor Idigov was taken into custody by State agents on 4 May 2003 in Shalazhi.", "In view of the absence of any news of him since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Anzor Idigov may be presumed dead following his unacknowledged detention. (e) Application no. 3375/08, Saayeva and Others v. Russia 409. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 133-36 above), demonstrate that the applicants’ relative, Mr Idris Saayev, was abducted on 3 March 2006 by a group of armed servicemen in Grozny. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them.", "410. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 411. Bearing in mind the general principles enumerated above, the Court finds that Mr Idris Saayev was taken into custody by State agents on 3 March 2006 in Grozny.", "In view of the absence of any news of him since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Idris Saayev may be presumed dead following his unacknowledged detention. (f) Application no. 4560/08, Amerkhanova v. Russia 412. A number of witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 163-67 above), demonstrate that the applicants’ son, Mr Rustam Amerkhanov, was abducted on 3 November 2002 by a group of armed servicemen in Shalazhi. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her son was abducted by State agents in the circumstances as set out by her.", "413. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 414. Bearing in mind the general principles enumerated above, the Court finds that Mr Rustam Amerkhanov was taken into custody by State agents on 3 November 2002 in Shalazhi.", "In view of the absence of any news of him since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Rustam Amerkhanov may be presumed dead following his unacknowledged detention. (g) Application no. 35569/08, Dubas and Others v. Russia 415. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 202-203 and 206 above), demonstrate that the applicants’ relative, Ms Milana Ozdoyeva, was abducted on 19 January 2004 by a group of armed servicemen in Katyr-Yurt. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them.", "416. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 417. Bearing in mind the general principles enumerated above, the Court finds that Ms Milana Ozdoyeva was taken into custody by State agents on 19 January 2004 in Katyr-Yurt.", "In view of the absence of any news of her since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Ms Milana Ozdoyeva may be presumed dead following her unacknowledged detention. (h) Application no. 62220/10, Shakhbiyeva and Others v. Russia 418. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 225-30 above), demonstrate that the applicants’ relatives, Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev and Mr Sayd‑Magomed Shakhbiyev, were abducted on 4 September 2000 by a group of armed servicemen during a special operation in Tsotsi-Yurt. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them.", "419. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 420. Bearing in mind the general principles enumerated above, the Court finds that Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev and Mr Sayd‑Magomed Shakhbiyev were taken into custody by State agents on 4 September 2000 in Tsotsi-Yurt.", "In view of the absence of any news of them since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev and Mr Sayd-Magomed Shakhbiyev may be presumed dead following their unacknowledged detention. (i) Application no. 3222/11, Dubayevy v. Russia 421. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 249-51 above), demonstrate that the applicants’ relative, Mr Sharpudi Dubayev, was abducted on 20 November 2002 by a group of armed military servicemen on the outskirts of Berkat-Yurt. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them.", "422. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 423. Bearing in mind the general principles enumerated above, the Court finds that Mr Sharpudi Dubayev was taken into custody by State agents on 20 November 2002 in Berkat-Yurt.", "In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 395 above), the Court also finds that Mr Sharpudi Dubayev may be presumed dead following his unacknowledged detention. (j) Application no. 22257/11, Tekhiyeva v. Russia 424. A number of witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 268-71 above), demonstrate that the applicant’s son, Mr Magomed-Salakh Tekhiyev, was abducted on 4 May 2004 by a group of armed servicemen in Serzhen-Yurt. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her son was abducted by State agents in the circumstances as set out by her.", "425. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 426. Bearing in mind the general principles enumerated above, the Court finds that Mr Magomed-Salakh Tekhiyev was taken into custody by State agents on 4 May 2004 in Serzhen-Yurt.", "In view of the absence of any news of him since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Magomed-Salakh Tekhiyev may be presumed dead following his unacknowledged detention. (k) Application no. 24744/11, Cholayevy v. Russia 427. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 294-97 above), demonstrate that the applicants’ relative, Mr Timerlan Cholayev, was abducted on 12 October 2001 by a group of armed military servicemen in Argun. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them.", "428. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 429. Bearing in mind the general principles enumerated above, the Court finds that Mr Timerlan Cholayev was taken into custody by State agents on 12 October 2001 in Argun.", "In view of the absence of any news of him since that date and the life-threatening nature of the detention (see paragraph 395 above), the Court also finds that Mr Timerlan Cholayev may be presumed dead following his unacknowledged detention. (l) Application no. 36897/11, Titiyeva and Others v. Russia 430. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 334-39 and 342 above), demonstrate that the applicants’ four relatives, Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev, were abducted on 16 July 2000 by a group of armed servicemen during a special operation in Grozny. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relatives were abducted by State agents in the circumstances as set out by them.", "431. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof. 432. Bearing in mind the general principles enumerated above, the Court finds that Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev were taken into custody by State agents on 16 July 2000 in Grozny.", "In view of the absence of any news of them since that date and the life-threatening nature of such detention (see paragraph 395 above), the Court also finds that Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev may be presumed dead following their unacknowledged detention. 3. Conclusions 433. The Court finds that in all of the cases presently before it the applicants’ relatives were abducted by armed men in uniforms, displaying behaviour characteristic of servicemen carrying out security operations. Their behaviour and appearance, their ability to pass through roadblocks and to cordon off areas, along with their use of military-type vehicles even during curfew hours, lead the Court to conclude that, in all probability, they could be none other than State servicemen.", "The applicants’ allegations are supported by the witness statements collected by them and by the domestic investigations. In their submissions to the authorities the applicants maintained that their relatives had been abducted by State agents. The investigators accepted as fact the versions of events presented by the applicants and took steps to check whether State servicemen had been involved in the abductions. 434. In summary, the facts of all the applications contain sufficient evidence to enable the Court to make findings about the carrying out of security operations and thus about the State’s exclusive control over the detainees (see, among many others, Aslakhanova and Others, cited above, § 114).", "The Government’s arguments are in contradiction to the evidence reviewed by the Court and insufficient to discharge them of the burden of proof which has been shifted to them in these cases. 435. The detention in life-threatening circumstances of Mr Alikhan Sultygov, Mr Visadi Samrailov, Mr Ruslan Yandiyev, Mr Nurdi Isayev, Mr Anzor Idigov, Mr Idris Saayev, Mr Rustam Amerkhanov, Ms Milana Ozdoyeva, Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev, Mr Sayd‑Magomed Shakhbiyev, Mr Sharpudi Dubayev, Mr Magomed‑Salakh Tekhiyev, Mr Timerlan Cholayev, Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev, together with the long absence of any news of them, leads the Court to conclude that they may be presumed dead. V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 436. The applicants complained, under Article 2 of the Convention, that their relatives had disappeared after having been detained by State agents and that the domestic authorities had failed to carry out effective investigations into the matter.", "Article 2 reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A.", "The parties’ submissions 437. In their observations the Government contended in respect of the application Shakhbiyeva and Others (no. 62220/10) that Article 2 of the Convention was not applicable to the applicants’ complaints concerning the disappearance of their relatives and that their complaint under this head had to be examined under Article 5 of the Convention. To this end they referred to the case of Kurt v. Turkey, 25 May 1998, §§ 101-09, Reports of Judgments and Decisions 1998‑III. In respect of all the applications the Government submitted that the complaints should be rejected as manifestly ill-founded, as the applicants had failed to substantiate their allegations, and that the domestic investigations had not resulted in any evidence that the applicants’ relatives had been held under State control or that they were dead.", "The Government further noted that the mere fact that the investigative measures employed had not produced any specific results, or had produced only limited ones, did not mean that there had been any omissions on the part of the investigating authorities. They claimed that all the necessary steps were being taken to comply with the obligation to conduct an effective investigation. 438. The applicants maintained their complaints. B.", "The Court’s assessment 1. Admissibility 439. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention the determination of which requires an examination of the merits. It also decides to join to the merits the issue of applicability of Article 2 of the Convention (see Khadayeva and Others v. Russia, no. 5351/04, § 114, 12 March 2009).", "The complaints under Article 2 of the Convention must therefore be declared admissible. 2. Merits (a) Alleged violation of the right to life of the applicants’ relatives 440. The Court notes at the outset that it is undisputed by the parties that the whereabouts of the applicants’ relatives has been unaccounted for periods ranging between two and almost eleven years from the time of the events to the lodging of the applications with the Court. The question arises whether, as the Government submit, Article 2 of the Convention is applicable to the applicants’ situations.", "441. The Court has previously held that Article 5 imposes an obligation on the State to account for the whereabouts of any person taken into detention and who has thus been placed under the control of the authorities (see Kurt, cited above, § 124). Whether a failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on specific evidence, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV, and Ertak v. Turkey, no. 20764/92, § 131, ECHR 2000-V).", "442. In this connection, the Court notes that the Government denied that the applicants’ relatives had been detained by State agents or had been under the control of the authorities after abduction. Therefore, the Government’s argument concerning the applicability of Article 5 of the Convention instead of Article 2 is inconsistent. However, leaving aside the contradictory nature of the Government’s position in this regard and assuming that the applicants’ abducted relatives were under the control of State agents after abduction, then the period of time which has elapsed since each person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the detained person, the greater the likelihood that he or she has died.", "The passage of time may, along with other elements of circumstantial evidence before the Court, provide grounds to conclude that the person concerned is to be presumed dead. In this respect the Court considers that such a situation gives rise to issues which go beyond a mere “irregular detention” in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Çakıcı cited above, § 86, and Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000‑VI). Accordingly, the Court finds that Article 2 of the Convention applies and that the Government’s objection in this respect should be rejected.", "443. Based on the above and noting that it has already been found that in all of the applications under examination the applicants’ relatives may be presumed dead following their unacknowledged detention by State agents, the Court finds, in the absence of any justification put forward by the Government, that their deaths can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Alikhan Sultygov, Mr Visadi Samrailov, Mr Ruslan Yandiyev, Mr Nurdi Isayev, Mr Anzor Idigov, Mr Idris Saayev, Mr Rustam Amerkhanov, Ms Milana Ozdoyeva, Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev, Mr Sayd-Magomed Shakhbiyev, Mr Sharpudi Dubayev, Mr Magomed-Salakh Tekhiyev, Mr Timerlan Cholayev, Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev. (b) Alleged inadequacy of the investigations into the abductions 444. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which have occurred, in particular, in Chechnya and Ingushetia between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 217). In the case at hand, as in many previous similar cases reviewed by the Court, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives.", "While the obligation to investigate effectively is one of means and not of results, the Court notes that each set of criminal proceedings has been plagued by a combination of the same defects as those enumerated in Aslakhanova and Others (cited above, §§ 123‑25). Each was subjected to several decisions to suspend the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crimes. No meaningful steps have been taken to identify and question the servicemen who could have witnessed, registered or participated in the operations. 445. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Alikhan Sultygov, Mr Visadi Samrailov, Mr Ruslan Yandiyev, Mr Nurdi Isayev, Mr Anzor Idigov, Mr Idris Saayev, Mr Rustam Amerkhanov, Ms Milana Ozdoyeva, Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev, Mr Sayd-Magomed Shakhbiyev, Mr Sharpudi Dubayev, Mr Magomed-Salakh Tekhiyev, Mr Timerlan Cholayev, Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev.", "Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect. VI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 446. The applicants complained of a violation of Article 3 of the Convention on account of the mental suffering caused to them by the disappearance of their relatives. Article 3 reads: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.", "The parties’ submissions 447. The Government contested the applicants’ claims. 448. The applicants reiterated their complaints. B.", "The Court’s assessment 1. Admissibility 449. The Court notes that the applicants’ complaints under this head are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "2. Merits 450. The Court observes that the question of whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention.", "It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, ECHR 2006‑XIII, § 164). 451. In the present case the Court notes that the applicants are close relatives of the disappeared persons.", "For a number of years they have not had any news of their abducted family members. During this period the applicants have applied to various official bodies with enquiries about their relatives, both in writing and in person. Despite their attempts, the applicants have never received any plausible explanation or information as to what became of their family members following their abduction. The responses received by the applicants mostly denied that the State was responsible for their arrest or simply informed them that an investigation was ongoing. The Court’s findings concerning the systemic problem related to the procedural aspect of Article 2 are also of direct relevance here.", "452. In view of the above, the Court finds that the applicants suffered distress and anguish as a result of the disappearance of their family members and their inability to find out what happened to them. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3. VII. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF MR ALIKHAN SULTYGOV AND MR VISADI SAMRAILOV (No.", "42575/07). 453. The applicants in the application Sultygov and Others (no. 42575/07) further complained that their abducted relatives Mr Alikhan Sultygov and Mr Visadi Samrailov had been victims of a breach of Article 3 on account of the conditions of their detention after the abduction and the authorities’ failure to investigate those allegations. A.", "The parties’ submissions 454. The Government contested the applicants’ claim. 455. The applicants maintained their complaint. B.", "The Court’s assessment 456. The Court considers that this complaint is linked to those examined above and must therefore likewise be declared admissible. However, having regard to its findings under Article 2 of the Convention, the Court does not find it necessary to examine it separately. VIII. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 457.", "The applicants further stated that their abducted relatives had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3.", "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5.", "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 458. The Government denied that the applicants’ relatives had been detained by State servicemen. In respect of the application Amerkhanova (no. 4560/08) they stated that Mr Rustam Amerkhanov had been taken to the Urus-Martan ROVD for a couple of hours and released.", "459. The applicants reiterated the complaint. B. The Court’s assessment 1. Admissibility 460.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible. 2. Merits 461. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention.", "It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)). 462. As for the Government’s contention, concerning the application Amerkhanova (no.4560/08), that Mr Rustam Amerkhanov was released after two hours, the Court notes that no evidence, such as records of detention or release, has been provided to it to corroborate this assertion.", "It therefore finds that he remained under the control of the authorities after being apprehended during the security operation. 463. Accordingly, the Court concludes that after being apprehended, the applicants’ relatives were held in unacknowledged detention, which was not logged in any custody records, and that there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court’s practice, this must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).", "464. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relatives had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard them against the risk of disappearance. 465. In view of the foregoing, the Court finds that Mr Alikhan Sultygov, Mr Visadi Samrailov, Mr Ruslan Yandiyev, Mr Nurdi Isayev, Mr Anzor Idigov, Mr Idris Saayev, Mr Rustam Amerkhanov, Ms Milana Ozdoyeva, Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev, Mr Sayd-Magomed Shakhbiyev, Mr Sharpudi Dubayev, Mr Magomed-Salakh Tekhiyev, Mr Timerlan Cholayev, Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev were held in unacknowledged detention without any of the safeguards contained in Article 5.", "This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. IX. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 466. The applicants argued that they had no available domestic remedies for the violations claimed, in particular those under Articles 2 and 3 of the Convention. Article 13 reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 467.", "The Government disagreed with that submission, pointing to a number of instruments available to the applicants in the criminal proceedings and in Russian civil law. A. Admissibility 468. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 469. The Court reiterates its findings concerning the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of the results of the criminal investigation, any other possible remedy becomes inaccessible in practice (see Aslakhanova and Others, cited above, §§ 151-57). 470.", "The Court thus finds that the applicants in these cases did not dispose of an effective domestic remedy for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention. X. ALLEGED VIOLATION OF ARTICLE 38 OF THE CONVENTION 471. The applicants in the application Sultygov and Others (no. 42575/07) alleged that the Government had failed to disclose the entire contents of the documents from the investigation file on the abduction of Mr Alikhan Sultygov and Mr Visadi Samrailov.", "Therefore, they invited the Court to find a violation of Article 38 of the Convention, which reads: “The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.” 472. The Court reiterates that it is of utmost importance for the effective operation of the system of individual petition instituted by Article 34 that States should furnish all the necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999‑IV, and Velikova v. Bulgaria, no. 41488/98, § 77, ECHR 2000‑VI). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact‑finding investigation or performing its general duties as regards the examination of applications.", "A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well‑foundedness of the applicants’ allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Medova v. Russia, no. 25385/04, § 76, 15 January 2009, and Timurtaş, cited above, §§ 66 and 70). 473. Turning to the circumstances of the present case, the Court notes that it asked the Government to produce such relevant documents from the investigation file which were capable of rebutting the applicants’ allegations that their missing relatives had been abducted by State servicemen, including witness statements. The Court also notes that the applicants furnished a number of copies of documents reflecting the contents of the criminal case file.", "474. Having regard to the above, and to the conclusions as to the State’s responsibility for the abduction (see paragraph 443 above), the Court finds that the allegedly incomplete nature of certain documents and information did not prevent it from examining the application (see Gakayeva and Others, cited above, § 389, and Khatsiyeva and Others v. Russia, no. 5108/02, § 168, 17 January 2008). 475. There has, accordingly, been no failure to comply with Article 38 of the Convention.", "XI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 476. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The applicants (a) Application no.", "42575/07, Sultygov and Others v. Russia 477. In respect of pecuniary damage the third applicant, as the father of Mr Visadi Samrailov, claimed 273,968 Russian roubles (RUB) (about 6,000 euros (EUR)). 478. The first and second applicants jointly claimed EUR 100,000 in respect of non-pecuniary damage. The third and fourth applicants also claimed EUR 100,000 jointly under this head.", "(b) Application no. 53679/07, Bekova v. Russia 479. The applicant, as the mother of Mr Ruslan Yandiyev, claimed RUB 1,666,537 (about EUR 36,000) in pecuniary damage. 480. In respect of non-pecuniary damage, the applicant claimed EUR 60,000.", "(c) Application no. 311/08, Isayevy v. Russia 481. The applicants did not claim compensation for pecuniary damage. 482. In respect of non-pecuniary damage the applicants claimed EUR 500,000 jointly.", "(d) Application no. 424/08, Idigov v. Russia 483. The applicant did not claim compensation for pecuniary damage. 484. In respect of non-pecuniary damage the applicant claimed EUR 500,000.", "(e) Application no. 3375/08, Saayeva and Others v. Russia 485. In respect of pecuniary damage the applicants claimed as follows: the first applicant, as the wife of Mr Idris Saayev, claimed EUR 25,296; the third, fourth and fifth applicants, as his children, claimed EUR 23,026, EUR 26,395 and EUR 28,782 accordingly. The applicants based their calculations on the minimum subsistence income for the Chechen Republic for 2011, which was RUB 5,616 (about EUR 140) for children and RUB 6,445 for adults (about EUR 160). 486.", "In respect of non-pecuniary damage the applicants claimed EUR 500,000 jointly. (f) Application no. 4560/08, Amerkhanova v. Russia 487. The applicant did not claim compensation for pecuniary damage. 488.", "In respect of non-pecuniary damage she asked the Court to award her an amount which it found reasonable in the circumstances of the case. (g) Application no. 35569/08, Dubas and Others v. Russia 489. The applicants claimed compensation for pecuniary damage as follows: the first and second applicants, as the parents of Ms Milana Ozdoyeva, claimed RUB 835,308 (about EUR 20,400) each; the third applicant as her daughter claimed RUB 396,115 (about EUR 9,700) and the fourth applicant as her son claimed RUB 445,630 (about EUR 11,000). Their calculations were based on Ms Ozdoyeva’s average monthly salary as a typist, which was RUB 8,252 (about EUR 200), and the Ogden Actuary Tables.", "490. In respect of non-pecuniary damage the applicants claimed EUR 70,000 jointly. (h) Application no. 62220/10, Shakhbiyeva and Others v. Russia 491. In respect of pecuniary damage the applicants claimed as follows: the first applicant, as the mother of the three abducted men, claimed RUB 2,506,604 (about EUR 55,000).", "The second applicant, as their father, claimed RUB 2,353,840 (about EUR 52,000). The third applicant, as the son of Mr Ezir-Ali Shakhbiyev, claimed RUB 308,458 (about EUR 6,800) and the fourth applicant, as his wife, claimed RUB 769,317 (about EUR 17,000). 492. The applicants claimed EUR 300,000 jointly in respect of non‑pecuniary damage. (i) Application no.", "3222/11, Dubayevy v. Russia 493. In respect of pecuniary damage, the first, second, third and fourth applicants claimed RUB 372,275 (about EUR 8,300), RUB 330,226 (EUR 7,400), RUB 142,983 (EUR 3,200) and RUB 161,352 (EUR 3,600) respectively for the loss of financial support by the family breadwinner. The applicants based their calculations on the subsistence level provided for by domestic law and the Ogden Actuary Tables. 494. In respect of non-pecuniary damage, the five applicants claimed EUR 175,000 jointly.", "(j) Application no. 22257/11, Tekhiyeva v. Russia 495. In respect of pecuniary damage the applicant, as the mother of the disappeared, claimed RUB 875,043 (about EUR 19,500). 496. The applicants claimed EUR 100,000 jointly in respect of non‑pecuniary damage.", "(k) Application no. 24744/11, Cholayevy v. Russia 497. The applicants did not claim compensation for pecuniary damage. 498. As for non-pecuniary damage, the applicants claimed EUR 60,000 jointly.", "(l) Application no. 36897/11, Titiyeva and Others v. Russia 499. In respect of pecuniary damage the applicants claimed as follows: The first applicant, as the mother of Mr Apti Medzhidov, claimed RUB 831,053 (about EUR 18,500); the second applicant, as his daughter, claimed RUB 307,059 (about EUR 6,800) and the third applicant, as his sister and the legal guardian of the second applicant, claimed RUB 961,049 (about EUR 21,300). The fourth applicant, as the mother of Mr Akhmed Dudurkayev, claimed RUB 734,862 (about EUR 16,300). The eighth applicant, as the wife of Mr Alu Bultayev, claimed RUB 964,017 (about EUR 21,300); the ninth, tenth and eleventh applicants, as his daughters, claimed RUB 51,135 (about EUR 1,150), RUB 144,683 (about EUR 3,200) and RUB 217,291 (about EUR 4,800) respectively.", "The twelfth applicant, as the daughter of Mr Visarkhan Dokuyev, claimed RUB 302,703 (about EUR 6,700). 500. The applicants claimed EUR 400,000 jointly in respect of non‑pecuniary damage. 2. The Government 501.", "In respect of each application the Government submitted that the applicants’ claims in respect of pecuniary damage were unsubstantiated and based on supposition. 502. As for the claims in respect of non-pecuniary damage, the Government stated that they were excessive and that a finding of a violation of the Convention would in itself comprise adequate compensation. B. The applicants’ request for an investigation 503.", "The applicants in the application Sultygov and Others (no. 42575/07) also requested, referring to Article 41 of the Convention, that an independent investigation which would comply with the requirements of the Convention be conducted into the disappearance of their relatives. 504. Keeping in mind its findings in Aslakhanova and Others (cited above, §§ 220-38) concerning the systemic problem of ineffective investigations into disappearances in the region at the material time, along with its findings in a number of similar cases in which it has decided, with reference to its established principles, that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order with a view to discharging their legal obligation under Article 46 of the Convention (see, among other authorities, Umayeva v. Russia, no. 1200/03, §§ 123-24, 4 December 2008; Kukayev v. Russia, no.", "29361/02, §§ 131-34, 15 November 2007; Lyanova and Aliyeva v. Russia, nos. 2713/02 and 28440/03, § 160, 2 October 2008; Medova v. Russia, cited above, §§ 142-43; and Mutsolgova and Others v. Russia, no. 2952/06, § 168, 1 April 2010), the Court does not see any exceptional circumstances which would lead it to reach a different conclusion in the present case. C. Costs and expenses 505. The applicants in the applications Sultygov and Others (no.", "42575/07), Bekova (no. 53679/07), Isayevy (no. 311/08), Dubas and Others (no. 35569/08), Shakhbiyeva and Others (no. 62220/10), Tekhiyeva (no.", "22257/11) and Titiyeva (no. 36897/11) were represented by SRJI/Astreya. The aggregate claim in respect of costs and expenses related to the legal representation in each of those cases is as follows: in the application Sultygov and Others (no. 42575/07) EUR 4,224; in the application Bekova (no. 53679/07) EUR 5,219; in the application Isayevy (no.", "311/08) EUR 7,936; in the application Dubas and Others (no. 35569/08) EUR 6,447; in the application Shakhbiyeva and Others (no. 62220/10) EUR 4,414; in the application Tekhiyeva (no. 22257/11) EUR 4,556; and in the application of Dubayevy (no. 3222/11) EUR 4,698.", "The amounts claimed covered the drafting of legal documents, translation services, and administrative and postal costs. The applicants in all the cases submitted copies of their legal representation contracts and invoices with a breakdown of the costs incurred. 506. The applicants in the applications Idigov (no. 424/08) and Saayeva and Others (no.", "3375/08) were represented by Mr D. Itslayev. The aggregate claim in respect of costs and expenses relating to their legal representation amounted to EUR 4,091 and EUR 6,449 accordingly. The amounts claimed covered the drafting of legal documents submitted to the Court, and administrative and postal expenses. The applicants submitted copies of their legal representation contracts and invoices with a breakdown of the costs incurred. 507.", "The applicant in the application Amerkhanova (no. 4560/08) was represented by Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses relating to her legal representation amounted to 1,510 pounds sterling (GBP) (about EUR 1,900). The amount claimed covered the drafting of legal documents submitted to the Court and translation and administrative expenses. The applicant submitted copies of her legal representation contract and invoices with a breakdown of the costs incurred.", "508. The applicants in the application Cholayevy (no. 24744/11) were represented by Materi Chechni. The aggregate claim in respect of costs and expenses relating to their legal representation amounted to EUR 8,050. No breakdown of costs, explanatory notes or supporting documents were enclosed.", "D. The Court’s assessment 509. The Court reiterates that there must be a clear causal connection between the damages claimed by applicants and the violation of the Convention, and that this may, where appropriate, include compensation in respect of loss of earnings. The Court further finds that the loss of earnings applies to close relatives of disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213). 510. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations, and make a financial award.", "511. As to costs and expenses, the Court has to establish first whether these costs and expenses were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV). 512.", "Having regard to its above conclusions, the principles enumerated above and the parties’ submissions, the Court awards the amounts to the applicants as detailed in Appendix II, plus any tax that may be chargeable to the applicants on those amounts. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as specified by the applicants. E. Default interest 513. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Dismisses the Government’s objection regarding locus standi in respect of applications Sultygov and Others (no. 42575/07) and Idigov (no. 424/08); 3. Decides to join to the merits the Government’s objection as to the applicability of Article 2 of the Convention and rejects it; 4.", "Declares the complaints under Articles 2, 3, 5 and 13 admissible, and the remainder of the applications inadmissible; 5. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Alikhan Sultygov, Mr Visadi Samrailov, Mr Ruslan Yandiyev, Mr Nurdi Isayev, Mr Anzor Idigov, Mr Idris Saayev, Mr Rustam Amerkhanov, Ms Milana Ozdoyeva, Mr Ezir-Ali Shakhbiyev, Mr Abzu Shakhbiyev , Mr Sayd-Magomed Shakhbiyev, Mr Sharpudi Dubayev, Mr Magomed-Salakh Tekhiyev, Mr Timerlan Cholayev, Mr Apti Medzhidov, Mr Akhmed Dudurkayev, Mr Visarkhan Dokuyev and Mr Alu Bultayev; 6. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the disappearance of the applicants’ relatives; 7. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering; 8. Holds that there is no need to examine separately the complaint under Article 3 of the Convention in respect of alleged ill-treatment of Mr Alikhan Sultygov and Mr Visadi Samrailov; 9.", "Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention; 10. Holds that there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention; 11. Holds (a) that the respondent State is to pay the applicants (in relation to application no. 42575/07 to Mr Viskhan Samrailov and in relation to application no. 424/08 to Ms Tamara Idigova), within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts indicated in Appendix II, plus any tax that may be chargeable to the applicants.", "The awards in respect of costs and expenses are to be paid into the applicants’ representatives’ bank accounts indicated by the applicants; the payments are to be made in euros in respect of the applicants represented by SRJI/Astreya, in pounds sterling in respect of the applicants represented by the Memorial Human Rights Centre/EHRAC and in the currency of the respondent State in respect of the applicants represented by Mr D. Itslayev and Materi Chechni; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 12. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 9 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident APPENDIX I Details of the applications No. Application no., name, date of lodging and communication to the Respondent Government Applicants Represented by Persons disappeareded, year of birth, date and place of abduction Investigation of the disappearance 1.", "42575/07 Sultygov and Others v. Russia Lodged on 17/09/2007 Communicated on 27/08/2009 (1) Mr Gerikhan Sultygov (2) Ms Fatima Sultygova (3) Mr Musadi Samrailov (passed away on 03/02/2013). Mr Viskhan Samrailov pursued the application on his behalf (4) Ms Maus Nasayeva SRJI/ Astreya (1) Mr Alikhan Sultygov (1969) (2) Mr Visadi Samrailov (1964) Abducted on 4 August 2000 at checkpoint on the outskirts of Grozny, Chechnya On 17 March 2001 the Leninskiy district prosecutor’s office opened criminal case no. 11094. The investigation is still pending. 2.", "53679/07 Bekova v. Russia Lodged on 22/11/2007 Communicated on 13/01/2011 Ms Fatima Bekova SRJI/ Astreya Mr Ruslan Yandiyev (1982) Abducted on 29 September 2005 in Nazran, Ingushetia On 9 October 2005 the Nazran town prosecutor’s office opened criminal case no. 05560115. The investigation is still pending. 3. 311/08 Isayevy v. Russia Lodged on 06/12/2007 Communicated on 13/01/2010 (1) Ms Zeyna Isayeva (2) Ms Raisa Isayeva SRJI/ Astreya Mr Nurdi Isayev (1979) Abducted on 3 February 2000 in Valerik, Chechnya On 23 February 2001 the Achkhoy-Martan district prosecutor’s office opened criminal case no.", "27009. The investigation is still pending. 4. 424/08 Idigov v. Russia Lodged on 23/10/2007 Communicated on 05/01/2010 Mr Tukhan Idigov, (passed away on 5 January 2013). Ms Tamara Idigova pursued the application on his behalf Mr D. Itslayev Mr Anzor Idigov (1976) Abducted on 4 May 2003 in Shalazhi, Chechnya On 18 May 2003 the Urus-Martan district prosecutor’s office opened criminal case no.", "34059. The investigation is still pending. 5. 3375/08 Saayeva and Others v. Russia Lodged on 28/11/2007 Communicated on 19/01/2011 (1) Ms Larisa Saayeva (2) Ms Mariyat Beksultanova (3) Mr Islam Saayev (4) Ms Lala Saayeva (5) Ms Iman Saayeva Mr D. Itslayev Mr Idris Saayev (1978) Abducted on 3 March 2006 in Grozny, Chechnya. On 6 April 2006 the Staropromyslovskiy district prosecutor’s office opened criminal case no.", "53037. The investigation is still pending. 6. 4560/08 Amerkhanova v. Russia Lodged on 24/12/2007 Communicated on 26/01/2010 Ms Dzayanu Amerkhanova The Memorial Human Rights Centre Mr Rustam Amerkhanov (1978) Abducted on 3 November 2002 in Shalazhi, Chechnya On 12 November 2002 the Urus-Martan district prosecutor’s office opened criminal case no. 61151.", "The investigation is still pending. 7. 35569/08 Dubas and Others v. Russia Lodged on 15/07/2008 Communicated on 26/01/2011 (1) Ms Lyubov Dubas (2) Mr Bislan Magomadov (3) Ms Sara Ozdoyeva (4) Mr Riyyadus-Solikhiyn Ozdoyev SRJI/ Astreya Ms Milana Ozdoyeva (1982) Abducted on 19 January 2004 in Katyr-Yurt, Chechnya On 29 January 2004 the Achkhoy-Martan district prosecutor’s office opened criminal case no. 38004. The investigation is still pending.", "8. 62220/10 Shakhbiyeva and Others v. Russia Lodged on 11/10/2010 Communicated on 03/11/2011 (1 )Ms Tamara Shakhbiyeva (2) Mr Khuseyn Shakhbiyev (3) Mr Saifulla Shakhbiyev (4) Ms Khedi Khizrayeva SRJI/ Astreya (1) Mr Ezir-Ali Shakhbiyev (1974) (2) Mr Abzu (also spelt Abza) Shakhbiyev (1977) (3) Mr Sayd-Magomed Shakhbiyev (1978) Abducted on 4 September 2000, Tsotsi-Yurt, Chechnya On 13 August 2001 the Kurchaloy district prosecutor’s office opened criminal case no. 39051. The investigation is still pending. 9.", "3222/11 Dubayevy v. Russia Lodged on 20/12/2010 Communicated on 08/06/2011 (1) Ms Saykhat Dubayeva (2) Mr Shirvani Dubayev (3) Ms Zalina Dubayeva (4) Mr Shamkhan Dubayev (5) Mr Shamil Dubayev SRJI/ Astreya Mr Sharpudi Dubayev (1977) Abducted on 20 November 2002 next to Berkat-Yurt, Chechnya On 28 September 2003 the Grozny district prosecutor’s office opened criminal case no. 42169. The investigation is still pending. 10. 22257/11 Tekhiyeva v. Russia Lodged on 01/04/2011 Communicated on 03/11/2011 Ms Malkan Tekhiyeva SRJI/ Astreya Mr Magomed-Salakh Tekhiyev (1983) Abducted on 4 May 2004, Serzhen-Yurt, Chechnya On 5 June 2004 the Shali district prosecutor’s office opened criminal case no.", "36051. The investigation is still pending. 11. 24744/11 Cholayevy v. Russia Lodged on 17/03/2011 Communicated on 03/11/2011 (1) Ms Khava Cholayeva (2) Mr Aslan Cholayev (3) Ms Eliza Cholayeva Materi Chechni Mr Timerlan Cholayev (1978) Abducted on 12 October 2001, Argun, Chechnya On 9 January 2002 the Shali district prosecutor’s office opened criminal case no. 78012.", "The investigation is still pending. 12. 36897/11 Titiyeva and Others v. Russia Lodged on 10/06/2011 Communicated on 03/11/2011 (1) Ms Layla Titiyeva (2) Ms Khava Medzhidova (3) Ms Medina Akhamdova (4) Ms Zulay Dudurkayeva (5) Mr Ruslan Dudurkayev (6) Ms Makka Dokuyeva (7) Mr Ramazan Dokuyev (8) Ms Zina Akhmedova (9) Ms Khedi Bultayeva (10) Ms Khadizhat Bultayeva (11) Ms Gistam Bultayeva (12) Ms Khava Dokuyeva SRJI/Astreya (1) Mr Apti Medzhidov (1975) (2) Mr Akhmed Dudurkayev (1979) (3) Mr Visarkhan Dokuyev (1971) (4) Mr Alu (Adlan) Bultayev (1968) Abducted on 16 July 2000 in Grozny, Chechnya On 6 November 2000 the Grozny town prosecutor’s office opened criminal case no. 12239. The investigation is still pending.", "APPENDIX II Awards made by the Court under Article 41 of the Convention Application number and name Represented by Pecuniary damage Non-pecuniary damage Costs and expenses 1. 42575/07 Syltigov and Others v. Russia SRJI/Astreya EUR 5,000 (five thousand euros) to the third applicant EUR 60,000 (sixty thousand euros) to the first and second applicants jointly and EUR 60,000 (sixty thousand euros) to the third and fourth applicants jointly EUR 3,000 (three thousand euros) 2. 53679/07 Bekova v. Russia SRJI/Astreya EUR 10,000 (ten thousand euros) EUR 60,000 (sixty thousand euros) EUR 3,000 (three thousand euros) 3. 311/08 Isayevy v. Russia SRJI/Astreya - EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 3,000 (three thousand euros) 4. 424/08 Idigov v. Russia Mr D. Itslayev - EUR 60,000 (sixty thousand euros) EUR 3,000 (three thousand euros) 5.", "3375/08 Saayeva and Others v. Russia Mr D. Itslayev EUR 10,000 (ten thousand euros) to the first applicant and EUR 4,000 (four thousand euros) to the third, fourth and fifth applicants each; EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 3,000 (three thousand euros) 6. 4560/08 Amerkhanova v. Russia The Memorial Human Rights Centre - EUR 60,000 (sixty thousand euros) EUR 1,900 (one thousand nine hundred euros) 7 35569/08 Dubas and Others v. Russia SRJI/Astreya EUR 3,000 ( three thousand euros) to the first and second applicants each and EUR 4,000 (four thousand euros) to the third and fourth applicants each EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 3,000 (three thousand euros) 8 62220/10 Shakhbiyeva and Others v. Russia SRJI/Astreya EUR 27,000 (twenty-seven thousand euros) to the first and second applicants each; EUR 5,000 (five thousand euros) to the third applicant and EUR 10,000 (ten thousand euros) to the fourth applicant EUR 180,000 (one hundred and eighty thousand euros) to the applicants jointly EUR 3,000 (three thousand euros) 9 3222/11 Dubayevy v. Russia SRJI/Astreya EUR 5,000 (five thousand euros) to the first and second applicants each and EUR 3,000 (three thousand euros) to the third and fourth applicants each EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 3,000 (three thousand euros) 10 22257/11 Tekhiyeva v. Russia SRJI/Astreya EUR 10,000 (ten thousand euros) EUR 60,000 (sixty thousand euros) EUR 3,000 (three thousand euros) 11 24744/11 Cholayevy v. Russia Materi Chechni - EUR 60,000 (sixty thousand euros) to the applicants jointly EUR 1,000 (one thousand euros) 12 36897/11 Titiyeva and Others v. Russia SRJI/Astreya EUR 10,000 (ten thousand euros) to the first applicant; EUR 5,000 (five thousand euros) to the second applicant; EUR 10,000 (ten thousand euros) to the third applicant; EUR 10,000 (ten thousand euros) to the fourth applicant; EUR 10,000 (ten thousand euros) to the eighth applicant EUR 1,000 (one thousand euros) to the ninth applicant; EUR 2,500 (two thousand euros five hundred euros) to the tenth and eleventh applicants each; EUR 5,000 (five thousand euros) to the twelfth applicant EUR 240,000 (two hundred and forty thousand euros) to the applicants jointly EUR 3,000 (three thousand euros)" ]

[ "FIRST SECTION CASE OF TADIĆ v. CROATIA (Application no. 10633/15) JUDGMENT STRASBOURG 23 November 2017 FINAL 09/04/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tadić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Krzysztof Wojtyczek,Ksenija Turković,Armen Harutyunyan,Pauliine Koskelo,Jovan Ilievski, judges,and Abel Campos, Section Registrar, Having deliberated in private on 10 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "10633/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Ivica Tadić (“the applicant”), on 23 February 2015. 2. The applicant, who had been granted legal aid, was represented by Ms L. Horvat, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged ill-treatment during his arrest and the absence of an effective investigation in that respect. 4. On 29 June 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1969 and lives in Zagreb. A. The applicant’s arrest and medical treatment 6. On 20 December 2012 at 4.55 p.m. V.B. and I.J., police officers of IV police station in Zagreb, caught the applicant in the act of attempting to rob an exchange office in Zagreb.", "The applicant started to run and fell. The police officers then arrested him. During his arrest some money fell out of the applicant’s pockets. 7. According to the Government, since the applicant was resisting arrest, the police officers had to apply force (the so-called armlock technique).", "8. According to the applicant, he was beaten by the police officers while lying on the ground. 9. At 5 p.m. officers D.P. (the chief officer on duty in the IV Zagreb police station) and N.V. (the deputy head of IV Zagreb police station) were informed of the use of force against the applicant.", "The applicant was taken to the police station at 5.15 p.m. The applicant complained to Officer S.P. that his shoulder hurt. S.P. informed D.P.", "of this and the latter ordered that the emergency medical service be called. At 5.56 p.m. D.P. informed the Zagreb police operative centre about the use of force against the applicant. The applicant was seen by an emergency doctor between 7.40 p.m. and 7.57 p.m. He was transferred to the Sisters of Charity Hospital in Zagreb (Klinički bolnički centar Sestre milosrdnice) and was seen there by a surgeon at 8.11 p.m. An X-ray examination revealed that the applicant’s right shoulder was broken.", "The applicant told the doctor that he had fallen during his arrest. He was provided with medical assistance for these injuries and then returned to the police station at 9.40 p.m. Officer D.P. questioned the applicant in connection with the criminal offence for which he had been arrested and the applicant stated that he wished to remain silent. 10.", "The applicant was again seen by a surgeon in the same hospital on 24 December 2012 and surgery was recommended. 11. The applicant was hospitalised in the Sisters of Mercy Hospital between 27 and 31 December 2012. He underwent surgery and it was established that his shoulder was broken in four places; his upper arm was also broken. He had an artificial shoulder implanted.", "B. Internal police inquiry 12. An internal investigation into the use of force against the applicant was immediately initiated within the Zagreb police on 20 December 2012. Officer D.P. took a statement from the applicant who said that he had sustained an injury “by the police officers” and that he did “not want to say anything else”.", "Officers V.B. and I.J. compiled a joint report on the use of force against the applicant. Later on, each of them provided a separate report. All these reports alleged that the applicant, in attempting to flee from the police officers, had fallen and that while on the ground had actively resisted the police officers, who had then applied the armlock technique and handcuffed him.", "13. On 21 December 2012 an internal police investigator of the Zagreb police, officer A.L., compiled a report on the basis of the documents, statements from Officers V.B., I.J. and D.P. and his interview with the applicant. In his report A.L.", "stated that the applicant had attempted to run from the said officers and had fallen. While on the ground he had actively resisted arrest and the officers had applied the armlock technique. A.L. concluded that the applicant had resisted the police officers since some money had fallen out of his clothes. A.L.", "was of the opinion that the force applied by officers V.B. and I.J. against the applicant had had a “basis in law and [had been] justified”. 14. On 21 December 2012 the head of IV police station in Zagreb, S.T., compiled a report for the public-order division of the Zagreb police, on the basis of the report of A.L.", "S.T. stated that the applicant had said that he had fallen and that the police officers had caught him and applied force against him and denied that he had resisted arrest. In a short report of 28 December 2012 the head of the Zagreb police, G.B., concluded that the information gathered had shown that the use of force by Officers V.B. and I.J. against the applicant had been lawful and justified.", "15. On 28 December 2012 the head of the Zagreb police informed the head of IV police station in Zagreb that, on the basis of the report of A.L., he considered the force used by officers V.B. and I.J. against the applicant to have had a “basis in law and [to have been] justified” 16. On 3 January 2013 the head of the Zagreb police sent the case file concerning the internal police investigation to the Internal Control Service of the Ministry of the Interior.", "Upon inspecting the file the Internal Control Service instructed the police to forward the file to the Zagreb Municipal State Attorney’s Office (hereinafter the “ZMSAO”) for further assessment. 17. On the instructions of the head of the Zagreb police, on 5 February 2013 the IV police station in Zagreb sent a report on the events at issue together with the applicant’s medical report to the ZMSAO. The documents in the case file do not indicate that the ZMSAO carried out any further steps at that time. 18.", "On 6 February 2013, upon a request by the applicant’s lawyer, the head of the IV police station in Zagreb shortly informed the applicant’s lawyer that the force used against the applicant by the two police officers had had a basis in law and had been justified. The applicant’s request to have access to the internal report on the use of force against him was denied on 11 February 2013 on the grounds that it was a classified document. 19. On 15 May 2013 the head of IV police station in Zagreb compiled a report for the legal, financial and technical tasks division of the Zagreb police, where he described in detail the events at issue and the results of the internal police investigation with a final conclusion that the use of force against the applicant had had a basis in law and had been justified. C. Proceedings by the prosecuting authorities 20.", "On 28 July 2014 the applicant lodged a criminal complaint with the ZMSAO against Officers V.B. and I.J. 21. The applicant alleged that during his arrest on 20 December 2012 police officers V.B. and I.J.", "had forced him to the ground and then hit, kicked and verbally insulted him and unnecessarily twisted his arm, owing to which he had sustained injuries, such as a broken arm and shoulder. The officers had then taken him to a police station where they continued to beat him. Only after three hours had he been taken to hospital. The doctors had recommended urgent surgery but the police officers had not allowed it. Instead, they had taken him back to the police station where they had continued to hit and insult him.", "In the evening he had been admitted to Zagreb Prison. 22. The prosecuting authorities obtained the statements previously given by the applicant and the police officers involved. 23. The ZMSAO attempted to contact the applicant on six occasions between 27 November 2014 and 15 September 2015.", "However, these attempts were unsuccessful since the applicant had changed his address and had not replied to the telephone calls on the mobile telephone number provided by his lawyer. 24. In July and August 2015 the ZMSAO obtained the medical documentation concerning the applicant’s injuries and medical treatment. 25. On 13 October 2015 the ZMSAO interviewed the applicant, who said that during his arrest on 20 December 2012 one of the police officers, when applying the armlock technique, had broken his right arm.", "He had complained to the officers of intense pain but they had ignored his complaints. During his transport to the police station he had again complained about the pain in his arm but the officers had only told him to shut up. Upon his arrival at the police station he had continued to complain about the pain in his arm, but had been ignored. Only after a few hours had a doctor been called. The applicant admitted that he had told the doctor that he had sustained the injury to his right arm and shoulder when he had fallen during his arrest.", "He also said that during the arrest and later on in the police station, none of the police officers had hit or kicked him. He said that in the relevant period he had been abusing both alcohol and drugs. 26. On 2 and 3 December 2015 Officers V.B., I.J. and D.B.", "also gave their statements denying any excessive use of force against the applicant. 27. On 8 January 2016 the ZMSAO interviewed J.H., an employee of the exchange office where the applicant had attempted the robbery. She had also witnessed the applicant’s arrest and said that she had not seen the police officers hitting or kicking the applicant. 28.", "On 13 January 2016 the ZMSAO interviewed B.Z., a witness to the applicant’s arrest, who said that the applicant had attempted to run from the police and had fallen and that he had not seen any police officers hitting or kicking the applicant. 29. The investigation is still pending. D. The applicant’s civil proceedings against the State 30. On 28 August 2013 the applicant instituted civil proceedings in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) against the State claiming damages in connection with his alleged ill-treatment by the police during his arrest and stay in the police station.", "31. Those proceedings are still pending. II. RELEVANT DOMESTIC LAW A. Code of Criminal Procedure 32.", "The relevant part of the Code of Criminal Procedure reads as follows (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 91/2012, 143/2012, 56/2013, 145/2013 and 152/2014): Article 206.a “(1) A victim and an injured party have the right to ask for information about the steps taken by a State attorney in connection to their criminal complaint ... within two months of the complaint being submitted. A State attorney shall inform them about the steps taken within a reasonable time and at the latest within thirty days of the date the complaint was received, save for when [providing the information] would compromise the efficiency of the proceedings. ... (2) When a State attorney does provide the requested information to the victim or the injured party or when they are not satisfied with the information received, they have the right to complain to a higher State attorney. (3) The higher State attorney shall verify the allegations of the complaint and where he or she finds the complaint well-founded, he or she shall order the lower State attorney to provide the complainant with the information about the actions taken or to carry out within a reasonable time the steps that should have been taken.", "When the higher State attorney finds that the actions of a lower State attorney infringed the rights of the complainant he or she shall inform the complainant of it and indicate the right that has been infringed. (4) The victim and the injured party may again seek information about the steps taken under paragraph 1 of this Article after [a period of] six months from the previous request for information, save for when they have lodged a complaint under Article 206.b paragraph 2 of this Code.” Article 206.b “(1) A State attorney shall adopt a decision on a criminal complaint within six months ... (2) After the expiry of the deadline from paragraph 1 of this Article or after the expiry of [a] six-month [period] after a State attorney acted in accordance with paragraph 5 of Article 205 of this Code, the person who submitted a criminal complaint, the victim and the injured party may lodge a complaint with a higher State attorney on account of the failure of a subordinate State attorney to carry out actions which resulted in a delay in the proceedings. (3) A higher State attorney shall request without delay a report on the allegations in the complaint. (4) When he or she finds the complaint well-founded the higher State attorney shall fix adequate time for adopting a decision on the criminal complaint concerned. (5) The higher State attorney shall inform the complainant of the measures taken within fifteen days.", "(6) The complainant may repeat his or her complaint when the complaint has not been processed within the time-limit under paragraph 4 of this Article.” B. Police Act 33. Section 5 of the Police Act (Zakon o policiji, Official Gazette no. 34/2011 and 130/2012) reads as follows: “(1) When a physical or legal person submits a petition or a complaint about the work of a police officer or other employee of the Ministry [of the Interior], a police entity or other entity of the Ministry, alleging that unlawful or incorrect acts of a police officer or other employee of the Ministry violated his or her or other’s rights or violated a statutory provision, a head of the relevant division shall inform the complainant about the facts established and measures taken within thirty days of the day the petition or complaint has been submitted. (2) If the complainant is not satisfied with the answer and the procedure by which his or her allegations have been assessed, the case file shall without delay be forwarded to further processing to the Ministry’s Complaints Committee.", "(3) The Committee under paragraph 2 of this section is composed of three members: police officer of the Ministry and two representatives of the public appointed by the Parliament’s Committee for Human Rights and the Rights of National Minorities at the suggestions of organisations of civil society, organisations of exerts and non-governmental organisations. The Ministry shall have a register of petitions and complaints. ...” C. Police Duties and Powers Act 34. The relevant provisions of the Police Duties and Powers Act (Zakon o policijskim poslovima i ovlastima, Official Gazette no. 76/2009), as in force at the relevant time, provide: Section 82 “(1) Means of force may be used in cases provided for in this Act in order to protect human lives, surmount resistance, prevent escape or resist an attack, when it is probable that warnings and orders would not achieve the aim sought.", "... (3) The means of force shall be used [only] after an advance warning, save for when it is probable that the advance warning would put at risk the achieving of the aim sought.” Use of physical force, sprays with irritants and truncheonsSection 84 “(1) A police officer has the right to use physical force in order to: 1. surmount resistance of a person breaching the public peace and order, or in respect of a person who should be brought [before the competent authority], confined or arrested; 2. prevent self-injury of a person; 3. resist attack against [the police officer] or another person or object or premises under his control; 4. prevent that person’s leaving a certain place of their own free will. ...” Use of means of restraintSection 85 “A police officer has the right to use means of restraint in order to prevent: 1. resistance or attack against the police officer; 2. escape of a person; 3. inflicting self-injury or injuries to another person.” D. By-law on the police conduct 35. The relevant provisions of the by-law on the police conduct (Pravilnik o načinu policijskog postupanja, Official Gazette no. 81/2003) provide: Use of forceSection 127 “A police officer may use force under the conditions provided for by law, in principle when warning and orders are insufficient to achieve the desired result. The means of force may exceptionally be used before warning and orders when it is likely that giving warnings and orders would put at risk the achieving of the aim sought.", "The police officer shall use the measure of force which, causing minimum consequences, achieves the aim sought and shall cease to use force as soon as the reason for using it ceases.” Use of physical force, sprays with irritants and truncheonsSection 129 “A police officer has the right to use physical force in order to surmount resistance of a person breaching the public peace and order, or in respect of a person who should be brought [before the competent authority], confined or arrested, or in order to prevent self-injury, resist attack against [the police officer] or another person or object or premises under his or her control or to prevent that person’s self-willed leaving a certain place. The use of physical force shall mean: hitting with a bodily part, techniques of defence or attack capable of securing obedience of the person when the conditions prescribed by law are met. The police officer shall apply the means of physical force by which the aim sought is achieved with the least negative consequences.” Measures of restraintSection 133 “The use of measures of restraint is restriction of the freedom of bodily movement by tying [the arrestee’s] hands behind [his or her] back, the use of prescribed means of restraint (handcuffs) or other adequate means (belt, rope, tape and similar). As an exception to paragraph 1 of this section, when there are justified reasons, and when a person is under the control of at least two police officers, his or her hands may be tied in front of his or her body. The legs may also be tied when the means of force under paragraph 1 of this section have not achieved the aim sought.", "The measure under paragraph 1 of this section shall be used by a police officer in a manner ensuring that it does not cause unnecessary physical injuries to the person restrained. ... A police officer shall restrain a person who is to be brought [before the competent authority], confined or arrested when there is a danger of absconding, resistance or attack of that person on a police officers, or where there is a danger of his or her self-injury or injuring another person. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36. The applicant complained of ill-treatment during his arrest and of the absence of an effective investigation in that respect.", "He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ arguments 37. The Government argued that the applicant had not exhausted all available domestic remedies. In the first place he had not complained about the results of the internal police investigation. Secondly, he had not asked for information from the ZMSAO about the progress of the investigation and he had not lodged complaints or sought disciplinary action with the higher State Attorney’s Office in respect of the inefficiency of the investigation as provided under Article 206(a) and (b) of the Code of Criminal Procedure.", "Thirdly, he had not used the remedy provided for under section 5 of the Police Act. 38. As regards the complaint under the procedural aspect of Article 3, the Government argued that it was premature because the investigation by the ZMSAO into the applicant’s criminal complaint was still pending. 39. The applicant argued that he had exhausted all available remedies since he had lodged a criminal complaint with the relevant State Attorney’s Office and that it was then up to the prosecuting authorities to conduct an effective investigation.", "Given the passage of time since he had lodged his criminal complaint and the inactivity of the prosecuting authorities, the applicant considered that his application was not premature and that had he waited longer, he might have missed the six-month time-limit for lodging his application with the Court. 2. The Court’s assessment 40. The Court reiterates that, under Article 35 § 1 of the Convention, it may deal with an application only after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no.", "57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). 41.", "As regards the specific features of the State’s obligations under Article 3 of the Convention and the requirement of the exhaustion of domestic remedies, the Court reiterates that when there is reason to believe that an individual has been subjected to ill-treatment by a State official, the State is required to conduct an effective official investigation (see Selmouni v. France [GC], no. 25803/94, § 79, ECHR 1999-V, and Bouyid, cited above, § 116). It cannot be left to the initiative of the victim either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures since the authorities must act on their own motion (see Bouyid, cited above, § 119). 42. As regards the Government’s contention that the applicant had not complained about the results of the internal police investigation, the Court notes that the applicant was only informed by the police shortly, in response to his query, that the force used against him had had a basis in law and had been justified, whereas the report compiled during the internal police investigation was classified and had not been communicated to him (see paragraph 18 above).", "Further to this, even though the police forwarded the file of its internal investigation for further assessment to the State Attorney’s Office, it neither instituted criminal proceedings nor adopted a reasoned decision not to do so. Therefore, the applicant had no real opportunity to contest the results of the internal police investigation or the State Attorney’s conduct. Section 5 of the Police Act, cited by the Government, does not provide a remedy in that respect (see paragraph 33 above). The applicant has used the remedies at his disposal since he lodged a criminal complaint with the ZMSAO. 43.", "As to the Government’s arguments related to the rights of victims under Article 206(a) and (b) of the Code of Criminal Procedure, the Court considers that these provisions are not to be understood as imposing an obligation for victims to use them in the context of exhaustion of domestic remedies, taking into account the obligation of the State authorities to act on their own motion in cases of ill-treatment (see, mutatis mutandis, D.J. v. Croatia, no. 42418/10, §§ 63-65, 24 July 2012; Remetin v. Croatia, no. 29525/10, §§ 73-74, 11 December 2012; and Kudra v. Croatia, no. 13904/07, § 95, 18 December 2012).", "44. As regards the Government’s allegation that the application was premature in respect of the procedural aspect of Article 3 of the Convention since the investigation into the applicant’s allegations was still pending before the ZMSAO, the Court notes that under Article 206(b) of the Code of Criminal Procedure the State Attorney’s Office is obliged to adopt a decision upon a criminal complaint within six months. Given that that time-limit had elapsed and taking into account the overall duration of the investigation by the State Attorney’s Office up to present (see paragraph 73 below), the Court considers that the application is not premature. 45. It follows the Government’s objection must be dismissed.", "46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Severity of the ill-treatment 47. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998-VI).", "48. The Court notes that it is undisputed that two police officers used force against the applicant and that the applicant sustained injuries, all in the context of his arrest. The medical documentation shows that in connection with his arrest on 20 December 2012 the applicant sustained a fracture of his right arm and shoulder in four places. On 27 December 2012 he underwent surgery and had an artificial shoulder implanted. In view of the above principles, the Court finds that in the present circumstances where physical force was used during the applicant’s arrest by police officers, the above-described injury was sufficiently serious to reach the “minimum level of severity” under Article 3 of the Convention so that that provision is applicable.", "2. Substantive aspect of Article 3 of the Convention (a) The parties’ arguments (i) The applicant 49. The applicant submitted that on 20 December 2012 police officers had hit and kicked him and had unnecessarily twisted his arm while he had been prone on the ground even though he had not given any resistance. Therefore the use of force against him had been disproportionate. He had enclosed with his criminal complaint the medical evidence showing that he had sustained a broken arm and shoulder.", "(ii) The Government 50. The Government argued that the applicant’s allegations of ill-treatment by the police were unfounded and unsubstantiated since they had no basis in the available evidence. The only reliable facts were that the applicant had run from the police, fallen and sustained injuries to his shoulder. The police had ensured that he received adequate medical treatment for those injuries. There was no evidence that the injuries had been the result of ill-treatment of the applicant by the police.", "51. The Government further contended that the applicant had given differing versions of the events at issue, initially claiming that the injuries he had sustained had been a result of his fall, later on stating that the police officers had unnecessarily twisted his arm, and lastly adding that they had hit and kicked him. That showed that his statements could not be taken as reliable and that there were no conclusive factors to hold that the applicant indeed had been ill-treated by the police. (b) The Court’s assessment (i) General principles 52. Article 3 enshrines one of the fundamental values of democratic society.", "Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits, in absolute terms, torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Bouyid, cited above, § 81; Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; Assenov and Others, cited above, § 93; and Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006‑IX). 53. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).", "The same principle applies to alleged ill-treatment resulting in injury which takes place in the course of an applicant’s arrest (see Klaas v. Germany, 22 September 1993, §§ 23-24, Series A no. 269; Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII, and Mikiashvili v. Georgia, no. 18996/06, § 69, 9 October 2012). 54.", "Article 3 does not prohibit the use of force by police officers during an arrest. Nevertheless, such force may be used only if it is indispensable and it must never be excessive in the particular circumstances of each case (see, among many other authorities, İzci v. Turkey, no. 42606/05, § 54, 23 July 2013). (ii) Application of these principles to the present case 55. Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence.", "To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25; Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX; Ramirez Sanchez v. France [GC], no. 59450/00, § 117, ECHR 2006‑IX; Gäfgen v. Germany [GC], no.", "22978/05, § 92, ECHR 2010; and Bouyid, para. 82). 56. The Court observes that there is objective medical evidence showing that at the time of his arrest the applicant sustained several fractures to his right shoulder and arm. As a result the applicant’s right shoulder had to be removed and replaced by an artificial one.", "57. The Court notes that there is no dispute between the parties that the applicant sustained injuries in the context of his arrest. Their versions, however, differ with regard to the manner in which they were caused. 58. The Government contended that the only force used against the applicant by the authorities had been an armlock, which had been necessary to restrain and arrest him after he had fallen to the ground, since he had actively resisted arrest, the applicant maintained that his injuries had been caused in the course of his arrest by the use of unnecessary force by police officers.", "59. The applicant gave differing accounts as to how he had sustained these injuries. When seen by a doctor at the Sisters of Charity Hospital in Zagreb on 20 December 2012 the applicant told the medic that he had fallen (see paragraph 9 above). In his criminal complaint of 28 July 2014 the applicant alleged that the police officers had kicked and hit him (see paragraph 21 above). When interviewed by ZMSAO on 13 October 2015 the applicant said that none of the police officers had kicked or hit him during the arrest or at any later time and that it was true that he had told the surgeon that he had fallen (see paragraph 25 above).", "The applicant did not offer any explanation as to his differing accounts of the events at issue. 60. Two civilians who were eyewitnesses to the applicant’s arrest also said that the police officers had not kicked or hit the applicant. One of them confirmed that the applicant had fallen. 61.", "The Court notes the differing statements of the applicant who firstly alleged that he had fallen and then that the police officers had twisted his arm and in his criminal complaint that they had hit and kicked him. The Court also notes the statements of two eye-witnesses. Given the applicant’s contrary statements as well as those of the witnesses the Court accepts that it cannot be established that the police officers hit or kicked the applicant. As to the application of the armlock technique, given the absence of elements which could indicate with sufficient certainty that the injuries the applicant sustained were inflicted by use of force by the police which was not indispensable or which was excessive (compare Tarkan Yavaş v.Turkey, no. 58210/08, § 30 and 31, 18 September 2012), the Court considers that it is not in the position to assess the question whether the applicant suffered treatment contrary to Article 3 of the Convention (see Hüsniye Tekin v. Turkey, no.", "50971/99, § 50, 25 October 2005; Coşar v. Turkey, no. 22568/05, §§ 32-35, 26 March 2013; A.N. v. Ukraine, no. 13837/09, § 83, 29 January 2015; Mehdiyev v. Azerbaijan, no. 59075/09, § 75, 18 June 2015; Nekrasov v. Russia, no.", "8049/07, § 95, 17 May 2016; and Müftüoğlu and Others v. Turkey, nos. 34520/10 and 2 others, § 63, 28 February 2017). 62. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment by the police. 3.", "Alleged inadequacy of the investigation (a) The parties’ arguments (i) The applicant 63. The applicant submitted that the conclusions of the internal police investigation had relied entirely on the statements given by the police officers implicated. The report on that investigation had not been served on him but only the final conclusions and only at his request. Even though he had reported the ill-treatment by the police to the ZMSAO on 28 July 2014, the authorities had not acted promptly and there had been no effective investigation into his allegations. None of the authorities involved had asked for a forensic medical report in order to establish how he had sustained the injuries, or to have a statement taken from the doctor who had seen the applicant in the police station and the doctors who had treated him later on.", "To that point, the ZMSAO had not taken any relevant steps in order to elucidate the true circumstances of the use of force by the police against him. (ii) The Government 64. As regards the obligation to investigate, the Government contended that the police had promptly carried out an internal investigation and concluded that the force used against the applicant had been lawful and justified. 65. As regards the investigation by the ZMSAO, the Government argued that before proceeding further the ZMSAO had to interview the applicant.", "However, the ZMSAO had attempted six times to contact him but had not been able to reach him since he had changed addresses without informing that office of that fact. Further to that, he had not replied to telephone calls on the mobile telephone number provided to the ZMSAO by his legal representative. (b) Court’s assessment (i) General principles 66. The obligation to carry out an effective investigation into allegations of treatment infringing Article 3 suffered at the hands of State agents is well established in the Court’s case-law (see, for the most recent authorities, Jeronovičs v. Latvia [GC], no. 44898/10, § 103, ECHR 2016, and Bouyid, cited above, §§ 114-23, 28 September 2015).", "The requirements of an investigation to be effective under Article 3 are the same as those under Article 2 of the Convention (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007 II, and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 172, 14 April 2015). General principles as to the requirements for an investigation to be effective are most recently set out in the case of Armani da Silva v. the United Kingdom ([GC], no. 5878/08, ECHR 2016) as follows: “233.", "... This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Giuliani and Gaggio, cited above, § 301, and Mustafa Tunç and Fecire Tunç, cited above, § 172). This is not an obligation of result, but of means (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 VII); Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014; and Mustafa Tunç and Fecire Tunç, cited above, § 173).", "The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death (as regards autopsies, see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; on the subject of witnesses, see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; as regards forensic examinations, see, for example, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I).", "Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Avşar v. Turkey, no. 25657/94, §§ 393-395, ECHR 2001 VII (extracts); Giuliani and Gaggio, cited above, § 301; and Mustafa Tunç and Fecire Tunç, cited above, § 174). 234. In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, no.", "1108/02, § 201, 5 November 2009, and Mustafa Tunç and Fecire Tunç, cited above, § 175). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009 and Mustafa Tunç and Fecire Tunç, cited above, § 175). ... 235.", "... There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan, cited above, § 109; Giuliani and Gaggio, cited above, § 303; and Mustafa Tunç and Fecire Tunç, cited above, § 179; see also Güleç, cited above, § 82, where the victim’s father was not informed of the decision not to prosecute, and Oğur, cited above, § 92, where the family of the victim had no access to the investigation or the court documents). 236. However, disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects on private individuals or other investigations and, therefore, cannot be regarded as an automatic requirement under Article 2. The requisite access of the public or the victim’s relatives may therefore be provided for in other stages of the procedure (see, among other authorities, McKerr v. the United Kingdom, no.", "28883/95, § 129, ECHR 2001-III and Giuliani and Gaggio, cited above, § 304). Moreover, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Velcea and Mazăre, cited above, § 113 and Ramsahai and Others, cited above, § 348). 237. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI; and Kaya, cited above, §§ 106-107). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation.", "However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr, cited above, §§ 111 and 114, and Opuz v. Turkey, no. 33401/02, § 150, ECHR 2009). 238. It cannot be inferred from the foregoing that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence (see Mastromatteo, cited above, § 90; Šilih, cited above, § 194 and Giuliani and Gaggio, cited above, § 306) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Zavoloka, cited above, § 34(c)). ...” (ii) Application of these principles in the present case 67.", "The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see Gök and Güler v. Turkey, no. 74307/01, § 38, 28 July 2009). 68. It is not disputed between the parties that on 20 December 2012 force was used against the applicant during his arrest by two police officers. They immediately reported to their superiors that the applicant had sustained injuries as a result of force used against him.", "However, the incident is described differently by the applicant and by the Government. The Court notes that the medical documentation shows that the applicant’s right shoulder and arm were broken in four places and as a result he had an artificial shoulder implanted. After having being brought to the police station the applicant complained to Officer S.P. that he had been injured by two police officers during his arrest. The internal police investigation immediately ensued (see paragraph 12 above).", "A year and a half after the internal police investigation, which held that the use of force had had a basis in law and had been justified, had been concluded (see paragraph 19 above), the applicant lodged a criminal complaint before the ZMSAO. He claimed that the force used against him in applying the armlock technique had been excessive (see paragraph 21 above). He further alleged for the first time that he had been beaten by the police while he was lying on the ground. In view of the requirement that any use of physical force by State officials during an arrest must never be excessive and must be indispensable in the particular circumstances (see paragraph 54 above), the Court considers that the above facts called for an investigation into the applicant’s allegations of ill‑treatment in order to establish all relevant circumstances of the use of physical force against him. 69.", "Leaving aside the issue of the impartiality of the internal police investigation, the Court notes that the police investigation was carried out by officer A.L. It was confined to the report on the statements of the police officers and the interview A.L. conducted with the applicant. The internal police investigation assessed that the force used by two police officers against the applicant had had a “basis in law and [had been] justified”. A.L.", "concluded that the applicant had actively resisted the police officers since some money had fallen out of his clothes. That fact and the statements of the police officers were seen as sufficient to conclude that the force used by the officers had been justified without considering whether the force employed had been proportionate to the circumstances of the case, specifically whether it had been indispensable and/or excessive. No expert forensic medical opinion in that connection was sought and statements from eyewitnesses were not taken by A.L. Further to this, the report of the internal police investigation was classified and was not served on the applicant. Only after the applicant’s lawyer had expressly asked for it had she been served with the conclusion of the police that the force used against the applicant had had a basis in law and had been justified without any further reasoning.", "Therefore, it cannot be said that the internal police investigation satisfied the requirements of Article 3 of the Convention. 70. Even though the ZMSAO was informed of the incident by the police on 5 February 2013, it commenced its investigation only when the applicant lodged his criminal complaint in July 2014. The Court further observes that pursuant to the relevant domestic law it was ultimately the responsibility of the competent State Attorney’s Office to conduct an official effective investigation into the circumstances of the applicant’s alleged ill-treatment (compare Mafalani v. Croatia, no. 32325/13, § 100, 9 July 2015).", "It was thus incumbent on the ZMSAO, as the competent authority in the case, to ensure, once the police forwarded the case file to it, that an effective investigation was carried out and that the necessary evidence was obtained. In this connection the Court observes that the documents in the case file do not indicate that the State Attorney’s Office ever assessed the conclusions of the police internal investigation (see paragraph 17 above). There is nothing in the case file showing that the ZMSAO issued a reasoned decision on why it considered that further investigation was not needed. 71. The Court notes the Government’s argument that the ZMSAO did not proceed further with the applicant’s complaint lodged in July 2014 because it had unsuccessfully attempted to contact the applicant on six occasions over a longer period of time.", "However, the Court notes that the applicant lodged a criminal complaint with the ZMSAO through a legal representative. The Court cannot accept the submission that the progress and the effectiveness of proceedings concerning allegations of ill-treatment could depend entirely on the victim’s conduct (compare Petropoulou‑Tsakiris v. Greece, no. 44803/04, § 51, 6 December 2007). 72. The Court also notes that so far the ZMSAO has obtained the criminal case file against the applicant and the internal report compiled by the police.", "It also took statements from the applicant, two of the officers allegedly involved and two eyewitnesses. However, it made no serious effort to assess the most important aspect of the case – whether the force used by the police officers had been indispensable and/or excessive in the given situation. Even though the applicant had lodged his criminal complaint in July 2014, there is no indication in the case file that to date a forensic report was ordered which could have further clarified how the injuries had been caused and explained further the applicant’s allegations. 73. Furthermore, the Court notes that the investigation before the State Attorney’s Office has been pending so far for about three years.", "74. Against the above background, it can be concluded that the domestic authorities have not discharged their obligation to carry out an effective investigation into the circumstances of the applicant’s alleged ill-treatment by the police. 75. There has therefore been a violation of the procedural aspect of Article 3 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 40,000 euros (EUR) in respect of non‑pecuniary damage. 78.", "The Government considered the applicant’s claim excessive, unfounded and unsubstantiated. 79. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. B.", "Costs and expenses 80. The applicant also claimed EUR 5,266.60 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 81. The Government considered the applicant’s claim unsubstantiated and unfounded. 82.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria, and bearing in mind that the applicant was granted EUR 850 in legal aid for his representation, the Court considers it reasonable to award the sum of EUR 2,000 plus any tax that may be chargeable to the applicant covering costs under all heads. C. Default interest 83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been no violation of the substantive aspect of Article 3 of the Convention; 3. Holds that there has been a violation of the procedural aspect of Article 3 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas (HRK) at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 23 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident" ]

[ "FIRST SECTION CASE OF ASKHABOVA v. RUSSIA (Application no. 54765/09) JUDGMENT STRASBOURG 18 April 2013 FINAL 09/09/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Askhabova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 26 March 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "54765/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Tamara Askhabova (“the applicant”), on 14 October 2009. 2. The applicant was represented by lawyers of EHRAC/Memorial Human Rights Centre, an NGO with offices in London and Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that her son had been abducted by State agents and that the authorities had failed to investigate the matter effectively. She cited Articles 2, 3, 5 and 13 of the Convention. 4. On 2 December 2009 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application. On 8 July 2010 it decided to give notice of the application to the Government.", "On 17 September 2012, under the provisions of Article 29 § 1 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Ms Tamara Askhabova, was born in 1951 and lives in Shali, Chechnya. She is the mother of Abdul-Yazit Askhabov, who was born in 1983.", "A. Abduction of the applicant’s son 1. Information submitted by the applicant (a) Background information 6. At the material time the applicant’s family was living at 64, Ivanovskaya Street, Shali, Chechnya. The household occupied several dwellings. The applicant and her husband had five sons and two daughters.", "One of their children, Mr D.A., had been killed by the police in 2000 in the town of Aktyubinsk in the Astrakhan Region, Russia, as a result of a counter-terrorist operation. Another son, Mr Yu.A., was wanted by the authorities as the alleged leader of an illegal armed group. On 28 May 2009 he was killed in the centre of Shali by officers of the Shali district department of the interior (“the ROVD”). About three or four days after the shooting, the head of the ROVD went to the applicant’s house and summoned her other three sons to the police station as they were suspected of participating in illegal activities. 7.", "On 30 June 2009 the applicant and her husband took their three sons, including Abdul-Yazit Askhabov, to the ROVD where the young men were ordered to report to the police station on the 30th of each month. 8. On 30 July 2009 the applicant’s sons were again taken to the ROVD and fingerprinted. 9. Late in the morning on 4 August 2009, Shali ROVD officer I.K.", "went to the applicant’s house to check whether her sons were at home. He asked the applicant a number of questions relating to Abdul-Yazit Askhabov’s activities and lifestyle, and left. (b) The events of the night of 4-5 August 2009 10. At about 3 a.m. on 5 August 2009, three armed Chechen men in masks and military camouflage uniforms arrived at the applicant’s home in three VAZ-Priora cars and broke in. The applicant and her relatives thought that the men were police officers from the ROVD.", "11. The men dragged Abdul-Yazit Askhabov out of his bed and took him away without giving any explanations. One of them just said: “the FSB” (the Federal Security Service). The abduction happened quickly: it took between three and five minutes. The abductors drove away in the direction of the village of Noviye Atagi; a military checkpoint was located on that road at the material time.", "12. Immediately after the abductors had gone, the applicant and her relatives called the ROVD and the head of the Shali district administration and complained about the incident. (c) Subsequent events 13. On the mornings of 5, 6 and 7 August 2009, the applicant and her relatives waited at the entrance to the ROVD. On 7 August 2009 they were dispersed by the police.", "On the same day the applicant and her relative, Mr M.A., went to Grozny where she visited the Chechnya prosecutor and the Envoy for Human Rights and Freedoms in Chechnya (“the Envoy”). 14. The applicant and Mr M.A. spoke with the Envoy, Mr O. Kh., in his office.", "The latter called someone in their presence and requested that the detainee, Abdul-Yazit Askhabov, be released. He said: “Even if he is the brother of the leader of an illegal armed group, you have no right to detain him for a period longer than the one prescribed by the law”. From this conversation the applicant understood that her son had been detained in the ROVD. 15. At about 11 p.m. on 16 August 2009 a group of armed men in military camouflage uniforms arrived at the applicant’s house in a Mercedes car, the registration number of which contained the digits A511.", "Three or four of the men entered the house while the rest remained in the yard and the street. The men were Chechens. They told the applicant that they had come from Khankala (where the main military base was located). However, the applicant and her relatives felt that the men were lying and that in fact they were police officers. One of the applicant’s daughters-in-law recognised one of them as an officer from the 8th police regiment stationed in the building of a former tailor’s shop in Shali.", "16. The officers demanded that the applicant show them the bathroom, which used to serve as the hiding place of her deceased son, Mr Yu.A. According to the applicant, the men could have learnt about the hideout only by obtaining that information from Abdul-Yazit Askhabov. 17. Subsequently, none of the local law-enforcement agencies accepted responsibility for arresting or detaining the applicant’s son, who has not been seen since 5 August 2009.", "18. On 7 November 2009 the local human rights lawyers from the United Mobile Group (“the UMG”) took a statement from Abdul-Yazit Askhabov’s wife, Ms El.Yu. She stated that at first the abductors had asked for Abdul-Yazit’s passport, then had forcibly taken him outside. On the way to the gate the abductors threatened Abdul-Yazit’s father with a pistol; they drove away in a black VAZ-Priora car without a registration number. Immediately thereafter, the applicant told her that according to the abductors, they were from the FSB.", "19. On the same date, 7 November 2009, the UMG lawyers took a statement from the applicant’s daughter, Ms A.A. She stated, amongst other things, that on 4 August 2009 a Russian police officer had arrived at their house and inquired as to whether all her brothers were at home. When the brothers appeared, he asked which one was abdul-Yazit and then left. Her statement concerning the circumstances of the abduction was similar to the one given by Abdul-Yazit’s wife, Ms El.Yu. 20.", "On 12 November 2009 the UMG lawyers took a statement from the applicant’s husband, Mr D.A., who described the circumstances of the abduction. He added that the abductors had spoken Russian and that the applicant and his brother, Mr M.A., had gone to see the Envoy. The latter called the Shali ROVD and was informed that Abdul-Yazit had been detained as the brother of a criminal. 21. On 13 November 2009 the UMG lawyers took the applicant’s statement about the abduction, which was similar to the ones given by her relatives, Ms El.Yu., Ms A.A. and Mr D.A.", "She added that on 6 or 7 August 2009 she had gone with her relative, Mr M.A., to see the Envoy, Mr O.Kh. In their presence the latter had called the Shali ROVD and asked whether they had information about her son’s whereabouts. Towards the end of the phone conversation with the police, the Envoy said: “You do not have the right to detain him for longer than prescribed by the law, even if he is the brother of Emir [the leader of an illegal armed group]”. Subsequently, the Envoy promised to assist the applicant in the search for her son. The applicant further stated that on 16 or 17 August 2009 a group of five or six armed Chechen men in camouflage uniforms had arrived at her house in a Mercedes car with a registration number containing the digits A511.", "Three or four of them entered her house while two of them remained outside. They told the applicant that they were from Khankala and were working “with the Russians”. Those inside went to the hideout in the bathroom where the applicant’s son Yusup (sought as the leader of an illegal armed group) used to hide. Only the applicant, Yusup and Abdul-Yazit had known about the hide-out and its location; therefore, the police officers could have learnt about it only from Abdul-Yazit. 22.", "On 13 November 2009 the UMG lawyers also took a statement from the applicant’s neighbour, Mr S.M. He stated that on the night of 4‑5 August 2009, immediately after the abduction, he had gone with the applicant’s relatives to the Shali ROVD, where they had been told that no vehicles had passed through their premises during the night. They then went to another police station and the FSB, but to no avail. 23. The statements given by the applicant and her relatives and neighbours to the UMG lawyers were subsequently included into the investigation file (see paragraph 61 below).", "2. Information submitted by the Government 24. The Government did not challenge the matter as presented by the applicant. At the same time, they denied that State agents had been involved in the incident and stated that there was no proof that Abdul‑Yazit Askhabov was dead. B.", "Official investigation of the abduction 1. Information submitted by the applicant 25. On 5 August 2009 the applicant and her relatives complained about Abdul-Yazit Askhabov’s abduction to the ROVD, the Shali investigations department and the Shali department of the Federal Security Service (“the Shali FSB”). 26. On 19 August 2009 the Shali investigations department opened criminal case no.", "72028 under Article 126 § 2 of the Criminal Code (aggravated kidnapping). 27. On 1 September 2009 the investigators granted the applicant victim status in the criminal case. 28. At the beginning of September 2009 the investigators went to the applicant’s house and conducted a crime scene examination.", "29. At some point between August and the middle of October 2009 the investigator in charge of the criminal case, Mr A.-Kh.B., told the applicant and her relative, Mr M.A., that after the abduction police officers from the ROVD had once taken Abdul-Yazit Askhabov out of the police station and fed him in a café. 30. On 16 November 2009 the applicant asked the investigators to take a number of investigative steps and to allow her lawyer to access the case file. In particular, she requested that additional witnesses be questioned about the circumstances of her conversation with the Envoy on 7 August 2009 and the visit on 16 August 2009 of the group of men whom she thought to be police officers (see paragraphs 14-16 above).", "31. On 16 November 2009 the applicant’s husband asked the investigators to grant him victim status in the criminal case. 32. According to the applicant, the investigators failed to write down in full the information given by her and the other witnesses in their statements for the criminal investigation. 2.", "Information submitted by the Government (a) Investigative steps taken by the Shali Investigations Department 33. As indicated above (see paragraph 25), the applicant complained about the abduction to the Shali investigations department on 5 August 2009. 34. On the same date the investigators examined the crime scene, collected the door lock as evidence and submitted it for a preliminary expert examination. According to the experts’ report of 18 August 2009, the lock bore traces of the application of physical force.", "35. On 9 August 2009 the investigators questioned the applicant. She stated that she had several sons; one of them, Yusup, had been suspected of being the leader of an illegal armed group and had been killed by members of law-enforcement agencies at the end of May 2009. Another son, Abdul‑Yazit, had a second-degree disability owing to problems with his eyesight. On the night of 4-5 August 2009 she and her family were sleeping at home; their household occupied several dwellings.", "At about 3 a.m. she heard her husband and Abdul-Yazit’s wife, Ms El.Yu, screaming and then saw two armed men in dark uniforms taking Abdul-Yazit outside. They twisted his arms behind his back, pressed a gun against his head and dragged him to the gate, where a third man was waiting for them. The abductors then went out to the street. The applicant tried to open the gate, but was unsuccessful as one of the abductors was holding it from the other side. When the applicant managed to open the gate, she saw a Lada-Priora car without a registration number driving quickly away.", "It was dark outside as the dwellings had no electric light. The abduction had taken only a few minutes. The applicant further stated that Abdul-Yazit had no enemies or financial debts. 36. On 10 August 2009 the investigators questioned Abdul-Yazit Askhabov’s wife, Ms El.", "Yu., whose statement concerning her husband’s abduction was similar to the one given by the applicant. In addition, the witness stated that the abductors had been dressed in black, masked and that at first one of them had asked for Abdul-Yazit’s passport. While she had turned away to look for the document, the men had twisted her husband’s arms behind his back and dragged him outside. 37. On 14 August 2009 the investigators questioned the applicant’s relatives, Ms T.A.", "and Ms Am.A., whose statements about the abduction were also similar to the one given by the applicant. 38. On 28 August 2009 the investigators again questioned the applicant, who described the circumstances of her son’s abduction by men armed with pistols. She also stated that she suspected that the visit of Shali ROVD officer I.K. on 4 August 2009 had been connected to the abduction.", "39. On 28 or 31 August 2009 the investigators again questioned Abdul‑Yazit’s wife, Ms El.Yu., who stated that her husband had been abducted by three men armed with Stechkin pistols, who had arrived in a VAZ-Priora car. She also stated that on 5 August 2009 the applicant had complained about the abduction to the ROVD and that her relatives had been told by the ROVD officers that Abdul-Yazit Askhabov had not been detained in the police station. 40. In August and September 2009 the investigators asked various departments of the FSB and departments of the interior whether they had detained Abdul-Yazit Askhabov.", "The departments all replied in the negative. 41. On 1 September 2009 the investigators granted the applicant victim status in the criminal case and questioned her on the following day. Her statement was identical to the one given on 28 August 2009. She reiterated that the visit on 4 August 2009 of ROVD officer I.K.", "must have had something to do with the subsequent abduction. According to the applicant, the police officer had just asked whether Abdul-Yazit had been at home, looked at the household and left. 42. On 2 September 2009 the investigators questioned the applicant’s son, Mr Ab.A., who stated that his brother Abdul-Yazit Askhabov had been abducted by three men in dark or camouflage uniforms, who had been armed with pistols and had arrived in a car without a registration number. According to the witness, the abduction had been carried out very quickly, within three to five minutes.", "43. On 4 and 14 September 2009 the investigators questioned the applicant’s relatives, Ms Kh.A. and Mr A.M., who stated that they had learnt about the abduction from the applicant. The witnesses added that a few days after the abduction, members of law-enforcement agencies had arrived at their home and taken photographs of the place which the applicant’s son Yu.A. had used to hide from the authorities.", "44. On 5 September 2009 the investigators decided to conduct another expert examination of the lock taken from the crime scene (see paragraph 28 above). The examination established that the lock had been opened by the application of physical force. The applicant was familiarised with the experts’ report on 22 September 2009. 45.", "On 7, 9 and 16 September and 16, 17 and 19 October 2009 the investigators questioned the applicant’s neighbours, Ms L.A, Mr Kh.S., Mr S.M., Mr Sh.A., Ms Kh. R., Ms T.A., Ms A.B. and Mr A.B., all of whom gave similar statements to the effect that they had learnt about the abduction and its circumstances from the applicant and her relatives. 46. On 18 September 2009 the investigators questioned the applicant’s relative, Ms T.A., who stated that Abdul-Yazit Askhabov had been abducted by armed men and that about ten days after the abduction police officers had arrived at their home at 64 Ivanovskaya Street, carried out a search and taken photographs of the house.", "The officers arrived in a Mercedes car with a registration number containing the digits A511; the witness had been unable to see the colour of the vehicle as it was dark outside. According to the witness, one of the police officers had told her that they were from Khankala, Chechnya. 47. On 25 September 2009 the investigators from the Shali investigations department questioned ROVD officer A.K., who stated that the applicant’s son, Mr Yu.A., had been known to the authorities as the leader of an illegal armed group. At some point in 2009 the head of the ROVD ordered him and his colleague, officer I.K., to visit the applicant’s household to find out whether her sons were at home, as one of them was suspected of joining an illegal armed group.", "At about 11 a.m. on 4 August 2009 the witness went to the applicant’s house in a VAZ-Priora car with registration number E 424 УН 05. He asked his colleague I.K. to enter the applicant’s house, but he himself had waited in the car. 48. On the same date, 25 September 2009, the investigators questioned ROVD officer I.K., who stated that on 4 August 2009 he and his colleague, officer A.K., had gone to the applicant’s house.", "He entered the house while A.K. remained in the car. He asked the applicant whether all her sons were at home and asked her son, Mr A.-Kh.A., to accompany him and his colleague A.K. to the police station. 49.", "On 9 October 2009 the applicant’s husband requested that the investigators grant him access to the investigation file. The investigators replied that he did not have the right to access the file as he had not been granted victim status in the criminal case and that therefore, he was supposed to submit the relevant request to the investigating authorities. 50. On 18 October 2009 the investigators requested that the mobile telephone service provider, Megafon, provide them with a list of phone calls made between 1 a.m. and 5 a.m. on 5 August 2009 in Shali. In their reply dated 22 December 2009, the company informed the investigators that the requested information could be provided only with court permission.", "(b) Investigative steps taken by the Chechnya Investigations Department 51. On 26 October 2009 the investigation of the criminal case was transferred from the Shali investigations department to the Chechnya investigations department. 52. On 29 October 2009 the investigators questioned the Envoy, Mr O.Kh., who stated that on 6 August 2009 the applicant had arrived at his office and told him about the abduction. He then called the Shali ROVD and inquired as to whether they had arrested her son.", "He was told that according to the registration log of their detainees, Abdul-Yazit Askhabov had not been taken to the ROVD. He subsequently suggested to the applicant that she complain about the abduction to the law-enforcement authorities. 53. On 30 October 2009 the investigators questioned a Mercedes car owner Mr A.Ya., whose statement was not furnished by the Government. 54.", "On the same date, 30 October 2009, the investigators asked the Chechnya traffic police to inform them about the owners of the Mercedes car with a registration number containing the digits A511. As a result, on 11 November 2009 it was established that the vehicle belonged to Mr M.‑E.M. in Urus-Martan. On 11 December 2009 it was established that he did not live there. 55.", "On the same date, 30 October 2009, the investigators also requested that the Shali ROVD and Operational Search Bureau no. 2 of the Chechnya Ministry of the Interior (“the ORB-2”) identify the owners of the silver VAZ-21073 (Priora) car used by the abductors and inform them whether officers of the Shali ROVD owned that type of vehicle. In their replies of 19 and 23 November 2009 the law-enforcement agencies informed the investigators that no pertinent information had been obtained and that the ORB-2 had not arrested or detained the applicant’s son. 56. On 5 November 2009 the investigators drew up a plan of steps to be taken in the criminal investigation.", "The document stated, amongst other things: “... the following hypotheses concerning the abduction are in the process of being checked out: 1. The disappearance of A.-Ya. Askhabov is related to his arrest as a result of a special operation conducted by representatives of federal power structures; 2. The victim [Abdul-Yazit Askhabov] was the target of a crime committed by other persons for other motives. In connection with the above, it is necessary to do the following: 1. take measures to identify the owner of the grey VAZ-21073 (Priora model) car which was used by the abductors; ... 2. examine the registration log of detainees in the temporary detention unit (the IVS) of the Shali ROVD, identify and question the IVS officers who were on duty on the night of 4-5 August 2009 and question the head of the IVS about the possible detention of Abdul-Yazit Askhabov on their premises; 3. verify whether local power structures conducted special operations in Shali between 4 and 5 August 2009; ... 5. identify and question the owner of the Mercedes car with registration number A511 ...” 57.", "On 5 November 2009 the investigators questioned the head of the temporary detention unit of the Shali ROVD (“the IVS”), officer S.E., and his colleague, officer Kh.Um., both of whom stated that Abdul‑Yazit Askhabov had not been detained on their premises and that the registration log of the IVS contained no entries to the effect that he had ever been taken there. 58. On the same date, 5 November 2009, the investigators seized and examined the registration log of persons detained at the Shali ROVD between 3 and 10 August 2009. No entries concerning Abdul‑Yazit Askhabov were found. 59.", "On 10 November 2009 the investigators questioned the applicant’s relative, Mr M.A., who stated that he had witnessed the abduction. His statement concerning its circumstances was similar to the one given by the applicant and Abdul-Yazit’s wife, Ms El.Yu. In addition, he stated that the abductors had told the applicant that they were from the FSB and that the abductors had driven three Priora cars with tinted windows and without registration numbers. The witness and his relatives thought that Abdul-Yazit Askhabov had been arrested by ROVD officers and, therefore, immediately went to the Shali ROVD premises. They were told to come back in the morning.", "At about 9 a.m. on 5 August 2009 M.A. and the applicant returned to the ROVD, where they were told that Abdul-Yazit Askhabov had been neither arrested by their officers nor detained on their premises. The witness and the applicant subsequently went to the prosecutor’s office and the FSB, and lodged complaints about the abduction. 60. On 10 November 2009 the investigators questioned the applicant’s relative, Ms T.A., who had previously been questioned by the Shali investigations department (see paragraphs 37 and 46 above).", "Her statement concerning the abduction was similar to the ones given by her relatives. In addition, she reiterated that about ten days after the events, a group of five or six members of law‑enforcement agencies from Khankala had arrived at their house in a Mercedes car with a registration number containing the digits A511 and had taken photographs of the applicant’s bathroom. The witness recognised one of the visitors as she had seen him before on several occasions at the entrance to the premises of the 8th unit of the special police battalion named after A. Kadyrov (“the A. Kadyrov police battalion”). The officer was 165 cm tall, about forty years old, grey-haired, a little bald and of a strong build; she would be able to recognise him from a photograph. 61.", "On 16 November 2009 the applicant asked the investigators to take, amongst other things, the following steps: “... 2. include... the statements... given to the human rights lawyers of the United Mobile Group (the UMG) into the investigation file; 3. question myself and other witnesses, including Mr M.A., in more detail about the circumstances of our visit to the office of the Envoy and about the visit on 16 or 17 August 2009 by the police officers who demanded to be shown the hideout in our house; 4. identify and question the Envoy, Mr O.Kh., who called the Shali ROVD in connection with Abdul-Yazit’s abduction, about the content of his phone conversation on the matter; ... 7. identify and question the officers of the Shali ROVD... about their phone conversation with the Envoy...; 8. identify the police officers who arrived at our house between 16 and 17 August 2009 in a Mercedes car with the registration number A511 in order to find out their source of information about the hideout in our house... ” On 18 November 2009 the investigators granted the request, stating that the measures the applicant had requested would be taken by the authorities. 62. On 16 November 2009 the investigators questioned the applicant’s neighbour, Mr S.M., whose statement about the abduction and subsequent events was similar to the ones given by the applicant and her relatives. 63. On 18 November 2009 the investigators again questioned the applicant, who added to her previous statement that after the abduction, on 5 and 6 August 2009, when she and her family had been waiting at the gates to the ROVD, she had seen a group of police officers leaving the premises.", "She asked one of them, who introduced himself by his surname, ‘Grachyov’, about her son. He told her that Abdul-Yazit was still alive and that nothing had happened to him yet. On 7 August 2009 she went to the office of the Envoy together with Mr M.A. In their presence the Envoy telephoned the ROVD and from the contents of the ensuing conversation she understood that Abdul-Yazit had been detained in the ROVD. On 16 or 17 August 2009 a group of five or six men arrived at her house, told her that they were from Khankala and asked her to show them the hideout which had been used by her son Yusup.", "The men, who had arrived in a Mercedes car with a registration number containing the digits A511, took photographs of the hideout and left. Her relative, Mr M.A., told her that the investigator from the Shali investigations department, Mr A.-Kh.B., had told him that at some point he had seen Abdul-Yazit being taken out from the building of the Shali ROVD. 64. On 18 November 2009 the investigators granted the applicant’s husband, Mr D.A., victim status in the criminal case and questioned him once again. His statement was similar to the one given by the applicant on the same date.", "65. On 20 and 21 November 2009 the investigators again questioned Abdul-Yazit’s wife, Ms El.Yu., and his sister, Ms A.A. Their statements were similar to the one given by the applicant on 18 November 2009. 66. On 22 November 2009 the investigators questioned the investigator from the Shali investigations department, Mr A.-Kh.B., who stated that he had been on duty and had therefore taken the applicant’s complaint about the abduction. He denied that he had seen Abdul-Yazit either being taken by police officers from the Shali ROVD to be fed in a café or leaving the police station premises.", "67. On 23 December 2009 the investigators conducted a witness confrontation between the applicant and the investigator from the Shali investigations department, Mr A.-Kh.B. The applicant stated that she had learnt from her relative Mr M.A. that Mr A.-Kh.B. had told him that he had seen her son after the abduction at the Shali ROVD.", "Mr A.-Kh.B. denied ever having seen Abdul-Yazit Askhabov. 68. On 17 January 2010 the investigators again questioned the applicant’s husband, Mr D.A., who stated that during the abduction the perpetrators had hit him in the mouth with a pistol, but that he had not sought medical help afterwards. 69.", "On 20 January 2010 the investigators questioned Mr A.Gr., the deputy head of the criminal search division at the Shali ROVD, who stated that after the elimination of the leader of an illegal armed group, Yu. Askhabov, his brothers had been registered at their ROVD as persons of interest. He further stated that in August 2009 he had spoken with the applicant and her husband, both of whom had suspected that the head of the Shali ROVD had been responsible for the abduction of their son Abdul‑Yazit. According to the officer, this theory had been examined and their suspicion had not been confirmed, nor had the hypothesis that Abdul‑Yazit had disappeared in order to join illegal armed groups or that local power structures had been responsible for the abduction. The witness further stated that he had indeed promised the applicant that her son Abdul‑Yazit would be released, but had done so only out of compassion for her suffering in connection with her son’s disappearance.", "70. On 27 January 2010 the investigators conducted a witness confrontation between the applicant and the Envoy, Mr O.Kh. The latter confirmed that after the abduction the applicant and her relative had arrived at his office and complained about the incident, and that he had immediately called the ROVD to follow up on the information. At the same time the witness denied that he had said, in the presence of the applicant and her relative, “You have no right to detain him [Abdul-Yazit] for longer than prescribed by the law”. The applicant insisted that the Envoy had uttered those words.", "71. On 28 January 2010 the investigators requested the permission of the Staropromyslovskiy District Court to obtain detailed information from the mobile telephone service provider regarding the calls made in Shali on the night of the abduction. On 29 January 2010 the District Court granted the permission. 72. On 30 January 2010 the investigators again questioned the applicant’s relative Mr M.A., who stated that in his presence the Envoy had called the police to inquire about Abdul-Yazit, but that he had not used the exact phrase, “You have no right to detain him [Abdul-Yazit] for longer than prescribed by the law”.", "73. On 30 January 2010 the investigators also questioned officer S‑Kh.B., who stated that on the night of 4-5 August 2009 he had been on duty at the Shali ROVD and that he did not recall whether anyone had been brought to the ROVD that night. 74. On 4 February 2010 the investigators seized the information concerning the phone calls and text messages made from mobile phones in Shali on the night of the abduction. As a result, on 22 February 2010 the investigators asked the company to provide detailed information concerning twelve phone numbers; the relevant information was given on 3 March 2010.", "Then on 7 April 2010 the investigators asked the Shali ROVD to check whether the owners of the mobile phone numbers could have been involved in the abduction. On 5 May 2010 the investigators reiterated their request to the police. In the end of May 2010 the ROVD replied stating that they were taking measures to verify the information (see paragraph 100 below). 75. In the meantime, on 9 and 17 February 2010 the Shali ROVD informed the investigators that they had no information concerning the involvement of Abdul-Yazit Askhabov in illegal activities.", "At the same time they pointed out that he was the brother of Yu. Askhabov, the leader of an illegal armed group, who had been eliminated as a result of a special operation conducted on 28 May 2009. 76. On 17 February 2010 the investigators again examined the crime scene at the applicant’s house. No evidence was collected.", "77. On 20 February, 7 and 12 March 2010 the investigators questioned officers A.N., A.Dzh., K.A., Dzh.A. and S.M., all of whom stated that they had been on duty at the ROVD on the night of the abduction. Their statements were similar to the one given by their colleague, officer S.-Kh.B. 78.", "On 10 March 2010 the applicant’s husband requested that the investigators take the following steps: “... identify the military regiment known as ‘the 8th unit’ stationed in Ivanovskaya Street in Shali on the premises of the former tailor’s shop and identify the servicemen who searched the [applicant’s] house after the abduction of Abdul-Yazit Askhabov by obtaining photographs of the staff of ‘the 8th unit’ ... and showing them to the relatives of the abducted man for identification.” 79. On 11 March 2010 the investigators questioned five witnesses: Mr B.B., Mr S.S., Mr Zh.B., Mr A.T. and Mr A.I., all of whom confirmed that they had received or made phone calls on the night of the abduction, but that they had no information concerning the incident. 80. On 12 March 2010 the investigators replied to the request of 10 March 2010, stating, amongst other things, the following: “... 1. ... it is established that ‘the 8th unit’ stationed in Shali is a part of the patrolling battalion of the Chechnya Ministry of the Interior; 2.", "On 26 January, 28 February and 9 March 2010 the commander of the battalion was requested to provide the investigation with photographs of his staff aged between 35 and 40 years old for a subsequent identification parade; however, as of this date, no replies have been received ...” 81. On 12 March 2010 the investigators questioned Mr A.U., deputy head of the criminal search division of the Shali ROVD, who confirmed that he had had a telephone conversation with the Envoy, Mr O.Kh., after the abduction and that he had mentioned to the latter that Abdul-Yazit was the brother of the leader of an illegal armed group, Mr Yu. Askhabov, who had been eliminated in May 2009 by the ROVD, but that Abdul-Yazit had not been arrested or detained by their officers. 82. On 16 March 2010 the investigators questioned Mr M.B., the head of the criminal search division of the Shali ROVD, who confirmed that at the beginning of August 2009 he had ordered officer A.K.", "to visit the applicant’s house and check whether all of the Askhabov brothers were at home. This check had been necessitated by the fact that their brother, Yu. Askhabov, had been the leader of an illegal armed group who had participated in terrorist activities and therefore his brothers might also have joined illegal groups. Prior to that, on several occasions, the witness had given similar instructions to other officers. 83.", "On 19 March 2010 the investigation of the criminal case was suspended for failure to identify the perpetrators. The applicant was informed thereof. 84. On 27 March 2010 the ORB-2 informed the investigators that it had been impossible to identify the owners of the mobile phone numbers used on the night of the abduction. 85.", "On 31 March 2010 the supervising prosecutor criticised the investigators for the suspension of the criminal proceedings and ordered that they be resumed. In particular, the prosecutor stated that the investigators had failed to take important steps: “... from the statement given by witness Ms T.A., it appears that ten days after the abduction of Abdul-Yazit Askhabov, unidentified servicemen of law-enforcement agencies arrived at their house and that she recognised one of them as she had seen him before at the gates of the 8th unit of the A. Kadyrov police battalion no. 2. However, during the questioning the investigator failed to find out the circumstances in which she had seen this man; when and why he had visited their house; what he had been doing at the gates of the 8th unit (whether he had been on-duty at the entrance to the base or trying to enter it; whether he had been dressed in police uniform or civilian clothing). In addition, during the questioning the investigator failed to take a full anatomic description of this man (his face in general, forehead, eyebrows, eyes, mouth, lips, etc.", "), based on which it would have been possible to create his portrait for further identification at the district departments of the interior. No measures to identify this man have been taken ... ... The investigator forwarded requests for photographs of the unit’s servicemen ... However, no replies were received. In addition, in violation of Article 183 of the Criminal Procedure Code, photographs of the staff of the police unit have not been seized at the department of human resources and have not been shown to witness Ms T.A.", "for identification. ... ... The investigator did not ask the traffic police for information concerning all the Mercedes vehicles with A511 registration numbers; not all of the owners of such cars have been identified and questioned. The head of the criminal search division of the Shali ROVD, who was questioned by the investigator as a witness, stated that he had ordered officer A.K. to check whether all the Askhabov brothers were at home, as they were related to a member of illegal armed groups, Mr Yu.A., and there were fears that they could have joined illegal armed groups as well.", "In addition, prior to this, he had already given orders to operational search officers to check the whereabouts of the Askhabov brothers. However, the investigator failed to find out why officers of the Shali ROVD, having information about the Askhabov brothers possibly belonging to illegal armed groups, did not arrest them on 4 August 2009 when they visited their house ...” 86. Following the prosecutor’s orders, on 5 April 2010 the investigation was resumed. The applicant was informed thereof. 87.", "On 5 April 2010 the investigators granted the applicant’s request to have five human rights lawyers represent her in the criminal case. 88. On 7 April 2010 the investigators again questioned the applicant’s relative Ms T.A., who reiterated that on around 22 August 2009 a group of armed men in camouflage uniforms had arrived at their house and introduced themselves as police officers. They did not produce any identity documents or explain which department of the interior they were from. She further confirmed her previous statement that she had recognised one of the men and again provided a physical description of him, stating that she would be able to identify him from a photograph.", "She explained that prior to the visit, she had seen him at the gates to the A. Kadyrov police battalion in Ivanovskaya Street in Shali; he had been wearing the same camouflage military uniform. 89. On 7 April 2010 the investigators again questioned the applicant’s daughter, Ms A.A., who confirmed her previous statement. 90. On 15 April 2010 the investigators again questioned ROVD officer A.K., who stated that he had no information concerning the abduction and that, to his knowledge, the ROVD did not use Lada-Priora or Mercedes cars, or registration numbers containing the digits A511.", "91. On 16 April 2010 the investigators questioned the applicant’s son, Mr Dzh.A., whose statement about the abduction was similar to those given by the applicant. 92. On 27 April 2010 the investigators questioned ROVD officer A.K. yet again.", "He confirmed that upon the order of his superior, the head of the criminal search division of the Shali ROVD, officer M.B., he had paid a visit to the applicant’s house on 4 August 2009 to check whether all of the Askhabov brothers were at home. According to the witness, he had not been aware of the reasons for obtaining that information and stated that he had gone there in his personal Lada-Priora car. 93. On 27 April 2010 the investigators questioned officer Kh.-A.S., the head of the Shali ROVD, who stated that he had no information concerning the abduction. 94.", "On 28 April 2010 the investigators again questioned the head of the criminal search division of the Shali ROVD, Mr M.B., who confirmed that he had instructed officer A.K. to visit the applicant’s house just as a “precaution”. 95. On 29 April 2010 the investigators questioned Mr M-E.A., who stated that on 3 February 2010 he had purchased a Mercedes car from an unidentified man at the Urus-Martan car market and that on the same date he had registered the vehicle with the authorities and had been given the registration number A511 EK 95. 96.", "On 5 May 2010 the investigators requested that the Tatarstan Ministry of the Interior (“the MVD”) question officer I.K., who was working there at the time, about the following: “... who gave him the order to go to the Askhabovs’ house and why? - what vehicle did he use to go there, its make, registration number, colour, etc? - who did he go with? - who did he talk to in the Askhabovs’ yard and what did they speak about? - on his return to the Shali ROVD, to whom did he report about the visit to the Askhabovs’ house?", "Did he prepare a written report or statement about the results? - when and under what circumstances he had learnt about the abduction?” The officer was questioned as requested on 1 June 2010 (see paragraph 101 below). 97. On 5 May 2010 the investigators complained to the Shali district prosecutor that the Shali ROVD had failed to assist them in carrying out necessary steps to solve the abduction of the applicant’s son. In particular, they stated: “... it has been a year since the commission of the crime, however, the operational search officers of the Shali ROVD have not established the suspects in the criminal case; this fact demonstrates that the officers of the criminal search division of the Shali ROVD failed to take necessary steps to solve the crime ...", "In connection with the above you are requested ... to examine the operational search file in criminal case no. 72028 [in the Shali ROVD] and to take, if necessary, measures within the prosecutor’s authority [to rectify the situation] ...” No reply was given to this complaint. 98. On the same date, 5 May 2010, the investigation of the criminal case was again suspended for failure to identify the perpetrators. Nevertheless, following this the investigators took a number of measures (see below).", "99. On 11 May 2010 the investigator in charge of the criminal case wrote to the Chechnya Minister of the Interior stating that on 9 April 2010 he had gone to the human resources department of the A. Kadyrov police battalion to seize the photographs of their personnel for identification by Ms T.A., but had been refused entry. The investigator requested access to the premises in order to seize the photographs. No reply was given to his request. 100.", "On 18 and 22 May 2010 the Shali ROVD informed the investigators that they were taking operational search measures to identify the owners of the mobile phone numbers used on the night of the abduction (see paragraph 74 above). 101. On 1 June 2010 upon the investigators’ request to this end officer I.K. was questioned (see paragraph 96 above) and confirmed that he had visited the applicant’s house on 4 August 2009 to check whether all of the Askhabov brothers were at home. He also stated that he had explained to the applicant’s husband that he had not been involved in his son’s abduction.", "102. On 15 July 2010 the investigators requested that the Chechnya traffic police inform them about all Mercedes cars with registration numbers containing the digits A511. 103. On 17 August 2010 the head of the Chechnya Investigations Department wrote to the Chechnya Minister of the Interior stating, amongst other things, the following: “... the second unit of the Investigations Department is investigating criminal cases opened in connection with abductions of residents of the Chechen Republic ... In the process of the investigation of these criminal cases, opened between 2009 and 2010, the department’s investigators on several occasions sent requests for assistance in carrying out operational search measures, as well as requests for information concerning servicemen of the Ministry of the Interior who participated in special operations or witnessed events and whose participation was necessary for the progress of the investigation in the criminal cases.", "However, the servicemen of the Chechnya Ministry of the Interior have been carrying out the operational search measures in an inappropriate manner, and the investigators’ requests for assistance and information are executed past their deadlines and not in full, and the replies given are primarily of a formal nature and do not provide the requested information. For instance, ... in criminal case no. 72028 opened in connection with the abduction of A. Askhabov .... it is necessary to identify servicemen of the A. Kadyrov police battalion aged between 35 and 45 years old. On 9 March and 5 May 2010 the investigator asked ... the battalion to provide photographs of their servicemen; however, no replies to the requests have been given. On 11 May 2010 a letter concerning violations of Article 21 § 4 of the Criminal Procedure Code by the battalion commanders was sent to you by the interim head of the Investigations Department; however, no reaction from the Chechnya Ministry of the Interior has followed ... ... in connection with the above I ask you to ... take all measures possible to ensure that requests for assistance in these criminal cases are dealt with properly by your subordinates and within the time-frame prescribed by the law ...” 104.", "On 30 August 2010 the supervising prosecutor again criticised the investigators for the unlawful suspension of the investigation and ordered its resumption. He pointed out that his previous orders had not been carried out and stated that the investigation should check “... whether the abduction of Abdul-Yazit Askhabov had been perpetrated by relatives of the law‑enforcement officers killed as a result of the actions of his [late] brothers, D.A. and Yu.A.” On the same date the investigation was resumed. 105. Between 9 and 20 September 2010 the investigators requested that the Shali ROVD assisted them in taking operational search measures aimed at solving the applicant’s son’s abduction.", "They received no replies. 106. Between September 2009 and September 2010 the investigators asked various district investigations departments, the various police departments in Chechnya, detention centres and hospitals in the North Caucasus and the nearby regions of southern Russia whether they had discovered or stored the body of Abdul-Yazit Askhabov, whether they had initiated any criminal proceedings against him and whether he had been arrested by their officers or detained on their premises. All replies were in the negative. 107.", "On an unspecified date in November 2010 the investigation of the criminal case was resumed. 108. On 23 November 2010 the investigators seized nine photographs of police officers aged between thirty-five and forty at the human resources department of the A. Kadyrov police battalion. 109. On 24 November 2010 the investigators again questioned ROVD officer A.K., who reiterated his previous statements.", "A copy of this statement was not furnished to the Court. 110. On 1 December 2010 investigators conducted a witness confrontation between the applicant and Shali ROVD officer I.K. The latter confirmed that on 4 August 2009 he had gone to the applicant’s house along with other police officers, and had inquired which of the three Askhabov brothers was Abdul-Yazit. Having identified Abdul-Yazit, he had left.", "A copy of this statement was not furnished to the Court. 111. On 30 December 2010 the investigation of the criminal case was again suspended for failure to identify the perpetrators. 112. On 1 February 2011 the supervising prosecutor again criticised the investigators for the suspension of the investigation and ordered that it be resumed and a number of necessary steps taken.", "On the same date the investigation was resumed. 113. On 6 February 2011 the investigators showed Ms T.A. the nine photographs of the police officers for identification. She did not identify anyone.", "114. On several more occasions, namely 1 March, 5 April and 13 August 2011 and 20 January 2012 the investigation of the criminal case was suspended for failure to identify the perpetrators. 115. On 5 March, 7 May and 2 December 2011 and 31 May 2012 the supervising prosecutor criticised the investigators for the suspension of the investigation and ordered that it be resumed and the previous orders be executed. 116.", "The investigation was suspended again on 19 July 2012. Nevertheless, on 24 July 2012 the investigators examined the detainee registration log of the Shali ROVD. No relevant information was obtained. 117. The Government submitted that even though the whereabouts of Abdul-Yazit Askhabov had not been established, the investigation was still in progress.", "118. In reply to the Court’s request, the Government furnished most of the contents of criminal case no. 72028, which ran to 767 pages. II. RELEVANT DOMESTIC LAW 119.", "For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007) and for the relevant reports and statements by the national authorities see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 80-84, 18 December 2012). THE LAW I. EXHAUSTION OF DOMESTIC REMEDIES A. The parties’ submissions 120.", "The Government contended that the complaint should be declared inadmissible as premature, as the investigation of the disappearance of Abdul-Yazit Askhabov had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicant to lodge complaints with the courts about any acts or omissions on the part of the investigating authorities. She could also have claimed civil damages. 121. The applicant contested the Government’s submission, stating that the only supposedly effective remedy, the criminal investigation, had proved to be ineffective.", "As for the possibility to complain to the courts about the investigators’ acts or omissions, the applicant stated that the effectiveness of the investigation should not have depended on her efforts to point out the investigation’s deficiencies; the authorities should have taken all measures possible of their own motion. B. The Court’s assessment 122. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).", "123. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. 124. As regards a civil action to obtain redress for damage sustained as a result of illegal acts or unlawful conduct on the part of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005).", "In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed. 125. As regards criminal remedies provided for by the Russian legal system, the Court observes that the applicant complained to the law‑enforcement authorities after the abduction of Abdul-Yazit Askhabov and that an investigation has been pending since 19 August 2009; within its time-frame the proceedings have been suspended and resumed on several occasions. The applicant and the Government dispute the effectiveness of the investigation.", "126. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant’s complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below. II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A.", "The parties’ submissions 127. The applicant maintained that it was beyond reasonable doubt that State agents had taken away Abdul-Yazit Askhabov and subsequently killed him. In support of her complaint she referred to the following facts. The abductors had arrived in the exact type of civilian vehicles which were used by the Shali ROVD; the abductors had driven unhindered through a military checkpoint located nearby; the police officers had obstructed the investigation of the criminal case because they had been involved in the abduction; and that the police officers had suspected Abdul‑Yazit Askhabov of belonging to illegal armed groups and therefore had motives for his arrest. The subsequent visit of the servicemen concerning the hideout in the applicant’s house confirmed that her son had been detained by the police, as did the fact that one of the suspects had been seen on the premises of the police battalion in Shali.", "The applicant submitted that she had made a prima facie case that her son had been abducted by State agents and that the essential facts underlying her complaints had not been challenged by the Government. She stressed that her son had disappeared in life-threatening circumstances, that he had been missing for a long period of time and that therefore, he must be presumed dead. 128. The applicant further argued that the investigation of the abduction had been ineffective. In particular, she alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major deficiencies.", "For instance, the investigators had failed to examine the crime scene with forensic and other experts. That had led to the loss of such evidence as the culprits’ fingerprints, and the tracks of their boots and the vehicles’ tires. The witnesses to the events had been questioned belatedly and in a superficial manner. Despite having obtained information concerning the identity of one of the perpetrators, the investigators had failed to carry out the identification procedure properly. The applicant pointed out that the local police had failed to cooperate with the investigators owing to their involvement in the abduction.", "Given that the investigators had been unable actively to pursue the investigation without the police force, the investigation had not been sufficiently independent. 129. The Government contended that the domestic investigation had obtained no evidence to the effect that Abdul-Yazit Askhabov was dead or that any State agents had been involved in his abduction. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved. B.", "The Court’s assessment of the facts 130. The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005‑VIII). 131. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).", "Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 132. The period of time that has elapsed since the person disappeared, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the disappeared person, the greater the likelihood that he or she has died.", "The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2 (see, among other authorities, Timurtaş, cited above, § 83). 133. The Court reiterates that where the applicant makes out a prima facie case, it is for the Government to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no.", "27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II). 134. The Court notes that in reply to its request for a copy of the investigation file into the abduction of Abdul-Yazit Askhabov, the Government furnished most of its contents. 135.", "In view of the parties’ submission, the Court’s task is to decide whether the circumstances of the case could warrant the conclusion that State agents were responsible for the abduction of the applicant’s son. The Court notes that, even though at the material time there was no curfew and the abductors arrived at the applicant’s house in civilian vehicles – unlike in numerous other cases concerning abductions perpetrated by State agents in the same district several years prior to the events in question (see, for example, Giriyeva and Others v. Russia, no. 17879/08, 21 June 2011; Kosumova and Others v. Russia, no. 27441/07, 7 June 2011; Malika Alikhadzhiyeva v. Russia, no. 37193/08, 24 May 2011; Matayeva and Dadayeva v. Russia, no.", "49076/06, 19 April 2011; and Nasukhanovy v. Russia, no. 1572/07, 10 February 2011) – the materials in its possession demonstrate the validity of the applicant’s allegation for the following reasons. Firstly, the abductors arrived in several vehicles, acted as an organised group and were able to drive freely through a military checkpoint. Secondly, the servicemen who visited the applicant’s house several days after the abduction knew the location of a hideout which was known only to the applicant and her son, Abdul-Yazit Askhabov. Further, the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility.", "No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the reluctance of the police to actively investigate the matter, along with the applicant’s consistent allegations that police officers were involved in the incident, provide the Court with the grounds to conclude that the applicant has made a prima facie case that her son was abducted by State agents. The Government’s statement that the investigators found no evidence proving the involvement of members of law‑enforcement authorities in Abdul-Yazit Askhabov’s disappearance is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Abdul-Yazit Askhabov was arrested on 5 August 2009 by State servicemen.", "136. There has been no reliable news of Abdul-Yazit Askhabov since his arrest. The Government have not submitted any explanation as to what happened to him afterwards. 137. The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening.", "The absence of Abdul-Yazit Askhabov or of any news of him for almost four years supports this assumption. 138. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Abdul-Yazit Askhabov must be presumed dead following his unacknowledged detention by State agents. III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 139.", "The applicant complained under Article 2 of the Convention that her son Abdul-Yazit Askhabov had been abducted and subsequently deprived of his life by State agents and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties’ submissions 140. The Government contended that the domestic investigation had obtained no evidence to the effect that Abdul-Yazit Askhabov was dead or that any State agents had been involved in his abduction. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved. 141.", "The applicant argued that Abdul-Yazit Askhabov had been abducted by State agents and subsequently killed and that the investigation of the matter had been ineffective. In particular, she alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major deficiencies. She further alleged that the local police had failed to cooperate with the investigators owing to their involvement in the abduction. Given that the investigators had been unable actively to pursue the investigation without the police force, the investigation had not been sufficiently independent. B.", "The Court’s assessment 1. Admissibility 142. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the issue concerning the exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 126 above). The complaint under Article 2 of the Convention must therefore be declared admissible.", "2. Merits (a) Alleged violation of the right to life of Abdul-Yazit Askhabov 143. The Court has already found that the applicant’s son must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 in respect of Abdul‑Yazit Askhabov. (b) Effectiveness of the investigation of Abdul-Yazit Askhabov’s disappearance (i) General principles 144.", "The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324). 145. The authorities must act of their own motion once the matter has come to their attention: they cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, Isayeva v. Russia, no. 57950/00, § 210, 24 February 2005).", "146. In this context, there must also be an implicit requirement of promptness and reasonable expedition (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports of Judgments and Decisions, 1998-VI, and Çakici v. Turkey, 8 July 1999, §§ 80, 87 and 106, Reports 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation of a particular situation. However, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts. 147.", "The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Ögur v. Turkey [GC], no. 21954/93, § 88, ECHR 1999-III). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000‑VII, and Tanrikulu v. Turkey [GC], no.", "23763/94, § 109, ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the identity of the person(s) responsible will risk falling below this standard. 148. For an investigation into allegations of unlawful killing by State agents to be effective, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports 1998‑IV, and Ögur, cited above, §§ 91-92). This means not only a lack of hierarchical or institutional connection but also practical independence (see, for example, Shanaghan v. the United Kingdom, no.", "37715/97, § 104, 4 May 2001). 149. In addition, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr v. the United Kingdom, no.", "28883/95, § 115, ECHR 2001‑III). (ii) Application of the above principles to the present case 150. In the present case, the abduction of Abdul-Yazit Askhabov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention. 151.", "The Court notes that the applicant reported the abduction to the authorities on 5 August 2009 (see paragraphs 25 and 33 above). The official investigation was initiated on 19 August 2009 that is almost two weeks after the receipt of the applicant’s complaint. From the beginning of the investigation, the applicant alleged that police officers had been involved in the incident (see paragraphs 38 and 41 above). Despite the fact that the investigators received that information within the first weeks of the proceedings, they questioned the police officers more than a month later (see paragraphs 47 and 48 above) and in such a superficial way that it necessitated subsequent re-questioning. This was not carried out until more than six months later, along with the initial questioning of other important witnesses from the police (see paragraphs 90, 92, 96, 69, 73, 77, 81, 82 and 93, 94 and 100 above) and was criticised by the supervising prosecutor (see paragraph 104 above).", "Further, in spite of the consistent allegations of the applicant and her relatives that after the abduction, Abdul-Yazit Askhabov could have been detained in the Shali ROVD (see paragraphs 39, 46, 59, 61, 63, 64, 67, 70 and 72 above), the investigators limited themselves to examining the registration log of persons detained at the police station and questioning the police officers who could have been implicated in the incident. They made no attempts to question other persons, such as those who, according to the registration log, had been detained at the police station between 5 and 19 August 2009. In addition, the investigators failed to follow up properly the information concerning the identity of one of the alleged abductors who had been seen by a witness on the premises of the police unit stationed in Ivanovskaya Street in Shali (see paragraphs 60, 78, 80, 85, 88, 99 and 108 above). The investigators limited the scope of the search to several photographs of persons of a certain age and showed them to the witness more than year and a half after the events in question. None of the unit’s officers were questioned, and no measures were taken to establish whether the abductors’ vehicles could have belonged to that unit.", "152. Furthermore, from the documents submitted it appears that on several occasions the supervising prosecutors criticised the investigators for failing to take important investigative steps (see paragraphs 85 and 104 above) and ordered that remedial measures be taken. Those instructions were not fully complied with. 153. It also transpires that the investigators’ failure to take some of the important steps had been caused by the reluctance of the local police to cooperate with the investigators (see paragraphs 85, 99 and 103 above).", "In this connection, the Court notes that, firstly, such discords within the law‑enforcement agencies should not preclude the domestic authorities from discharging their obligation to demonstrate diligence and promptness in dealing with such a serious matter (see Öneryıldız v. Turkey [GC], no. 48939/99, § 94, ECHR 2004-XII). Secondly, the alleged failure of the police to carry out the investigators’ compulsory orders (see paragraphs 99 and 103 above) raises the issue as to the practical independence of the investigators, who were precluded from taking important steps by the failure of their police counterparts to execute their orders. The police’s reluctance to actively pursue the investigation led to the loss of precious time and could not but have a negative impact on the overall conduct of the criminal proceedings (see, mutatis mutandis, Mikheyev v. Russia, no. 77617/01, § 116, 26 January 2006).", "154. As regards the overall conduct of the proceedings, the Court notes that having been opened on 19 August 2009, the investigation was suspended at least eight times, without the necessary steps having been taken, and each time those suspensions were criticised by the supervising prosecutors. Those premature suspensions in a situation in which vital steps had not been taken, along with the reluctance of the local police, undermined the investigators’ ability to identify and punish the perpetrators (see Ögur, cited above, § 88). 155. As for public scrutiny, the Court notes that shortly after the initiation of the proceedings, on 1 September 2009, the applicant was granted victim status and questioned.", "It appears that she was informed about the suspensions of the proceedings; on 16 November 2009 she requested that the investigators take a number of steps, and on 18 November 2009 they decided that the steps requested by her would be taken within the criminal proceedings (see paragraph 61 above). It is unclear whether the applicant asked for access to the case file. Keeping the above factors in mind, it remains to be decided whether she was able to effectively pursue her legitimate interests in the proceedings. 156. The Government argued that the applicant had been granted victim status in the criminal case and therefore could have sought judicial review of the decisions of the investigating authorities as part of the exhaustion of domestic remedies.", "The Court accepts that, in principle, that remedy may offer a substantial safeguard against the arbitrary exercise of power by an investigating authority, given a court’s power to set aside the impugned decision and indicate the defects to be addressed. 157. The Court, however, has strong doubts as to whether that remedy would have been effective in the circumstances of the present case for the following reasons. In the investigation of such a serious crime as abduction, it would be reasonable to presume that the authorities took all possible measures of their own motion to establish the whereabouts of the abducted man and to identify the culprits. Assuming that the applicant’s access to the case file would have provided her with the chance to assess the progress of the investigation, in the light of the compulsory orders of the supervising prosecutors of 31 March and 30 August 2010 (see paragraphs 85 and 104 above), it could have been presumed that the shortcomings would have been remedied and the necessary steps taken.", "However, the investigators suspended the proceedings without complying with the orders and taking the required steps. 158. In such a situation, even if the applicant had appealed against the investigators’ actions at a later date, taking into account that the proceedings were ongoing for more than six months, it is highly questionable whether her appeal could have redressed the defects in the investigation by bringing them to the attention of a domestic court. In this connection, the Court reiterates that the authorities cannot leave it to the initiative of the next of kin to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000‑VII): they must show their commitment by taking all steps of their own motion and demonstrating that they have taken the reasonable steps available to them to secure the evidence.", "Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard (see, for example, Salman, cited above, § 106, and Tanrikulu, cited above, § 109). 159. However, the materials in the Court’s possession reveal that crucial investigative steps, which should have been taken as soon as the relevant information had been obtained, were never taken, in spite of the supervising prosecutors’ direct orders to this end. This failure to act in a timely manner led to unnecessary protractions and a loss of time, because steps which could have yielded results were not taken. Therefore, it is highly doubtful that any appeals by the applicant against the investigators’ decisions would have had any prospects of spurring the progress of the investigation or effectively influencing its conduct, particularly taking into account the reluctance of the local police to actively pursue the investigation.", "Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances of the present case and dismisses their objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation. 160. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Abdul-Yazit Askhabov, in breach of Article 2 in its procedural aspect. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 161.", "The applicant relied on Article 3 of the Convention, submitting that as a result of her son’s disappearance and the State’s failure to investigate it properly, she had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 162. The Government disagreed with this allegation, and argued that the investigation had not established that the applicant had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. 163.", "The applicant maintained her submissions. B. The Court’s assessment 1. Admissibility 164. The Court notes that this complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 165. The Court has found on many occasions that in a situation of enforced disappearance, the close relatives of the victim may themselves be victims of treatment in violation of Article 3.", "The essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006‑XIII (extracts)). 166. In the present case the Court notes that the applicant is the mother of the disappeared person.", "For several years she has not had any news of her missing son. During this period she has made enquiries about him and his fate to various official bodies. Despite her attempts, she has never received any plausible explanation or information about what became of him following his arrest. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here. 167.", "The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicant. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 168. The applicant submitted that Abdul-Yazit Askhabov had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2.", "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 169. The Government asserted that no evidence had been obtained by the investigators to confirm that Abdul-Yazit Askhabov had been arrested or detained by law-enforcement authorities.", "170. The applicant reiterated her complaint. B. The Court’s assessment 1. Admissibility 171.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible. 2. Merits 172. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention.", "It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006‑XIII (extracts)). 173. The Court has found that Abdul-Yazit Askhabov was arrested by State agents on 5 August 2009 and has not been seen since.", "His arrest was not acknowledged, was not logged in any custody records and no official trace of his subsequent whereabouts or fate exists. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee, as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 174. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant’s complaints that her son had been detained and taken away in life-threatening circumstances.", "However, the Court’s findings above in relation to Article 2 and, in particular, to the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard Abdul-Yazit Askhabov against the risk of disappearance. 175. In view of the foregoing, the Court finds that Abdul-Yazit Askhabov was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. VI.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 176. The applicant complained that she had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 177. The Government contended that the applicant had had effective remedies at her disposal as required by Article 13 of the Convention. The applicant had the opportunity to challenge the acts or omissions of the investigating authorities in court and could also have claimed damages in civil proceedings.", "In sum, the Government submitted that there had been no violation of Article 13. 178. The applicant reiterated the complaint. B. The Court’s assessment 1.", "Admissibility 179. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 180. The Court reiterates that in circumstances where, as in the present case, a criminal investigation into a disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183). 181. Consequently, there has been a violation of Article 13 in conjunction with Articles 2 and 3 of the Convention. 182.", "As regards the applicant’s reference to Article 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention (see Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008, and Alikhadzhiyeva v. Russia, no. 68007/01, § 96, 5 July 2007). VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 183.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damages 184. The applicant did not claim pecuniary damages. She claimed non-pecuniary damages for the suffering she had endured as a result of the loss of her son and the State’s failure to investigate the matter effectively. She submitted that the amount of compensation should be determined by the Court on an equitable basis.", "185. The Government submitted that finding a violation of the Convention would in itself comprise adequate compensation in the applicant’s case. 186. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant’s son. The applicant herself has been found to be the victim of a violation of Article 3 of the Convention.", "The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations. It awards the applicant 60,000 euros (EUR), plus any tax that may be chargeable thereon. B. Costs and expenses 187. The applicant was represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre.", "The aggregate claim in respect of costs and expenses related to her legal representation amounted to EUR 1,800 (or 1,435 pounds sterling (GBP)). The applicant requested that the award be paid into the representatives’ bank account in the United Kingdom and submitted the following breakdown of costs: (a) EUR 1,125 (GBP 900) for six hours of research and drafting legal documents submitted to the Court and the domestic authorities at a rate of GBP 150 per hour; (b) EUR 200 (GBP 160) for administrative and postal costs; (c) EUR 475 (GBP 375) for translation costs. 188. The Government did not dispute the details of the calculations submitted by the applicant. 189.", "The Court has to establish first whether the costs and expenses were actually incurred and, secondly, whether they were necessary (see McCann and Others, cited above, § 220). 190. Having regard to the details of the information in its possession, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives. 191. As to whether the costs and expenses were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation.", "The Court also notes that it is its standard practice to rule that awards in relation to costs and expenses are to be paid directly to the lawyers upon the applicants’ request to this end (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 174-75, ECHR 2005-VII). 192. In these circumstances, and having regard to the details of the claims submitted by the applicant, the Court awards EUR 1,800 as requested, plus any tax that may be chargeable on that amount to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicant. C. Default interest 193.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the issue of exhaustion of criminal domestic remedies and rejects it; 2. Declares the application admissible; 3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Abdul-Yazit Askhabov; 4.", "Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Abdul-Yazit Askhabov disappeared; 5. Holds that there has been a violation of Article 3 of the Convention in respect of the mental suffering caused to the applicant; 6. Holds that there has been a violation of Article 5 of the Convention in respect of Abdul-Yazit Askhabov; 7. Holds that there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention; 8. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 5; 9.", "Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage to the applicant; (ii) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable to the applicant, to be converted into British pounds sterling, at the rate applicable at the date of settlement in respect of costs and expenses, to be paid into the representatives’ bank account in the UK; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 18 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIFTH SECTION CASE OF SHEPELEVA v. UKRAINE (Application no. 14403/04) JUDGMENT STRASBOURG 15 October 2009 FINAL 15/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shepeleva v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 22 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "14403/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Yelena Valentinovna Shepeleva (“the applicant”), on 20 March 2004. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 14 January 2008 the President of the Fifth Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 4. The applicant was born in 1968 and lives in the city of Kharkiv, Ukraine. 5. In 1996 her apartment was sold to Mrs T. In October 1998 Mr P., the applicant's ex-husband, acting on behalf of Mrs T., sold this apartment to Mr L. In March 2003 Mr L. sold back the apartment to Mr P. and his wife, Mrs P.N.", "The applicant stated that her signature on the initial sales contract with Mrs T. had been falsified. A. First set of civil proceedings 6. On 1 February 1999 the applicant instituted proceedings in the Dzerzhynsky District Court of Kharkiv (“the Dzerzhynsky Court”) against Mr P. and Mrs T. for a declaration that the sale of the apartment to Mrs T. and all further sales were null and void. 7.", "On 1 February 1999 the Dzerzhynsky Court attached the disputed apartment, having banned in particular, its disposal. 8. The first hearing was scheduled for 30 October 2000. 9. Between 30 October 2000 and 15 October 2001 the first-instance court scheduled four hearings.", "Two were adjourned since the parties failed to appear and the other two because the judge was involved in other proceedings. 10. On 15 October 2001 the Dzerzhynsky Court declined to consider the applicant's claim because the parties failed to appear. 11. The applicant lodged an appeal against that decision.", "12. On 18 July 2002 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) remitted the case for examination on the merits to the first -instance court. 13. According to the applicant, on 18 December 2001 the Dzerzhynsky Court lifted the sales ban imposed under the ruling of 1 February 1999. 14.", "In the period from 18 July 2002 till 7 April 2005 the Dzerzhynsky Court scheduled nineteen hearings. Five were adjourned because the judge was involved in other proceedings and because he was ill. A further six were adjourned owing to the absence of one or more of the parties. 15. On 7 April 2005 the Dzerzhynsky Court granted the applicant's claim. 16.", "On 18 January 2006 the Court of Appeal quashed that decision and remitted the case for fresh consideration. 17. The case-file was returned to the Dzerzhynsky Court in January 2006. 18. On 26 July 2006 the case was transferred to another judge.", "19. On 6 February 2007 hearings were suspended because of the death of Mr P. On 21 March 2007 the Kharkiv Regional Court of Appeal dismissed the applicant's appeal against the decision of 6 February 2007. The proceedings resumed in August 2007. 20. On 14 December 2007 the applicant appealed against the ruling of 18 December 2001.", "On 21 May 2008 the Kharkiv Regional Court of Appeal left her appeal without consideration. On 9 July 2008 the Supreme Court upheld the ruling of the court of appeal. 21. On 10 October 2008 the Dzerzhynsky Court granted the applicant's claims in part. The judgment was not appealed and became final.", "22. Between 19 January 2006 and 18 January 2008 the Dzerzhynsky Court scheduled eleven hearings. Seven were adjourned because the judge was on holiday or involved in other proceedings. A further three were adjourned because the defendants failed to appear. The Government and the applicant did not provide the Court with information about the hearings scheduled after 18 January 2008.", "B. Second set of civil proceedings 23. On 15 October 2001 Mr L. instituted proceedings seeking the applicant's eviction from the apartment in question. 24. On 26 October 2001 the Dzerzhynsky Court ordered the applicant's eviction.", "On 1 October 2003 the Supreme Court rejected the applicant's cassation appeal. On 14 November 2003 the judgment was enforced and the applicant was evicted from the apartment. C. Criminal proceedings 25. On 15 February 2002 police instituted an investigation into falsifying the applicant's signature. The investigation is still pending.", "26. The applicant tried to institute criminal proceedings against Mrs P.N. However, her efforts were to no avail. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 27.", "The applicant complained that the length of the first set of civil proceedings had been incompatible with the “reasonable-time” requirement laid down in Article 6 § 1 of the Convention. She further complained under Article 13 of the lack of an effective remedy for the length-of-proceedings complaint. The provisions at issue read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 28. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 29. In their observations the Government contended that there had been no violation of Article 6 § 1 or Article 13 of the Convention.", "30. The applicant disagreed. 31. The Court notes that the applicant instituted the civil proceedings at issue on 1 February 1999. The period in question ended on 10 October 2008.", "It thus lasted over nine years and eight months for three levels of jurisdiction. 32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 33.", "The Court notes that the complexity of the case and the applicant's conduct alone cannot explain the overall length of the proceedings at issue in the present case. It considers that a number of delays (in particular, remittals of the case for fresh consideration, a lengthy period of procedural inactivity between 1 February 1999 and 30 October 2000 and the repeated adjournment of hearings because of the judge's involvement in other proceedings) are attributable to the Government. 34. The Court has frequently found violations of Article 6 § 1 and Article 13 of the Convention in cases raising issues similar to the one in the present case (see for example, Vashchenko v. Ukraine, no. 26864/03, §§ 55 and 59, 26 June 2008).", "35. Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 36. There has accordingly been a violation of Article 6 § 1 and Article 13 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 37. The applicant further complained that the length of the proceedings complained of had infringed her right to the peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1. 38.", "The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 39. However, having regard to its finding under Article 6 § 1 (see paragraph 33 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194-C).", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 40. The applicant complained under Article 6 § 1 about outcome and unfairness of the first and second sets of the civil proceedings. She further complained about the length of the second set of civil proceedings. She also complained in reliance on Article 17 that the judges sitting in the domestic courts were not impartial and lacked independence.", "The applicant further complained under Article 8 § 1 about the unlawfulness of her eviction from the apartment. She also alleged under the same Article that she had been deprived of contact with her child and that her correspondence had been seized by unnamed persons. She complained under Article 6 § 1 and 13 of the Convention that the investigation into falsification of her signature was ineffective. She complained that her efforts to institute criminal proceedings against Mrs P.N. were to no avail.", "Lastly, she invoked Article 1 of the Convention without any further explanation. 41. The Court has examined the remainder of the applicant's complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of were are within its competence, they did do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 43. The applicant claimed 405,898.80 Ukrainian hryvnias (UAH) (approximately 39,045 euros (EUR)) and 17,850 United States dollars (USD) in respect of pecuniary damage and USD 50,000 in respect of non‑pecuniary damage. 44. The Government contested these claims.", "45. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 2,400 in respect of non-pecuniary damage. B. Costs and expenses 46.", "The applicant, who was not represented before the Court, claimed UAH 13,916.80 (approximately EUR1,339) in respect of her transport expenses, court fees, expenses for postage, translation, photocopying, legal expenses and others. This amount included, in particular, UAH 9,000 in legal expenses; she failed to provide any document in support of this claim. 47. The Government did not object to the applicant's claim for postal expenses. They left the question of expenses for translation services and photocopying to the Court's discretion and contested the remainder of her claims under this head.", "48. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 80 under this head. C. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the length of the first set of proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds that there is no need to examine the complaint under Article 1 of Protocol No.", "1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 80 (eighty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 15 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "THIRD SECTION CASE OF CAPELLINI v. ITALY (Application no. 64009/00) JUDGMENT (Friendly settlement) STRASBOURG 16 December 2004 This judgment is final but it may be subject to editorial revision. In the case of Capellini v. Italy, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ. Hedigan,MrL.", "Caflisch,MrsM. Tsatsa-Nikolovska, MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 25 November 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "64009/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Daniela Capellini (“the applicant”), on 29 November 2000. 2. The applicant was represented before the Court by Mr M.A. de Stasio, a lawyer practising in Milan. The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M.", "Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli 3. The applicant complained under Article 1 of Protocol No. 1 that she had been unable to recover possession of her flat within a reasonable time. Invoking Article 6 § 1 of the Convention, she further complained about the length of the eviction proceedings. 4.", "On 11 March 2004, after obtaining the parties’ observations, the Court (First Section) declared the application admissible. 5. On 28 October 2004 and on 29 October 2004, the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case. 6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1).", "This case was assigned to the newly composed Third Section (Rule 52 § 1). THE FACTS 7. The applicant was born in 1956 and lives in Milan. 8. A.C., the applicant’s father, was the owner of a flat in Milan, which he had let to V.S.", "9. In a registered letter of 9 November 1990, the applicant’s father informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date. 10. The tenant told the applicant’s father that he would not leave the premises. 11.", "In a writ served on the tenant on 22 January 1991, the applicant’s father reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 12. By a decision of 21 March 1991, which was made enforceable on 26 March 1991, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. 13. On 11 January 1993, the applicant’s father served notice on the tenant requiring him to vacate the premises.", "14. On 25 February 1993, he informed the tenant that the order for possession would be enforced by a bailiff on 19 March 1993. 15. Between 19 March 1993 and 18 April 2000, the bailiff made nineteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant’s father and then the applicant were not entitled to police assistance in enforcing the order for possession.", "16. In the meanwhile, on 24 August 1993, the applicant’s father died and the applicant inherited the flat. 17. On 14 February 2000, she became party to the proceedings. 18.", "On 15 June 2000, the applicant recovered possession of the flat. 19. Pursuant to the Pinto Law, on 3 April 2002 the applicant applied to the Brescia Court of Appeal. By decision of 12 June 2002, the Court of Appeal rejected the applicant’s claim. As far as the conduct of the relevant authorities were concerned, the Court of Appeal underlined that the behaviour of the Prefect was in conformity with the criteria fixed by the national law and that after the Law no.", "431/98 the expulsion was suspended by other laws. So the delays derived from factum principis and were therefore irrelevant for the purpose of the Pinto Law. 20. The applicant did not appeal to the Court of Cassation. THE LAW 21.", "On 29 October 2004, the Court received the following declaration from the Government: “I declare that the Government of Italy offer to pay 5,717.70 euros (five thousand seven hundred seventeen euros and seventy cents) to Mrs Daniela Capellini with a view to securing a friendly settlement of the application registered under no. 64009/00. This sum shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months starting from the notification of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "This declaration does not entail any acknowledgement by the Government of a violation of the European Convention on Human Rights in the present case. The Government further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention.” 22. On 28 October 2004, the Court received the following declaration signed by the applicant: “I note that the Government of Italy are prepared to pay a sum totalling 5,717.70 euros (five thousand seven hundred seventeen euros and seventy cents) covering both pecuniary and non-pecuniary damage and costs to Mrs Daniela Capellini with a view to securing a friendly settlement of the application no. 64009/00 pending before the Court. I accept the proposal and waive any further claims in respect of Italy relating to the facts of this application.", "I declare that the case is definitely settled. This declaration is made in the context of a friendly settlement which the Government and applicant has reached. I further undertake not to request the referral of the case to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court’s judgment.” 23. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). In this connection the Court considers that it has already specified the nature and extent of the obligations which arise for the respondent Government in cases concerning eviction of tenants (see Immobiliare Saffi v. Italy [GC], no.", "22774/93, ECHR 1999-V), and the question of the performance of those obligations is currently pending before the Committee of Ministers. Therefore, a continuation of the examination of the present application is not required. In these circumstances the Court accepts that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 24. Accordingly, the case should be struck out of the list.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to strike the case out of the list; 2. Takes note of the parties’ undertaking not to request a rehearing of the case before the Grand Chamber. Done in English, and notified in writing on 16 December 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "THIRD SECTION CASE OF KILYEN v. ROMANIA (Application no. 44817/04) JUDGMENT STRASBOURG 25 February 2014 FINAL 25/05/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kilyen v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Ján Šikuta,Dragoljub Popović,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 4 February 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44817/04) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Laszlo Kilyen (“the applicant”), on 25 November 2004. 2. The applicant was represented by Mr V. Ghere, a lawyer practising in Târgu-Mureş. The Romanian Government (“the Government”) were represented by their Agent, Mr R.-H. Radu, of the Ministry of Foreign Affairs. 3.", "The applicant alleged that the search carried out at his home by police officers in his absence constituted a breach of his right to respect for his home as guaranteed by Article 8 of the Convention. 4. On 29 April 2008 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant, Mr Laszlo Kilyen, was born in 1972 and lives in Murgeşti. 6. On 10 May 2003 police officers T.M. and L.C.V. were carrying out an investigation into the theft of two cars in the village of Murgeşti.", "The applicant, who lived alone in a house with a yard, was away from home on a trip abroad. On the same day at around 4 p.m., the two officers entered the applicant’s yard by breaking the main gate which had a closing system made by the applicant from metal wires. The officers took note of the chassis series of two cars found in the applicant’s shed. They also looked in several boxes which contained spare parts for cars. 7.", "After a certain period of time, the applicant’s neighbour, K.M., entered the yard and questioned the two officers about the reason for their presence there. T.M. and L.C.V. disclosed their identities and informed K.M. that they were carrying out an investigation into the theft of two cars.", "Before leaving the yard, the officers informed K.M. that the two cars found in the applicant’s shed were not the ones reported stolen and left him a summons ordering the applicant to report to the police station as soon as possible. 8. On 15 May 2003, upon his return home, the applicant lodged a complaint with the Prosecutor’s Office of the Mureş County Court against the two police officers for the crime of trespassing under Article 192 of the Criminal Code. He alleged that the officers had entered his yard in his absence and without his consent.", "He also sought civil damages from the two alleged perpetrators. 9. In his statement given before the prosecutor on 1 July 2003, the applicant mentioned that he was a car mechanic and that he often travelled to Hungary to buy spare parts. He alleged that he felt harassed by local police officers working in the Car Theft Department who, on several occasions, had entered his yard in his absence in order to check whether he was hiding stolen cars. The applicant also alleged that, although the police never found stolen cars in his possession, the frequent police checks gave him a reputation in the village of being a car thief.", "10. The two officers declared before the prosecutor that they had found K.M. in the applicant’s yard and had entered believing that he was the owner and assuming that they had his permission. 11. On 8 July 2003 the Prosecutor’s Office of the Târgu Mureş Court of Appeal decided to discontinue the proceedings against T.M.", "and L.C.V. The prosecutor investigating the case noted that the two officers had entered the applicant’s yard in his absence and without his permission. However, when K.M. had arrived at the scene, they had immediately disclosed their identities. Moreover, they had been on duty and had only noted the chassis series of the applicant’s cars.", "The prosecutor therefore concluded that the officers had had no intention of committing a crime. On 29 October 2003 a complaint by the applicant against this decision was rejected by the superior Prosecutor from the Prosecutor’s Office of the Târgu Mureş Court of Appeal. 12. On 27 January 2004 the applicant appealed against the prosecutors’ decisions before the Târgu Mureş Court of Appeal. He alleged that the two officers had illegally entered his home in his absence, without his consent and without a search warrant.", "He also complained that his rights as guaranteed by Article 8 of the Convention had been breached by the unlawful search carried out by the two police officers. 13. The Court of Appeal rejected the applicant’s appeal on 27 February 2004 holding that T.M. and L.C.V. had acted in accordance with their duties as provided for by articles 41, 42 and 43 of Law no.", "360/2002 on the Status of Police Officers. The court underlined that the officers had disclosed their identities and the purpose of their presence on the premises as soon as the applicant’s neighbour enquired. It was further held that they had been on duty and carrying out an investigation, and therefore it could not be held that they had intended to commit a crime. 14. The appeal by the applicant on points of law (recurs) against this decision was dismissed on 28 May 2004 by a final judgment of the High Court of Cassation and Justice which held that the officers had acted in accordance with the provisions of the Law no.", "218/2002 on the Organisation of the Romanian Police. The court held that the officers had been in the presence of a witness and that they had disclosed their identities, and therefore had no intention of illegally entering the applicant’s home. II. RELEVANT DOMESTIC LAW 15. Article 192 of the Criminal Code, in force at the relevant time, reads as follows: “Entering, in any way and without having the right, a residence, a room, a shed or a surrounding area of any of these, without the consent of the person using them, or refusing to leave these places at the person’s request, is punishable by a term of imprisonment of six months to four years.", "If the action is committed by an armed person or a group of two or more persons ... the punishment is a term of imprisonment of three to ten years.” 16. The pertinent Articles of the Code of Criminal Procedure concerning searches, in force at the relevant time, before the reform of the latter by Law no. 281 of 24 June 2003 and Government Ordinances no. 66 of 10 July 2003 and no. 109 of 24 October 2003, read as follows: Article 100 “Where a person who is asked to hand over an object or a document as referred to in Article 98 denies its existence or denies having it, or where it is necessary for the discovery and collection of evidence, the authorities in charge of the investigation, or the court, may order a search.", "There may be a body search or a home search.” Article 101 “The authorities in charge of the investigation can perform home searches only on the basis of an authorisation from the prosecutor. The home search may be performed without the prosecutor’s authorisation only when the person whose home shall be searched gives his or her written consent to the search. Where the perpetrator is caught in the act of committing a crime, the search is performed without the prosecutor’s authorisation.” Article 104 “Before starting the search, the authorities in charge of the investigation are obliged to disclose their identity and, in the cases provided for by law, to present the authorisation given by the prosecutor. The seizure of objects or documents, as well as the search, are carried out in the presence of the person whose home is searched, or in case he or she is absent, in the presence of a representative, a member of the family or a neighbour with full capacity. These operations carried out by the authorities in charge of the investigation require the presence of witnesses.” 17.", "Articles 41 and 42 of Law no. 360/2002 on the Status of Police Officers provide for obligations of police officers such as loyalty towards the institution and the principles of the rule of law and respect towards citizens. Police officers must also continuously improve their professional skills, be polite, professional and respectful towards their superiors and their colleagues, support their colleagues in their work duties, maintain professional secrecy and not abuse their official powers or compromise the prestige of their position or the institution to which they belong. Article 43 of the same Law lists the rules imposed on police officers such as: not to ask for or receive bribes, not to use force unless this is provided for by law, not to cause physical suffering for the purpose of obtaining information and not to be involved in politics or immoral activities. 18.", "Law no. 218/2002 on the Organisation of the Romanian Police regulates the structure of the police force, the organisation of the local police units and their relationship with the central unit, the duties of the police force and the general rights and obligations of all categories of persons working for the police (police officers, public servants and contractual staff). Article 31 (1) (e) of Law no. 218/2002 provides as follows: “e) if a crime has been committed, in the course of pursuing criminals or investigating a terrorist act, police officers may enter homes, commercial premises company offices, public or private institutions, political or social organisations irrespective of their owner, and board any means of Romanian transportation, under the conditions provided for by law.” In its second paragraph Article 31 also provides the following: “(2) In exercising their rights under this law, the policemen have the duty to respect the fundamental human rights and liberties provided by law and the European Convention of Human Rights.” 19. The relevant provisions of the Code of Criminal Procedure, in force at the relevant time, concerning the victim’s request for civil damages within the criminal trial are as follows: Article 20 Special conditions to resolve civil claims “A victim who has sought civil damages during a criminal trial may submit his or her request before the civil courts if the criminal court has left the matter undecided.” Article 22 The force of a criminal judgment before the civil court ... “The final judgment delivered in a criminal trial is binding on the civil court with respect to the existence of the act, the person who committed it and his or her guilt.", "...” 20. The relevant provisions concerning civil liability, namely Articles 998-999 of the Civil Code, in force at the relevant time, are described in Iambor v. Romania (no. 1) (no. 64536/01, § 142, 24 June 2008). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 21. The applicant complained that the unlawful search carried out at his home by two police officers had violated his rights under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his ... home ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 22. The Government raised an objection of non-exhaustion of domestic remedies.", "In particular, the applicant had not pursued a civil action for damages against the two police officers based on the general provisions concerning civil damages provided for in Articles 998-999 of the Civil Code, in force at the relevant time. They maintained that, since the criminal courts had left the applicant’s request for damages unresolved, he could have brought a separate action in this respect before the civil courts. They also submitted that the intention to commit a crime was an element required only to establish criminal responsibility, while before the civil courts negligence was enough to establish a person’s civil liability. The Government did not submit examples of relevant domestic case-law in this respect. They further contended that in the case Lazzarini and Ghiacci v. Italy ((dec.), no.", "53749/00, 7 November 2002) the Court had held that the applicants had a civil remedy available, which, following the rejection of their criminal complaint, they had failed to pursue. 23. The applicant submitted that a civil action based on the general provisions of the Civil Code would have had no prospects of success in his particular case. He underlined that, although the criminal investigation concluded that the police officers had not had the intention to commit a crime, the criminal courts held that the two officers had acted in accordance with the law. Therefore, since the civil court was bound by the judgment of the criminal court, the former could not have established any liability of persons who were considered to have been acting within their duties as provided for by law.", "24. The Court points out that it is incumbent on the Government claiming non-exhaustion to prove that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the complaints invoked and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV). 25. In the case Lazzarini and Ghiacci invoked by the Government the applicants complained that their son had lost his life on account of medical negligence. In deciding that the applicants had failed to exhaust the domestic remedies in that case, the Court took into account the fact that the availability and effectiveness of domestic remedies as regards the doctor’s responsibility was not disputed and proceedings were pending in this respect following a complaint lodged by the applicants.", "It was also taken into consideration that in the course of the said proceedings the applicants had already received a considerable amount of civil damages. Therefore, the Court concluded that, in the circumstances, it could not be held that the above-mentioned proceedings did not offer reasonable prospects of success for the applicants. 26. The Court considers that the current case is different from the one cited by the Government which refers to the specific situation of medical negligence, a situation which created, and continues to create, extensive case-law in all member States. The case at hand concerns a situation of alleged police abuse for which a civil action for damages based on Articles 998-999 of the Civil Code would theoretically have been available to the applicant.", "However, the Court reiterates, as the Government also pointed out, that at the time of the events civil liability had a subjective character in Romanian law, requiring proof of negligence on the part of the person complained against (see Eugenia Lazăr v. Romania, no. 32146/05, § 90, 16 February 2010). Therefore, bearing in mind that the criminal courts excluded any type of intention or negligence on behalf of the police officers and decided that they had acted within their duties as provided for by law and that these judgments are binding on the civil courts, the Court considers that it is highly unlikely that an action for compensation under the Civil Code would have had any prospects of success in the current case. In addition, the Court notes that the Government did not submit any examples of relevant domestic case-law in support of their allegations. 27.", "In view of the above, the Court considers that the Government have failed to show, with reference to demonstrably established consistent case-law in cases similar to the applicant’s, that a request for civil damages based on the provisions of Articles 998-999 of the Civil Code, at the material time, offered at least some prospects of success, not only in theory but also in practice. The Government’s objection as to the exhaustion of domestic remedies must therefore be rejected. 28. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 29. The applicant alleged that two police officers had carried out an unlawful search at his home, in his absence, without his consent and without having prior authorisation from the prosecutor. He further submitted that the investigation and trial carried out subsequently had not provided him with any redress for the violation of his right to respect for his home.", "30. The Government admitted that the search carried out at the applicant’s home constituted an interference with his right to respect for his home. However, the interference was in accordance with the law within the meaning of Article 8 § 2 of the Convention, it was proportionate to the legitimate aim of preventing crime and was accompanied by the appropriate procedural safeguards. 31. The Court notes that it was not disputed that the police entering the applicant’s home on 10 May 2003 constituted an interference with his right to respect for his home.", "The Court sees no reason to hold otherwise (see Varga v. Romania, no. 73957/01, § 67, 1 April 2008). Accordingly, it has to be determined whether the interference was justified under paragraph 2 of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph, and was “necessary in a democratic society” to achieve the aim or aims in question. 32. The Court reiterates that the expression “in accordance with the law”, within the meaning of Article 8 § 2, requires firstly that the impugned measures should have a basis in domestic law.", "It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V). 33. In respect of the domestic law on which the interference was based in the current case, the Court notes that the domestic authorities retained as a legal basis articles 41-43 of the Law no. 360/2002 on the Status of Police Officers and, in general terms, the Law no.", "218/2002 on the Organisation of the Romanian Police. 34. The Court observes that articles 41-43 of Law no. 360/2002, quoted by the Târgu Mureş Court of Appeal, are general rules concerning the rights and duties of police officers and contain no specific and clear provisions regarding home searches (see paragraph 17 above). With respect to Law no.", "218/2002, cited in general terms by the High Court of Cassation and Justice, the Court notes that, while vesting wide powers in State agents to carry out searches in situations of flagrant crimes, pursuit of criminals or anti-terrorist operations, that Law does not define with sufficient clarity the scope of those powers and the manner of their exercise, so as to afford an individual adequate protection against arbitrariness (see paragraph 18 above). Reference to that Law in general terms cannot replace an individual authorisation of a search, delimiting its object and scope and drawn up in accordance with the relevant legal provisions either beforehand or afterwards (see, mutatis mutandis, Imakayeva v. Russia, no. 7615/02, §§ 188-189, ECHR 2006‑XIII (extracts), and Esmukhambetov and Others v. Russia, no. 23445/03, § 176, 29 March 2011). 35.", "The Court considers that the provisions cited as a legal basis for the search of the applicant’s home were formulated in vague and general terms and cannot serve as a sufficient legal basis for the interference in the present case. They therefore did not offer adequate and effective safeguards against abuse. 36. It also notes in this respect that the Government did not submit any document specifically authorising the two officers to carry out the search. It appears that no such warrant was drawn up, the officers having acted directly within their wide powers under the above-mentioned legal provisions.", "37. The Court thus concludes, in view of the above-mentioned considerations and in the absence of a decision adapted to the applicant’s case which would clearly indicate the purpose and scope of the search, and which could have been appealed against in a court, that the interference with the applicant’s rights was not “lawful”. It is thus not necessary to examine whether the interference pursued a legitimate aim and was proportionate. 38. Accordingly, there has been a violation of Article 8 of the Convention on account of the search of the applicant’s home on 10 May 2003.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 40. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.", "41. The Government submitted that there was no link between the alleged violation and the non-pecuniary damage requested. They contended that the amount claimed was excessive and that a finding of a violation would constitute sufficient just satisfaction for the applicant in the current case. 42. The Court accepts that the breach of the applicant’s right to respect for his home must have caused him distress.", "Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 in compensation for non-pecuniary damage. B. Costs and expenses 43. The applicant also claimed the reimbursement of costs and expenses incurred before the domestic courts as well as those incurred before the Court, without specifying the amount and without providing any supporting documents. 44.", "The Government requested that the Court reject the applicant’s request for costs and expenses as being unsubstantiated. 45. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the applicant’s failure to provide any supporting documents and to the above criteria, the Court rejects the claim for costs and expenses (see Alkaya v. Turkey, no. 42811/06, § 48, 9 October 2012).", "C. Default interest 46. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,500 EUR (four thousand five hundred euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FIFTH SECTION CASE OF GAYEVSKAYA v. UKRAINE (Application no. 9165/05) JUDGMENT STRASBOURG 24 July 2008 FINAL 01/12/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gayevskaya v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Volodymyr Butkevych,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 1 July 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "9165/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Yekaterina Pavlovna Gayevskaya (“the applicant”), on 23 February 2005. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev. 3. On 7 September 2005 the Court decided to communicate the applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1949 and lives in Novogrodivka, Donetsk region, Ukraine.", "5. On 8 May 2002 the Novogrodivka Town Court ordered the Novogrodivka Mining Company No. 1/3 – a State-owned enterprise – to pay the applicant arrears of compensation for loss of breadwinner, i.e. her husband, in the amount of 1,285.58[1] Ukrainian hryvnas (UAH). 6.", "This judgment became final and on 6 August 2002 the Novogrodivka Town Bailiffs’ Service initiated the enforcement proceedings. 7. In April 2004 the applicant instituted proceedings in the Novogrodivka Town Court against the Novogrodivka Town Bailiffs’ Service claiming compensation for the lengthy non-enforcement of the judgment in her favour. On 12 August 2004 the court found against the applicant. On 14 October 2004 the Donetsk Regional Court of Appeal upheld this judgment.", "The applicant lodged a cassation appeal with the Supreme Court of Ukraine. According to her, in April 2005 the proceedings were still pending. The applicant did not provide the Court with any further information in this regard. 8. On 19 October 2005 the Bailiffs’ Service discontinued the enforcement proceedings on the ground that the judgment of 8 May 2002 had been enforced in full.", "The applicant did not contest this decision. II. RELEVANT DOMESTIC LAW 9. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 10. The applicant complained about the lengthy non-enforcement of the judgment of 8 May 2002. In this regard she invoked Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1, which provide, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” A. Admissibility 11.", "The Government did not submit any observations on the admissibility of the application. 12. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 13. The Government maintained that the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings and that the length of the enforcement proceedings had been caused by the critical financial situation of the debtor company and the energy sector of the Ukrainian economy in general. The Government contended that the Bailiffs’ Service had done everything necessary and could not be blamed for the delay. The regularity of the enforcement proceedings in the present case had been confirmed by the domestic courts.", "The Government finally argued that the State could not be considered responsible for the debts of its enterprises. 14. The applicant disagreed. In particular, she argued that the judgment of the Novogrodivka Town Court of 8 May 2002 had not been enforced. 15.", "The Court observes that it is not clear from the parties’ submissions whether this judgment was enforced in full. However, it assumes that the judgment was so enforced by 19 October 2005, given the fact that, on that date, the Bailiffs’ Service established that the amounts due had been paid to the applicant in full, which the applicant did not contest at the national level (see e.g. Gavrilenko v. Ukraine, no. 24596/02, § 18, 20 September 2005). 16.", "The Court further notes that the judgment in the applicant’s favour remained unenforced for more than three years and five months. 17. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases like the present application (see, the Sokur judgment, cited above, §§ 30-37, and Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004).", "18. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 19. There has, accordingly, been a violation of Article 6 § 1 of the Convention in respect of the lengthy non-enforcement of the judgment in the applicant’s favour and a violation of Article 1 of Protocol No. 1 in the present application.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 20. The applicant also complained under Article 13 of the Convention that a cassation appeal to the Supreme Court of Ukraine could not be considered an effective remedy because the examination of such an appeal in her case had been too lengthy. 21. The Court recalls that a cassation appeal to the Supreme Court of Ukraine is considered by the Court to be an effective remedy (see Vorobyeva v. Ukraine (dec.), no.", "27517/02, 17 December 2002). As to the length of the examination of the applicant’s cassation appeal, the Court observes that in April 2005 the proceedings were pending before the Supreme Court of Ukraine and that the applicant did not provide any further information in this regard. However, even assuming that the proceedings in question are still pending, the Court notes that at present the overall length of proceedings amounts to four years and one month, which cannot be regarded as excessive. 22. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 24. The applicant claimed EUR 7,970 in respect of pecuniary and non‑pecuniary damage.", "25. The Government maintained that the applicant had not substantiated her claims. 26. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non‑pecuniary damage.", "Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 650 in respect of non-pecuniary damage. B. Costs and expenses 27. The applicant claimed EUR 100 in costs and expenses. In this respect she provided vouchers for expenditure amounting in total to UAH 40.17[2].", "28. The Government contended that the applicant had failed to substantiate her claims and requested the Court to reject them. 29. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6.", "C. Default interest 30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, plus any tax that may be chargeable to the applicant: (i) EUR 650 (six hundred fifty euros) in respect of non-pecuniary damage; (ii) EUR 6 (six euros) in respect of costs and expenses; (b) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident [1] At the material time 274.06 euros (EUR) [2] About EUR 6" ]

[ "FIRST SECTION CASE OF NOVAYA GAZETA V VORONEZHE v. RUSSIA (Application no. 27570/03) JUDGMENT STRASBOURG 21 December 2010 FINAL 20/06/2011 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Novaya Gazeta v Voronezhe v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 2 December 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "27570/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Editorial Board of the Novaya Gazeta v Voronezhe newspaper, a limited liability company under Russian law registered in Voronezh (“the applicant”), on 26 July 2003. 2. The applicant was represented by Ms M.A. Ledovskikh, a lawyer practising in Voronezh. The Russian Government (“the Government”) were represented Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.", "3. On 26 May 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "The impugned article and the defamation claims 4. On 2 April 2002 the Novaya Gazeta v Voronezhe newspaper (“the newspaper”) published an article by Mr E.P. entitled “Atomic Mayor” («Атомный мэр»). The article concerned abuses and irregularities allegedly committed by Mr S., the mayor of Novovoronezh, and by other municipal officials, including Mr B., a deputy head of administration and director of the economy and finance department, and Mr P., the chairman of the education committee. The article also mentioned certain private parties who supplied goods or performed services for the municipal authorities, including Mr F., a local businessman who did renovation work for State‑funded institutions.", "5. The article quoted extensively from the Report on the Composite Audit of the Novovoronezh Town Administration, carried out by the Audit Department of the Ministry of Finance for the Voronezh Region from 13 November to 27 December 2001 (“the audit report”). 6. On 8 May 2002 Mr S., Mr B., Mr P. and Mr F. lodged an action for defamation against the applicant. They claimed that the following extracts from the article were untrue and damaging to their reputation: “...", "In autumn 2001 a group of campaigners in Novovoronezh collected signatures for a vote of no confidence in Vladimir S. They collected nearly three thousand signatures ...” [paragraph 4] “... For a long time the Novovoronezh town administration failed to transfer payments to the compulsory medical insurance fund. In the mayor's opinion, these transfers were not mandatory, but a commercial court decided otherwise. Thanks to S., in 2002 the town budget will lose a further twenty million [roubles] ...” [21] “... Mayor S. still adheres to the ideas of Socialism and Communism; not only once did he enter the ranks of the Communist Party of the Russian Federation ... occasionally he left its ranks ...” [23] “... [In addition to the budget, Novovoronezh has an off-budget fund. And a substantial one.] One would only wonder at the way the mayor and his faithful companion, comrade B., the head of the economy and finance department doubling as executive director of all funds, handled its assets ...", "Thus, thanks to the efforts of two prominent economists, the town lost an amount comparable to nearly one half of the annual budget ...” [34, 47] “The chairman of the education committee of the Novovoronezh administration, Mr P., did not produce any documents showing that these students came from needy or large families as he claimed ...” What kind of needy families were these if even Mr P., the chairman of the education committee, does not know them?” [57, 58] “Inquisitive readers would ask: why did Mr B. care so much about the military unit in the village of Boevo and the regional psychiatric hospital (let's recall the charitable contribution of 300,000 roubles made to the hospital)? And they would start looking for an answer. Is it not in military unit no. 51205 that the son of the aforementioned official is doing his military service? Is it not in the regional psychiatric hospital that a relation or a namesake of Mr B. has just undergone a medical examination in order to escape punishment for a serious criminal offence?", "... [67-69] And what about the honest Mayor S.? He does not know, perhaps, about the tricks of his deputy? On the contrary. He does know and he even personally signs payment orders for the transfer of money to the State enterprise 'Voronezh regional clinical psychiatric hospital'...” [71, 72] “The thing is that the notion of competitions (tenders) for the provision of services for State-funded organisations ceased to exist in the town long ago. If our fair and Communist-minded mayor S. liked Mr P. (they have done much business together), he could have as much work as he liked.", "He could supply computers at 150,000 roubles a piece and feed children in kindergartens at inflated prices ...” [87] “... During the audit an estimate of the repair work actually performed in the town stadium was made up. The cost of the actual work done amounted to nearly 500,000 roubles. So, Mr S. and Mr F., where have the remaining 1,300,000 roubles gone? ...” [93] B. The first-instance proceedings 7.", "On 10 and 11 September 2002 the Sovetskiy District Court of Voronezh (“the trial court”) took evidence from the parties. The plaintiffs produced judgments of commercial courts pursuant to which the amount of 26,927 Russian roubles (RUB) had been recovered from the Novovoronezh municipal authorities in respect of payments to the medical insurance funds. Mr S. also produced a document showing that he had been a member of the Communist Party since 1995 and never relinquished his membership. 8. The applicant had at its disposal ordinary copies of the audit report and the report of 22 November 2001 on the verification of the work done at the stadium and shooting gallery (“the stadium report”).", "Since ordinary copies, as opposed to certified copies, had no evidentiary value, the applicant asked the trial court to obtain the originals. The trial court refused the request because the applicant had not shown that it had attempted to obtain the originals itself. 9. Throughout October 2002 the applicant unsuccessfully sought to obtain the originals from the Audit Department of the Ministry of Finance for the Voronezh Region, the town department of the interior and the Voronezh Regional and Novovoronezh Town Prosecutors' Offices. 10.", "The applicant renewed its request for a court injunction requiring the relevant authorities to submit the original documents. 11. On 30 October 2002 the trial court refused the request, without citing any reasons in the text of the judgment. Mr S. withdrew his claim in the part concerning paragraph 4 of the article. 12.", "On the same day the trial court issued its judgment. It found that all the extracts contested by the plaintiffs had been untrue and damaging to their reputation. The trial court premised its findings on the following principles: “In such cases, pursuant to Article 152 of the Russian Civil Code, the defendant shall prove the truthfulness of the information disseminated, whilst the plaintiff is only required to show that the defendant disseminated the information. Not only assertions, but also conjectures shall be amenable to proof. Damaging conjectures which are shown to have been unfounded in a court hearing will give rise to an apology.", "Reliance on rumours, hearsay, opinions of anonymous experts, competent sources, etc. as the basis for the damaging information shall not relieve the defendant from the obligation to show its truthfulness...” 13. The trial court decided that paragraphs 93 and 94 of the article implied the embezzlement of funds by Mr S. and Mr F. However, it noted that the audit report assessed the total cost of work at RUB 1,850,000 and that the defendants failed to adduce any proof of embezzlement. 14. The trial court accepted Mr S.'s opinion that statements in paragraphs 21, 23, 47, 71, 72 and 87 of the article impaired his honour, dignity and reputation.", "In the trial court's view, it was incorrect to say that the town “would lose a further 20 million thanks to the mayor” because the payments had been mandatory anyway and, after they had been withheld for some time, a court had ordered their recovery in the same amount. The information on Mr S.'s “discontinuous” party membership was considered untrue because he showed that he had joined the Communist Party once and had not relinquished his membership ever since. The trial court held that in paragraph 47 the author wrongly blamed Mr S. and Mr B. for stopping the funding, because the structure of off-budget funds was regulated by federal government decision. Lastly, as to paragraph 87, the trial court determined that it conveyed an impression that dishonest men, acting under the mayor's patronage, had made a profit out of kindergartens, but the authors did not produce any evidence showing the truthfulness of that allegation. 15.", "As regards Mr B., the trial court held that paragraphs 34, 47 and 67‑69 of the article were untrue and damaging for his reputation because the defendants failed to prove that Mr B. had been the executive director of “all funds”, that a relation of his, especially a criminal, had been in hiding in the psychiatric hospital or had been treated there, and that he and Mr S. had misspent the town's budget. 16. The trial court accepted Mr P.'s view that the allegations of abuses in the selection of students and his personal involvement in them (paragraphs 57 and 58) had been insulting for him. 17. The judgment stated: “Thus, the court has concluded that the plaintiffs' claims are well-founded because the author and the editors tolerated the publication of an article that contained insulting and untrue statements... without bothering to check all the relevant facts.", "In accordance with the law... evidence should have been collected before the information was published and it is inappropriate to start collecting evidence after the article was published... Moreover, the plaintiffs have produced before the court a reply from the Novovoronezh prosecutor's office and a decision of the Novovoronezh police department refusing criminal prosecution in connection with the audit of certain financial matters in the education committee of Novovoronezh in 2000-2001.” 18. The trial court ordered the applicant to pay RUB 10,000 to Mr S., as well as RUB 5,000 to Mr B., Mr P. and Mr F., respectively, that is, RUB 25,000 in total, and also to publish an apology. C. The appeal proceedings 19. On 8 January 2003 the applicant filed a detailed appeal statement, claiming that the article had concerned an issue of public interest and that the plaintiffs, being “public figures” and State servants, should have been more tolerant to criticism than ordinary citizens.", "The article was largely founded on the audit report and the district court did not afford the applicant an opportunity to prove the truthfulness of any statements of fact as it refused their request to obtain original documents. Moreover, the trial court ordered the applicant to refute value judgments. The appeal statement read, in so far as relevant, as follows: “As regards the first document [...], [the trial court] referred to the fact that there was no need to request it because the case file contained a decision by the senior police officer of the Novovoronezh GOVD [main department of the interior] to institute a criminal investigation into the facts mentioned in the report by the KRU [the Audit Department]. As regards the second document [...], the [trial] court referred to the fact that [it had been stated] in the reply by the Novovoronezh GOVD to the editorial board's request to provide the document that the GOVD did not have the document in question as it had been forwarded to the Novovoronezh prosecutor's office, and that there was therefore no need to request it from the GOVD.” 20. On 6 February 2003 the Voronezh Regional Court upheld the judgment of 30 October 2002.", "It held that the applicant's arguments that the article had contained value judgments rather than statements of fact was “unsubstantiated”. The court reasoned, in so far as relevant, as follows: “The dissemination of the information that the plaintiffs seek to refute was proven before the [trial] court and has not been disputed by the respondent. Accordingly the newspaper was obliged to submit evidence before the [trial] court to prove the truthfulness of the information in question. However, no such evidence was presented before the [trial] court.” D. Ensuing events 21. On 20 June 2003 the applicant transferred RUB 25,000 to the bank account of the bailiffs' service in execution of the judgment of 30 October 2002.", "22. The applicant published an apology in the 11 – 17 July 2003 issue of the newspaper retracting the information contained in the article. II. RELEVANT DOMESTIC LAW AND PRACTICE 23. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media.", "24. Article 152 of the Civil Code of the Russian Federation of 30 November 1994 provides that an individual may seize a court with a request for the rectification of information (сведения) damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its accuracy. The individual may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information. The rules governing the protection of the professional reputation of a physical person are likewise applicable to the protection of the professional reputation of legal entities. 25.", "Resolution no. 11 of the Plenary Supreme Court of the Russian Federation of 18 August 1992, as amended on 25 April 1995 (in force at the material time) provided in its Article 2 that to be considered damaging the information (сведения) had to be untrue and contain statements about an individual's or a legal entity's breach of the laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of information was understood as the publication of information or its broadcasting, its inclusion in professional references, public addresses, applications to State officials, as well as its communication in other forms, including orally, to at least one other person. Article 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff was to show that the information in question had been disseminated by the defendant.", "The defendant was to prove that the disseminated information was true and accurate. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 26. The applicant complained under Article 10 of the Convention about the interference with its right to freedom of expression, which it alleged was not necessary in a democratic society. Article 10, in so far as relevant, reads as follows: “1.", "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The parties' submissions 1.", "The Government 27. The Government contested the applicant's arguments. They claimed that the disputed statements had been statements of fact and not value judgments. The domestic courts had independently assessed the evidence before them and decided on its relevance. The trial court had had before it various pieces of evidence submitted by the parties and had been able to decide on the civil dispute on the basis of evidence it considered sufficient, without using other evidence.", "28. The trial court's refusal to request originals of the audit and stadium reports had been well-reasoned. The applicant had been duly notified of such reasons. The applicant could have complained to a court about the prosecutor's office's failure to provide the originals of the documents, but had not done so. Moreover, if the trial court had not included reference to those reasons in the trial minutes, the applicant could have requested modification of the minutes under the relevant domestic laws.", "29. The trial court's judgment of 30 September 2002 had been based on Article 152 of the Russian Civil Code since the applicant had failed to prove the veracity of the statements made in the article. The interference with the applicant's freedom of expression had pursued a legitimate aim, namely to protect the rights of others, and had been necessary in a democratic society because the article had suggested that the plaintiffs had committed illegal acts. The Government concluded that there had been no violation of Article 10 of the Convention. 2.", "The applicant 30. The applicant submitted that the disputed statements had been supported by the stadium and audit reports. However, it had been impossible to use the reports as evidence because the author of the article had had only ordinary copies, not originals or certified copies. The domestic courts' refusal to request the originals or at least certified copies of the reports had had a chilling effect on journalists in possession of ordinary copies of official documents capable of disclosing a matter of public interest. The refusal to open criminal proceedings concerning the facts described in the reports could not, in itself, render the information contained in them false.", "Moreover, the requirement to prove a value judgment was not compatible with freedom of expression. 31. In the appeal statement the applicant's counsel had referred to the reasoning behind the trial court's decision not to request certified copies of the documents that had been communicated to her via unofficial channels; the trial minutes had contained no reference to the trial court's reasoning in that connection. B. The Court's assessment 1.", "Admissibility 32. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits (a) General principles 33. The Court reiterates at the outset that freedom of expression constitutes one of the essential foundations of a democratic society; subject to Article 10 § 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be established convincingly (see The Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 50, Series A no. 217).", "34. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation.", "This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999‑VIII, and Jerusalem v. Austria, no. 26958/95, § 33, ECHR 2001‑II). 35. The press plays an essential role in a democratic society.", "Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997‑I). Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III).", "36. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria (no.", "1), 26 April 1995, § 38, Series A no. 313). 37. In its practice, the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof.", "The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Lingens v. Austria, 8 July 1986, § 46, Series A no. 103). 38. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem, cited above, § 43). (b) Application of the above principles to the present case 39.", "The Court observes that it was not disputed between the parties that the civil proceedings for defamation against the applicant constituted an interference with its freedom of expression and that this interference was in accordance with the law and pursued the legitimate aim of protecting the plaintiffs' reputation. It remains to be determined whether this interference was “necessary in a democratic society”. 40. The Court reiterates that its task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I, and Egeland and Hanseid v. Norway, no.", "34438/04, § 50, 16 April 2009). 41. In examining the particular circumstances of the case, the Court will take the following elements into account: the position of the applicant, the position of the plaintiffs who instituted the defamation proceedings, and the subject matter of the debate before the domestic courts (see, mutatis mutandis, Jerusalem, cited above, § 35). 42. As regards the applicant's position, the Court observes that the applicant was sued in its capacity as the editorial board of the newspaper.", "In that connection it points out that the most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298). 43. Turning to the respective positions of the plaintiffs who brought civil proceedings against the applicant, the Court notes the following. 44.", "Mr S. was the elected mayor of Novovoronezh. The Court reiterates that a politician acting in his public capacity inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large (see, among other authorities, Colombani and Others v. France, no. 51279/99, § 56, ECHR 2002‑V). 45. Mr B. and Mr P. were civil servants employed by the municipal authorities.", "The Court notes that civil servants acting in an official capacity are, similarly to politicians albeit not to the same extent, subject to wider limits of acceptable criticism than a private individual (see, mutatis mutandis, Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999-I). 46. Mr F., for his part, was a contractor performing renovation work in State-funded institutions and thus a recipient of public funds. The Court points out that private individuals lay themselves open to scrutiny when they enter the public arena and considers that the issue of the proper use of public funds is undoubtedly a matter for open public discussion.", "47. The Court accordingly concludes that all four plaintiffs being to a certain extent exposed to public scrutiny as regards their professional activities ought to have shown a greater degree of tolerance to criticism in a public debate on a matter of general interest than a private individual (see, mutatis mutandis, Lingens, cited above, § 42). 48. Turning to the subject matter of the debate before the domestic courts, the Court notes that the impugned article mainly contained information about the management of public funds by the mayor and the civil servants (see paragraph 6 above). This was indisputably a matter of general interest to the local community which the applicant was entitled to bring to the public's attention and which the local population were entitled to receive information about (see, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC], no.", "33348/96, §§ 94 – 95, ECHR 2004‑XI). The Court reiterates in this respect that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Feldek v. Slovakia, no. 29032/95, § 74, ECHR 2001‑VIII). 49. The Court will further consider the newspaper article as a whole and have particular regard to the words used in its disputed parts and the context in which they were published, as well as the manner in which it was prepared (see Sürek v. Turkey (no.", "1) [GC], no. 26682/95, § 62, ECHR 1999-IV, and Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 90, ECHR 2007‑III). 50. The Court points out at the outset that the impugned assertion concerning Mr S.'s alleged discontinued membership of the Communist Party (paragraph 23 of the article) was a factual statement, not a value judgment.", "However, it is not persuaded that such a statement could be capable of damaging Mr S.'s reputation given that neither adherence to the Communist Party nor resigning from it constituted an offence under Russian law at the material time. 51. The Court further considers that the remainder of the impugned statements mostly reflected the journalist's perception of the situation concerning the distribution of the town's off-budget funds. Certain expressions used by Mr E.P. could be considered harsh and provocative, but not to the extent of overstepping the permissible degree of exaggeration.", "The purpose of publishing the article was to call for closer public and independent control over the spending of off-budget funds in order to prevent or stop possible corrupt practices by the local officials. The Court considers therefore that the impugned statements in the present case reflected comments on matters of public interest and are thus to be regarded as value judgments rather than statements of fact. 52. However, in the present case the domestic courts considered all the contested extracts to have been statements of fact, without examining whether they could be considered to be value judgments (see paragraphs 12 and 20 above). Their failure to embark on that analysis was accounted for by the position of the Russian law on defamation at the material time, which, as the Court has already found, made no distinction between value judgments and statements of fact, referring uniformly to “statements” («сведения»), and proceeded from the assumption that any such “statement” was amenable to proof in civil proceedings (see Grinberg v. Russia, no.", "23472/03, § 29, 21 July 2005, and Zakharov v. Russia, no. 14881/03, § 29, 5 October 2006). 53. The Court also reiterates that, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see De Haes and Gijsels, cited above, § 47, and Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV).", "54. In the present case Mr E.P. relied on the audit report issued by a governmental agency (see paragraph 5 above). In the Court's view the fact that the journalist had no access to the original or a certified copy of the report does not deprive the text in his possession of its informative value (see Bladet Tromsø and Stensaas, cited above, § 68). It follows that the report in question may have contained prima facie evidence that the value judgment expressed in the article published by the applicant was fair comment (see Jerusalem, cited above, § 45).", "55. The Court points out that the domestic courts refused to take any steps to obtain an original or a certified copy of either the audit or the stadium reports. Moreover, it is struck by the fact that neither the trial nor the appeal courts tried to assess whether the information presented in the article had any factual basis, or even mentioned that Mr E.P. had referred to two official documents to support his allegations. 56.", "It is impossible to state what the outcome of the proceedings would have been had the trial court taken steps to obtain the evidence which the applicant sought to adduce; but the Court attaches decisive importance to the fact that it refused to obtain such evidence, judging it irrelevant (see, mutatis mutandis, Castells v. Spain, 23 April 1992, § 48, Series A no. 236). It considers that, in requiring the applicant to prove the truth of the statements made in the article while at the same time depriving it of an effective opportunity to adduce evidence to support those statements and thereby show that they constituted fair comment, the domestic courts overstepped their margin of appreciation (see Jerusalem, cited above, § 46). 57. The Government argued that the information contained in the disputed article had in fact suggested that the plaintiffs had committed crimes and there was thus a pressing social need to protect the plaintiffs and to prevent the careless use of such serious allegations.", "The Court can accept this argument in principle as it has repeatedly attached particular importance to the duties and responsibilities of those who avail themselves of their right to freedom of expression, and in particular, of journalists (see Jersild, cited above, § 31, and Prager and Oberschlick, cited above, § 37). However, in the circumstances of the present case the Court finds no indication of such deliberate carelessness on the part of the applicant. It rather appears that Mr E.P. 's statements did not constitute a gratuitous personal attack as they were made in a particular political situation in which they contributed to a discussion on a subject of general interest such as the use made of budgetary funds (see, mutatis mutandis, Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, § 43, ECHR 2002‑I).", "58. It is noteworthy in this connection that the district court adopted an unusually high standard of proof and determined that, as the criminal proceedings in connection with financial irregularities were not pursued, the information provided in the impugned article lacked a sufficient factual basis (see paragraph 17 above). The Court reiterates in this respect that the degree of precision for establishing the well-foundedness of a criminal charge by a competent court can hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, in particular when expressing his opinion in the form of a value judgment (see Unabhängige Initiative Informationsvielfalt, cited above, § 46). The standards applied when assessing a public official's activities in terms of morality are different from those required for establishing an offence under criminal law (see Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 43, ECHR 2003‑XI).", "Therefore, the Court is reluctant to follow the logic implied in the district court's reasoning that in the absence of criminal prosecution of the plaintiffs no media could have published an article linking them to instances of alleged misuse of public funds without running the risk of being successfully sued for defamation. 59. In conclusion, the Court finds that the standards applied by the Russian courts were not compatible with the principles embodied in Article 10 and that the courts did not adduce “sufficient” reasons to justify the interference in issue, namely the imposition of a fine on the applicant for having published the impugned article. Therefore, having regard to the fact that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Sürek, cited above, § 61, and Guja v. Moldova [GC], no. 14277/04, § 74, ECHR 2008‑...), the Court finds that the domestic courts overstepped the narrow margin of appreciation afforded to Member States, and that the interference was disproportionate to the aim pursued and was thus not “necessary in a democratic society”.", "60. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 62. In its just satisfaction claims of 16 November 2005 the applicant claimed 882 euros (EUR) in respect of pecuniary damage – the equivalent of the sum in Russian roubles that it had paid to the plaintiffs plus inflation. It provided a copy of the bank transfer order to the bailiffs' service dated 20 June 2003 for the amount of 25,000 Russian roubles (RUB) (the equivalent of EUR 866 at the official exchange rate established by the Central Bank of Russia on 16 November 2005). 63. The Government stated that there was no evidence that the applicant had actually paid the sum in question.", "64. The Court points out that the applicant provided documentary evidence that it had in fact paid the judicial award and awards the applicant EUR 866 in respect of pecuniary damage. The applicant did not present other claims. B. Default interest 65.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 866 (eight hundred and sixty-six euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF DZHABAYEVA v. RUSSIA (Application no. 13310/04) JUDGMENT STRASBOURG 2 April 2009 FINAL 14/09/2009 This judgment may be subject to editorial revision. In the case of Dzhabayeva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 12 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13310/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Salimat Vakhayevna Dzhabayeva (“the applicant”), on 24 February 2004.", "2. The applicant, who had been granted legal aid, was represented by Ms L. Khamzayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights. 3. On 2 May 2007 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4. On 12 March 2009 the Court dismissed the Government’s objection concerning the application of Article 29 § 3 of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1954 and lives in Urus-Martan. 6. The applicant’s husband, Mr Magomed Uvaysovich Dzhabayev, was born in 1953. They resided together with their three children born in 1985, 1987 and 1994 at 50 Tobolskaya Street in Grozny (Грозный, ул. Тобольская, д.", "50). However, on an unspecified date in 1999 the applicant with her three children temporarily moved to the neighbouring republic of Ingushetia where they stayed in the town of Karabulak in a camp for migrants from Chechnya. A. Apprehension and subsequent disappearance of Mr Magomed Dzhabayev 1. The applicant’s account 7.", "In her application form the applicant submitted that on 10 March 2000 Mr Dzhabayev had been apprehended by officers of the Oktyabrskiy Temporary Office of the Interior (VOVD) in the yard of his house at 50 Tobolskaya Street in Grozny. Subsequently he had been taken to the Oktyabrskiy VOVD, after which he was never seen again. 8. At the same time the applicant enclosed a copy of her application to the Chairman of the National Public Commission for Investigation of Offences and Protection of Human Rights in the North Caucasus of 25 August 2000 where she provided a detailed account of the circumstances of her husband’s alleged detention and contended that he had been apprehended while queuing at a centre of distribution of foodstuffs. The application read as follows: “I ... ask you for help in searching for my husband, the father of my children, Magomed Uvaysovich Dzhabayev, born in 1953, a resident of Grozny.", "During the attack at Grozny and the military campaign my husband... stayed at home in Grozny at the address Oktyabrskiy district, Tobolskaya Street, 50, Apt. 1 (Okruzhnaya District). I saw him for the last time on 2 March 2000. He passed all the checks by the federal [forces] and was entitled to receive foodstuffs at the centre located at Saykhanova Street. On 10 March 2000 at 10 a.m. my husband ... went to the centre to receive foodstuffs, and there he saw [officers of federal forces] bullying a man.", "He came towards them, showed his passport and asked, what the man had done wrong. Having checked his papers, [the officers of federal forces] grabbed my husband and threatened him with execution. A woman who was also queuing at the centre rushed to their help, but [the officers of federal forces] threatened to execute her as well. After that [the officers of federal forces] took my husband and the other man, [Mr T.], born in 1951 and handicapped. They took them to a destroyed house and started bullying them.", "They put machine guns on their necks, put glasses on them and took photos. [The officers] told them to stand like rebel fighters. Then they called somebody by portable radio transmitter and said that ... they were bringing two more [men]. After that they placed sacks on the head of my husband and [Mr T.] and started to beat and kick them..., they beat their heads against an armoured personnel-carrier and when they lost consciousness put them in [a military car] and drove to an unknown destination. According to a witness, they were officers of the Moskovskiy SOBR [Special Fast Deployment Team] together with officers of the Oktyabrskiy ROVD [District Department of the Interior].", "I have witnesses to confirm these facts. At the time I was not at home, I was in Ingushetia together with the children. On 11 March 2000 [Ms H.A. ], the wife of [Mr T.] applied to the Military Commander’s Office located at the railway hospital asking for assistance in searching for her husband. The Military Commander’s Office ordered that she be taken to her husband.", "[Ms H.A.] was taken to the Oktyabrskiy ROVD, however, [upon arrival] she was told that neither [my husband] nor [Mr T.] were there. Then they arrested [Ms H.A.] and held her at the Oktyabrskiy ROVD until 6 p.m. When [Ms H.A.]", "began to make a fuss and call for the Head [of the ROVD], she heard her husband’s voice from the adjacent room. They were in the Oktyabrskiy ROVD and my husband asked her to tell somebody that he had been taken away. On 11 March 2000 I came to Grozny and asked a relative, an officer of the Special Police Unit, to help with the search. When we checked at the Oktyabrskiy ROVD they told us that [my husband and Mr T.] had been detained as a result of a passport check and had been released shortly afterwards at checkpoint no. 26.", "However, it appeared that checkpoint no. 26 did not exist. At the Oktyabrskiy ROVD my relative was also shown my husband’s explanatory note that later disappeared. I checked all possible places my husband might have been detained, in vain. Since 11 March 2000 my husband... has been a missing person.", "...I ask you to assist in the search for my husband...” 2. The Government’s account 9. The Government submitted that an investigation into the disappearance of Mr Magomed Dzhabayev had been instituted. However, the circumstances in which he had disappeared had not yet been established since there were no eyewitnesses to the events in question. B.", "The search for Mr Magomed Dzhabayev and the investigation 1. Information and documents submitted by the applicant 10. According to the applicant, following her husband’s disappearance she had applied to various State authorities, including the Ministry of the Interior and Prosecutor’s Office of the Chechen Republic, in order to initiate the search. However, the applicant did not enclose copies of her applications apart from the one quoted in paragraph 8 above. 11.", "On an unspecified date the Head of the Oktyabrskiy VOVD provided her with a certificate stating that between 10 and 12 March 2000 Mr Dzhabayev had not been taken to the premises of the VOVD. 12. On 7 November 2000 the Head of the Oktyabrskiy VOVD forwarded the case file concerning the applicant’s application to the Head of the Karabulak Department of the Interior in order to gather information about the time and place of Mr Dzhabayev’s apprehension and the existing witnesses. In the letter he noted that Mr Dzhabayev had not been taken to the Oktyabrskiy VOVD and no records of his detention had been retained. 13.", "On 18 December 2000 the Deputy Prosecutor of Grozny instituted criminal investigation file no. 12365 into abduction of Mr T. on 10 March 2000 by unknown persons dressed in camouflage. 14. On an unspecified date the applicant obtained the following certificate signed by investigator G. of the Grozny Prosecutor’s Office, which was neither on a letterhead nor dated: “On 10 March 2000 officers of the Oktyabrskiy VOVD of Grozny and servicemen of the Federal Forces, during a “sweeping” operation [зачистка], apprehended [Mr T.] and Magomed Uvaysovich Dzhabayev at their homes and took them to an unknown destination. On 27 May 2000 Oktyabrskiy VOVD opened search file no.", "017/00 concerning Magomed Uvaysovich Dzhabayev. On 18 December 2000 the Grozny Prosecutor’s Office instituted criminal investigation no. 12365 into [the abduction]. The whereabouts of the above-mentioned persons have not yet been established.” 15. On 25 June 2001 assistant prosecutor B. of the Grozny Prosecutor’s Office issued the applicant with a certificate stating that on 10 March 2000 unidentified persons in camouflage uniforms had apprehended Mr Magomed Dzhabayev and taken him to an unknown destination.", "The Grozny Prosecutor’s Office instituted a criminal case in connection with the events. 16. On 19 July 2001 the applicant was granted victim status in case no. 12365. 17.", "The applicant provided copies of the documents referred to in paragraphs 11-16 above. 2. Information and documents submitted by the Government 18. The Government submitted the following information on the progress of the investigation. 19.", "On 20 September 2000 the Prosecutor’s Office of the Chechen Republic received the applicant’s application concerning the disappearance of her husband after he had allegedly been apprehended in the Oktyabrskiy district of Grozny on 10 March 2000 and then held at the Oktyabrskiy VOVD until 12 March 2000. 20. On 30 September 2000 the Prosecutor’s Office of the Chechen Republic forwarded the application to the department of the Ministry of the Interior in the Chechen Republic to seek to organise a search for the applicant’s husband. 21. On 4 November 2000 the Grozny Prosecutor’s Office received Ms H.A.’s application, according to which on 10 March 2000 unidentified men dressed in camouflage had apprehended her husband, Mr T., and Mr Magomed Dzhabayev and had taken them to the Oktyabrskiy VOVD.", "At 11 a.m. on 10 March 2000 A.H. had come to the VOVD where she had also been detained and held until late evening. The next day she had come to the VOVD with warm clothes for her husband. However, they had told her that he had been released with Mr Magomed Dzhabayev on 10 March 2000. She had applied to the operative brigade in Mozdok, the military commander of the Oktyabrskiy district of Grozny and the military commander of the Chechen Republic. She had been told that her husband’s name was not on the lists of detained persons.", "22. On 12 December 2000 the applicant applied to the Karabulak Department of the Interior (GOVD) with a request for a search for her husband and Mr T. The application was sent back to the GOVD three times by the Prosecutor’s Office of the Chechen Republic for lack of information required to place the persons concerned on the wanted list. On 12 July 2001 it was finally accepted by the Prosecutor’s Office of the Chechen Republic and enclosed in the investigation file. 23. On 17 December 2000 the Oktyabrskiy VOVD handed the search case in respect of Mr T. over to the Grozny prosecutor.", "24. According to the Government, on 18 December 2000 the Grozny Prosecutor’s Office instituted criminal investigation no. 12365 into the abduction of the applicant’s husband and Mr T. However, from a copy of the decision submitted to the Court it follows that the investigation was instituted only in respect of Mr T. 25. On 30 December 2001 the investigation file was transmitted to the Prosecutor’s Office of the Chechen Republic. 26.", "On 17 January 2001 Ms H.A. was granted victim status and questioned. She submitted that on 10 March 2000 at 10 a.m., when she had gone to the market with her daughter, her husband, Mr T., and their neighbour, Mr Magomed Dzhabayev, had been apprehended by unidentified persons in camouflage uniforms and taken to the Oktyabrskiy VOVD. She had learned of the events from her neighbours. In the morning of 11 March 2000 she had gone to the VOVD together with the applicant and her neighbours.", "In the VOVD she had been told that neither Mr T. nor Mr Magomed Dzhabayev had been held there. On 15 May 2000 her relative residing in Nazran had told her that he had learned from a TV programme that her husband had been held in a remand prison in the village of Chernokozovo. However, officials of the remand prison denied that Mr T. had been held there. 27. On 19 July 2001 the applicant was granted victim status and questioned.", "She submitted that at the end of 1999 she had left for the Republic of Ingushetia. On 11 March 2000 she had learned from her husband’s relatives that he and his neighbour had been apprehended by servicemen and taken to the Oktyabrskiy VOVD. In the evening of 11 March 2000 Mr D., her husband’s relative, after visiting the Oktyabrskiy VOVD, had stated that her husband had been held there and that he had been shown an “explanation” written by Mr Magomed Dzhabayev. The next day Mr D. had again gone to the VOVD where he had been told that Mr Magomed Dzhabayev had been released. Subsequently officers of the VOVD had refused to confirm the information concerning the detention of Mr Magomed Dzhabayev and Mr T. According to Mr T.’s wife, she knew that they had been apprehended by servicemen near the food distribution centre, beaten, put in a UAZ car and taken away.", "Mr H.A. herself and the applicant’s neighbour, Ms Z., had witnessed the events. The next day Mr H.A. had come to the Oktyabrskiy VOVD where she had been placed in a solitary cell. There she had heard her husband’s voice from the adjacent cell.", "Her husband had said that Mr Magomed Dzhabayev was also in the cell. Then Mr H.A. had been released. Ms Z. had moved and the applicant did not know her whereabouts. 28.", "In the course of the investigation it appeared impossible to identify Ms Z. and to establish her whereabouts in order to carry out investigative measures with her participation. 29. On 22 July 2001 the investigating authorities sent a request for information to the remand prison in Chernokozovo. According to the response, neither Mr T. nor Mr Magomed Dzhabayev had been held there. 30.", "On the same date the investigating authorities sent a request for information to the Oktyabrskiy VOVD concerning passport checks possibly conducted on 10 March 2000 in Tobolskaya street in Grozny. According to the response, no passport checks had been conducted. The whereabouts of Mr T. and Mr Magomed Dzhabayev were not established. 31. On 28 July 2001 the head of the Oktyabrskiy VOVD stated that Mr Magomed Dzhabayev had not been brought to the VOVD between 10 and 12 March 2000.", "32. On 3 August 2001 the investigating authorities questioned Mr D., who submitted that he held the post of deputy head of the special police unit (OMON) in the Chechen Republic. On 12 March 2000 he had come to the Oktyabrskiy VOVD where he had met high-ranking officers of the VOVD whose names he could not recall. They had shown him an “explanation” by Mr Magomed Dzhabayev and stated that Mr T. and Mr Magomed Dzhabayev had been released on 11 March 2000. On the fourth day after Mr Magomed Dzhabayev’s detention he had again come to the VOVD.", "He had not found the names of Mr Magomed Dzhabayev and Mr T. in the VOVD register. At the same time he had been told that Mr Magomed Dzhabayev’s “explanation” had been lost. 33. On 10 August 2001 a request to conduct operational-search measures aimed at identification of persons involved in the offence were sent to the Oktyabrskiy VOVD and the Oktyabrskiy District Department of the Interior (ROVD). According to the response, measures were being taken.", "34. On 26 December 2001 a request was sent to the military commander of the Oktyabrskiy District of Grozny to provide information on Khanty-Mansiysk police officers deployed in Grozny in 2000-2001. A similar request was sent to the Oktyabrskiy VOVD. 35. On 30 December 2001 and 4 January 2002 instructions were sent to the prosecutor of the Khanty-Mansiysk district and the head of the Khanty-Mansiysk police to seize documents relating to the Khanty-Mansiysk police officers commissioned to Grozny in 2000-2001.", "36. In January 2002 the investigating authorities questioned Mr Sadykov (Sadykov v. Russia, application no. 41840/02) and Mr K., who during a certain period in spring 2000 were held in one cell in the Oktyabrskiy VOVD. 37. On 8 and 21 January 2002 Mr Sadykov was questioned.", "He submitted that from 5 March to 24 May 2000 he had been held in the temporary detention centre of the Oktyabrskiy VOVD. On 10 March 2000 two men had been placed in the adjacent cell. At 9 or 10 p.m. on that date a woman had been placed in his cell. She had introduced herself as Ms H.A. and had stated that she had come to inquire after her husband, Mr T. She had stayed in the cell for three or four hours.", "She had talked to her husband through the wall. He had asked her to bring warm clothes and to look after their daughter. On 11 March 2000 police officers had entered the adjacent cell and started beating the detainees. In the morning of 12 March 2000 Mr Sadykov had been taken out of his cell. When he returned there was nobody in the adjacent cell.", "38. On 21 January 2002 Mr K. was questioned. He submitted that from 10 March to 8 May 2000 he had been held in the temporary detention centre of the Oktyabrskiy VOVD. On 10 March 2000 two men had been placed in the adjacent cell. It was forbidden to talk to them.", "They [he and Mr Sadykov] had not found out their names. On the same date a woman had been placed in their cell. She had come to the VOVD to hand over her husband’s documents. She had not said anything about herself, apart from that she lived in the village of Okruzhnoy in the Oktyabrskiy district. A man had called her from the adjacent cell and they had realised that it was her husband.", "Then the woman had been released. On 11 March 2000 police officers had entered the adjacent cell and had started beating the detainees. When the police officers left they had heard moaning from the cell. In the morning of the next day he and Mr Sadykov had been taken out of their cell. In some five hours they had been placed in the cell where the two men had been previously held.", "However, they had been no longer there. 39. On 30 January 2002 the applicant was questioned. She confirmed her previous statement. 40.", "On the same date Ms H.A. was questioned. She submitted that on 10 March 2000 at 5.30 p.m. she had returned home and had learned that her husband, Mr T., had been apprehended by officers of the Oktyabrskiy VOVD dressed in camouflage uniform and masks. Mr Magomed Dzhabayev had been apprehended with him. She had gone immediately to the Oktyabrskiy VOVD where they had told her to come tomorrow.", "On 11 March 2002 she had gone again to the VOVD. They had let her in and then had placed her in a cell with two men. She had shouted to the officer on duty to let her out when she had heard her husband’s voice from the adjacent cell where he had been held with Mr Magomed Dzhabayev. After approximately eight hours she had been released and had returned home. On 12 March 2002 she had been told at the VOVD that her husband had also been released.", "She did not state who had given her this information. 41. On 9 August 2002 the investigating authorities instructed the deputy prosecutor of the Khanty-Mansiysk District to question fifteen officers of the Khanty-Mansiysk police. Nine officers questioned submitted that the names of Mr Magomed Dzhabayev and Mr T. were unfamiliar to them. 42.", "On 18 November 2002 requests for information were sent to Departments of the Interior in the North-Caucasus Region. According to the replies, Mr Magomed Dzhabayev had not been charged with any criminal offences. 43. On 25 November 2002 a request to question and seize photographs of four officers of the Khanty-Mansiysk police was sent to the prosecutor of the Khanty-Mansiysk District. 44.", "On 16 January 2003 requests were sent to the prison authorities of the North Caucasus Region to inform whether Mr Magomed Dzhabayev and Mr T. had been held in custody. The replies were negative. 45. On 27 January 2003 a similar request was sent to the remand prison of the Federal Security Service (FSB) department in the Krasnodar Region and the penitentiary authority in the Stavropol Region. The replies were negative.", "46. On the same date a request to establish the place of residence of Mr Magomed Dzhabayev’s parents in Urus-Martan and to seize his photograph was sent to the prosecutor of the Urus-Martan District. 47. On 12 February 2002 M., an officer of the Khanty-Mansiysk police, was questioned. He submitted that since February to May 2000 he served as a doctor at the Oktyabrskiy VOVD, where he provided medical service to residents and persons placed in the temporary detention centre.", "He could not remember whether he had provided medical aid to Mr Magomed Dzhabayev and Mr T. or whether they had been held at the detention centre. Mr D. had not applied with questions in respect of their whereabouts or any medical aid provided to them. M. did not know him. 48. From March to May 2003 a number of officers of the Khanty-Mansiysk police were questioned and Mr Magomed Dzhabayev’s photograph was shown to them for identification.", "All officers questioned stated that the names of Mr Magomed Dzhabayev and Mr T. were unfamiliar to them and that they did not recognise Mr Magomed Dzhabayev. The Government did not disclose the names of the officers and designated them by capital letters. Since some letters were similar, it is not clear whether they referred to the same person or different persons. Likewise, it is unclear why their statements could have been relevant. They might have served at the Oktyabrskiy VOVD at the relevant time, however, no precise information has been provided in this respect.", "49. On unspecified dates photographs of all officers of the Khanty-Mansiysk police commissioned to the Chechen Republic at the relevant time were seized. 50. On 21 February 2007 Mr Sadykov was again questioned. He submitted that in the morning of 10 March 2000, when he had been held at the temporary detention centre of the Oktyabrskiy VOVD, two men had been placed in the adjacent cell.", "One of them had been wearing a dark coat and the other a dark anorak. On 11 March 2000 at approximately 10 a.m. a woman was placed in the cell where he had been held with Mr K. The woman had said that she had been detained for having a document with the symbol of illegal armed groups. She had been held in the cell for about four hours. From the conversation between the woman and the man in the dark coat which they had had through the cell’s wall Mr Sadykov had understood that they were spouses. The man had asked her why she had come.", "Then the woman had been released. Later Mr Sadykov met her at the Prosecutor’s Office of the Chechen Republic where she came in connection with her husband’s disappearance. On 11 March 2000 at approximately 11 p.m. to 12 midnight two men had entered Mr Sadykov’s and Mr K.’s cell and had started beating Mr Sadykov Then they had left, after which Mr Sadykov and Mr K. had heard screaming, moaning and swearing from the adjacent cell. The next morning, on 12 March 2000, he and Mr K. had been taken out of their cell and taken to an adjacent building of the VOVD for approximately six hours. 51.", "According to the Government, the investigation was repeatedly suspended and resumed due to the necessity to carry out additional investigative measures. C. Proceedings before domestic courts 1. Proceedings to declare Mr Magomed Dzhabayev a missing person 52. On 18 April 2002 the Oktyabrskiy District Court of Grozny examined the applicant’s application and declared Mr Magomed Dzhabayev a missing person. The court stated, in particular: “The fact that Mr Dzhabayev has been missing from his place of residence for more than a year is corroborated by the evidence in the case.", "In particular, [the applicant’s] neighbours [Ms Sh.] and [Ms I.] have stated that they have not seen [Mr Magomed Dzhabayev] at his place of residence since March 2000 and have no information concerning his whereabouts. However, on 10 March 2000 at around 10 a.m. they saw, in the street not far from their place of residence, Russian servicemen apprehending [Mr Magomed Dzhabayev] without giving any explanations. According to the certificate of 25 June 2001 of the Grozny Prosecutor’s Office, on 10 March 2000 [Mr Magomed Dzhabayev] had been apprehended and taken to an unknown destination by unidentified persons in camouflage uniform and a criminal case was opened in connection with the events.", "From a certificate [issued by] an investigator of the Grozny Prosecutor’s Office it follows that on 27 May 2000 the Oktyabskiy VOVD opened [a search file] no. 017/00 in connection with [Mr Magomed Dzhabayev’s] apprehension. The court has no reason to doubt the credibility of the witnesses’ account of the facts.” 2. Proceedings for compensation of non-pecuniary damage 53. On an unspecified date the applicant made a claim against the Ministry of Finance for compensation for non-pecuniary damage caused by the abduction of her husband by servicemen of the Russian Armed Forces.", "54. On 7 February 2003 the Basmanniy District Court of Moscow refused to accept the claim for examination on account of lack of jurisdiction. The court noted that damage had been caused to the applicant by actions of servicemen and officers of the Office of the Interior located in Chechnya. Since under Article 28 of the Code of Civil Procedure a claim for damages should be brought before a court having territorial jurisdiction at the wrongdoer’s location, the claim should be brought before a competent court in the Chechen Republic. The applicant appealed.", "55. On 12 August 2003 the Moscow City Court quashed the ruling of 7 February 2003 and remitted the claim for a fresh examination. The court noted that the claim had been lodged against the Ministry of Finance, and under Articles 1069, 1070, 1071 of the Civil Code damage caused by unlawful actions of State authorities should be compensated at the expense of the State treasury represented by respective financial authorities. 56. On 29 August 2003 the Basmanniy District Court of Moscow stayed the proceedings concerning the applicant’s claim, because she had not paid the court fees.", "It ordered the applicant to pay the fees by 1 October 2003. The applicant lodged a complaint against the ruling, stating that the court should have exempted her from paying the fees due to the nature of her claim. 57. On 6 April 2004 the Moscow City Court upheld the ruling. The court held that Article 89 of the Code of Civil Procedure provided for exemption from court fees in respect of claims for pecuniary damage caused by an offence, whereas the applicant had claimed in respect of non-pecuniary damage.", "58. On 8 April 2004 the Basmanniy District Court of Moscow dismissed the applicant’s claim for damages. The court noted that, according to a certificate of an investigator of the Grozny Prosecutor’s Office, enclosed in the case file, on 10 March 2000 officers of the Oktyabrskiy VOVD and servicemen of the federal forces, in the course of the counter-terrorist operation in the Chechen Republic, had apprehended Mr Magomed Dzhabayev at his home and taken him to an unknown destination. At the same time on 18 April 2002 the Oktyabrskiy District Court of Grozny established that Mr Magomed Dzhabayev had been apprehended by unidentified persons in camouflage uniform and an investigation was pending into these events. The court found that from the materials available it did not follow that there was any connection between the disappearance of Mr Magomed Dzhabayev and any allegedly unlawful actions by the State authorities.", "D. The Court’s request for the investigation file 59. Despite a specific request by the Court, the Government did not submit a copy of the investigation file into Mr Magomed Dzhabayev’s disappearance. They submitted twenty pages of case file materials containing decisions to institute, suspend and resume the investigation. Ten of the twenty pages are unreadable due to the poor quality of the copies. The Government also submitted nine pages containing copies of court decisions in respect of the applicant’s claims.", "They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses or other participants in the criminal proceedings. II. RELEVANT DOMESTIC LAW 60. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, § 67-69, 10 May 2007).", "THE LAW I. The government’s objection regarding non-exhaustion of domestic remedies A. The parties’ submissions 61. The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of Mr Magomed Dzhabayev had not yet been completed.", "62. The applicant contested that objection. She stated that the criminal investigation had proved to be ineffective and that their complaints to that effect, including the application to the court, had been futile. B. The Court’s assessment 63.", "The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006). 64. The Court observes that the applicant complained to the law enforcement authorities after the abduction of her husband and that the criminal proceedings have been pending since 18 December 2000. The applicant and the Government dispute the effectiveness of the investigation into the complaint.", "65. The Court considers that the Government’s objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicant’s complaint. Thus, it considers that the objection should be joined to the merits of the complaint and falls to be examined below under the substantive provisions of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 66.", "The applicant complained under Article 2 of the Convention that her husband had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.", "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Arguments of the parties 67. The Government argued that the complaint was unfounded. They referred to the fact that the investigation had obtained no evidence to the effect that this person was dead, or that representatives of the federal forces had been involved in his abduction or alleged killing. 68.", "They noted in this regard a number of inconsistencies in the applicant’s submissions and submissions of witnesses questioned by the investigation and the absence of eyewitnesses to the events. In particular, the applicant, who had been in Ingushetia at the time of the events, at a certain point alleged that she had learned of her husband’s abduction from Ms H.A., who had witnessed it. However, Ms H.A. submitted to the investigation that she had not witnessed the events but had learned about them from her neighbours. The applicant then submitted that her neighbour Ms Z. had witnessed the events.", "However, Ms Z. has since changed her place of residence and the applicant provided no information apart from her first name, which made it impossible to find her. The submissions of Mr D., Mr Magomed Dzhabayev’s relative, who had allegedly been told that Mr T. and Mr Magomed Dzhabayev had been held at the Oktyabrskiy VOVD and had been shown an “explanation” by the latter should be given no credit at all. Firstly, he provided no details as to who had given him such information and had shown the “explanation”. Furthermore, being a police officer himself, he should have filed an official report concerning his relative’s allegedly unlawful detention, which he had not done. Finally, the Government pointed out that submissions of Ms H.A., Mr Sadykov and Mr K. were inconsistent as to the exact date, 10 or 11 March 2000, and the time of day when Ms H.A.", "had been placed in the Oktyabrskiy VOVD and had allegedly talked to her husband, Mr T., in the adjacent cell. 69. The Government also contested the authenticity of the certificate signed by investigator G., since it was not issued on a letterhead and was undated, thus failing to meet the requirements for official documents. Furthermore, its content did not correspond to the findings of the investigation. Likewise, the Government contested the validity of the certificate of 25 June 2001 issued by assistant prosecutor B. of the Grozny Prosecutor’s Office.", "According to them, its content did not correspond to the findings of the investigation either and furthermore assistant prosecutor B. was not involved in the investigation. 70. The Government also claimed that the investigation of the disappearance of the applicant’s husband met the Convention requirement of effectiveness, as evidenced by the questioning of witnesses and requests sent by the investigating authorities to other State agencies. They also pointed out that the delay in institution of the investigation was attributable to the applicant, since it took her several months to inform the competent authorities of her husband’s abduction. 71.", "The applicant maintained her complaint and contended that statements of witnesses questioned in the course of the investigation corroborated the fact that her husband together with Mr T. had been detained in the Oktyabskiy VOVD. The absence of any traces of them strongly suggests that they were killed there. She further argued that the investigation had not met the requirements of effectiveness and adequacy required by the Court’s case-law on Article 2. She submitted that she could not have notified the competent authorities of the events sooner, since as she had been living in Ingushetia at the relevant time and had had difficulties in contacting authorities in the Chechen Republic. B.", "The Court’s assessment 1. Admissibility 72. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 65 above). The complaint under Article 2 of the Convention must therefore be declared admissible.", "2. Merits (a) The alleged violation of the right to life of Mr Magomed Dzhabayev i. General principles 73. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no.", "25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999‑IV).", "ii. Establishment of the facts 74. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no.", "25). 75. The applicant alleged that on 10 March 2002 her husband, Mr Magomed Dzhabayev, had been apprehended by Russian servicemen and then disappeared. She was not an eyewitness to the events since at the relevant time she was living in Ingushetia. The applicant submitted no witness statements either.", "She enclosed copies of two certificates of the Grozny Prosecutor’s Office to the effect that her husband had been abducted on 10 March 2002. The applicant also submitted a copy of the decision of the Oktyabrskiy District Court of Grozny of 18 April 2002 which referred to statements of two witnesses corroborating that her husband had been apprehended by Russian servicemen on 10 March 2000. 76. The Government denied that servicemen had been involved in the abduction of Mr Magomed Dzhabayev. They referred to the absence of conclusions from the ongoing investigation and the inconsistencies in the applicant’s and other witnesses’ statements.", "They also contested the validity of the certificates submitted by the applicant. 77. The Court observes that the applicant’s submissions are indeed inconsistent. In her application form she stated that her husband had been apprehended in the yard of his house. However, at the same time she enclosed a copy of her application to the Chairman of the National Public Commission for Investigation of Offences and Protection of Human Rights in the North Caucasus of 25 August 2000 where she stated that her husband had been apprehended while queuing for foodstuffs.", "Furthermore, not being an eyewitness of the events herself, she failed to provide any coherent explanation as to from whom exactly and in what circumstances she had learned about her husband’s alleged abduction. Moreover, the applicant provided no evidence to support her allegation that, when Ms H.A. had come to the Oktyabskiy VOVD to search for her husband, Mr T., it had been Mr Magomed Dzhabayev and not somebody else held in the same cell as Mr T. 78. As regards the Government’s submissions, the Court notes in the first place that despite its repeated requests for a copy of the investigation file into the abduction of Mr Magomed Dzhabayev, apart from twenty pages of copies of procedural decisions, of which ten are unreadable, the Government have produced no documents from the case file, relying on Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no.", "7615/02, § 123, ECHR 2006‑... (extracts)). 79. In view of the Government’s failure to provide any documents corroborating their account of the witnesses’ statements made in the course of the investigation, the Court doubts whether any weight would be attached to them for the purposes of establishment of the facts. However, even proceeding from the assumption of the accuracy of the Government’s account, the Court observes, firstly, that none of the persons questioned had been eyewitnesses to the alleged abduction of Mr Magomed Dzhabayev. Secondly, Mr D.’s submissions were too vague to be regarded as credible evidence.", "Thirdly, no witnesses made statements from which it would unequivocally follow that the other man held in the same cell as Mr T., Ms H.A.’s husband, was Mr Magomed Dzhabayev. In view of the latter the Court does not find it necessary to address the Government’s submissions concerning the inconsistencies in Ms H.A.’s, Mr Sadykov’s and Mr K.’s statements. 80. As regards the certificates adduced by the applicant, the Court finds no reason to doubt the authenticity of the certificate of 25 June 2001. As regards the undated certificate issued by investigator G. (see paragraph 14 above), the Court notes that, although it is not issued on a letterhead, it bears the stamp of the Grozny Prosecutor’s Office.", "Furthermore, it is not alleged that investigator G. lacked the authority to issue such a certificate and it appears that the Oktyabrskiy District Court of Grozny in its decision of 18 April 2002 and the Basmanniy District Court of Moscow in its decision of 8 April 2004 relied on this certificate among other evidence. Accordingly, the Court finds no reason to doubt that the information set out in the certificate reflected interim findings of the investigation. 81. The Court further observes that in its decision of 18 April 2002 to declare Mr Magomed Dzhabayev a missing person the Oktyabrskiy District Court of Grozny relied, apart from the certificates of the Grozny Prosecutor’s Office discussed above, on witnesses’ statements. In particular, the district court noted that Ms Sh.", "and Ms I., the applicant’s neighbours, stated that they had seen Mr Magomed Dzhabayev being apprehended by Russian servicemen on 10 March 2000 at around 10 a.m. The district court further found that it had no reasons to doubt the credibility of the witnesses’ account of the facts. 82. The Court observes that witnesses Ms Sh. and Ms I. were not mentioned in the Government’s account of the investigation.", "There is no evidence that they were questioned or that any efforts were made in that respect by the investigative authorities. Taking into account that after over eight years the domestic investigation has produced no tangible results and since the Court has not been provided with any evidence that would enable it to depart from the findings of the domestic court in this respect, the Court finds it established that Mr Magomed Dzhabayev was apprehended by servicemen on 10 March 2000 in Grozny. 83. The Court further notes that there has been no reliable news of Mr Magomed Dzhabayev since that date. His name has not been found in the official records of any detention facilities.", "The Court finds that the applicant’s allegations that after his apprehension he was held in the Oktyabskiy VOVD are not corroborated by any credible evidence. At the same time it notes that the Government did not submit any explanation as to what had happened to him after he was apprehended. 84. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑... (extracts)), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening.", "The absence of Mr Magomed Dzhabayev or any news of him for over eight years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Mr Magomed Dzhabayev’s disappearance and the official investigation into his abduction, which has gone on for over eight years, has produced no tangible results. 85. Accordingly, the Court finds it established that on 10 March 2000 Mr Magomed Dzhabayev was apprehended by State servicemen and that he must be presumed dead following his unacknowledged detention. iii.", "The State’s compliance with Article 2 86. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147, and Avşar v. Turkey, no.", "25657/94, § 391, ECHR 2001‑VII (extracts)). 87. The Court has already found that the applicant’s husband must be presumed dead following unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, or otherwise accounting for his death, it follows that responsibility for his presumed death is attributable to the respondent Government. 88.", "Accordingly, the Court finds that there has been a violation of Article 2 in respect of Mr Magomed Dzhabayev. (b) The alleged inadequacy of the investigation into the abduction 89. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, § 86, Reports of Judgments and Decisions1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no.", "24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002). 90. The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.", "91. Turning to the facts of the present case, the Court notes that it has inconsistent information as to when the authorities were notified of the offence by the applicant and when they took the first steps in this connection. According to the Government, the Prosecutor’s Office of the Chechen Republic was first notified of the events by the application received on 20 September 2000, following which certain steps were taken to organize the search for Mr Magomed Dzhabayev. A criminal investigation was opened on 18 December 2000. However, from the decision to institute the investigation it follows that it concerned only the disappearance of Mr T. It appears that the episode concerning the disappearance of Mr Magomed Dzhabayev was joined to the proceedings later, but before 19 July 2001, when the applicant was granted victim status.", "According to the applicant, she could not have notified the authorities sooner because at the relevant time she was living in Ingushetia and contacting authorities in Chechnya was difficult. At the same time from the materials of the case it follows that on 27 May 2000 the Oktyabskiy VOVD opened a search file in respect of Mr Magomed Dzhabayev. 92. The Court observes in this regard that although the applicant was living in Ingushetia at the relevant time, it was open to her to contact the prosecuting authorities in the Chechen Republic by post or to submit the information via competent authorities in Ingushetia, which she appears to have done eventually (see paragraphs 12 and 19 above). Accordingly, the Court considers that the delay in taking promptly the initial steps aimed at establishing the whereabouts of her husband is attributable to the applicant.", "At the same time it notes that a criminal investigation into Mr Magomed Dzhabayev’s disappearance was instituted several months after the prosecuting authorities had been notified of the events. The Government has provided no explanation for this delay. 93. The Court further notes that after the institution of the investigation the authorities questioned a number of witnesses and sent numerous requests to other State bodies. However, a number of investigative actions were significantly delayed.", "In particular, while Ms H.A. was first questioned on 17 January 2001, the applicant was questioned for the first time on 19 July 2001, that is approximately a year after the authorities had been notified of her husband’s abduction. Likewise, the first requests for information were sent in July 2001. Mr D. was questioned in August 2001, Mr Sadykov and Mr K. were first questioned only in January 2002 and several officers of the Khanty-Mansiysk OMON were first questioned in August 2002, whereas Mr Magomed Dzhabayev’s photograph was first produced to them for identification in March-May 2003. 94.", "It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II). 95. Furthermore, certain crucial steps were not taken at all.", "In particular, the Court has no information that any efforts were made to question Ms Sh. and Ms I., whose statements were relied upon by the Oktyabskiy District Court of Grozny in its decision of 18 April 2002. The Court considers it to be a most serious failure, especially in the absence of other eyewitnesses to Mr Magomed Dzhabayev’s abduction. 96. The Court also notes that even though the first applicant was granted victim status, she was only informed of certain decisions to suspend and resume the investigation.", "It appears that she was not informed of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, and to safeguard the interests of the next of kin in the proceedings. 97. Finally, the Court notes that the investigation was adjourned and resumed several times and that there were lengthy periods of inactivity of the district prosecutor’s office when no proceedings were pending, in particular, between May 2003 and February 2007. This manner of conducting the investigation could only be detrimental to the prospects of establishing the fate of the applicant’s husband and ensuring the accountability of those responsible for his abduction.", "98. Having regard to the Government’s preliminary objection that was joined to the merits of the complaint, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for many years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection in this part. 99. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Magomed Dzhabayev, in breach of Article 2 in its procedural aspect.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 100. The applicant relied on Article 3 of the Convention, submitting that as a result of her husband’s disappearance and the State’s failure to investigate it properly, she had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 101.", "The Government submitted that the investigation had not established that the applicant had been subjected to treatment contrary to Article 3 of the Convention. 102. The applicant maintained her complaint. B. The Court’s assessment 1.", "Admissibility 103. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 104. The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan, cited above, § 358, and Imakayeva, cited above, § 164).", "105. In the present case the Court notes that the applicant is the wife of Mr Magomed Dzhabayev. Although the applicant was not an eyewitness to his apprehension and delayed her application to the appropriate authorities in connection with his disappearance, the Court considers that, in the circumstances of the present case, she nevertheless can claim to be a victim of the alleged violation. In particular, she constituted immediate family of the disappeared person. For more than eight years she has not had any news of him.", "During this period she has applied, albeit with an initial delay, to various official bodies with enquiries about her husband, both in writing and in person. Despite her attempts, the applicant has never received any plausible explanation or information as to what became of her husband following his abduction. The responses received by her mostly denied that the State was responsible for his detention or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here. 106.", "In view of the above, the Court finds that the applicant suffered distress and anguish as a result of the disappearance of her husband and her inability to find out what happened to him. The manner in which her complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3. 107. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicant. IV.", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 108. The applicant further stated that Mr Magomed Dzhabayev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.", "3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.", "5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 109. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Mr Magomed Dzhabayev had been deprived of his liberty in breach of the guarantees set out in Article 5 of the Convention. 110.", "The applicant reiterated the complaint. B. The Court’s assessment 1. Admissibility 111. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible. 2. Merits 112. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no.", "25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122). 113. The Court has found it established that Mr Magomed Dzhabayev was apprehended by State servicemen on 10 March 2000 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and no official trace of his subsequent whereabouts or fate exists. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee.", "Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 114. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant’s complaints that her husband had been taken away in life-threatening circumstances and detained. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance. 115.", "In view of the foregoing, the Court finds that Mr Magomed Dzhabayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 116. The applicant complained that she had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 117.", "The Government contended that the applicant had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. 118. The applicant reiterated the complaint. B. The Court’s assessment 1.", "Admissibility 119. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 120. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many other authorities, Halford v. the United Kingdom, judgment of 25 June 1997, § 64, Reports 1997‑III). 121.", "As regards the complaint of a lack of effective remedies in respect of the applicant’ complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005).", "122. In view of the Court’s above findings with regard to Article 2, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The applicant should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13. 123.", "It follows that in circumstances where, as here, the criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention. 124. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. 125. As regards the violation of Article 3 of the Convention found on account of the applicant’s mental suffering as a result of the disappearance of her husband, her inability to find out what had happened to him and the way the authorities had handled her complaints, the Court notes that it has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicant.", "The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention. 126. As regards the applicant’ reference to Article 5 of the Convention, the Court reiterates that, according to its established case-law, the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention as a result of unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 127.", "The applicant alleged that the circumstances of the present case gave rise to a violation of Articles 6, 9, 10 and 12 of the Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4 in respect of her husband, of Article 12 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 in respect of herself and of Articles 1 and 2 of Protocol No.", "1 and Article 2 of Protocol No. 4 in respect of her children. 128. The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols other then those examined above. Accordingly, these complaints must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 129. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 130. The applicant claimed that she had sustained damage in respect of the loss of her husband’s earnings following his apprehension and subsequent disappearance. She claimed a total of 84,000 euros (EUR).", "131. She claimed that Mr Magomed Dzhabayev had been an entrepreneur and earned EUR 1,000 per month. He had been the only breadwinner since the applicant, a housewife, looked after the children. After her husband’s disappearance she was left with three children and no financial support. The applicant did not provide any documents to corroborate the alleged amount of her husband’s earnings.", "132. The Government argued that no compensation for pecuniary damage should be awarded to the applicant since it was not established that her husband was dead. Furthermore, the applicant failed to submit any documents not only corroborating the amount of her husband’s earnings, but even his registration as an entrepreneur. 133. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention.", "Furthermore, under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 134. The Court finds that there is indeed a direct causal link between the violation of Article 2 in respect of the applicant’s husband and the loss by the applicant of the financial support which he could have provided for her. Although the applicant did not furnish any documents to corroborate the amount of her husband’s alleged earnings, the Court finds it reasonable to assume that her husband would eventually have had some earnings and that she would have benefited from them. Having regard to the applicant’s submissions, the Court awards her EUR 5,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Non-pecuniary damage 135. The applicant claimed the following amounts in respect of non-pecuniary damage: EUR 100,000 on account of the violation of Article 2 of the Convention in respect of her husband; EUR 25,000 on account of the suffering she had endured as a result of the loss of her husband, the indifference shown by the authorities towards him and the failure to provide any information about his fate; and EUR 25,000 on account of the violation of Article 5 of the Convention in respect of her husband. 136. The Government found the amounts claimed exaggerated. 137.", "The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant’s husband. The applicant herself has been found to have been a victim of a violation of Article 3 of the Convention. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards to the applicant EUR 35,000, plus any tax that may be chargeable thereon. B.", "Costs and expenses 138. The applicant has made no claim for the compensation of costs and expenses. Accordingly, the Court makes no award under this head. C. Default interest 139. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies and rejects it; 2. Declares the complaints under Articles 2, 3, 5 and 13 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 2 of the Convention in respect of Mr Magomed Dzhabayev; 4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Mr Magomed Dzhabayev had disappeared; 5.", "Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s mental suffering; 6. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Magomed Dzhabayev; 7. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention; 8. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 9. Holds (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of pecuniary damage; (ii) EUR 35,000 (thirty five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren Nielsen Christos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF KASHPRUK v. RUSSIA (Application no. 37894/07) JUDGMENT STRASBOURG 8 December 2015 This judgment is final but it may be subject to editorial revision. In the case of Kashpruk v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 17 November 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37894/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Andreyevich Kashpruk (“the applicant”), on 7 August 2007.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 17 February 2014 the complaints concerning the applicant’s unlawful detention and lack of speedy review of this detention were communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1958 and is detained in Yuzhno‑Sakhalinsk, Sakhalin Region. 5. The applicant was accused of three counts of aggravated sexual assault and one count of being an accessory to traffic safety violation causing death of two or more persons. During the pre-trial investigation against him he was released on an undertaking not to leave his place of residence.", "6. On 4 June 2007 the applicant did not appear at the preliminary hearing scheduled by the Yuzhno-Sakhalinskiy Town Court and the Town Court ordered the applicant’s detention instead of his undertaking not to leave the place of residence. The detention order contained no time-limits. The relevant part of the order read as follows: “The preliminary hearing was scheduled by the court for 29 May 2007... The accused Kashpruk V.A.", "duly notified of the hearing did not appear and submitted to the court a copy of a medical record certifying that he undergoes treatment in the MUZ 4 [a hospital]. In order to verify this information the hearing was adjourned until 31 May 2007. The accused was duly notified of it. However, once again he did not appear for the hearing and on 1 June 2007 informed the court that between 29 May and 7 June 2007 he is undergoing medical treatment and ... cannot participate in the hearings. The preliminary hearing was adjourned until 4 June 2007 and the accused was duly notified of it, however he did not appear without presenting any reasons for his absence.", "According to the certificate provided by the chief physician of the MUZ 4 the accused is indeed undergoing treatment for upper respiratory tract infection [but] his health condition does not prevent his participation in the court hearings. This information is coherent with the written statement of the a judge of the [Town Court], which indicates that Kashpruk took part in a hearing on 29 May 2007, where he acted as a defense counsel for Mr R., ... and the testimony of the justice of the peace... that on 31 May 2007 Kashpruk consulted the administrative case file against Mr L., Mr B., and Mr K. In view of these circumstances the prosecutor submitted a motion for [detention of the applicant]. The defense counsel Mr M., appointed by the court, disagreed... As it had been established in the court hearing Kashpruk is accused of grave offences. [He had been] previously convicted. [His] character references are mostly negative, he is characterized as inclined to violate lawful requirements imposed on him.", "The impossibility to take part in the hearing is disproven by the actions of the accused, who actively takes part in court hearings representing other persons. [The applicant was informed multiple times about an obligation to take part in court hearings and about consequences of the failure to do so] Under these circumstances the failure of the applicant to appear for the scheduled hearings is considered by the court as wilful obstruction to proceedings in the criminal case...” 7. On 6 June 2007 the applicant appealed against the order. 8. On 8 June 2007 he was arrested and remanded in custody.", "9. On 15 June 2007 the applicant’s appeal was sent to the other party. 10. On 19, 20, 21, 22 and 25 June 2007 the applicant complemented his appeal. 11.", "On 20, 21, 25 and 26 June 2007 the Town Court sent the applicant’s additional pleadings to the other party. 12. On 26 June 2007 the Town Court transmitted the case file to the Regional Court. 13. On 28 June 2007 the Regional Court notified the parties about the date of the hearing scheduled for 18 July 2015.", "14. On 2 July 2007 the applicant lodged an application for release which was examined and rejected on 9 July 2007. The Town Court refused to examine the applicant’s arguments concerning the deficiencies of the detention order of 4 June 2007 pending the appeal of the latter. It further rejected as unsubstantiated the applicant’s argument relating to his medical condition. 15.", "On 3, 10 and 12 July the applicant complemented again his appeal. 16. On 5 and 16 July 2007 the applicant’s complementary appeals were sent to the other party. 17. On 18 July 2007, that is one month and eleven days later, the Sakhalin Regional Court quashed the detention order on appeal and released the applicant.", "The Regional Court found that the first-instance court failed to comply with the procedure prescribed by Article 247 of the Code of Criminal Procedure providing that a measure of restraint cannot be modified if no such measure had previously been ordered. 18. On 26 July 2007 the applicant was placed under an undertaking not to leave his place of residence. II. RELEVANT DOMESTIC LAW 19.", "Under Article 247 of the Code of Criminal Procedure, if the accused failed to appear without a valid reason the domestic court can order a coercive measure in his respect, such as bringing to court, application of a measure of restraint, replacement of the previously chosen measure of restraint by a more stringent one. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 20. The applicant complained that his detention between 8 June and 18 July 2007 was unlawful. He relied on Article 5 § 1 of the Convention, which reads as follows: “1.", "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence...” A. Admissibility 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 22. The Government indicated that when quashing the detention order of 4 June 2007 the Regional Court had not retrospectively declared the applicant’s detention under that order unlawful. The deficiency identified was of procedural nature and based on the fact that the previous decisions applying another measure of restraint were not included in the case file. In any event, the Government asserted that under the domestic legislation the first-instance court could have issued a detention order even if another measure of restraint were not previously applied in respect of the applicant.", "In view of the above, the Government considered that the quashing of the detention order of 4 June 2007 did not render the applicant’s detention between 8 June and 18 July 2007 unlawful (see Riccardi v. Romania, no. 3048/04, §§ 53-54, 3 April 2012). 23. The applicant reiterated his complaints. 24.", "The Court finds that there is no need to examine the arguments raised by the Government because the applicant’s detention during the period complained of should in any event be considered as unlawful under the Convention. 25. The Court reiterates that detention pursuant to Article 5 § 1 (c) of the Convention must embody a proportionality requirement (see Ladent v. Poland, no. 11036/03, § 55, 18 March 2008). For example, in the case of Ambruszkiewicz v. Poland (no.", "38797/03, §§ 29-32, 4 May 2006) the Court examined whether the applicant’s placement in custody was strictly necessary to ensure his presence at trial and whether other, less stringent, measures could have been sufficient for that purpose. 26. In the present case the Court observes that before and after the period complained of the applicant was not detained but placed under an undertaking not to leave his place of residence (see paragraphs 5 and 18 above). Even when he failed to appear, he informed the Town Court about the reasons thereof. It results in any event from the decision taken by the Town Court on 4 June 2007 that it was perfectly aware about the applicant’s whereabouts when deciding to remand him in custody (see paragraph 6 above).", "It has never been alleged that the applicant was evading justice or hiding. The Town Court should thus have considered the application of other, less stringent, measure than detention (see Ladent, cited above, § 56). However, it failed to do so. Thus, the Court finds that the detention order imposed on the applicant in these circumstances could not be considered a proportionate measure to achieve the stated aim of securing the proper conduct of criminal proceedings. 27.", "The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s detention between 4 June and 18 July 2007 was unlawful. 28. There has accordingly been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 29.", "The applicant complained that his appeal against the detention order of 4 June 2007 had not been decided “speedily”, as the respective hearing had not taken place until 18 July 2007. He relied on Article 5 § 4 of the Convention which reads as follows: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 30. The Government contested that argument. They considered that there was no delay or procrastination on the part of the authorities, the only delays were attributable to the applicant who complemented his initial appeal seven times.", "In addition, they considered that in assessing whether the domestic courts complied with the requirement of speediness it should be born in mind that the applicant had a possibility to lodge an application for release pending the examination of his appeal and that he effectively used this possibility. 31. The Court reiterates that where an individual’s personal liberty is at stake, it has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention (see Mooren v. Germany, no. 11364/03, § 74, 13 December 2007, and compare, for example, with Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a time-period of seventeen days in deciding on the lawfulness of the applicant’s detention to be excessive, and Mamedova v. Russia, no.", "7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement of Article 5 § 4 of the Convention). 32. In the present case the Court considers that there is no need to examine whether the applicant contributed by his own actions to the length of the appeal proceedings because in any event most of the delay is attributable to the authorities. It first observes that the initial appeal was lodged by the applicant’s representative on 6 June 2007. However, its copy was communicated to the other party only on 15 June 2007 that is nine days later (see paragraph 9 above).", "Further, on 28 June 2007 the Regional Court informed the parties about the hearing scheduled for 18 July 2007 that is twenty days later (see paragraph 13 above). The Government did not provide any justification for these periods of the authorities’ inactivity. 33. Finally, the Court is not convinced by the Government’s argument that the applicant could lodge an application for release pending the examination of his appeal against the detention order of 4 June 2007. It is noted in this respect that while examining the application for release the Town Court refused to address a substantial part of the applicant’s arguments precisely because they were to be examined by the appeal court (see paragraph 14 above).", "Consequently, the delay in the examination of the applicant’s appeal had also adverse consequences on the examination of his application for release. 34. Having regard to the above, the Court considers that the appeal proceedings for the review of the lawfulness of the applicant’s pre-trial detention cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention. There has therefore been a violation of that provision. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. Lastly, the applicant complained under Articles 6 and 13 of the Convention that the criminal proceedings against him had been unfair. 36. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 38. The applicant claimed 868,765 Russian roubles (RUB) in respect of pecuniary damage which corresponded according to him to various losses he sustained in relation to his professional activity.", "He also claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 39. The Government argued that his claims were excessive and unreasonable. They referred in this respect to the case Rakhmonov v. Russia (no. 50031/11, 16 October 2012) in which the applicant was awarded EUR 1,000 for the same combination of violations.", "They also considered that the applicant’s claim of pecuniary damage was unsubstantiated. 40. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,000 in respect of non‑pecuniary damage. B.", "Costs and expenses 41. The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account. C. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the lawfulness and review of the applicant’s detention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention between 8 June and 18 July 2007; 3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of a speedy review of the applicant’s detention as authorised by the court order of 4 June 2007; 4. Holds (a) that the respondent State is to pay the applicant EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 8 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliHelena JäderblomDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF ZAIEŢ v. ROMANIA (Application no. 44958/05) JUDGMENT STRASBOURG 24 March 2015 FINAL 24/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zaieţ v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Luis López Guerra,Ján Šikuta,Dragoljub Popović,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 3 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44958/05) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Parasca Zaieţ (“the applicant”), on 14 October 2005. 2. The applicant, who had been granted legal aid, was represented by Mr M. Ardelean, a lawyer practising in Timisoara. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs. 3.", "Relying on Articles 6 and 8 of the Convention the applicant alleged that her right to respect for her family life had been violated because of the unlawful annulment of her adoption. Under Article 1 of Protocol No. 1 to the Convention the applicant complained that as a direct consequence of the annulment of her adoption she had lost title to the five hectares of forest she had inherited from her adoptive mother. 4. On 6 October 2011 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Săvârșin. 6. She was adopted on 25 February 1972, at the age of seventeen.", "7. The applicant’s adoptive mother also had another adopted daughter, H.M. The applicant’s mother died in 1986. 8. In 2003, the two sisters were jointly granted title to ten hectares of forest, based on their entitlement through adoption to inherit land which had been expropriated from their grandmother.", "9. Subsequently, the applicant brought an action for division of the land between the sisters. 10. While the proceedings were ongoing, H.M. brought an action for annulment of the applicant’s adoption. She claimed that the main aim pursued by her adoptive mother when she had sought to adopt the applicant had been to ensure emotional and financial support for her in old age and help with everyday activities.", "H.M. averred that the only aim pursued by the applicant in agreeing to the adoption had been to obtain inheritance rights. 11. The applicant submitted that the main reason why her sister had lodged the action for the annulment of her adoption had been to preclude her from inheriting half of the ten hectares of land and to keep all the property inherited from their adoptive mother for herself. In this respect she claimed that the lawfulness of the adoption order had never been questioned before, although it had been issued thirty-two years previously. She concluded that the misunderstandings which had arisen between her and her sister after the death of their adoptive mother could not justify the annulment of an adoption concluded in accordance with the law.", "12. In his final oral submissions before the first-instance court the applicant’s lawyer raised the objection of lack of locus standi of the plaintiff. He contended that H.M. had not proved a legitimate and current interest in seeking the annulment of her sister’s adoption. 13. On 7 December 2004 the Suceava County Court dismissed the applicant’s objection and declared the applicant’s adoption void, finding that it had not had a purpose envisioned by the Family Code.", "It held that the only aim of the applicant’s adoption had been the fulfilment of the patrimonial interests of the adoptive mother and the adopted child, and that it had not been intended to ensure a better life for the applicant. 14. The applicant lodged an appeal on points of law, maintaining that she had lived with her adoptive mother since she was nine years old, although the adoption order had only been issued in 1972 when she was seventeen. She submitted that the family relationship established between her and her adoptive mother since she was nine had been proved by witness statements which were in the case file, and that it was also attested to in the report drafted by the authorities when they carried out a social investigation in connection with her adoption. 15.", "The judgment of the court of first instance was upheld by a decision of the Suceava Court of Appeal rendered on 15 April 2005. A dissenting opinion to that decision stated that the adoption had not been improper, as its main aim had been the welfare of the applicant, who had been born into a family with eight children and a difficult financial situation. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Relevant domestic law 16.", "The relevant provisions of the Family Code concerning adoption were repealed by Government Emergency Ordinance no. 25/1997, (GEO no. 25/1997) published in the Official Gazette no. 120 of 12 June 1997. The relevant provisions concerning the annulment of adoption were as follows: Article 22 “(2) An adoption may be cancelled at the request of an adoptee who has reached the age of ten, or the Child Protection Commission in the adoptee’s area if the annulment of the adoption is in the best interests of the adoptee.” 17.", "The Adoption Act (Law no. 273/2004) repealed GEO no. 25/1997 and entered into force on 1 January 2005. The relevant provisions, as in force at the relevant time, read as follows: Article 56 “(1) A court may annul an adoption order if the adoption was sought for a reason other than the protection of the best interests of the adoptee or if the conditions provided for by law were not observed. (2) The court may dismiss a request for the annulment of an adoption if it considers that maintaining the adoption is in the best interests of the adoptee.” Article 57 “Any interested person may request the annulment of an adoption.", "After the adoptee obtains his or her full legal capacity, he or she is the only person who can challenge the validity of the adoption.” B. Relevant international standards 1. European Convention on the Adoption of Children, opened for signature in Strasbourg on 24 April 1967 and ratified by Romania on 18 May 1993 Article 10 “(1) Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock. Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother. (2) When the rights and obligations referred to in paragraph 1 of this article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist.", "Nevertheless, the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate, illegitimate or adopted child. In addition the law may preserve the obligation of the parents to maintain (in the sense of l’obligation d’entretenir and l’obligation alimentaire) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation. (3) As a general rule, means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for, or in addition to, his own. (4) If the parent of a child born in lawful wedlock has a right to the enjoyment of that child’s property, the adopter’s right to the enjoyment of the adopted person’s property may, notwithstanding paragraph 1 of this article, be restricted by law. (5) In matters of succession, in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother, an adopted child shall, for the like purposes, be treated as if he were a child of the adopter born in lawful wedlock.” 2.", "European Convention on the Adoption of Children (Revised), opened for signature on 27 November 2008 and ratified by Romania on 2 January 2012 18. The legal and social changes that have occurred in Europe since the first Council of Europe Convention on child adoption have led a large number of States parties to amend their adoption laws. As a result, certain provisions of the 1967 Convention have gradually become outdated. With that in mind, a revised Convention was drawn up in line with the social and legal developments whilst taking the child’s best interests into account. 19.", "The Council of Europe’s European Convention on the Adoption of Children (Revised) was opened for signature on 27 November 2008. Romania signed it on 4 March 2009 and ratified it on 2 January 2012. Article 11 – Effects of an adoption “(1) Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin.” Article 14 – Revocation and annulment of an adoption “(1) An adoption may be revoked or annulled only by decision of the competent authority.", "The best interests of the child shall always be the paramount consideration. (2) An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority. (3) An application for annulment must be made within a period prescribed by law.” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 20. The Government invited the Court to reject the application on the ground that the applicant had failed to comply with the requirement under Article 35 § 1 of the Convention to submit the application within six months.", "They submitted that although the applicant had sent a first letter to the Court on 12 October 2005, a duly completed application form had been submitted only on 17 January 2006. They concluded that as the six-month limit for submitting an application to the Court had expired on 15 October 2005 the application was out of time. 21. The applicant disagreed. She submitted that after she had sent her application on 14 October 2005 she had completed and returned the official application form within the deadline set by the Court.", "Therefore, she was asking the Court to dismiss this objection as unfounded. 22. From the analysis of the material submitted by the applicant the Court notes that she had sent a letter containing all the relevant information for submitting an application on 14 October 2005. On 19 December 2005 the Court informed the applicant that her application had been registered and asked her to fill in a standard application form within six weeks of reception of the Court’s letter. The applicant returned a duly completed application form on 17 January 2006.", "The Court, therefore, finds no reason to conclude that the applicant did not comply with the six-month time-limit, and rejects the Government’s preliminary objection. II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION 23. The applicant complained that her right to respect for her private and family life had been violated because of the annulment of her adoption by unlawful decisions of the domestic courts. She relied on Articles 6 § 1 and 8 of the Convention.", "24. The Court reiterates that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Kutzner v. Germany, no. 46544/99, § 56, ECHR 2002‑I, and Kurochkin v. Ukraine, no. 42276/08, § 31, 20 May 2010). 25.", "The Court therefore considers that the applicant’s complaints fall to be examined solely under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 26. The Government submitted that Article 8 of the Convention was not applicable to the applicant’s case, and asked the Court to dismiss the application as inadmissible ratione materiae.", "In this connection they contended that in the instant case the family relationship to be protected under Article 8 had not arisen from a lawful and genuine adoption. 27. The applicant disagreed, and maintained that the relationship built between her and her adoptive mother could be considered sufficient to be covered and protected by Article 8 of the Convention. 28. The Court notes that the instant case concerns the proceedings for the annulment of the applicant’s adoption order, thirty-one years after it had been issued.", "The domestic courts’ decisions by which the applicant’s adoption was declared void directly affected her private and family life. The Court considers that the applicant’s complaint relates to her private and family life and falls within the scope of Article 8 of the Convention. Therefore, the Government’s objection has to be dismissed. 29. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.", "It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 30.", "The applicant argued that the adoption had been concluded in accordance with the legal provisions in force at that time. A social investigation had been carried out and witness statements recorded. She also pointed out that she had been raised and educated by her adoptive mother since she was nine years old, and stated that their relationship had been based on affection, responsibility, and mutual moral and material support. The applicant submitted that the annulment of her adoption had represented an intrusion in her family life which had no legitimate aim and was disproportionate and arbitrary. 31.", "As regards the legal proceedings for the annulment of her adoption, the applicant claimed that her sister had not had locus standi to lodge the action for annulment and that the reasons provided by the domestic courts for allowing the action had not been relevant and sufficient. The applicant did not agree that she had to raise the objection of lack of locus standi of her sister again before the appeal court. She argued that on the basis of the principle of the active role of the courts, provided for by Article 129 § 5 of the Romanian Code of Civil Procedure, the appeal court should have taken into account the objection raised at the lower level of jurisdiction, as it related to an absolute and peremptory objection. 32. The Government considered that the measure complained of was lawful, pursued a legitimate interest and was necessary and proportionate.", "They pointed out that the reasons adduced by the domestic courts for the annulment of the adoption were relevant and sufficient. 33. As regards the locus standi of the applicant’s sister to lodge a claim seeking the annulment of adoption, the Government pointed out that the applicant had not raised this objection again before the appeal court. 2. The Court’s assessment (a) Whether there has been an interference 34.", "The Court reiterates that the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention, and that such a relationship, arising from a lawful and genuine adoption, may be deemed sufficient to attract such respect as may be due for family life under Article 8 of the Convention (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 140 and 148, ECHR 2004‑V (extracts)). 35. In the instant case, the Court considers that the annulment of the adoption order, thirty-one years after it had been issued, at the request of the applicant’s sister, amounted to an interference with the applicant’s right to respect for her family life as guaranteed by Article 8 § 1 of the Convention. (b) Whether the interference was justified 36.", "Such an interference can be considered justified only if the conditions of the second paragraph of Article 8 are satisfied. It must be “in accordance with the law”, have an aim which is legitimate under that paragraph, and must be “necessary in a democratic society” for the aforesaid aim (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 72, ECHR 1999‑VI). The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Saviny v. Ukraine, no. 39948/06, § 47, 18 December 2008).", "(i) In accordance with the law 37. The expression “in accordance with the law” under Article 8 § 2 requires first that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008). 38. Regarding whether the interference was in accordance with the law, the Court notes that at the time the applicant’s sister lodged her action the relevant provisions concerning adoption were to be found in GEO no.", "25/1997 (see paragraph 16 above). On 26 June 2004, after the first‑instance court had delivered its judgment but while the application for the annulment of the applicant’s adoption was before the appeal court, the Adoption Act (see paragraph 17 above) entered into force. 39. The Court observes that the decisions concerning the annulment of the applicant’s adoption were taken upon an application by her sister, also adopted by the applicant’s adoptive mother. In this connection the applicant claimed before the first-instance court that her sister had no locus standi to challenge the adoption order.", "The applicant based her objection on the provisions of the Code of Civil Procedure, and claimed that her sister had not proved a legitimate interest for lodging her application. The first‑instance court had dismissed the applicant’s objection, holding that the applicant’s sister had a legitimate interest in obtaining the annulment of the adoption, as the applicant and her sister were parties to the proceedings for the partition of ten hectares of forest (see paragraph 9 above) inherited from their adoptive mother. The Court notes that under Article 22 of GEO 25/1997, in force at that time, only an adoptee who had reached the age of ten or the Child Protection Commission could challenge the adoption order, and then only on condition that the cancellation served the best interests of the child. 40. The Court also notes that the applicant did not raise the objection of lack of locus standi again before the appeal court.", "The appeal court had rendered its final decision on 15 April 2005, three months after the Adoption Act had entered into force. Section 57 of the Adoption Act states that after an adoptee obtains full legal capacity only the adoptee can seek annulment of his or her adoption. The Court considers that although the applicant had not cited these provisions before the appeal court, the latter court should have raised this objection proprio motu, on the basis of the active role the courts have to play in the administration of justice, especially because the lack of locus standi is a peremptory and absolute objection in civil proceedings. 41. In the light of the foregoing the Court is doubtful that the measure at issue applied by the authorities was in accordance with the law within the meaning of Article 8 of the Convention.", "(ii) Legitimate aim 42. As regards the legitimate interest pursued by the domestic courts, the Court notes that the annulment of the applicant’s adoption did not serve the interests of either the adopted child or the adoptive mother. The main consequence of the annulment was the disruption of the applicant’s family tie with her already dead mother and the loss of her inheritance rights to the benefit of her sister. Taking into account that the annulment proceedings were brought by the applicant’s sister in order to keep for herself the whole land inherited from their adoptive mother, the Court also expresses doubts that a legitimate aim was pursued by the impugned decisions. (iii) Necessary in a democratic society 43.", "The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see Kutzner, cited above, § 65, and Moser v. Austria, no. 12643/02, § 64, 21 September 2006). 44. In doing so, it is not the Court’s task to substitute itself for the domestic authorities, but rather to review under the Convention the decisions that those authorities have taken in their exercise of their power of assessment (see K. and T. v. Finland [GC], no. 25702/94, § 154).", "45. Even assuming that the authorities enjoy a wide margin of appreciation in assessing the need for the annulment of the adoption (see mutatis mutandis, Kurochkin v. Ukraine, no. 42276/08, § 52, 20 May 2010 and Ageyevy v. Russia, no. 7075/10, § 127, 18 April 2013), the Court must still be satisfied in this particular case that there are circumstances which justify the annulment of the applicant’s adoption thirty-one years after the adoption order had been issued. 46.", "The Court further notes that where the existence of a family tie has been established the State must in principle act in a manner calculated to enable that tie to be maintained. Splitting up a family is an interference of a very serious order. Such a step must be supported by sufficiently sound and weighty considerations not only in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000‑VIII) but also in respect of the legal certainty. 47.", "Turning to the facts of the present case, the Court observes that the reason for the annulment of the adoption of the applicant was based on the domestic courts’ consideration that the only aim of the applicant’s adoption had been the furtherance of the patrimonial interests of the adoptive mother and the adopted child, and the adoption had not been intended to ensure a better life for the applicant. 48. The Court notes that as a general rule the legal provisions governing adoption are designed primarily for the benefit and protection of children. Usually, child welfare officials will seek a termination order on the basis of a judicial ruling that the parent is unfit to rear the child and that severance of the legal status would serve the child’s interests. The annulment of adoption is not envisaged as a measure against the adopted child and cannot be interpreted in the sense of disinheriting an adopted child eighteen years after the death of her adoptive mother and thirty-one years after the adoption order had been issued.", "In this respect the Court also notes that under section 57 of the Adoption Act, which entered into force on 1 January 2005, only the adopted child may challenge the validity of the adoption after the adoptee has obtained his or her full legal capacity. 49. If subsequent evidence reveals that a final adoption order was based on fraudulent or misleading evidence, the interests of the child should remain paramount in establishing a process to deal with any damage caused to the adoptive parent as a result of the wrongful order. 50. In the light of the foregoing, in the Court’s opinion the findings of the domestic courts on the annulment of the adoption of the applicant were not supported by relevant and sufficient reasons justifying such an interference in the applicant’s family life.", "The arguments contained in the court decisions are rather vague and do not provide sufficient justification for the application of such a radical measure by the courts in respect of the applicant’s family rights. 51. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 52. The applicant further complained that her property rights had been infringed, as, after the annulment of her adoption, she lost title to the five hectares of forest she had inherited from her adoptive mother. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The objection of non-exhaustion of domestic remedies 53. The Government maintained that the applicant had not exhausted the domestic remedies afforded. They noted that the applicant had not filed an appeal against the judgment rendered by the Câmpulung Moldovenesc District Court on 22 September 2006. They also pointed out that the action for division of the land between the sisters lodged by the applicant had been dismissed on the ground that the applicant had failed to pursue her action.", "54. The applicant maintained that the proceedings referred to by the Government had not had any prospect of success after the annulment of her adoption. 55. The Court notes that the annulment of the applicant’s adoption by a final decision of 15 April 2005 had as direct consequence the loss of the applicant’s inheritance rights. Therefore, the Court considers that the continuation of the civil proceedings concerning the land inherited from the applicant’s adoptive mother could not provide any redress for the violations alleged by the applicant.", "Therefore the Court dismisses the Government’s preliminary objection of non-exhaustion. 2. The objection rationae materiae 56. The Government submitted that the applicant had no possession as the ownership title which conferred her right to the land had been annulled by a final decision of a domestic court. 57.", "The applicant contested the Government’s argument. 58. The Court considers that the objection is closely linked to the merits of the applicant’s complaint. It will therefore deal with the objection in its examination of the merits below. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 59. The applicant maintained that by allowing the action for the annulment of the adoption and subsequently the action for the annulment of the ownership title to the land the Romanian State had abusively and disproportionally interfered with her property right over the land. 60.", "The Government submitted that if the Court considered that there was an interference with the applicant’s rights, such interference was legal, justified and proportionate. 61. Having regard to its reasoning and findings under Article 8 and in view of the fact that the alleged violation of Article 1 of Protocol No. 1 is the direct outcome of the proceedings that gave rise to the breach of Article 8 of the Convention, the Court rejects the Government’s objection as to incompatibility ratione materiae and finds that there has also been a violation of Article 1 of Protocol No. 1 to the Convention (compare and contrast, Marckx v. Belgium, 13 June 1979, § 63, Series A no.", "31; Inze v. Austria, 28 October 1987, §§ 38-40, Series A no. 126; Mazurek v. France, no. 34406/97, §§ 41-43, ECHR 2000‑II, and Fabris v. France [GC], no. 16574/08, §§ 51-55, ECHR 2013 (extracts)). IV.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 62. Lastly, the applicant complained under Article 6 § 1 of the Convention of bias on the part of the domestic judges. Relying on Article 14 of the Convention the applicant alleged discriminatory treatment between herself and her sister with regard to inheritance rights following the annulment of her adoption. 63. The Court has examined these complaints as submitted by the applicant.", "However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65.", "The applicant claimed 30,000 euros (EUR) in compensation for pecuniary damage. She submitted that this amount represented the financial impact of the loss of use of the five hectares of forest she had inherited. She also claimed EUR 10,000 in compensation for non-pecuniary damage, representing the suffering related to the cancelling of her adoption. 66. The Government argued that the applicant had not submitted any documents to support her claim for pecuniary damages, and that therefore this claim should be dismissed as speculative.", "As regards the amount requested by the applicant in compensation for non-pecuniary damage the Government submitted that the amount was too high. 67. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000‑XI). If one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no.", "35382/97, § 29, ECHR 2000‑IV). 68. The Court has found a violation of Articles 8 and 1 of Protocol No. 1 on account of the annulment of the applicant’s adoption and the consequent loss of her inheritance rights. In addition to a degree of pecuniary loss, the applicant must have also suffered distress as a result of these circumstances.", "Therefore, the Court considers it reasonable to award the applicant a total of EUR 30,000 to cover all heads of damage. B. Costs and expenses 69. The applicant also claimed EUR 550 for costs and expenses incurred before the domestic courts and EUR 1,500 for those incurred before the Court. 70.", "The Government contended that according to the documents submitted by the applicant she had paid only EUR 738 to the lawyer who had represented her before the Court, and that the amount of EUR 1,500 should therefore not be granted. 71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,200 for costs and expenses. C. Default interest 72.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s objection as to the inadmissibility ratione materiae of the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention and rejects it; 2. Declares the applicant’s complaints concerning her right to family life and the right to peaceful enjoyment of her possessions admissible, and the remainder of the application inadmissible; 3.", "Holds that there has been a violation of Article 8 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of both pecuniary and non-pecuniary damage; (ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 24 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliJosep CasadevallDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF KERIMOVA v. AZERBAIJAN (Application no. 20799/06) JUDGMENT STRASBOURG 30 September 2010 FINAL 30/12/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kerimova v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Registrar, Having deliberated in private on 9 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20799/06) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Ms Flora Alakbar qizi Kerimova (Flora Ələkbər qızı Kərimova – “the applicant”), on 23 May 2006. 2. The applicant was represented by Mr F. Ağayev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.", "The applicant alleged, in particular, that the invalidation of the parliamentary elections in her constituency had infringed her electoral rights under Article 3 of Protocol No. 1 to the Convention. 4. On 3 September 2008 the President of the First Section decided to give notice of the application to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1941 and lives in Baku. 6. She stood for the elections to the Milli Majlis (Parliament) of 6 November 2005 as a candidate of the opposition bloc Azadliq. She was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single‑mandate Sumgayit Second Electoral Constituency no.", "42. 7. The constituency was divided into thirty-seven electoral precincts, with one polling station in each precinct. There were a total of fifteen candidates running for election in this constituency. A.", "Election results in the applicant's constituency 8. At the end of election day, the applicant obtained copies of the election protocols drawn up by each of the thirty-seven Precinct Electoral Commissions (“the PEC”). According to the copies of the PEC protocols in the applicant's possession, she received the largest number of votes in the constituency. Specifically, she received a total of 5,566 votes. The second highest number of votes, 3,922 votes in total, was received by a candidate from the ruling Yeni Azerbaijan Party (H.).", "The applicant received the highest number of votes in thirty polling stations, while H. received the highest number of votes in seven polling stations. 9. According to the ConEC protocol drawn up on 7 November 2005 following an official tabulation of results received from the precincts, the applicant obtained the highest number of votes cast in the constituency. Specifically, according to the ConEC protocol, the applicant received 5,350 votes, H. received 4,091 votes, and a third candidate received 1,532 votes. The total number of votes cast for each of the remaining candidates was substantially lower.", "The ConEC protocol indicated the applicant as “the elected candidate”. B. Invalidation of the election results and the applicant's appeals 10. On 8 November 2005 the Central Election Commission (“the CEC”) issued a decision invalidating the election results in Sumgayit Second Electoral Constituency no. 42. The decision, in its entirety, stated as follows: “Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4, 100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of the Law of 27 May 2003 on Approval and Entry into Force of the Electoral Code, the Central Electoral Commission decides: 1.", "To invalidate the election results in Polling Stations nos. 1, 3, 4, 5, 8, 11, 16, 17, 18, 19, 20, 21, 23, 24, 32, and 36 of Sumgayit Second Electoral Constituency no. 42 due to impermissible alterations [“yolverilməz düzəlişlər”] made in the PEC protocols of these polling stations as well as infringements of law [“qanun pozuntuları”] which made it impossible to determine the will of the voters. 2. To invalidate the election results in Sumgayit Second Electoral Constituency no.", "42 due to the fact that the number of polling stations in which the election results have been invalidated constitutes more than two-fifths of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes more than one-quarter of the total number of voters in the constituency. 3. To forward the relevant materials concerning this electoral constituency to the Prosecutor General's Office for investigation.” 11. On 11 November 2005 the applicant lodged an appeal against this decision with the Court of Appeal, arguing that the findings in the CEC decision were wrong. While the CEC decision noted that “impermissible alterations” had been made to the protocols of sixteen PECs, in reality such alterations had been made to the protocols of only five PECs (in Polling Stations nos.", "8, 10, 11, 21 and 24). The applicant noted that this conclusion could be arrived at by simply comparing the ConEC protocol with the copies of the PEC protocols in her possession. She further noted that, on each occasion, the alterations had been made to reduce the number of votes cast in her favour and to increase the number of H.'s votes. Even though these falsifications were directed against the applicant, she was still the winner according to the falsified results announced by the ConEC. 12.", "As to the alterations made in the remaining eleven PEC protocols, the applicant argued that they were of a technical nature and did not affect the number of votes cast for each candidate. Therefore, those alterations could not impede the determination of the will of the voters. 13. The applicant further complained that the CEC had failed to consider the possibility of ordering a recount of the votes as required by Article 108.4 of the Electoral Code and to summon her as the candidate and hear her explanation as required by Article 112.8 of the Electoral Code. 14.", "Lastly, the applicant noted that the ConEC protocol had been submitted to the CEC on the night of 7 to 8 November 2005 and the issue of invalidation of the election results had been put immediately on the CEC agenda on 8 November. As a result, due to lack of time, some CEC members had received incomplete or misleading information about the matter and had thus made an uninformed decision. 15. During the hearing held on 14 November 2005, the judges of the Court of Appeal refused to independently examine the originals of the PEC and ConEC protocols. The Court of Appeal upheld the CEC decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful.", "16. The applicant lodged a cassation appeal. Apart from the arguments advanced in her appeal before the Court of Appeal, she also complained, inter alia, that the Court of Appeal had refused to independently examine the primary evidence (the originals of the relevant election protocols) and had simply taken the CEC's findings as fact. 17. On 25 November 2005 the Supreme Court rejected the applicant's appeal and upheld the Court of Appeal's judgment as lawful.", "18. Subsequently, it was decreed to hold repeat elections in all constituencies in which the election results had been invalidated. There were a total of ten such constituencies. It appears that, owing to certain opposition forces' decision to boycott the repeat elections, the applicant did not stand for election in the repeat elections held on 13 May 2006. C. Other judicial proceedings relevant to the case 19.", "In the meantime, criminal proceedings were instituted against the ConEC chairman and the chairman of the PEC of Polling Station no. 17, for tampering with the official PEC protocols of a total of nine different polling stations (Polling Stations nos. 1, 5, 8, 11, 17, 19, 20, 21 and 24). 20. On 19 January 2006 the Sumgayit City Court convicted both the defendants under Articles 161.1 (falsification of election documents) and 308.1 (abuse of official power) of the Criminal Code.", "The first defendant was fined in the amount of 110 new Azerbaijani manats (approximately 100 euros) and was banned from holding office in the electoral administration. The second defendant was sentenced to one year and twenty-eight days' corrective labour, with 15% of his earnings to be withheld in favour of the State. 21. The factual findings in the Sumgayit City Court's judgment, based on the defendant's own confessions and several witness statements, revealed that the majority of falsifications in the PEC protocols had been made at the ConEC level by its chairman, after the submission of the protocols to the ConEC. These falsifications were made in favour of either H. or other candidates, but not the applicant.", "22. In particular, during the hearings, the first defendant, the ConEC chairman, confessed that he had tampered with the PEC protocols for eight polling stations. In particular, he altered the figures representing the total vote count of various candidates in each polling station by inserting additional numbers or changing the existing numbers. In this manner, he increased the number of votes for at least five candidates other than the applicant (including H., to whose vote count he added 100 more “votes”), and reduced the number of votes received by the applicant (by 100 “votes”). 23.", "The second defendant, the PEC chairman, confessed to having tampered with the PEC protocol for his polling station in a similar manner, with the aim of increasing the total vote counts of three candidates who were the applicant's opponents. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL REPORTS A. Electoral Code 24. After the count of votes in a polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the vote in the polling station (Articles 106.1‑106.6).", "One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within 24 hours (Article 106.7). The ConEC verifies whether the PEC protocol complies with the law and whether it contains any inconsistencies (Article 107.1). After submission of all PEC protocols, the ConEC tabulates, within two days of election day, the results from the different polling stations and draws up a protocol reflecting the aggregate results of the vote in the constituency (Article 107.2). One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC checks whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2).", "25. If within four days of election day the CEC discovers mistakes, impermissible alterations or inconsistencies in protocols (including the accompanying documents) submitted by ConECs, the CEC may order a recount of the votes in the relevant electoral constituency (Article 108.4). 26. Upon review of a request to invalidate the election win by a registered candidate, an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials (Article 112.8). 27.", "In case of discovery of irregularities aimed at assisting candidates who have not ultimately been elected, such irregularities cannot be a basis for invalidation of election results (Article 114.5). 28. The ConEC or CEC may invalidate the election results in an entire single-mandate constituency if election results in two-fifths of polling stations, representing more than one-quarter of the constituency electorate, have been invalidated (Article 170.2.2). 29. According to former Article 106.3.6 of the Electoral Code in force at the material time, during the initial vote-counting at a polling station at the end of election day, upon discovery in the ballot-box of a voting ballot which had not been properly placed in the corresponding envelope, the vote on that ballot was considered to be invalid.", "Article 106.3.6 was subsequently repealed on 2 June 2008. B. The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Election Observation Mission Final Report on the Parliamentary Elections of 6 November 2005 (Warsaw, 1 February 2006) 30. The relevant excerpts from the report read as follows: “Although constituency aggregate results were made available within the legal deadline, detailed results by polling station were only released on 10 November, four days after the election, despite the computer networking of all ConECs with the CEC. This made it difficult for candidates and observers to check that results had been reported accurately.", "Protocols from two constituencies, 9 and 42, were never posted publicly. ... The CEC invalidated the results of four constituencies [including Sumgayit Second Electoral Constituency No. 42] under Article 170.2 of the Election Code, which states that if a ConEC or the CEC cancels more than 2/5 of PECs representing more than 1/4 of the total electorate in a constituency, then the entire constituency result is considered invalid. ... At least ... two ConEC chairpersons [ConECs 9 and 42] were dismissed after election day for involvement in electoral malfeasance.", "The two ConEC chairpersons were arrested and charged with forging election documents. ... The CEC forwarded materials on possible criminal violations to the Prosecutor General's Office regarding 29 PECs. ... The process of invalidation of aggregated results in four constituencies by the CEC did not have sufficient legal grounds or an evidentiary basis, nor was the process transparent.", "The CEC decisions on the invalidation of the election results in the four constituencies concluded that there were “unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters” but did not provide any factual basis to support this conclusion. ... Furthermore, when it invalidated results, the CEC did not make the required initial factual inquiry [as required by Article 170.2 of the Election Code], and ignored Article 108.4 of the Election Code, which authorizes the CEC to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “mistakes, inadmissible corrections and inconsistencies.” Protocols of ConECs and PECs were not examined or reviewed at CEC sessions. Invalidation of results in a polling station was premised solely on the conclusion of an individual CEC member as to whether a protocol should be invalidated. The judgment of a single CEC member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved.", "Accordingly, there was no factual basis presented publicly for invalidating results in any of the four constituencies, which is particularly troubling since the CEC registered few complaints that alleged violations in these constituencies. ... The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. ... In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court.", "Opposition candidates appealed the CEC's invalidation of results in constituencies 9, 42 and 110. The Court of Appeal upheld the three CEC decisions without any investigation or review of the primary documents and evidence, such as the PEC protocols. In constituency 9, the appellant petitioned the Court of Appeal to examine the protocols, which had been forwarded to the Prosecutor General's office by the CEC. This petition was denied. In constituency 42, the appellant made an identical request and the court again denied the petition, ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline.", "The CEC was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation. ... Proceedings in the Supreme Court did not correct the shortcomings noted above. The Supreme Court upheld each CEC decision.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No.", "1 TO THE CONVENTION 31. Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicant complained that the invalidation of election results in her constituency had been arbitrary and unlawful and had infringed her electoral rights as the rightful winner of the election. She argued that the process of invalidation had lacked transparency and sufficient safeguards against arbitrariness, and that the decisions of the electoral commissions and domestic courts lacked any factual basis and were contrary to a number of requirements of the domestic electoral law. 32.", "The Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention and that no separate examination is necessary under Article 13. Article 3 of Protocol No. 1 reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. Admissibility 33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' submissions 34.", "The Government submitted that the CEC's decision to invalidate the election results in the applicant's electoral constituency had been based on sound factual findings. These findings were subsequently proved to have been correct by the outcome of the criminal proceedings against the two officials of the ConEC for Sumgayit Second Electoral Constituency no. 42 and the PEC for Polling Station no. 17 of that constituency. Both of these officials confessed to having tampered with the election protocols.", "35. As to the applicant's argument that the CEC had failed to order a recount, the Government argued that Article 108.4 of the Electoral Code did not require the CEC to recount the votes in all cases, but simply vested it with discretion to decide whether a recount of votes should be ordered in each particular case. The Government further argued that the recount of votes had not been possible in the present case, because in accordance with Article 106.3.6 of the Electoral Code in force at the material time (this provision was subsequently repealed in 2008), ballots which were not in envelopes were considered invalid. As all the ballots submitted to the CEC had already been pulled out of their envelopes during the original count in the relevant polling stations and had not been put back into them, the recount of these ballots was impossible. 36.", "The Government argued that the established incidents of tampering with election protocols had made it impossible for the CEC to determine the true will of the voters on the basis of those protocols. Such interference with the procedure of the vote-count documentation interfered with the free expression of the opinion of the people and, therefore, the CEC had correctly invalidated the election results in the constituency, as it was guided by the legitimate aim of ensuring that only the candidates elected in accordance with the will expressed by voters represented those voters in the Parliament. 37. The applicant submitted that she had won the election convincingly by a high margin of votes. The relevant results protocols, both before and after the tampering, indicated her as a winner.", "Although the tampering with the election protocols resulted in a considerable reduction in the total number of votes counted as cast for her, and a corresponding increase in the number of those cast for her main opponent, she was still the clear winner of the election even according to the results reflected in the protocols which had been tampered with. Thus, even after the tampering, the relevant protocols showed that the applicant had won by a margin of 1,259 votes. 38. The applicant noted that all the impermissible changes introduced to the election protocols had been made in favour of her opponents, and not in her favour. Despite this, the CEC failed to comply with Article 114.5 of the Electoral Code, which did not allow invalidation of election results if it was established that any irregularities discovered during the election process had been made to assist the candidates who had not been ultimately elected, and not the winning candidate.", "39. The applicant noted that out of sixteen protocols which had been allegedly tampered with only five contained impermissible alterations of the total vote counts of candidates. The remaining protocols contained alterations of a “technical nature” which did not affect the figures on the total number of votes cast, and therefore could not impede the determination of the true will of the voters. 40. As for the Government's argument concerning the alleged impossibility of a recount of votes, the applicant noted that the Government's reference to former Article 106.3.6 of the Electoral Code was wrong, because that provision concerned only the original count of the votes in polling stations at the end of election day, when the envelopes containing the ballots were first taken out of the ballot boxes, and did not concern any subsequent recount of votes in the presence of the CEC members.", "In any event, the applicant considered that on the facts of the case there was no need for a recount, for the simple reason that her victory in the election could be established beyond any doubt even from the protocols tampered with in favour of her opponents. 41. The applicant submitted that there were no legitimate grounds for invalidation of the election results. Such a decision in the present case meant in essence that the domestic electoral system allowed one random person to frustrate the opinion of tens of thousands of voters simply by introducing minor alterations to election protocols. This in turn gave the current Government the opportunity to prevent opposition candidates from becoming members of parliament by simply having an electoral official tamper with an election protocol in order to render the results of the election null and void, and subsequently escape with a very lenient penalty for doing this.", "In this connection, the applicant noted that the ConEC chairman who had been found guilty of ruining the election results had received a very mild punishment in the form of a small fine and, despite his conviction, was reinstated to work in the public service in 2008. 2. The Court's assessment 42. Article 3 of Protocol No. 1 appears at first sight to differ from the other rights guaranteed in the Convention and Protocols, as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom.", "However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51, Series A no. 113). The Court has consistently highlighted the importance of the democratic principles underlying the interpretation and application of the Convention and has emphasised that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (ibid., § 47; see also Hirst v. the United Kingdom (no. 2) [GC], no.", "74025/01, § 58, ECHR 2005-IX). 43. The rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations” and Contracting States have a wide margin of appreciation in the sphere of elections (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC], no.", "24833/94, § 63, ECHR 1999-I; and Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV). It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. In particular, it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52, and Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV).", "Such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no. 2), cited above, § 62). 44. Furthermore, the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports 1998-I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999-III; and Lykourezos v. Greece, no.", "33554/03, § 56, ECHR 2006-VIII). The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina v. Latvia, no. 46726/99, § 35, ECHR 2002-II).", "Although originally stated in connection with the conditions on eligibility to stand for election, the principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see Namat Aliyev v. Azerbaijan, no. 18705/06, § 72, 8 April 2010), including the manner of review of the outcome of elections and invalidation of election results (see Kovach v. Ukraine, no. 39424/02, § 55 et seq., ECHR 2008-...). 45. The Court has emphasised that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see The Georgian Labour Party v. Georgia, no.", "9103/04, § 101, 8 July 2008), that the proceedings conducted by them be accompanied by minimum safeguards against arbitrariness and that their decisions are sufficiently reasoned (see, mutatis mutandis, Namat Aliyev, cited above, §§ 81-90, and Kovach, cited above, §§ 59-60). 46. The Government contended that the impugned decision on the invalidation of election results was aimed at protecting the free expression of the voters' opinion from illegal interference and ensuring that only the rightfully elected candidates represented the voters in the Parliament. However, the Court has doubts as to whether a practice of discounting all votes cast in an entire electoral constituency owing merely to the fact that irregularities have taken place in some polling stations, regardless of the extent of the irregularities and their impact on the outcome of the overall election results in the constituency, can necessarily be seen as pursuing a legitimate aim for the purposes of Article 3 of Protocol No. 1 (compare, mutatis mutandis, Kovach, cited above, § 52).", "However, the Court is not required to take a final view on this issue in the light of its findings below. 47. It is sufficiently clear from the material available in the case file that, according to the copies of PEC protocols obtained by the applicant from each of the polling stations at the end of election day (before the incidents of tampering with protocols took place), the applicant received a total of 5,566 votes against H.'s 3,992 votes. According to the ConEC protocol issued on the basis of those PEC protocols, after some of those protocols had been tampered with, the applicant received 5,350 votes against H.'s 4,091 votes. Thus, it is obvious that the election results, as they stood both before and after the irregularities involving illegal alterations to protocols, showed that the applicant was the clear winner of the elections.", "Moreover, neither the CEC nor the domestic courts hearing appeals against its decision, nor the Sumgayit City Court, dealing with the criminal case concerning the irregularities in question, ever found that any of the illegal alterations had been made to assist the applicant's cause. On the contrary, it was found by the Sumgayit City Court that they had been made exclusively in favour of her opponents. Neither did the Government, in their observations, argue that the irregularities had been intended to benefit the applicant. Accordingly, even despite the fact that these irregularities had been made in an attempt to inflate her opponents' vote counts and decrease her vote count, the election results still showed the applicant as a clear winner. In such circumstances, the Court finds it hard to understand the electoral authorities' and the Government's position that these irregularities had somehow made it “impossible to determine the will of the voters” in the entire constituency.", "On the contrary, the Court considers that the facts of the case clearly disclose a situation where the irregularities, however grave they might have been, did not impact the ultimate result of the election and failed to cast any doubt on the choice made by the majority of voters in the constituency. 48. Moreover, as to the CEC decision of 8 November 2005 invalidating the election results in the applicant's constituency, the Court notes that it contained no specific description of the alleged “impermissible alterations” made to the PEC protocols or other “infringements of law”, no elaboration as to the nature of these “alterations” and “infringements”, and no reasons explaining as to why the alleged breaches obscured the outcome of the vote in the relevant polling stations and made it impossible to determine the true opinion of the voters. In such circumstances the Court cannot but note that the CEC decision was totally unsubstantiated. 49.", "As to the parties' submissions concerning the recount of votes, the Court agrees with the applicant that such a recount was in any event redundant because it was possible to establish who was the winning candidate even despite the irregularities. Nevertheless, the Court finds alarming the CEC's failure to even consider the possibility of a recount before invalidating the election results. The Court considers that, in cases where illegal tampering with vote counting or election documents may affect the determination of the outcome of the elections, a fair procedure for recounting votes where such a recount is possible is an important safeguard of the fairness and success of the entire election process. Even accepting the Government's argument that under Azerbaijani law an election recount was optional (at the CEC's discretion) and not mandatory, the Court considers that in the present case the CEC could have considered the possibility of a recount and at least explained the reasons for passing up this opportunity before deciding on an outright invalidation of the election results. In the Court's view, the CEC's failure to do so contributed to the appearance of arbitrariness of its decision.", "50. As to the Government's argument that the recount was not possible owing to the conflicting requirements of former Article 106.3.6 of the Electoral Code, the Court finds this argument misplaced. Firstly, as noted above, it was up to the CEC to explain the reasons for not ordering a recount and it failed to offer such reasons. Secondly, it appears that former Article 106.3.6 of the Electoral Code (see paragraph 29 above) concerned the determination of the validity of the ballots at the moment when they were taken out of the ballot boxes for the original count. Once a ballot was pulled out of its envelope, determined to be valid and counted during the original count, nothing could prevent the use of this ballot at any subsequent election recount.", "Thirdly, the Court generally finds that it is unacceptable to rely solely on such irrelevant and petty formalities in order to justify a failure to abide by statutorily-prescribed safeguards of the integrity of the electoral process. 51. Furthermore, having regard to the CEC decision of 8 November 2005, the Court notes that the CEC first invalidated the election results in sixteen polling stations owing to the alleged irregularities, and then proceeded to rely on Article 170.2.2 of the Electoral Code in order to invalidate the election results in the entire constituency based on the fact that the elections in two-fifths of the total number of polling stations representing more than one-quarter of the constituency electorate had been annulled. However, the Court finds it troubling that, upon invalidating the elections both in the relevant polling stations and in the entire constituency, the CEC ignored the requirements of Article 114.5 of the Electoral Code, which prohibited invalidation of election results at any level on the basis of a finding of irregularities committed for the benefit of candidates who lost the election (see paragraph 27 above). This rule protected the opinion of the electorate, as well as the interests of a candidate who received the highest number of votes and who was not responsible for any irregularities, from any unlawful actions attempted against such winning candidate.", "As such, this rule was aimed at preventing a situation where a winning candidate is wrongfully punished by being deprived of his or her victory in the election for malfeasance attributable to his or her losing opponents. In this connection, the Court notes that the situation envisaged in Article 114.5 of the Electoral Code is the direct opposite of a situation where irregularities are found to have been allegedly made to the benefit of the “winning” candidate (contrast Namat Aliyev, cited above, §§ 9-18, 64, 67 and 74). However, the Court observes that, despite the expressly stated requirement of Article 114.5 of the Electoral Code, neither the CEC, at the time of making its decision to annul the election, nor the domestic courts dealing with the appeals against its decision, made an attempt to determine in whose favour the alleged irregularities had been made. In any event, the subsequent criminal proceedings at the Sumgayit City Court established that all the illegal alterations to the PEC protocols had been made exclusively for the benefit of the applicant's opponents. Finally, as noted above, even despite these illegal alterations, the applicant still emerged as the candidate with the largest number of votes and it has never even been suggested by any of the domestic authorities that she could be responsible for any of the irregularities in question.", "In such circumstances, it is all but apparent that the decision to invalidate the election results in the applicant's constituency, and thus deprive her of the parliamentary seat, not only lacked any relevant substantiation but was also made in breach of the requirement of Article 114.5 of the Electoral Code. At the very least, the failure to take this requirement into account, and the lack of any explanation for such failure, contributed to the appearance of arbitrariness of the annulment of the election. 52. Lastly, the Court notes that, despite the fact that the applicant repeatedly raised all of the above points in her appeals to the domestic courts, the courts failed to adequately address these issues and simply reiterated the CEC's findings. They refused to examine any primary evidence, which primarily consisted of the illegally altered originals of the PEC protocols, and failed to review the compliance of the CEC's decision with the requirements of the electoral law.", "As such, the manner of examination of the applicant's election-related appeals was ineffective. 53. The authorities' inadequate approach to this matter brought about a situation where the whole election process in the entire electoral constituency was essentially single-handedly sabotaged by two low-ranking electoral officials, who had abused their position to make some changes to a number of election protocols that were in their possession. By arbitrarily invalidating the election results because of these officials' actions, the domestic authorities essentially aided and abetted them in thwarting the election. Such lack of concern for integrity of the electoral process from within the electoral administration cannot be considered compatible with the spirit of Article 3 of Protocol No.", "1 to the Convention. 54. In view of the above, the Court concludes that, while the perpetrators of the irregularities, which ostensibly “necessitated” the authorities' decision to invalidate the election results, did not appear to succeed in their aim of affecting the ultimate outcome of the elections, the invalidation decision itself “succeeded” in doing so. The annulment of the elections in the applicant's constituency lacked any relevant reasons and was in apparent breach of the procedure established by the domestic electoral law (see paragraph 51 above). This decision arbitrarily infringed the applicant's electoral rights by depriving her of the benefit of being elected to Parliament, and as such ran counter to the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.", "55. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 56.", "In conjunction with the above complaint, the applicant complained that despite clearly winning the election she was arbitrarily deprived of her seat in Parliament owing to her political affiliation with an opposition party. She relied on Article 14, which provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 57. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 58. However, having regard to its above finding in relation to Article 3 of Protocol No.", "1, the Court considers that it is not necessary to examine whether in this case there has been a violation of Article 14. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Pecuniary damage 60. The applicant claimed 83,185.83 euros (EUR) for loss of the earnings she would have received in the form of a parliamentary member's salary if elected to the Milli Majlis had the results of elections in her constituency not been invalidated. She noted that her other income during the relevant period, as a retired singer and recipient of a State allowance, amounted only to 125 new Azerbaijani manats (AZN) (approximately EUR 120) per month. 61. The Government contested the applicant's claim and argued that her other income must have been much higher than AZN 125 per month.", "62. The Court reiterates its analysis made in the Kovach case (cited above, § 66), which concerned a similar claim: “It is true that, if elected, the applicant would have received a salary as a member of Parliament. That is not, however, sufficient to award the sums claimed, because the sums claimed would have to be set off against other income which he may have been receiving and which he would have had to forego if elected, as in the case of Lykourezos v. Greece ([no. 33554/03, § 64, ECHR 2006‑VIII], in which the applicant was prevented from continuing to exercise his mandate). The applicant has given details of the salary he would have received as a member of Parliament, but has not specified what his net loss would have been.” 63.", "In the earlier Lykourezos judgment (cited above, § 64), the Court approached the issue as follows: “The Court notes that it was not disputed that, had the applicant not been forced to forfeit his parliamentary seat, he would have received, between the date of the impugned measure and the end of the legislature to which he had been elected, the amount claimed. However, the Court also notes that the applicant did not remain inactive during this period; on the contrary, he was able to resume his professional activities and to receive the resultant fees. In addition, the applicant has not shown that the total of the fees in question was less than that of the parliamentary allowances that he did indeed lose during the period in question ... Having regard to the inherent uncertainty in any attempt to estimate the real losses sustained by the applicant and making its assessment on an equitable basis, the Court decides to award him EUR 20,000 under this head, plus any tax that may be chargeable.” 64. The Court notes that, unlike in the above cases, the applicant submitted detailed information about the difference between the salaries that she would have received as a member of parliament and her other income which she had been receiving during the relevant period, which information is in principle sufficient to calculate her “net loss”. The Court considers that, had the applicant become a member of parliament, she could have been expected to serve at least part of her tenure and received certain income from her service.", "Accordingly, she suffered certain pecuniary damage, although this damage cannot be technically quantified in terms of monthly salaries for the entire term of service of a member of parliament. Therefore, having regard to the inherent uncertainty in any attempt to estimate the real losses sustained by the applicant and making its assessment on an equitable basis, the Court decides to award her EUR 50,000 under this head. 2. Non-pecuniary damage 65. The applicant claimed EUR 100,000 in compensation for the anguish and distress caused to her by the infringement of her electoral rights.", "66. The Government argued that the amount claimed was unjustified and excessive. 67. The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated solely by the finding of the violation of Article 3 of Protocol No. 1.", "Ruling on an equitable basis, the Court awards her the sum of EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 68. The applicant also claimed EUR 4,800 for the costs and expenses incurred before the Court, including EUR 4,500 for legal fees and EUR 300 for postal expenses. 69.", "The Government claimed that the claim in respect of legal fees was excessive and that the claim in respect of postal expenses was unsupported by any documents. 70. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the legal services actually rendered in the present case and to the services stipulated in the relevant contract concluded between the applicant and her lawyer, the Court considers that the amounts claimed do not correspond to the legal assistance that was actually provided in the present case. Therefore, only a partial award can be made in this respect.", "Furthermore, the Court notes that the applicant failed to support her claim for postal expenses with any documentary evidence and therefore no sum can be awarded in respect of those expenses. 71. Regard being had to the above, the Court considers it reasonable to award the sum of EUR 1,600 for the proceedings before the Court, plus any tax that may be chargeable to the applicant on that sum. C. Default interest 72. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 3. Holds that there is no need to examine separately the complaint under Article 14 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into new Azerbaijani manats at the rate applicable on the date of settlement: (i) EUR 50,000 (fifty thousand euros) in respect of pecuniary damage; (ii) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and (ii) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 30 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF ARISTOV AND GROMOV v. RUSSIA (Applications nos. 76191/12 and 5438/13) JUDGMENT STRASBOURG 9 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Aristov and Gromov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 18 September 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 76191/12 and 5438/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Vyacheslav Vyacheslavovich Aristov and Mr Aleksandr Nikolayevich Gromov (“the applicants”), on 21 November 2012 and 15 January 2013 respectively.", "2. The applicants were represented by Mr K. Terekhov and Mr A. Navalnyy, lawyers practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 28 August 2014 the applications were communicated to the Government.", "4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The first applicant (Mr Aristov) was born in 1986 and lives in Moscow. The second applicant (Mr Gromov) was born in 1983 and lives in Moscow Region. A. Demonstration of 6 May 2012 6. The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no.", "74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present cases are set out below. 7. On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections.", "The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it became apparent that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd, a police cordon forced the protestors to remain within the barriers. There were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants.", "It took them about two hours to clear the protestors from the square. 8. The applicants took part in the demonstration on 6 May 2012 at Bolotnaya Square. They were arrested at the venue of the event and brought to the police stations where they were charged with administrative offences. After an overnight detention the applicants were brought before the justices of the peace and convicted as charged.", "B. The applicants’ arrest, detention and conviction for administrative offences 1. The first applicant (Mr Aristov) 9. According to the first applicant, during the demonstration he stood at the intersection of Malyy Kamennyy Bridge and Bolotnaya Embankment and filmed the event. At 6 p.m. he was picked out of the crowd and apprehended by the police, though he did not cause any disorder.", "The applicant did not resist the police officers, who gave no orders during his arrest. 10. According to the Government, the first applicant was arrested at 6 p.m. at Bolotnaya Square because he had participated in breaking the police cordon and disregarded the police orders to cease his actions. 11. At 7.20 p.m. the first applicant was brought to Basmannyy district police station in Moscow.", "At the police station an on-duty officer drew up a record of the applicant’s administrative escort for the purpose of compiling an administrative file. The record of administrative arrest indicated that the applicant had been arrested at 7.20 p.m. at the police station and released on 7 May 2012 at 9.20 a.m. 12. After that an on-duty officer drew up an administrative-offence record, on the basis of the reports and explanatory notes by police officers P. and Ch., who had arrested the applicant. These reports and notes were drawn up using an identical template and contained no individualised information except the police officers’ personal information and the applicant’s name. The latter was accused of having disobeyed a lawful order of the police, an offence under Article 19.3 § 1 of the Code of Administrative Offences.", "The administrative-offence record reiterated the police reports, stating as follows: “... [the applicant], acting as part of a group of 15,000 citizens, took part in an authorised meeting ... chanted slogans ‘Russia without Putin’, ‘Putin is a thief’, and ‘United Russia is a party of crooks and thieves’. During the event [the participants] broke the police cordon and tried to enter Red Square; [the applicant] did not react to the multiple lawful demands of Officers P. and Ch. to stop breaking the police cordon and continued his unlawful acts, in breach of Article 19.3 § 1 of the Code of Administrative Offences.” 13. On 7 May 2012 the first applicant was brought before the Justice of the Peace of Court Circuit no. 100 of the Yakimanka District of Moscow.", "The applicant insisted that he had not broken the police cordon and had been arrested by the police with no warnings or orders. He applied to have the two police officers who had arrested him examined as witnesses. This application was rejected in order to expedite the proceedings. The court questioned two witnesses for the defence and examined the video recording submitted by the applicant’s representative. 14.", "On the basis of the police officers’ reports and explanations and the records of the administrative escorting and arrest, the court established that the applicant had committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences, as described in the administrative-offence record. The court dismissed as unreliable the testimony of defence witnesses, who stated that he had not chanted any slogans in their presence and had not participated in breaking the cordon. As for the video recording, it was dismissed on the grounds that it showed the background of the events in question rather than the applicant’s arrest. Moreover, it did not contain any sound and could not therefore prove whether the applicant had chanted any slogans or not. The court sentenced the applicant to twenty-four hours’ administrative detention.", "15. On 22 May 2012 the Zamoskvoretskiy District Court of Moscow examined the applicant’s appeal against the judgment of 7 May 2012. The applicant repeated his application to summon and question the two police officers who had arrested him on 6 May 2012 but the court rejected it owing to the applicant’s failure to name those officers. At the trial the applicant insisted that he had not chanted any slogans and had not participated in breaking the police cordon. The court questioned two defence witnesses, who confirmed the applicant’s account of events but stated that they had not observed his arrest.", "Their testimony was dismissed as unreliable because both witnesses were the applicant’s friends. Relying on the reports and written statements of the police officers, the District Court upheld the first‑instance judgment. 2. The second applicant (Mr Gromov) 16. According to the second applicant, on 6 May 2012 at 4 p.m. he came to Bolotnaya Square to participate in the authorised demonstration.", "He could not leave the venue of the event because all the ways out of the square had been cordoned off by the police. The applicant stood in the crowd waiting for further information about the demonstration from its organisers. Around 7.30 p.m. he saw State Duma Deputy Ponomarev with a megaphone and came closer to listen to him together with ten other participants. At that moment a few police officers ran out of the cordon and arrested the deputy and everyone around him, including the applicant. 17.", "According to the Government, the second applicant was arrested at 8.10 p.m. at the Bolotnaya Square on 6 May 2012 because he was participating in breaking the police cordon and he had disregarded the police order to cease these acts and disperse. 18. At 9 p.m. the second applicant was brought to Veshnyaki district police station in Moscow. At the police station an on-duty officer drew up a record of his administrative escort at 9.10 p.m. for the purpose of compiling an administrative-offence record. At 9.20 p.m. the applicant was administratively arrested; according to the record of his administrative arrest he was released on 7 May 2012 at 10.50 a.m. 19.", "The second applicant was accused of having disobeyed a lawful order of the police, an offence under Article 19.3 § 1 of the Code of Administrative Offences. The administrative-offence record contained a printed template which stated as follows: “... [the applicant] disobeyed a lawful order of the police who were fulfilling their service duty of maintaining public order and ensuring safety. In particular, [the police] repeatedly announced through the loudhailer lawful demands to stop the march but [the applicant], acting as part of a group of citizens, broke the [police] cordon. [He] did not react to the multiple demands [of the police] to cease these actions and disperse, and continued his unlawful acts, thereby attracting the attention of the public and mass media. [The applicant] tried to cause confusion among the public (создать суматоху среди граждан), thereby demonstrating his refusal to obey the lawful orders of the police officers and precluding them from fulfilling their service duties, in breach of Article 19.3 § 1 of the Code of Administrative Offences.” 20.", "The administrative case file contained two hand-written reports by police officers D. and S., who had arrested the second applicant on 6 May 2012. The reports repeated the description of the applicant’s acts contained in the administrative-offence record. 21. On 7 May 2012 the second applicant was brought before the Justice of the Peace of Court Circuit no. 100 of the Yakimanka district of Moscow, who adjourned the case to 17 May 2012.", "On 15 May 2012 the court decided to transfer the case owing to the lack of jurisdiction. 22. On 14 August 2012 the Justice of the Peace of Court Circuit no. 114 of the Luberetskiy Court District of Moscow Region examined the charges against the second applicant. Upon his application, the court questioned the applicant’s sister who was an eyewitness to his arrest.", "She confirmed his account of events (see paragraph 16 above) but the court dismissed her statements as unreliable evidence. The court also questioned Officers D. and S., who stated that after the end of the demonstration, at around 8 p.m. on 6 May 2012 the applicant, acting as part of a group of citizens, had broken the police cordon and begun the march towards Red Square. As he had not reacted to multiple demands to stop, he had been arrested together with other participants following the radio communication order. 23. On the basis of the police officers’ statements and reports the court found the second applicant guilty under Article 19.3 § 1 of CAO and sentenced him to a fine of 700 Russian roubles ((RUB) – about 18 euros (EUR) at the time).", "24. The second applicant appealed against the judgment, pointing out that he had been arrested by riot squad officers rather than by D. and S. On 24 September 2012 the Lyuberetskiy Town Court of the Moscow Region examined the appeal and upheld the judgment of 14 August 2012. The Town Court dismissed the applicant’s allegations and considered that the statements of D. and S. about the applicant’s failure to obey their lawful demands to stop marching after the end of the event had been trustworthy. II. RELEVANT DOMESTIC LAW 25.", "For a summary of the relevant domestic law, see Frumkin, cited above, §§ 77-79. THE LAW I. JOINDER OF THE APPLICATIONS 26. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 27.", "The applicants complained that their arrest on 6 May 2012 followed by overnight detention at a police station had been unlawful and arbitrary. They relied on Article 5 § 1, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 29.", "The applicants submitted that instead of being released three hours after their arrest on 6 May 2012, they were remanded in police custody. This preventive measure was applied to secure their attendance at a hearing before the Justice of the Peace the next day. However, neither the Government nor the domestic authorities had provided justification for such a measure. There had been no reason to believe that the applicants would have absconded or otherwise obstructed the course of justice; in any event, the authorities had failed to demonstrate such a risk. 30.", "The Government contended that the applicants had been escorted to the police stations within two hours of their arrest, which had not been “manifestly unreasonable”. The legal grounds for their escorting had been Article 27.2 of the Code of Administrative Offences, which had empowered the police to take individuals to a police station for the purpose of drawing up an administrative-offence record. Once the applicants had been issued the administrative-offence records, they had been administratively arrested (Article 27.3 of the Code). The term of such an arrest had to be calculated from the time a person had been brought to a police station and should not have exceeded forty-eight hours, in accordance with Article 27.5 of the Code. Both applicants had spent fourteen hours at the police stations, which had not exceeded the statutory limit.", "Overall, the Government considered that the applicants’ deprivation of liberty had complied with domestic law and with the requirements of Article 5 § 1 of the Convention. 2. The Court’s assessment 31. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element.", "The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent individuals from being deprived of their liberty in an arbitrary fashion. Furthermore, the list of exceptions to the right to liberty secured in Article 5 § 1 of the Convention is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports of Judgments and Decisions 1997‑IV). 32. The Court observes that both applicants were first taken to the police station in accordance with Article 27.2 of the Code of Administrative Offences and then, once at the police station, administratively arrested in accordance with Article 27.3 of the Code (see paragraphs 11 and 18 above). The applicants were then remanded at the police station for fourteen hours before being taken to the court.", "33. As regards the escorting procedure, the records of administrative escorting stated that both applicants had been taken to the police station for the purpose of drawing up an administrative-offence record. Article 27.2 of the Code of Administrative Offences provides that a suspected offender could be escorted to a police station for the purpose of drawing up an administrative-offence record only if such a record could not be compiled at the place where the offence had been discovered. Even though the Government have not argued that in each applicant’s case this was impossible, the Court is ready to accept that in the context of the general commotion and violence which was happening at Bolotnaya Square, the police could hardly draw up the records on the spot (contrast Novikova and Others, nos. 25501/07 and 4 others, §§ 182-83, 26 April 2016).", "34. The Court further notes than once the administrative-offence records had been drawn up, the objective of escorting the applicants to the police stations had been met and they could have been discharged. However, none of them were released on that day; both applicants were formally remanded in custody to secure their attendance at a hearing before the Justice of the Peace the next day. The Government argued that the term of the applicants’ detention had remained within the forty-eight-hour time-limit provided for by Article 27.5 of the Code of Administrative Offences. However, neither the Government nor the domestic authorities provided any justification, as required by Article 27.3 of the Code, specifically that it was an “exceptional case”, or that it was “necessary for the prompt and proper examination of the administrative case and to secure the enforcement of any penalty to be imposed”.", "In the absence of any explicit reasons given by the authorities for not releasing the applicants, the Court considers that their administrative arrest for fourteen hours was unjustified and arbitrary (see, for similar reasoning, Navalnyy and Yashin v. Russia, no. 76204/11, § 96, 4 December 2014). 35. In view of the foregoing, the Court considers that there were no reasons and legal grounds for remanding each applicant in custody pending the hearing of their case by the Justice of the Peace. 36.", "There has accordingly been a violation of Article 5 § 1 of the Convention in respect of each applicant. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 37. The applicants complained that the administrative proceedings in their cases had fallen short of guarantees of a fair hearing, in particular, the principles of equality of arms, independence and impartiality of the tribunal. They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. Admissibility 38.", "The Government submitted that Article 6 of the Convention was not applicable to the contested proceedings, because the applicants had been charged with an administrative rather than a criminal offence. 39. The Court has previously found that Article 6 of the Convention was applicable under its criminal limb to proceedings involving charges under Article 19.3 of the Code of Administrative Offences punishable by a fine or administrative detention (see Frumkin, cited above, § 155; Mikhaylova v. Russia, no. 46998/08, §§ 71-74, 19 November 2015; Navalnyy and Yashin, cited above, § 78; and Nemtsov v. Russia, no. 1774/11, § 83, 31 July 2014).", "The Court sees no reason to reach a different conclusion in the present case and considers that the proceedings in question fall to be examined under the criminal limb of Article 6. 40. The Court further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 41. The applicants submitted that in the absence of a prosecuting party the trial judges had taken on the role of the prosecution. The court therefore was not “independent and impartial” within the meaning of Article 6 of the Convention.", "The first applicant also alleged that the domestic courts had dismissed the testimonies of the defence witnesses and video recording favourable to him while giving weight to the written statements of the police officers. 42. The Government argued that the Code of Administrative Offences did not provide for mandatory participation of a public prosecutor in each case concerning an administrative offence. Their submissions in that connection were similar to those made in Karelin v. Russia (no. 926/08, §§ 45-48, 20 September 2016).", "The Government further contended that the applicants had been given a fair opportunity to argue their cases before the domestic courts, specifically to obtain the attendance of witnesses on their behalf and to present other evidence, such as a video recording. Moreover, in the case of the second applicant the courts questioned two police officers on their own motion. 2. The Court’s assessment 43. The Court has previously found that the lack of a prosecuting party in the context of oral hearings resulting in the determination of administrative charges constitutes a serious shortcoming in breach of objective impartiality requirement of Article 6 § 1 of the Convention (see Karelin, cited above, §§ 69-84).", "It notes that the essential factual and legal elements of the present case and the case of Karelin (ibid., §§ 59-68) are similar. The parties’ submissions in the present case disclose no reason for the Court to depart from its earlier findings in that respect. 44. As regards the first applicant’s complaint concerning the lack of a fair hearing, the Court observes that his conviction for the administrative offence of disobeying lawful police orders was based exclusively on the version of events put forward by the police. It further notes that the police reports were drawn up using a template and contained no individualised information except the first applicant’s name and the names and titles of the arresting officers.", "The first applicant contested the accusations, and two eyewitnesses confirmed his allegations but the courts dismissed their statements presuming bias on their part. Furthermore, he submitted a video recording which the courts also refused to admit. Lastly, the courts refused to call and examine two police officers as witnesses, although there had been no impediment, and the applicant was not given any other opportunity to confront them. 45. It is thus clear that the only evidence against the first applicant was not tested in the judicial proceedings.", "The courts based their judgment exclusively on standardised documents submitted by the police and refused to accept additional evidence or to summon the police officers. The Court considers that given the dispute over the key facts underlying the charge, where the only evidence against the applicant came from the police officers who had played an active role in the contested events, it was indispensable for the courts to use every reasonable opportunity to check their incriminating statements (see Kasparov and Others v. Russia, no. 21613/07, § 64, 3 October 2013). Failure to do so ran contrary to the fundamental principles of criminal law, particularly in dubio pro reo (see Frumkin, cited above, § 166, and the cases cited therein). Moreover, the courts did not require the police to justify the interference with the applicant’s right to freedom of assembly, which included a reasonable opportunity to disperse when such an order was given (ibid., § 64).", "46. The Court therefore considers that there has been a violation of Article 6 § 1 of the Convention on account of the objective impartiality requirement in respect of each applicant, and a violation of that provision as regards the fairness of the administrative proceedings against the first applicant. IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 47. The applicants alleged a violation of their right to peaceful assembly.", "They complained, in particular, of disruptive security measures implemented at the site of the meeting at Bolotnaya Square, of the early termination of the protest and about their arrest followed by their conviction for administrative offences. They relied on Article 11 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to freedom of peaceful assembly ... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...” A. Admissibility 48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The Government 49.", "The Government’s submissions as regards the general measures implemented at Bolotnaya Square were identical to those in Frumkin (cited above, §§ 83-85). As regards the particular circumstances of the case, they alleged that the applicants had incurred sanctions for failing to obey police orders to leave the site of the public protest at the end of the authorised meeting. The charges brought against the applicants had stemmed from a specific act of disobedience committed after the end of the authorised meeting, rather than from their disagreement with the decision to terminate the meeting earlier. This was especially true for the second applicant who had been apprehended even after the initially agreed time of the end of the meeting (7.30 p.m.). 50.", "The Government considered that there had been no interference with the exercise of the applicants’ rights to peaceful assembly, and that in any event the penalty imposed on them, that is to say twenty-four hours’ administrative detention and a 700 Russian roubles (RUB) fine, had not been disproportionate. They concluded that both the general measures taken in relation to the protest as a whole and the individual measures taken against the applicants personally had been justified under Article 11 § 2 of the Convention. They considered that they had complied with domestic law, had been necessary “for the prevention of disorder or crime” and “for the protection of the rights and freedoms of others”, and had remained strictly proportionate. (b) The applicants 51. The applicants pointed out that the interference with their rights under Article 11 of the Convention had not been lawful.", "The police had had no power to give them orders because they had not committed an administrative or criminal offence. The authorities had failed to effectively inform the demonstrators of the termination of the protest and of the order to disperse. The applicants had been unaware of their decision to end the protest. They pointed out that pursuant to domestic law the police had been required to suspend the protest first, and to give the organisers time to remedy any breach before they had terminated it. However, in the present case no time had been given either to the organisers or to the demonstrators to follow the police instructions to disperse.", "52. As regards their arrest, the applicants claimed that they had acted peacefully and had not committed any unlawful acts. Prior to their arrest the police had given them no warnings and no orders which they could have disobeyed. Overall, they considered that the dispersal of the demonstration, their arrest and the ensuing conviction had not been “necessary in a democratic society”. 2.", "The Court’s assessment (a) Whether there has been an interference with the exercise of the right to freedom of peaceful assembly 53. The Court has previously held that the protest in Bolotnaya Square on 6 May 2012 fell within the scope of Article 11 of the Convention (see Yaroslav Belousov, cited above, §§ 168-71). It has also found that the domestic authorities failed to discharge their positive obligation to ensure the peaceful conduct of that protest (see Frumkin v. Russia, cited above, §§ 93-130). 54. As to whether the applicants personally could rely on the provisions of Article 11, the Court reiterates that peaceful participants of a protest tarnished by isolated acts of violence committed by other participants do not cease to enjoy the right to peaceful assembly (see Kudrevičius and Others v. Lithuania [GC], no.", "37553/05, § 94, ECHR 2015, and Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004). It does not appear from any submissions that the applicants were among those responsible for the initial acts of aggression which contributed to the deterioration of the protest’s originally peaceful character. As regards the breaking through the police cordon imputed to the applicants, they denied having pushed through the cordon, and even if the applicants found themselves beyond the cordon, there is no evidence that it had been the result of their deliberate effort. According to the material in the case file, the cordon rupture had resulted from the pressure of the crowd which had built up because of the unexpected and unannounced change by the authorities of the venue layout (see also Frumkin, cited above, §§ 113-16 and 132).", "Apart from that, the applicants’ behaviour remained strictly peaceful, including the chanting of political slogans by the first applicant. The Court therefore considers that the applicants enjoyed the protection of Article 11 in the present case. 55. As to whether the applicants’ right to freedom of assembly was interfered with, the Court reiterates that measures taken by the authorities during a rally, such as dispersal of the rally or the arrest of participants and penalties imposed for having taken part in a rally, amount to an interference (see Kasparov and Others, cited above, § 84, with further references). The Court therefore considers that the termination of the demonstration, the applicants’ arrest at the venue of the event and conviction for administrative offences constituted an interference with their right to freedom of peaceful assembly.", "(b) Whether the interference was justified 56. The Court has examined the circumstances surrounding the termination of the demonstration at Bolotnaya Square in Frumkin, cited above, §§ 131-36, where the parties’ submissions had been substantially the same as in the present case. As in Frumkin, the Court will abstain from analysing the manner in which the police dispersed the protestors at Malyy Kamennyy Bridge, as it falls outside the scope of the applicants’ case. It will examine the actions taken against the applicants personally. 57.", "It is in dispute between the parties whether the applicants were arrested before or shortly after the time-slot originally authorised for the protest, especially as regards the second applicant. However, for the purposes of the analysis under Article 11, it is sufficient to note that even if the applicants were on the wrong side of the time-limit, measures taken against them after a protest has ended fall within the scope of that provision (ibid., § 138). It follows that these measures had to have complied with the law, pursued a legitimate aim and have been necessary in a democratic society within the meaning of Article 11 § 2 of the Convention. 58. The applicants contested the lawfulness of measures taken against them, alleging, in particular, that the police had had no grounds to give them orders to disperse.", "The Court considers that in this case the questions of compliance with the law and of the existence of a legitimate aim cannot be dissociated from the question of whether the interference was “necessary in a democratic society”, and that it is unnecessary to examine them separately (see, for similar reasoning, Nemtsov, cited above, § 75). 59. The Court is mindful of the authorities’ submission that the enhanced security measures, in particular, the crackdown on those charged with offences committed on 6 May 2012 on Bolotnaya Square, were specifically aimed at preventing illegal campsites from being set up (see Frumkin, cited above, § 139). At the same time, the applicants were not arrested and sanctioned for breaching the rules on public assembly. Even if their presence at the meeting venue after its closure were to be considered as a manifestation of their objection to the termination of the protest, that was not the offence with which they were charged.", "According to the domestic courts and the Government’s submissions, they were arrested, detained and sentenced to twenty-four hours’ detention and an administrative fine because they had participated in breaking the police cordon and disobeyed lawful police orders to cease these actions and disperse. 60. The Court further notes that both applicants contested the administrative charges against them on the grounds that the underlying events had not, in fact, taken place. It has found that the domestic courts failed to establish key facts in the administrative proceedings against the first applicant, specifically whether the applicant had received an order from the police, or whether it had been lawful, or whether the applicant had disobeyed it. In the overall context of clashes between the police and protesters that happened at Bolotnaya Square, it was incumbent on the domestic courts to establish whether the first applicant had indeed participated in breaking the police cordon.", "Moreover, other acts imputed to him included chanting anti-government slogans, which were peaceful and constituted protest, a form of expression protected by Article 10 of the Convention (see Taranenko v. Russia, no. 19554/05, § 70, 15 May 2014). The domestic courts did not take into account that if the first applicant had overstayed the allocated time-slot, he had done so in connection with the exercise of freedom of expression and freedom of assembly. Quite to the contrary, they penalised him for the political message he intended to express by his presence at the venue and by chanting non-violent political slogans (see Yaroslav Belousov, cited above, § 178). 61.", "As regards the second applicant, the Court notes that the domestic courts dismissed his account of events supported by other evidence, including testimony of an eyewitness, and relied on the police statements and reports. The domestic courts’ decisions disclose no attempt to establish the relevant facts on the basis of comparative assessment of the conflicting testimonies of the applicant and his sister, and police officers. Furthermore, the courts merely stated that he had broken the police cordon and continued his participation in the demonstration, without verifying the chronology of events. The Court notes that even if, according to the authorities, the second applicant was arrested at 8.10 p.m., the description of his offence (see paragraph 19 above) sits ill with the fact that the venue had been fully cleared of all protestors by 7.30 p.m. (see paragraph 7 above). In the absence of adequate examination of the relevant factual and legal elements of the case on their part, the domestic courts cannot be said to have “applied standards which were in conformity with the principles embodied in Article 11” (see Annenkov and Others v. Russia, no.", "31475/10, § 139 and the cases cited therein, 25 July 2017). 62. The Court therefore is not satisfied that the reasons adduced by the national authorities to justify the interference under Article 11 of the Convention, namely the applicants’ arrest at the site of the venue and their conviction for administrative offences, were relevant and sufficient. It must be stressed, moreover, that the measures taken against the applicants must have had the effect of discouraging them and others from attending protest rallies and, more generally, from participating in open political debate. The chilling effect of the sanctions imposed on them was further amplified by the large number of arrests effected on that day, which attracted widespread media coverage.", "63. There has accordingly been a violation of Article 11 of the Convention in respect of each applicant. V. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 64. Lastly, the applicants complained that the termination of their participation in a public protest, their arrest, detention and conviction for administrative offences had pursued the aim of undermining their right to liberty and freedom of assembly. They complained of a violation of Article 18 of the Convention, which reads as follows: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 65.", "In their submissions under this head the parties reiterated their arguments as regards the alleged interference with the right to freedom of assembly, the reasons for the applicants’ deprivation of liberty and the guarantees of a fair hearing in the administrative proceedings. 66. The Court notes that this complaint is linked to the complaints examined above under Articles 5, 6 and 11 and must therefore likewise be declared admissible. 67. The Court has already found that the applicants’ arrest and administrative conviction were not justified, and that this had the effect of preventing or discouraging them and others from participating in protest rallies and engaging actively in opposition politics (see paragraphs 35 and 62 above).", "68. Having regard to those findings, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 18 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 70. Each applicant claimed 11,000 euros (EUR) in respect of non‑pecuniary damage. 71. The Government considered that if the Court were to find a violation of the Convention in the present case, this finding would constitute in itself sufficient just satisfaction. They stated that any award to be made by the Court should in any event take into account each applicant’s individual circumstances, in particular the length of his deprivation of liberty and the gravity of the penalty.", "72. The Court has found a violation of Articles 5, 6 and 11 of the Convention in respect of each applicant. Making its assessment on an equitable basis, it awards each applicant EUR 7,500 in respect of non‑pecuniary damage. B. Costs and expenses 73.", "Each applicant also claimed EUR 1,100 in respect of legal fees incurred in the proceedings before the Court. 74. The Government contested the claims on the grounds that there was no proof that they had actually been incurred. 75. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "The Court notes that the applicants submitted no documentary proof, such as legal-services contracts with their representative, payment receipts or invoices, that they had a legally enforceable obligation to pay for the lawyer’s services or that they had in fact paid them. Regard being had to these considerations and to its case-law, the Court rejects each applicant’s claim for costs and expenses (see Novikova and Others, cited above, § 235). C. Default interest 76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.", "Decides to join the applications; 2. Declares the applications admissible; 3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of each applicant; 4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the objective impartiality requirement in respect of each applicant; 5. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the fairness of the administrative proceedings against the first applicant; 6.", "Holds that there has been a violation of Article 11 of the Convention in respect of each applicant; 7. Holds that there is no need to examine the complaints under Article 18 of the Convention; 8. Holds (a) that the respondent State is to pay each applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıBranko LubardaDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BECKLES v. THE UNITED KINGDOM (Application no. 44652/98) JUDGMENT STRASBOURG 8 October 2002 FINAL 08/01/2003 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Beckles v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,SirNicolas Bratza,MrA.", "Pastor Ridruejo,MrsE. Palm,MrJ. Casadevall,MrR. Maruste,MrS. Pavlovschi, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 17 September 2002, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 44652/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Keith Anderson Beckles (“the applicant”), on 4 November 1998. 2. The applicant, who had been granted legal aid, was represented before the Court by Hickman & Rose, Solicitors, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office.", "3. The applicant, relying on Article 6 of the Convention, alleged that he had been denied a fair hearing since the judge at his trial misdirected the jury on the issue of the exercise by him of his right to silence during police interview. 4. The application was originally allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court), which declared it admissible on 28 August 2001. 5.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). The application was allocated to the Fourth Section of the Court. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "The Chamber decided after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. On 3 January 1997 the applicant and a co-defendant, M., were convicted of the robbery, false imprisonment and attempted murder of Mr Mohamed Mohamoud. The applicant was sentenced to fifteen years’ imprisonment.", "A third co-defendant, W., was convicted of robbery and false imprisonment. 8. According to the prosecution’s case, on 3 January 1996 Mr Mohamoud, who had spent some of the day selling Khat (a stimulant leaf), picked up W., a prostitute, and arranged to go to her home for sex. W. lived in a fourth-floor council flat which was also occupied by M. When they arrived there were three men, a woman and two teenagers in the flat. Mr Mohamoud was held by the applicant and searched at knife-point by M. who took thirty to forty pounds in cash from him and then left to buy drugs.", "M. later returned with a quantity of crack cocaine which the occupants of the flat, but not Mr Mohamoud, smoked. 9. Mr Mohamoud was then searched a second time by the applicant and W. and a further sum of money was taken from him. He was prevented all this time from leaving the flat by the applicant. 10.", "At some stage M.’s mood changed under the effects of the drugs and he became angry. M., together with the applicant and an unidentified woman, lifted Mr Mohamoud up and threw him out of the window. He fell four floors. He survived, although he was left paralysed from the waist down. The occupants of the flat made no attempt to call an ambulance.", "He managed to attract attention by throwing stones at the window of a ground-floor flat. An ambulance eventually arrived to take him to hospital. 11. M. was arrested on 13 January 1996, the applicant on 24 January and W. on 26 January. 12.", "The applicant was cautioned by the police in the following terms: “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.” 13. The applicant then told the police: “I’m relieved. I’ve expected this every time I’ve been to the shops.” 14. When being taken to the police station he further stated: “He wasn’t pushed.", "He jumped. How is he?” and “I can tell you everything, he jumped.” 15. The applicant was advised to wait until he was interviewed at the police station. 16. At the start of the interview on 24 January 1996 the applicant’s solicitor informed the police that he had had a lengthy private conversation with his client and had advised him not to reply to any questions at the present time.", "His reasons were based on what he had been told about the allegations and his view that it would not be reasonable for the applicant to answer questions at that stage. He informed the police that the applicant would be willing to take part in an identification procedure. 17. The applicant was reminded by the police that he was under caution and he confirmed that he understood the implications of the caution. Thereafter, the applicant answered “no comment” to each question and in particular did so when asked whether he was present at the flat at the time of the offences, whether he knew Mr Mohamoud, whether the latter was thrown out of the window and whether he would like to offer any account of the events in question.", "The applicant points out that the police never put to him his remark “He wasn’t pushed-he jumped” (see paragraph 14 above). The applicant submits that this statement was at the core of his defence and should have been referred to during interview. 18. At the end of the interview the applicant was reminded of the terms of the caution. 19.", "On 31 May 1996 Mr Mohamoud identified the applicant and the other co-accused in a videotape identification procedure conducted at the hospital where he was being treated. 20. On 17 September 1996 the applicant was again interviewed by the police in the presence of his solicitor and under caution. On that occasion he admitted being in the occasional presence of Mr Mohamoud at the flat and being in the flat on the night of 3-4 January 1996. The applicant denied being in the room when Mr Mohamoud fell from the window and repeated that Mr Mohamoud had not been pushed out.", "He stated that Mr Mohamoud had not been threatened and that “he was sitting there quite happy”. The applicant declared that he had been told by W. that Mr Mohamoud had “gone out the window”. He had not believed this and looked out to check. He saw Mr Mohamoud lying on the ground below. He did not go to help him because he was “scared” and thought he was dead.", "The applicant admitted that on the day(s) in question he was the only person in the flat who fitted the very distinctive features in the description given by Mr Mohamoud of his attackers. 21. At his trial the applicant testified that he had seen Mr Mohamoud drinking beer in the flat and spoke to him briefly on one occasion. He learnt of the incident from W. who informed him that “he’s gone out of the window”. The applicant thought she was joking.", "He went into the living room, looked out of the window and saw Mr Mohamoud lying on the ground below. W. then told him that Mr Mohamoud had jumped out of the window. He watched the police and ambulance arrive from a neighbouring flat. 22. When asked during his evidence why he had not answered some or all of the questions put to him during the police interview the applicant replied that he had done so on the advice of his solicitor.", "23. During the course of the applicant’s evidence, and without seeking the views of the applicant’s counsel in the absence of the jury, the trial judge asked the applicant if he was prepared to testify as to what he had told his solicitor prior to the first interview during the lengthy consultation. His counsel stated that since the question had been asked in the presence of the jury he would not object to the question being put to the applicant. The applicant then stated that he too had no objection to answering the question. The matter was not thereafter pursued by the prosecution or the trial judge.", "24. In his summing up to the jury the trial judge, with reference to section 34 of the Criminal Justice and Public Order Act 1994, directed the jury in the following terms: “... you may draw such inferences as seem to you to be fair and proper from that failure of [his] to mention [the points identified in his interview relating to his presence in the flat on that evening]. You could, for instance, infer that the [applicant and W.] have fabricated their evidence, made it up, after those first interviews. You could infer that they were indeed biding their time and seeing whether or not they would be identified. That failure to mention the sort of things or give answers to the sort of questions that I have listed, as [the applicant] failed, cannot of itself prove guilt.", "So, of course, if you were not sure of [Mr Mohamoud’s] identifications of any of these defendants, that would be the end of the case even if you thought they were behaving in the way I have just described over their first interviews. But although they cannot of themselves, those failures, prove guilt, you may hold that failure against them in deciding whether he is guilty. You don’t have to. It is for you to decide. [The applicant] told you that his reason for not answering some of the questions was that he had received advice from his solicitor that he should make no comment ... Of course, we have – you have – no independent evidence of what was said by the solicitor, but if simply saying ‘Oh my solicitor advised me not to answer questions’ was by itself a good and final answer, any competent solicitor and a defendant would have the power to strangle at birth any interview and that would make, you may think, a mockery of the Act of Parliament which allows a jury, if they think it is right and proper, to make an adverse inference and that could not have been Parliament’s intention.", "The fact is that it is [the applicant’s] choice ... whether or not to accept [his] solicitor’s advice or not, and any solicitor worthy of his or her name should have included in the advice the various pros and cons of saying no comment and in particular should have included the possibility, even the probability, that his or her defence could be harmed if they failed to mention facts that they could so easily do and that if they did not mention them, why then an adverse inference could be drawn. But as I say, you have no independent evidence as to what the solicitor said or did not say. But whether or not the solicitors said that, the officers certainly did. They [administered the caution] more than once ... . So it is for each defendant ... to decide whether to answer or not.", "You decide what you make of the reasons given for not answering. If you thought that the reason given was a good one, then of course you could not hold it against them. If you thought that they were failing to answer certain awkward questions because, for example, they were keeping their powder dry, as it were, hoping against hope they would not be identified and the other reasons I mentioned a moment ago, or because they had not yet worked out what their defence was going to be, you could draw the inference that I have mentioned and, if you did, that might point towards guilt, but it is you who decide whether it is fair and proper to draw those adverse inferences.” 25. At the request of the applicant’s counsel the trial judge gave the following further direction to the jury: “When dealing with the [applicant’s] first [interview] when [he] failed to answer questions. I did not specifically remind you, though you have heard it any number of times, that the defendants were cautioned that they do not have to say anything.", "That is of course the position, they do not have to say anything, but the inferences I suggested that you can draw nevertheless remain if you think they have not mentioned things that they could reasonably have been expected to mention and if you think it is fair to take the inferences of the sort I have mentioned, but there is that right to silence.” 26. On 23 May 1997 the applicant was convicted of robbery, false imprisonment and attempted murder and sentenced to a total of fifteen years’ imprisonment. 27. The applicant and his co-accused appealed against conviction to the Court of Appeal. The applicant relied, inter alia, on the ground that the trial judge misdirected the jury on the proper inferences to be drawn under section 34(2) of the Criminal Justice and Public Order Act 1994 from the exercise of his right of silence at the police interview.", "28. On 7 May 1998 the Court of Appeal in a reserved judgment and following a hearing dismissed the appeal. Lord Justice Henry stated in his judgment, with reference to section 34 of the Criminal Justice and Public Order Act 1994, that it could not have been the intention of Parliament to provide that the only adverse inference that could be drawn from failure to disclose facts was recent fabrication. He quoted with approval the judgment of Lord Justice Rose in the case of R. v Roble (judgment of 21 January 1997, unreported). “The purpose of the statutory provisions is to permit adverse inferences to be drawn where there has been late fabrication, to this extent, to encourage speedy disclosure of a genuine defence.", "If a defendant disclosed to his solicitor, prior to a police interview, charging or trial, information capable of giving rise to a defence, it will always be open to the defence to lead evidence of this to rebut any inference of subsequent fabrication. But if such evidence was not disclosed or was not disclosed at a late stage in the sequence of interview, charge and trial, adverse inferences can be drawn by the jury.” 29. Lord Justice Henry added: “Thus the statutory objective designed to discourage surprise and “trial by ambush” is achieved. If the applicant was right in submitting that the only adverse inference that could be drawn was subsequent fabrication, the only purpose of the legislation (to encourage speedy disclosure of genuine defences) would be easily defeated. But in our judgment that is not the case...", "The complaint made ... is that under the Act a ‘proper inference’ is one relevant to ‘in determining whether the accused is guilty’, and not simply adverse to a Defendant. We agree with the first proposition contained in that sentence, but not with the second. As section 34(2)(d) [of the 1994 Act] makes clear, the jury may make such inferences as they think proper in their task of considering their verdict. Clearly such inferences must be properly drawn, that is to say drawn from facts relevant to the verdict. The inferences that are complained of are not simply ‘adverse’...", "When it is proper to take them into account the Judge rightly reminded the jury that they could draw the adverse inference that [the applicant] was biding his time and seeing whether or not he would be identified, and it was for the jury to decide whether or not ‘to hold that failure against [him] in deciding whether [he was] guilty’.” 30. With respect to the applicant’s argument that the trial judge should not have intervened to request the applicant whether he wished to relate what he had said to his solicitor before the first police interview, Lord Justice Henry considered that this intervention was improper and an invitation to the applicant to waive legal professional privilege. However he concluded that, in the circumstances, the applicant had not been prejudiced as a result of the intervention. 31. On 2 June 1998 the Court of Appeal refused to certify that that the case raised a point of public importance and refused leave to appeal to the House of Lords.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Criminal Justice and Public Order Act 1994 32. Section 34 of the Criminal Justice and Public Order Act 1994 provides that: “1. Where in any proceedings against a person for an offence, evidence is given that the accused – (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.", "2. Where this subsection applies ... (c) the court, in determining whether there is a case to answer; and (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. 3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.” 33. Section 35 (2) and (3) provides: “(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.", "(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” 34. Section 38 (3) adds that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...” 35. Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Criminal Appeal Reports 185). 36.", "The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that: “If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention. The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case.", "It is for you to decide whether it is fair to do so.” 37. The dicta of Lord Taylor CJ are as follows: “We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials that we would highlight: 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.", "2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. 3. An inference from failure to give evidence cannot on its own prove guilt.", "That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case.", "It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence. 5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” 38. The specimen direction for section 34, up-dated in May 1999 in the light of the judgments of the Court of Appeal in cases such as R. v. Argent ([1997] Criminal Appeal Reports 27), provided: “[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.", "The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence]. The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny]. If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.", "Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.", "[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him. ]” 39.", "The most recent version of the specimen direction was published by the Judicial Studies Board in July 2001 and takes account of case-law developments in the interpretation of section 34. The new direction provides: “1. Before his interview(s) the defendant was cautioned (...). He was first told that he need not say anything. It was therefore his right to remain silent.", "However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence. 2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies - ...). But [the prosecution say/he admits that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him.", "This is because you may draw the conclusion (...) from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution’s case/(here refer to any other reasonable inferences contended for - ...)]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it (...); but you may take it into account as some additional support for the prosecution’s case (...) and when deciding whether his [evidence/case] about these facts is true. 3. You may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny (...); third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him (...). 4.", "(Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence (here set out the evidence – ...). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so. 5. (Where legal advice to remain silent is relied upon, add the following instead of paragraph 4:) The defendant has given evidence that he did not answer questions on the advice of his solicitor/legal representative.", "If you accept the evidence that he was so advised, this is obviously an important consideration: but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence. Take into account also (here set out the circumstances relevant to the particular case, which may include the age of the defendant, the nature of and/or reasons for the advice given, and the complexity or otherwise of the facts on which he relied at the trial). Having done so, decide whether the defendant could reasonably have been expected to mention the facts on which he now relies. If, for example, you considered that he had or may have had an answer to give, but reasonably relied on the legal advice to remain silent, you should not draw any conclusion against him.", "But if, for example, you were sure that the defendant had no answer, and merely latched onto the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him, subject to the direction I have given you (...)”. 40. In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated: “The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned.", "The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ... Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.” 41. In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and / or the solicitor who gave the advice) about the contents of the advice, that is the reasons why he was so advised. 42.", "The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported). 43. In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur ([2000 Crim L. R. 178]) the Court of Appeal (per Lord Justice Auld) stated: “Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one.", "What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.” 44. In the Government’s submission in the case of Condron v. the United Kingdom (judgment of 2 May 2000, no.", "35718/97, § 38, ECHR 2000-V), the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act. 45. In R. v. Birchall ([1999] Criminal Law Reports) Lord Bingham CJ stated, with reference to section 35 of the 1994 Act: “Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant’s failure to give oral evidence at his trial until they have concluded that the Crown’s case against him is sufficiently compelling to call for an answer by him. ... There is a clear risk of injustice if the requirements of logic and fairness are not observed (...)” 46.", "In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial. 47. In R. v. Betts and Hall ([2001] 2 Criminal Appeal Reports 257)], the Court of Appeal stated that the effect of the above-mentioned Condron v. the United Kingdom judgment was that it was not the quality of the decision to remain silent that matters but the genuineness of the decision. For the Court of Appeal, this was not a shield for a guilty person to hide behind. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was the true reason for not mentioning the facts.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 48. The applicant maintained that he was denied a fair hearing on account of the manner in which the trial judge in his direction left the jury with the option of drawing an adverse inference from his silence during police questioning. He relied on Article 6 § 1 of the Convention, which provides in relevant part: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 49. The Government disputed the applicant’s assertion with reference to the principles laid down by the Court in its Condron v. the United Kingdom judgment of 2 May 2000 (no.", "35718/97, ECHR 2000-V). In the Government’s submission, the direction given by the trial judge was fully in line with the Court’s requirements as stated in the Condron judgment, confining as it did the jury’s discretion much more narrowly than was the case of the direction impugned in the Condron case. They argued that there was evidence before the police interview of the applicant’s involvement in the incident such as to give rise to a case to answer. The Government noted in this connection that there was evidence from the applicant himself that he had been present during the events in question and that a description given by the victim of one of his assailants plainly fitted the applicant. Furthermore, the applicant’s fingerprints were found on the frame of the window from which the victim fell.", "These and other incriminating matters were put to the applicant at the first interview and the evidence against him clearly called for an explanation. It was not unfair for the jury to be made aware both of the applicant’s intimations at the time of his arrest and his later silence during police interview on 24 January 1996. 50. The Government further stressed that, over and above the terms of the direction, the other safeguards identified by the Court in its Condron judgment were present in the instant case. In particular, the applicant was cautioned repeatedly in clear terms and on each occasion confirmed that he understood the implications of remaining silent.", "He had the benefit of legal assistance at the police station. The burden of proof lay with the prosecution throughout the trial and the jury was reminded in substance that it could only draw an adverse inference if satisfied that the applicant’s silence could only be sensibly attributed to him having no answer or none that would withstand scrutiny and that he later fabricated his defence after waiting to see how the evidence against him emerged. The jury was also told that if it was satisfied that the applicant’s reason for not answering questions (receipt of legal advice) was a good one, it could not hold it against the applicant by drawing an adverse inference. Furthermore, Mr Mohamoud’s identification of the applicant constituted a compelling case against the applicant and no plausible explanation was advanced by the defence as to why Mr Mohamoud would have thrown himself out of the window of his own volition. There was also the evidence of W. who testified that the applicant had lied or invented his evidence.", "51. As to the specific issue of the applicant’s reliance on legal advice to explain his silence, the Government stated that the fact that the applicant was asked by the trial judge in the presence of the jury whether he was prepared to tell the court what he had said to his solicitor before the police interview did not undermine the fairness of the proceedings. They found support for this proposition in the above-mentioned Condron judgment and pointed out that the jury was in any event well aware that the applicant had spoken to his solicitor before the police interview and had been advised not to answer questions. They stressed, in addition, that the trial judge left it open to the jury to decline to draw any adverse inferences against the applicant because of the legal advice even though no evidence had been adduced by the applicant about the content of the advice. On this last point, the Government emphasised that the applicant could have explained in court the reasons for his solicitor’s advice and why he had chosen to follow it.", "Alternatively, he could have called his solicitor to testify to these matters. The applicant’s failure to pursue either course cannot engage the responsibility of the Government. The fault lay with the applicant’s defence counsel. 52. The applicant asserted in reply that adverse inferences are only justified where silence can only sensibly be attributed to guilt or to the accused having no answer or none that would stand up to cross-examination.", "However, the jury in his case was permitted to hold his silence against him on the basis that it found his decision to do so unreasonable without necessarily also finding that it was only sensibly attributable to guilt. Indeed, the jury was effectively directed that it could draw adverse inferences if the applicant had stayed silent for innocent reasons. 53. Elaborating on this argument, the applicant contended that his remarks on arrest implied that he had an explanation for his conduct and that at the time of the first interview there was no evidence against him which clearly called for an answer. The applicant observed that at no stage during the police interview was he ever invited to comment on his pre-interview statement: “I can tell you everything-he jumped.” (see paragraph 17 above).", "That statement lay at the heart of his defence. Had it been put to him during interview, it would have been capable of constituting a fact relied on in his defence in response to police questioning and may have prevented the drawing of an adverse inference at his trial. The applicant further stressed that interview questions cannot in themselves constitute evidence that call for an answer, otherwise the only requirement for an inference to be fair and proper is that questions were asked but not answered. Given that he was presumed innocent at the time of the interview and that no burden lay on him to prove his innocence, he was entitled to await any prosecution evidence such as, for example, a positive identification, before admitting his presence at the scene. In these circumstances he had been properly advised by his solicitor not to answer the questions put to him by the police at the first interview.", "54. The applicant disputed the Government’s view that the terms of the trial judge’s direction confined the jury’s discretion within the limits set by the Court’s Condron judgment. The applicant reiterated that the trial judge failed to direct the jury that it could only draw an adverse inference if it was satisfied that the sole explanation for his silence was that he was guilty. The trial judge wrongly allowed the jury to draw an inference if it believed that the applicant held his silence because he was “keeping his powder dry.” 55. The applicant further stressed that the trial judge failed in his direction to inform the jury that it should give sufficient weight to the fact that he had stayed silent under police questioning on the advice of his solicitor.", "He drew attention to the fact that his solicitor’s advice appeared in the transcript of the police interview (see paragraph 16 above). It was therefore wrong for the trial judge to have told the jury that there was “no independent evidence” of what the solicitor had said. By informing the jury of this, the trial judge effectively withdrew the jury’s consideration of whether the fact of legal advice was capable of preventing an adverse inference. In any event, the trial judge in effect directed the jury that the legal advice to remain silent was not “a good ... answer” (see paragraph 24 above). Moreover, the applicant had been willing at his trial to testify to the content of his solicitor’s advice.", "However, the trial judge improperly raised the issue of waiver of privilege in the presence of jury, put pressure on the applicant to waive privilege and then denied him the opportunity to relate to the jury what his solicitor had told him at the police station (see paragraph 23 above). 56. The applicant further contended that the evidence against him was not compelling, as the Government claimed. For example, there was a number of inconsistencies in Mr Mohamoud’s identification and other evidence relied on by the prosecution. It was the applicant’s case that the latter, fearing violence, may have panicked and tried to escape through the window without realising the height and there was no expert evidence that Mr Mohamoud would have left fingerprints on the window frame if he had jumped.", "The absence of prints did not mean that a surface had not been touched. 57. The Court recalls that in its above-cited Condron judgment (§§ 56-57) it confirmed in line with its earlier John Murray v. the United Kingdom judgment (Reports of Judgments and Decisions 1996-I) that the right to silence is not an absolute right. Accordingly, the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either, as in the instant case, during police interview or during his trial cannot of itself be considered incompatible with the requirements of a fair trial. 58.", "The Court further stressed in its Condron judgment that since the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6, particular caution was required before a domestic court could invoke an accused’s silence against him. Thus it would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. Nevertheless, it is obvious that the right cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution (ibid.). 59. For the Court, whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation (ibid.).", "Of particular relevance are the terms of the trial judge’s direction to the jury on the issue of adverse inferences. 60. The Court observes at the outset that the applicant held his silence at the police interview on 24 January 1996 following the administration of a caution. The terms of that caution, which were repeated during the interview, were clear as to his legal rights and the applicant has not disputed that he understood their meaning, in particular the possible implications of refusing to answer the questions put to him. He was under no compulsion to speak and he could not be exposed to any criminal penalty for holding his silence.", "Moreover, the applicant’s solicitor was present during the interview to advise him on what served his interests best at that stage of the investigation, namely silence or co-operation. The applicant chose to remain silent on the advice of his solicitor, advice which the solicitor related to the police and which was entered on the record of the interview (see paragraph 16 above). The Court would also note at this stage that the matters put to the applicant during interview were incriminating and clearly called for an explanation. It would further observe that the applicant, prior to receiving legal advice, had shown his readiness to account for his presence in the flat at the time of the incident, but was told by the police not to say anything at that juncture (see paragraph 15 above). 61.", "At his trial the applicant explained to the jury that he did not respond to police questioning since he had been advised not to do so. The applicant was prepared to elaborate on this reason and to testify to the content of his solicitor’s advice at the police station. However, and this has not been explained, neither the applicant’s counsel nor the prosecution pursued the applicant’s willingness to waive legal professional privilege and to have confirmed his explanation for his silence. The Government consider that the fault lay with the defence. 62.", "However, the fact remains that the trial judge emphasised to the jury on two occasions in the course of his direction that there was “no independent evidence” of what the solicitor said at the police station (see paragraph 24 above) without any reference to the fact that the applicant had been prepared to provide details of the exchanges which he had with his solicitor at the police station and that he had manifested his willingness to co-operate with the police on the way to the police station. It must be further observed that it was the trial judge who had first enquired of the applicant whether he was willing to reveal the content of his discussions with his solicitor. It cannot be overlooked either that the solicitor’s advice appeared in the record of the police interview (see paragraph 16 above) and was entirely consistent with the applicant’s own explanation for his silence. Moreover, the applicant remained steadfast at the trial as regards his initial, pre-interview explanation as to why Mr Mohamoud fell from the window. He did not seek at any stage to rely on new facts or circumstances which he might have been expected to reveal had he chosen to co-operate with the police at the interview in defiance of his solicitor’s advice (c.f.", "Kavanagh v. the United Kingdom, application no. 39389/98, inadmissibility decision, 28.08.2001). For the Court, these are all matters which go to the plausibility of the applicant’s explanation and which, as a matter of fairness, should have been built into the direction in order to allow the jury to consider fully whether the applicant’s reason for his silence was a genuine one, or whether, on the contrary, his silence was in effect consistent only with guilt and his reliance on legal advice to stay silent merely a convenient self-serving excuse. 63. It is true that the trial judge put the applicant’s explanation for the applicant’s silence to the jury and informed the jury “If you thought that the reason given was a good one, then of course you could not hold it against [the applicant]”.", "It is also true that the judge’s statement was made in the context of his general warnings to the jury that the applicant’s failure to reply to police questioning “cannot of itself prove guilt” and that it was for the jury to “decide whether it was fair and proper to draw those inferences” and that “there is that right to silence.” 64. Nevertheless, the Court considers that the trial judge failed to give appropriate weight in his direction to the applicant’s explanation for his silence at the police interview and left the jury at liberty to draw an adverse inference from the applicant’s silence notwithstanding that it may have been satisfied as to the plausibility of the explanation given by him (c.f. the above-mentioned Condron judgment, § 61). Quite apart from the fact that the trial judge had undermined the value of the applicant’s explanation by referring to the lack of independent evidence as to what was said by the solicitor and by omitting to mention that the applicant was willing to give his version of the incident to the police before he spoke to his solicitor, it is also to be noted that he invited the jury to reflect on whether the applicant’s reason for his silence was “a good one” without also emphasising that it must be consistent only with guilt. In the Court’s opinion, the jury should have been reminded of all of the relevant background considerations referred to above and directed that if it was satisfied that the applicant’s silence at the police interview could not sensibly be attributed to his having no answer or none that would be stand up to police questioning it should not draw an adverse inference (c.f.", "§ 61 of the above-mentioned Condron judgment). It notes in this connection that the case-law of the domestic courts in this area has steadily evolved and that the Court of Appeal in R. v. Betts and Hall has recently noted the importance of giving due weight to an accused’s reliance on legal advice to explain his failure to respond to police questioning (see paragraph 47 above). The current specimen direction for section 34 also provides guidance on how this issue should be addressed (see paragraph 39 above). 65. Having regard to the fact that it is impossible to ascertain the weight, if any, given by the jury to the applicant’ silence, it was crucial that the jury was properly directed on this matter.", "It finds that in the instant case the jury’s discretion on this question was not confined in a manner which was compatible with the exercise by the applicant of his right to silence at the police station. 66. For the above reason, the Court finds that there has been a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 67.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 68. The applicant claimed compensation for non-pecuniary damage in an amount to be determined by the Court on the basis of what it considered equitable in all the circumstances. 69. The Government stated that there was no justification for making an award. 70.", "The Court has found a violation of Article 6 of the Convention. It considers that that finding constitutes in itself sufficient just satisfaction in this case. B. Costs and expenses 71. The applicant claimed a total amount of 21,194.06 pounds sterling (“GBP”) in respect of costs and expenses.", "This amount, which included value-added tax, comprised solicitors’ costs (GBP 3,037.50) and the fees charged by a Queen’s Counsel (GBP 11,456.25) and junior counsel (GBP 6,168.75). The applicant submitted detailed specifications of the various heads of claim including the type of work carried out on the case in the proceedings before the Court and the hourly rate charged. 72. The Government considered the amount claimed to be “manifestly excessive”. In their view, it was unnecessary to instruct leading and junior counsel to work on the case, especially since one of them had extensive experience in dealing with the sort of complaint declared admissible by the Court.", "Furthermore, it was unreasonable to charge for almost eighty-four hours’ work on the case. In their submission, the fees claimed by counsel would have been more appropriately fixed at two thirds of the hourly rates charged. The Government also questioned why it was necessary for the solicitor involved in the case to submit a claim for one hour’s travelling time. 73. For the Government, a more reasonable figure for costs and expenses would be in the region of GBP 7,000 including value-added tax.", "74. The Court, like the Government, questions the need to engage two counsel to work on the case. Whilst noting that the junior counsel became a Queen’s Counsel before the close of the pleadings and only charged fees at the junior counsel rate, it nevertheless considers that the decision to instruct two counsel unnecessarily inflated costs. 75. Deciding on an equitable basis, and having regard to the sum which the applicant received by way of legal aid from the Council of Europe (4,100 French francs), the Court awards the sum of 19,000 euros (“EUR”) to be converted into the national currency at the date of settlement.", "C. Default interest 76. The rate of the default interest will be based on the marginal lending rate of the European Central Bank to which should be added three percentage points (see Christine Goodwin v. the United Kingdom [GC], application no. 28957, § 124, to be published in ECHR 2002-). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 19,000 (nineteen thousand euros) in respect of costs and expenses, plus any value-added tax that may be chargeable, to be converted into pounds sterling at the rate applicable at the date of settlement; (b) that simple interest at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 October 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleMatti PellonpääRegistrarPresident" ]

[ "FIFTH SECTION CASE OF K. v. SLOVENIA (Application no. 41293/05) JUDGMENT STRASBOURG 7 July 2011 FINAL 07/10/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of K. v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Isabelle Berro-Lefèvre,Ann Power,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 14 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "41293/05) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, F.K., on his own behalf and on behalf of his daughter, A., on 10 November 2005. The President of the Chamber granted the applicant’s request not to have his daughter’s name disclosed. The President of the Chamber further decided of his own motion to grant the applicant anonymity under Rule 47 § 3 of the Rules of Court. 2. The applicant was represented by Mr B. Verstovšek, a lawyer practising in Celje.", "The Slovenian Government (“the Government”) were represented by their Agent, Ms Neva Aleš Verdir, State Attorney. 3. The applicant alleged under Article 6 § 1 of the Convention and under Article 7 of the European Convention on the Exercise of Children’s Rights that the length of the impugned domestic court proceedings concerning the contact arrangements with his daughter had been excessive. He further alleged, in substance under Article 8 of the Convention that, as a result of the ineffectiveness of these proceedings, he had been deprived of regular contact. 4.", "On 2 October 2008 the President of the Third Section decided to communicate the complaints under Article 6 concerning delays in domestic proceedings and under Article 8 concerning the adverse effect these proceedings allegedly had on the applicant’s family life to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). The Court subsequently changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the above application has been assigned to the newly composed Fifth Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant, Mr F.K., is a Slovenian national who was born in 1971 and lives in Šentjur. 6. The applicant was married to I.V. On 19 August 2001 their daughter, A., was born. 7.", "On 28 November 2002 the Celje District Court granted the couple a divorce and awarded I.V. custody of A. The applicant obtained contact rights. A. The initial contact arrangements determined in the administrative proceedings and related enforcement proceedings 8.", "On 3 March 2003 the applicant and I.V. concluded an enforceable agreement on contact arrangements at the Laško Welfare Centre, in which they agreed that the applicant and A. would have the right to spend every second weekend together (but only half of the weekend for the first three months). 9. On 24 November 2004 the applicant and I.V. reached another agreement whereby they slightly modified the scope of contact.", "10. Beginning on 2 January 2005, I.V. was allegedly preventing contact between the applicant and A. As a result, on 30 January 2005, the applicant lodged a request for enforcement of the contact arrangements agreement of 3 March 2003 and 24 November 2004 with the Laško Administrative Unit. On 17 March 2005, the applicant’s lawyer again requested enforcement of the contact arrangements agreement of 3 March 2003.", "The enforcement request was forwarded to the Laško Welfare Centre. 11. On 1 April 2005 the Laško Welfare Centre was informed that, on 11 January 2005 I.V. had lodged a criminal complaint against the applicant for sexual abuse of A. (see paragraph 57 below).", "For this reason, the Laško Welfare Centre on the same day stayed the proceedings pending the outcome of the criminal proceedings. 12. Further to the applicant’s appeal, on 9 November 2005 the Ministry of Labour, Family and Social Affairs quashed the decision of the Laško Welfare Centre whereby the proceedings were stayed and decided to terminate the proceedings. It found that the contact agreement of 3 March 2003 was no longer enforceable, because the contact arrangements had been amended on 20 April 2005 by the Celje District Court in civil non-contentious proceedings (see paragraph 14 below). B.", "Amendment of the contact arrangements in civil non-contentious proceedings (Pn 188/2005) 13. On 13 April 2005 I.V. lodged a request with the Celje District Court for amendment of the contact arrangements determined by the Laško Welfare Centre on 3 March 2003. Referring to the alleged sexual abuse of A. by the applicant, she sought less frequent contact between the two and requested that contact take place under supervision by a social worker. She also requested that an interim measure be adopted in this respect.", "14. The Celje District Court found that on 23 February 2005 the Laško Welfare Centre had scheduled a meeting at which the applicant and I.V. had agreed that in March 2005 contact would take place under supervision. Another such meeting had been scheduled for 23 March 2005, but the applicant had failed to attend and no further agreement had been reached. Given that the applicant was suspected of sexual abuse, the court found it reasonable to uphold I.V.’s request in part.", "As a result, on 20 April 2005, it ordered the interim measure sought, pending the outcome of the proceedings. According to the court’s decision, contact was to be authorised once a week for an hour and a half, under supervision. 15. On 26 April 2005 the applicant objected to the above decision, claiming that the court, by ordering the interim measure in question, had breached the principle of presumption of innocence and had not respected the adversarial nature of the proceedings. In his objection, he also requested that these proceedings be joined to the contentious proceedings (P 327/2005 – see below).", "16. On 17 May 2005 the court held a hearing. Subsequently, it dismissed the applicant’s objection as unfounded. 17. The applicant appealed.", "18. On 10 August 2005 the Celje Higher Court dismissed his appeal and upheld the first-instance court’s decision on the interim measure. C. The applicant’s claim for custody and his alternative request for new contact arrangements in civil contentious proceedings (P 327/2005) 19. On 24 March 2005, since I.V. was allegedly preventing the applicant from having contact with A., the applicant, on his own behalf and on behalf of A., lodged a claim with the Celje District Court whereby he sought sole custody of A. and child maintenance.", "He also proposed that contact rights should be granted to I.V. In the alternative, the applicant requested that regular contact be granted between himself and A. and also between A. and other relatives. He further requested, also on A.’s behalf, that an interim measure be taken in respect of all his requests. Lastly, the applicant requested exemption from paying the court fees. 20.", "On 29 March and 7 April 2005 the court asked the applicant to complete his request for an exemption from obligation to pay the court fees. After the request was completed, on 8 April 2005, the court upheld it on 19 April 2005. 21. Meanwhile, on 14 April 2005 the applicant lodged preliminary written submissions, urging the court to order the interim measure sought on 24 March 2005. 22.", "On 7 June 2005 I.V. informed the court that the applicant was suspected of committing a criminal offence of sexual assault on a minor under the age of fifteen (see paragraph 58 below). 23. The court scheduled a hearing for 9 June 2005. The hearing was not held, on account of a request from the Administrative Court to examine the file (see paragraphs 52-56 below).", "24. On 15 and 18 July 2005 the court requested the Šentjur Welfare Centre to deliver an opinion in the case. The request was transferred to the Laško Welfare Centre, which delivered the opinion on 7 September 2005. 25. On 18 July 2005 the applicant lodged preliminary written submissions in which he partly amended his alternative request for an interim measure, seeking, in the event that the court did not grant him custody, that A. be placed in foster care, since there was a risk of her being sexually abused by I.V.’s new partner.", "He requested, in the event of refusal of the above request, that I.V.’s partner be forbidden to have contact with A. 26. On 24 November 2005 the court issued a decision in which it joined the non-contentious proceedings (Pn 188/2005, see above) to these proceedings. It also dismissed the applicant’s request for an interim measure on all points. 27.", "Following an appeal by the applicant, the Celje Higher Court, on 21 December 2005, quashed the first-instance decision and remitted it for re-examination, finding that the decision had not been sufficiently reasoned as far as the applicant was concerned. It also found that A. had not been adequately represented in the proceedings, as there was a risk of conflict of interest. Subsequently, on 11 January 2006, a lawyer was appointed as A.’s special representative. 28. On 21 March 2006 the first-instance court held a hearing in which the applicant and I.V.", "were heard and an expert in clinical psychology was appointed. However, the appointed expert fell ill and thus could not proceed with the examination. 29. On 9 May 2006 the Administrative Court again requested to examine the case file. The court sent photocopies of the file on 15 May 2006.", "30. On 5 June 2006 the court appointed another expert in psychology in order to determine, among other things, whether it was likely that A. had been sexually abused and whether the applicant had paedophile tendencies. She was also asked to determine whether both parents possessed the personal qualities essential for raising a child. 31. On 14 June 2006 the applicant requested that the appointed expert be relieved of her duties.", "32. On 4 July 2006 the court appointed a new expert, but the latter refused to take the case, stating that she would be absent for a long period of time. She was relieved of her duties by a court decision of 4 September 2006. On the same day, the court appointed the Commission for Expert Opinions at Ljubljana University (“the Expert Commission”) to draw up relevant expert opinions. 33.", "The two experts appointed by the Expert Commission examined the applicant, A. and I.V. They observed that A. did not show any signs of sexual abuse or trauma. They also noted that both parents had the appropriate qualities for raising a child. In addition, the expert in psychology observed no signs of sexual deviance or peculiarity in the applicant’s behaviour. The court received the report on 9 January 2007 after sending a reminder to the experts on 18 December 2006.", "34. On 11 January 2007 the court urged the criminal court to speed up the proceedings. 35. Relying on the experts’ opinions, on 12 February 2007, the applicant lodged preliminary submissions, seeking unsupervised and more frequent contact. A.’s special representative objected to the proposal for the court to issue the requested interim decision since, in her opinion, the expert could not indubitably rule out the alleged sexual abuse.", "I.V. also objected to the interim measure. 36. On 2 March 2007 the applicant lodged a supervisory appeal under the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) in order to accelerate the proceedings. 37.", "On 30 March 2007, after hearing the applicant and I.V. and relying on experts’ opinions, the court issued a decision rejecting the applicant’s request for an interim measure. It stated that contact was regulated by the interim measure of 20 April 2005 issued in the non-contentious proceedings (see paragraph 14 above) and that it was in the best interests of the child to maintain supervised visits, as the applicant was still suspected of child abuse. It also said that, albeit carried out under supervision, these visits allowed the emotional tie between the applicant and his daughter to be maintained. In addition, it terminated the proceedings in respect of A.’s request for an interim measure, since her special representative had withdrawn it.", "Finally, the court said that, in the particular circumstances of the case, notwithstanding the presumption of innocence, the necessary conditions for issuing the requested interim order had not been met. 38. On 5 April 2007 the applicant appealed against this decision. His appeal was dismissed by the Celje Higher Court on 6 June 2007. The Celje Higher Court considered that the material legal content of civil proceedings differed from the one in the criminal proceedings.", "As a result, the rejecting of the applicant’s request for an interim measure cannot constitute a breach of the principle of presumption of innocence. However, the fact that criminal proceedings were instituted against the applicant for sexually abusing his own daughter could not have been overlooked by the first-instance court when deciding on the scope of the contact. It added that the first-instance court had been correct in deciding that, on the basis of experts’ opinions, it could not be established with certainty whether a decision to immediately grant unsupervised contact would be in the child’s best interest. 39. Meanwhile, on 13 April 2007 the president of the first-instance court, apparently in response to the supervisory appeal of 2 March 2007, informed the applicant that the court had given a decision within four months of receipt of the supervisory appeal, namely on 30 March 2007 (see paragraph 37 above).", "40. Subsequently, on 10 July 2007, the applicant lodged a motion for a deadline under the 2006 Act, which was rejected as unfounded on 19 July 2007. 41. On 23 August 2007 the Administrative Court again requested to examine the case file. 42.", "On 28 September 2007 the applicant lodged preliminary written submissions stating that contact had been prevented on twenty occasions between 2 January and 1 September 2007. 43. On 18 October 2007 the court held a hearing at which the applicant and I.V. were heard. At 11.35 am the judge adjourned the hearing, since a hearing in the criminal proceedings was scheduled at 12 noon the same day.", "44. On 19 October 2007 the court requested the transcript of the hearing held on 18 October 2007 in the criminal proceedings. 45. On 16 November 2007, since the applicant had been acquitted in the criminal proceedings (see paragraph 74 below), he lodged preliminary written submissions requesting the court to immediately adopt an interim measure in order to ensure unsupervised contact between him and his daughter. 46.", "Also on 16 November 2007 the court issued a decision concerning the expert’s fees. 47. The hearing scheduled for 14 December 2007 was called off on account of other commitments of the expert in psychology. It was rescheduled for 29 January 2008. However, that hearing was not held, since the applicant’s representative was absent on that day.", "48. Meanwhile, on 15 January 2008 the applicant lodged two sets of preliminary written submissions. 49. On 28 January 2008 the court requested the Celje Higher Court to examine as a priority the appeal lodged by the District Prosecutor in the criminal proceedings (see paragraph 75 below) as the fact that those proceedings were pending constituted an obstacle to the civil proceedings. 50.", "On 17 April 2008 the court held a hearing. The parties concluded an enforceable court settlement concerning the contact rights. This was after the judgment acquitting the applicant had become final (see paragraph 78 below). Subsequently, on 23 April 2008 the court dismissed the applicant’s request for an interim measure of 16 November 2007 (see paragraph 45 above). 51.", "On 18 December 2008 the applicant lodged a just satisfaction claim under the 2006 Act, which was dismissed on 4 February 2009 as the State Attorney’s Office considered that the conditions set for reaching a friendly settlement had not been met in the applicant’s case. D. Administrative proceedings concerning the right to trial without undue delay in contentious civil proceedings (U 93/2005) 52. On 18 May 2005, the applicant, on his own behalf and on behalf of A., brought an action before the Administrative Court, Celje Unit against the Celje District Court for breach of the principle of procedural economy and expedition of proceedings and the constitutional right to trial without undue delay, in connection with the contentious civil proceedings instituted on 24 March 2005 (see paragraph 19 above). He claimed just satisfaction for the damages sustained in this respect. 53.", "On 14 June 2005 the Administrative Court dismissed the action as unfounded. 54. The applicant appealed on 18 July 2005. 55. On 8 December 2005 the Supreme Court quashed the first-instance decision.", "The case was remitted for re-examination in the part concerning the applicant. The Supreme Court further rejected the part of the decision concerning A. 56. On 7 September 2007 the Administrative Court rejected the applicant’s action, as the Celje District Court had already decided in the case (see paragraphs 37 and 38 above). E. Criminal proceedings (Kpr 54/2005, K 78/2006) 57.", "On 11 January 2005 I.V. lodged a criminal complaint against the applicant alleging sexual abuse of A. 58. On 16 March 2005 the Celje District Public Prosecutor lodged a request for a criminal investigation on the basis of the reasonable suspicion that the applicant had committed a criminal offence of sexual assault on a minor under the age of fifteen. 59.", "On 17 March 2005 the applicant lodged a criminal complaint against I.V. for providing false information with the effect of preventing him from having contact with A. The Celje District Public Prosecutor dismissed this complaint as premature on 23 May 2005, and no charges were brought against I.V. 60. Meanwhile, on 26 April and 18 July 2005 the applicant urged the Celje District Court to open a criminal investigation without delay in order to determine his innocence and, as a result, ensure regular contact between him and his daughter, which had been restricted by the court decision of 20 April 2005 (see paragraph 14 above) on account of the criminal complaint lodged against the applicant.", "61. On 9 September 2005, after questioning the applicant, the investigating judge decided to open a criminal investigation. 62. On 8 November 2005 the investigating judge heard I.V. and her new partner.", "The same day the judge appointed two experts in order to determine the overall state of mind of both, the applicant and his daughter. The first expert submitted his report on 7 December 2005 and the second one on 16 December 2005. 63. On 10 November 2005 the judge in the civil proceedings requested the court to send the criminal file for examination. The file was returned on 22 November 2005.", "64. On 8 December 2005 and 10 January 2006 the applicant submitted his defence in writing. 65. On 27 March 2006 the applicant was indicted for the criminal offence of sexual abuse of a minor under fifteen. 66.", "On 29 May 2006 the applicant submitted his additional defence in writing and urged the court to hold a hearing. 67. On 5 June 2006 the judge in the civil proceedings again requested to examine the criminal file. The file was sent back to the criminal court on 4 September 2006. 68.", "On 21 February 2007 the applicant again submitted his defence in writing. 69. On 2 March 2007 the applicant lodged a supervisory appeal under the 2006 Act in order to accelerate the proceedings. The supervisory appeal was dismissed on 23 March 2007 since the applicant had not been a party to the proceedings. However, it seems that the court wrongly examined the supervisory appeal under proceedings number P 78/2006 instead of K 78/2006.", "On 10 July 2007 the applicant lodged a motion for a deadline. On 13 July 2007 the Higher Court decided that the applicant’s motion for a deadline should be considered by the district court as a supervisory appeal. However, this remedy remained unanswered until 22 January 2009, when the president of the district court dismissed it. 70. Meanwhile, on 20 March 2007 the judge in the civil proceedings again requested to examine the file, which was sent back to the criminal court on 16 August 2007.", "71. The hearing scheduled for 19 September 2007 was called off on account of flooding in the presiding judge’s home town. 72. On 11 October 2007 the court held a hearing at which evidence was heard from several witnesses and experts. The applicant was also heard.", "73. On 15 October 2007 the judge in the civil proceedings again requested to examine the case file. 74. After the hearing held on 18 October 2007, the court delivered a judgment acquitting the applicant. 75.", "On 22 November 2007 the District Public Prosecutor lodged an appeal. 76. On 12 December 2007 the court gave two decisions concerning the experts’ fees. 77. On 15 January 2008 the applicant sought reimbursement of the costs and expenses he had incurred in the proceedings.", "78. On 4 March 2008 the Celje Higher Court dismissed the appeal and upheld the first-instance judgment. The judgment was served on the applicant on 20 March 2008. 79. On 8 April 2008 the presiding judge decided on costs and expenses.", "The applicant appealed against that decision. The interlocutory-proceedings panel quashed that decision and remitted it for re-examination. On 22 December 2008 additional costs were awarded to the applicant. F. Administrative proceedings concerning the right to trial without undue delay in criminal proceedings (U 91/2005) 80. In parallel, on 17 May 2005, the applicant, on his own behalf and on behalf of A., brought an action before the Administrative Court, Celje Unit against the Celje District Court for breach of the principle of procedural economy and expedition of proceedings and the constitutional right to trial without undue delay, in connection with the above criminal proceedings.", "He claimed just satisfaction for the damages sustained in this respect. 81. On 14 June 2005 the Administrative Court dismissed the action as unfounded, since the charges against the applicant had been brought only two months before the action was lodged; hence the relevant period was not in breach of the reasonable-time requirement. 82. The applicant appealed.", "83. On 8 December 2005 the Supreme Court quashed the first-instance decision. The case was remitted for re-examination in the part concerning the applicant. The Supreme Court further rejected the part of the decision concerning A. 84.", "On 4 April 2006 the Administrative court dismissed the remaining part of the action concerning the applicant. II. RELEVANT DOMESTIC LAW 85. A summary of the relevant domestic law may be found in Z. v. Slovenia (no. 43155/05, §§ 96-103, 30 November 2010) and Nezirović v. Slovenia ((dec.), no.16400/06, §§ 14-20, 25 November 2008).", "THE LAW I. LOCUS STANDI OF THE APPLICANT’S CHILD 86. The Government objected to the applicant’s capacity to act on behalf of his daughter A. in the proceedings before the Court. They submitted that at the time the applicant lodged the application I.V. had custody of A., while the applicant retained contact rights. Referring to the Hokkanen v. Finland case (23 September 1994, § 50, Series A no.", "299‑A), the Government argued that only I.V., who had been A.’s statutory representative, was entitled to lodge an application on her behalf. 87. The applicant did not comment on the issue. 88. The Court notes that on 28 November 2002 I.V.", "was granted sole custody of A. Having regard to the fact that the present case concerns the proceedings in which contact arrangements were determined and to the case-law on the subject matter, the Court concludes that the applicant has no standing to act on A.’s behalf (see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 89-90, 1 December 2009; Sahin v. Germany (dec.), no. 30943/96, 12 December 2000; and Petersen v. Germany (dec.), no. 31178/96, 6 December 2001).", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE LENGTH OF PROCEEDINGS 89. The applicant complained that the length of the civil and criminal proceedings was unreasonable, in breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time by a ... tribunal...” 90. The Court reiterates at the outset that, according to Article 35 § 1 of the Convention, it may only deal with an individual application lodged with it after all domestic remedies have been exhausted, according to generally recognised rules of international law, and within six months of the date on which the final decision was taken. 91.", "As regards the civil proceedings, the Court notes that the applicant availed himself of a supervisory appeal under the 2006 Act and subsequently, on 18 December 2008, lodged a just satisfaction claim with the State Attorney’s Office. That claim was dismissed on 4 February 2009, as the State Attorney’s Office considered that the conditions for reaching a settlement had not been met. The Court further notes that, given the fact that no settlement was reached, the applicant was consequently able to bring an action in respect of non-pecuniary damage suffered due to the length of the proceedings before the domestic court, in accordance with section 20 of the 2006 Act. 92. As to the criminal proceedings, the Court observes that the applicant first lodged a supervisory appeal, which was wrongly dismissed.", "The applicant then lodged a motion for a deadline, which was eventually considered as a supervisory appeal but which has remained unanswered until 22 January 2009. The Court notes that, according to the relevant provisions of the 2006 Act, the applicant was entitled to lodge a motion for a deadline provided that the supervisory appeal remained unanswered for two months, at least to secure his access to a compensation claim (see, mutatis mutandis, Nezirović v. Slovenia, cited above, § 41). However, he failed to do so. 93. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 94. The applicant also complained that his right to have his family life respected had been breached on account of delays in the proceedings concerning child custody and contact arrangements as well as in the criminal proceedings. He also complained that as a result of the ineffectiveness of the proceedings he could not have had regular contact with A., which had impeded A.’s psychological development and their relationship as father and daughter. In this connection, he further complained that the national authorities had failed to make sufficient efforts to expedite the criminal proceedings in order to determine the applicant’s innocence and, as a result, to ensure unsupervised contact.", "According to the applicant, the national authorities had also failed to order the interim measures sought in civil proceedings. To this end, the applicant invoked Article 6 of the Convention and Article 7 of the European Convention on the Exercise of Children’s Rights. 95. The Court first recalls that it has no power to supervise the compliance with the European Convention on the Exercise of Children’s Rights. In accordance with Article 19 of the Convention the Court’s role is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto.", "In this connection, the Court notes that the applicant’s complaints made under the European Convention on the Exercise of Children’s Rights and under Article 6 of the Convention concerned in substance Article 8 of the Convention. Being the master of the characterisation to be given in law to the facts of any case before it, the Court therefore deems it appropriate to examine these complaints in the context of the latter provision (see V.A.M. v. Serbia, no. 39177/05, § 115, 13 March 2007; Eberhard and M. v. Slovenia, cited above, § 111, and Z. v. Slovenia, cited above, § 130). 96.", "The relevant part of Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...” A. Admissibility 97. The Government invited the Court to declare the application inadmissible as the applicant did not avail himself of all available domestic remedies under the 2006 Act. 98.", "The applicant contested that argument, claiming that the remedies available were not effective. 99. The Court notes that the present application is in this part similar to the cases of Eberhard and M. v. Slovenia and Z. v. Slovenia judgments (cited above), in which the Court dismissed the Government’s objection of non-exhaustion of domestic remedies. The Court found that 2006 Act introduced remedies concerning specifically the right to have one’s case examined within a reasonable time, within the meaning of Article 6 § 1 of the Convention, while in the cases such as the present one, it is not merely the excessive length of civil proceedings which is in issue, but the question whether, in the circumstances of the case seen as a whole, the State can be said to have complied with its positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, cited above, § 105, and Z. v. Slovenia, cited above, §129). 100.", "The Court finds that the Government have not submitted any convincing arguments which would require the Court to depart from its established case-law, and therefore rejects this objection on the part of the Government as far as Article 8 issues are concerned. 101. The Court further notes that the complaint about the lack of respect for family life is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ arguments (a) The Government’s arguments 102. The Government argued that in the present case the State had complied with its positive obligations under Article 8. There was a proper legislative framework in place, and the authorities, who were guided by the best interests of the child, were sufficiently active.", "103. The Government further argued that both proceedings, civil and criminal, were factually very complex, bearing in mind in particular the number of experts and witnesses heard. To this must be added the intertwining of several sets of proceedings, including the administrative proceedings, which made the task of the relevant courts more difficult. 104. As to the civil proceedings, the Government argued that the conduct of the applicant had contributed to the delay.", "In particular, the applicant had not displayed enough diligence in submitting his request for tax exemption and had requested an adjournment of the hearing scheduled for 29 January 2008, which had caused a delay of four months and nine days. According to the Government, no periods of inactivity on the part of the authorities could be observed. 105. As to the criminal proceedings, the Government acknowledged that there had been three minor periods of inactivity, which were due to the requests of the civil judge to examine the case file. The Government argued that these delays should be considered as objective circumstances of the case and should thus not be attributed to the State.", "In addition, the Government argued that the duration of the criminal proceedings had not affected the required positive obligations for respect of family life under Article 8. 106. The Government further pointed out that the State had struck a fair balance between the interests of all parties involved, in particular those of A., when deciding that contact be restricted to one and a half hours a week and carried out under the supervision of a social worker. Moreover, it was very important that the contact did not cease completely during the criminal proceedings, but continued, albeit under supervision, until the parents had reached a settlement, on 17 April 2008, when contact became more frequent and unsupervised. According to the Government, the contact between the applicant and A. was only occasionally not carried out as agreed, which was due to A.’s other commitments or to illness.", "(b) The applicant’s arguments 107. The applicant submitted that the case ought to have been given priority, as required also by the domestic legislation. Nonetheless, the proceedings were lengthy, and as a result of the ineffectiveness of the proceedings he had been unable to see his daughter A. for three and a half years. Moreover, the applicant stressed that he had been regarded as a paedophile, which had damaged his reputation and caused him psychological anguish. 108.", "The applicant also criticised the way the civil proceedings had been conducted. In his submissions, the civil courts should have heard experts and decide on contact arrangements without waiting for the decision in criminal proceedings. Thus, the decision restricting the contact to one hour and a half a week, to be supervised, was based solely on the assumption that the applicant had committed an offence. 109. Finally, the applicant more generally submitted that as a matter of practice the Slovenian courts did not pursue the enforcement of interim orders in cases such as the present one.", "2. Relevant principles 110. Summaries of the relevant principles may be found in paragraphs 140-45 of the Court’s judgment in Z. v. Slovenia (cited above). 3. The Court’s assessment 111.", "The Court first notes that the civil contentious proceedings in which the applicant sought custody and, in the alternative, for contact to be granted, were instituted on 24 March 2005. The Court further observes that in parallel, I.V. instituted civil non-contentious proceedings requesting that, owing to possible sexual abuse, contact should be less frequent and visits should take place under supervision. As a result, on 20 April 2005 the court restricted the scope of the contact arrangements to one hour and a half a week, and secondly, ordered that contact was to take place under supervision. This decision was upheld by the Celje Higher Court on 10 August 2005.", "In the course of proceedings, on 24 November 2005, the court joined both those sets of proceedings. The final determination of contact arrangements was made on 17 April 2008 with a settlement between the parties. 112. The Court observes that the criminal proceedings began on 16 March 2005, when the request for an investigation was lodged against the applicant by the public prosecutor. On 18 October 2007 the applicant was acquitted.", "The proceedings terminated on 4 March 2008, the date the decision acquitting the applicant was upheld by the Celje Higher Court. 113. In the present case, the Court’s task consists in determining whether the alleged delays in the custody and contact arrangements proceedings and in the criminal proceedings have had an impact on the applicant’s family life which would amount to a breach of the applicant’s rights under Article 8. 114. As to the civil proceedings, the Court first notes that they lasted three years and one month and involved two levels of jurisdiction.", "In this period the domestic courts considered the main issue as well as several requests for an interim contact order. 115. The Court further observes that these proceedings were in general conducted swiftly. The court appointed four experts. Three of them could not ultimately compile a report, for different reasons (see paragraphs 28, 31 and 32 above); however, none of these reasons were imputable to the State.", "Moreover, the courts scheduled seven hearings. Four hearings were held, while three were called off (see paragraphs 23 and 47 above). 116. The criminal proceedings, which lasted nearly three years at two levels of jurisdiction, on the other hand, could not be considered to have been conducted within a reasonable time. They were pending for two years and seven months at the first level of jurisdiction alone.", "The Court attaches importance to two periods of inactivity for which the State could be held responsible; the delay of nearly six months between the request for an investigation and the investigating judge’s decision (see paragraphs 58 and 61 above) and, in particular, the delay of one year and five months between the bill of indictment and the date the court scheduled the first hearing (see paragraphs 65 and 71 above). 117. Turning to the question whether the conduct of the proceedings have had impact on the applicant’s family life, the Court first notes that in so far as the applicant could be understood as complaining about not having had any contact with A. for a certain period of time (see paragraph 42 above) the applicant failed to submit at least a detailed account of this matter by showing in which periods exactly the contact had not happened and what measures he had taken in this respect. Thus, the Court cannot make any inference on this particular question. The Court further notes that the applicant’s complaint relates chiefly to the fact that, by virtue of the interim decision of 20 April 2005, he could only have had a very limited contact with A., which was moreover conducted under supervision by social workers.", "The applicant alleged that this situation lasted for an excessive period of time. In this connection, the Court notes that owing to the fact that he was suspected of child abuse, the interim decision of 20 April 2005 was maintained until the final decision in the criminal proceedings. The Court would emphasise that the fact that the civil court was awaiting the criminal court’s judgment before allowing regular contact did not release the domestic authorities, including the criminal court, from their obligation to examine the case promptly (see Šilih v. Slovenia [GC], no. 71463/01, § 205, 9 April 2009). The criminal court nevertheless took almost three years to decide on the charges against the applicant; a period in which the applicant’s opportunities to enjoy family life with A. were severely curtailed.", "118. Finally, the Court notes that some delays may have occurred due to frequent circulation of the case files relating to civil and criminal proceedings between the courts (see paragraphs 23, 41, 63, 67, 70 and 73 above). However, in urgent cases such as this one a delay caused on that account may be justified only if limited to a few days as there is no reason why copying the file would not be an appropriate solution if certain documents are needed for examination in another set of proceedings. In this connection, the Court would reiterate that it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention, including those enshrined in Article 8 of the Convention (see, mutatis mutandis, R.M.D. v. Switzerland, 26 September 1997, § 54, Reports 1997-VI).", "119. In the light of the foregoing, the Court concludes that the Slovenian authorities failed to meet their positive obligations arising from Article 8 of the Convention, as a result of which the applicant’s contact with his daughter A. was severely restricted for three years (see, mutatis mutandis, Schaal v. Luxembourg, no. 51773/99, § 48, 18 February 2003). 120. There has accordingly been a breach of the applicant’s right to respect for his family life, in violation of Article 8 of the Convention.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 121. The applicant further complained under Article 6 § 2 of an infringement of the principle of the presumption of innocence, stating that contact should not have taken place under supervision as he had not been found guilty of any charges. In addition, without citing any Article of the Convention, the applicant argued that the national authorities, by not taking the appropriate measures, had failed to protect A.’s interests, given that she was exposed to a risk of sexual abuse by her mother’s new partner. Invoking Article 14, the applicant complained that, while a criminal investigation had been opened against him for alleged abuse of A., the State had failed to open a criminal investigation against A.’s mother’s new partner on the basis of the same type of allegations, made by the applicant himself.", "Finally, the applicant complained that he had been discriminated against in the proceedings because the courts had decided on his ex-wife’s case within a few weeks, while his case was at the time still pending. 122. Having regard to all the material in its possession and in so far as the matters fall within its competence, the Court considers that, even assuming that the applicant has complied with the requirement of exhaustion of domestic remedies in this respect, this part of the application does not disclose any appearance of a violation of the Convention. 123. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125. The applicant claimed 330,000 euros (EUR) in respect of non-pecuniary damage. 126.", "The Government disputed the claim. 127. The Court awards the applicant EUR 6,000 in respect of non-pecuniary damage suffered as a result of the violation of Article 8 of the Convention. B. Costs and expenses 128.", "The applicant also claimed 3,900,000 Slovenian tolars (SIT), which is approximately EUR 16,300, for the preparation of the application form. In addition, he claimed EUR 20,000 for costs and expenses incurred before the domestic courts and EUR 8,880 for those incurred in the proceedings before the Court subsequent to the lodging of the application. This claim was supported by an itemised list of expenses with reference to domestic statutory rates, similar to the lists normally submitted to the courts in domestic proceedings. 129. The Government disputed the claim as being exaggerated.", "130. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court also notes that the applicant’s lawyers lodged other applications, which are for the most part the same as this one. Accordingly, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses incurred in the domestic proceedings and considers it reasonable to award the applicant the sum of EUR 1,500 for the proceedings before the Court. C. Default interest 131.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the lack of respect for family life under Article 8 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention: (i) EUR 6,000 (six thousand euros) to the applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) to the applicant, plus any tax that may be chargeable to him, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident" ]

[ "FOURTH SECTION CASE OF WESOŁOWSKA v. POLAND (Application no. 17949/03) JUDGMENT STRASBOURG 4 March 2008 FINAL 04/06/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wesołowska v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Stanislav Pavlovschi,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 12 February 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17949/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Jarosława Wesołowska (“the applicant”), on 22 May 2003. She was represented before the Court by Ms B. Rojek, a lawyer practising in Warsaw. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "On 27 March 2006 the President of the Fourth Section decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it was decided to rule on the admissibility and merits of the application at the same time. THE FACTS I THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1921 and lives in Olsztyn. 5.", "In June 1948 the applicant’s late husband inherited part of the “Kowalewko” property, located in Dąbrowa, from its previous owner W.P. 6. On 20 March 1948 the expropriation commission prepared a survey report according to which the property consisted of 45 hectares of arable land. 7. On 4 June 1948 another survey report was adopted according to which the “Kowalewko” property consisted of 53.13 hectares of arable land.", "The commission decided that the findings of the report of 20 March 1948 were erroneous, as part of the property had been flooded and had been considered in the earlier report to be swamps and not arable land. 8. By an administrative decision of the Warsaw Regional Office (Urząd Wojewódzki) of 3 September 1948 the property was expropriated pursuant to provisions of the Decree of 6 September 1944 on Agrarian Reform (“the 1944 Decree”). 9. On 16 October 1948 this decision was confirmed by the Minister of Agriculture, who upheld the findings of fact of the expropriation commission as to the surface area of the property concerned.", "10. On 5 January 1993 the applicant lodged with the Ministry of Agriculture an application to have the expropriation decision declared null and void. The applicant maintained that the property should not have been subject to expropriation within the framework of the agrarian reform law as it did not attain the minimum threshold of 50 hectares of arable land. She referred to records dated 11 September 1948 and 11 January 1949 relating to the property. 11.", "On 15 November 1993 the applicant submitted the relevant documents in support of her claim. 12. On 9 December 1993 the Minister informed the applicant that her application would be examined towards the end of 1994. 13. On 21 December 1993 the applicant complained to the Cabinet Office about the inactivity of the Ministry of Agriculture and requested a speedy examination of her case.", "14. On 7 January 1994 the Cabinet Office referred the complaint to the Ministry of Agriculture. 15. On 14 January 1994 the Minister of Agriculture requested the Ciechanów Regional Office to submit information concerning the current owners and possessors of the “Kowalewko” property. 16.", "On 28 March 1994 the Ciechanów Regional Office submitted the requested information. 17. On 9 September 1994 the applicant lodged a complaint with the Supreme Administrative Court about the failure of the Minister to issue a decision in her case. 18. By a judgment of 19 December 1994 the Supreme Administrative Court ordered the Minister of Agriculture to issue a decision concerning the applicant’s application within two months from the date of the judgment.", "19. On 28 March 1995 the Minister decided to stay the proceedings on the grounds that the applicant had not submitted evidence required in support of her claim. The applicant appealed to the Supreme Administrative Court arguing that she had already submitted the relevant documents on 15 November 1993. 20. On 18 June 1996 the Supreme Administrative Court quashed the Minister’s decision to stay the proceedings.", "21. On 4 December 1996 the applicant again complained to the Supreme Administrative Court about the inactivity of the Minister. 22. On 26 March 1997 the Minister refused to declare null and void the decision of 1948. On 7 May 1997 the Minister upheld the decision of 26 March 1997.", "The applicant appealed to the Supreme Administrative Court. 23. On 9 April 1997 the Supreme Administrative Court rejected the applicant’s complaint of 4 December 1996 about the inactivity of the Minister, since the Minister had already issued a decision on 26 March 1997. 24. On 3 February 1999 the Supreme Administrative Court quashed the Minister’s decision of 7 May 1997.", "The court found that the Minister had not properly examined all relevant evidence in the case. 25. On 20 April 1999 the applicant complained to the Cabinet Office about the inactivity of the Minister of Agriculture. On 5 May 1999 the Cabinet Office replied that the Minister had taken steps to obtain information concerning the property. On 14 June 1999 the Cabinet Office transferred the applicant’s reply to the Ministry of Agriculture.", "26. On 30 June 1999 and 12 December 1999 the applicant inquired about her case. 27. On 10 April 2000 the applicant lodged a fresh complaint with the Supreme Administrative Court about the failure of the Minister to issue a decision in her case (under section 17 of the Supreme Administrative Court Act). 28.", "By a judgment of 15 February 2001 the Supreme Administrative Court ordered the Minister of Agriculture to issue a decision within one month from the date of the judgment. The court noted that seven years had passed since the applicant had lodged her motion with the Ministry and no decision on the merits had been delivered. 29. On 12 March 2001 the Minister of Agriculture issued a decision refusing to institute proceedings for annulment of the expropriation decision on the grounds that the applicant had not proved that she had a title to the property. 30.", "The Minister upheld the decision on 23 April 2001. The applicant appealed to the Supreme Administrative Court. 31. On 21 January 2002 the Supreme Administrative Court quashed both decisions. The court found that the decisions had been issued in flagrant breach of administrative procedure and were inconsistent with the evidence obtained in the case.", "The court criticised the Minister for not complying with the instructions and legal opinion included in the previous judgments of the Supreme Administrative Court. Further, the court observed that in its judgment of 3 February 1999 it had quashed only the decision of 7 May 1997; consequently, the decision of 26 March 1997 remained valid and the Minister should have replied to the applicant’s appeal instead of issuing new decisions. Accordingly, the Minister could not have issued a decision refusing to institute the proceedings for annulment, since a decision on the merits had already been delivered. 32. On 28 May 2004 the Minister refused to declare the decision of 1948 null and void, upholding the decision of 26 March 1997.", "33. On 2 December 2004 the Regional Administrative Court quashed the Minister’s decisions of 28 May 2004 and 26 March 1997. It observed that the Minister had still not complied with the court’s instructions; in particular the Minister had not allowed other heirs of W.P. (indicated by the applicant) to take part in the proceedings, although the Minister was clearly obliged to do so by the Supreme Administrative Court’s judgment of 21 January 2002. 34.", "On 9 August 2005 the applicant again lodged a complaint with the Regional Administrative Court about the failure of the Minister to issue a decision (under the provisions of the Law on Procedure before Administrative Courts). 35. By a judgment of 5 December 2005 the Regional Administrative Court ordered the Minister of Agriculture to issue a decision within one month from the date of the judgment. The court noted that the Minister had not taken any action in the case since the court’s judgment of 2 December 2004. Moreover, the authorities had summoned the applicant to complete unnecessary formalities, such as providing the address of a person whose death certificate had been included in the case file.", "36. On 24 June 2006 the Minister of Agriculture stayed ex officio the proceedings for annulment and requested the parties to institute court proceedings to determine entitlement to the estate of a certain J.W.P. (one of the parties to the proceedings who had died). 37. On 18 January 2007 the Minister upheld the decision.", "38. On 14 June 2007 the Regional Administrative Court quashed both decisions of the Minister. 39. The proceedings are still pending. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Inactivity of the administrative authorities 40. Article 35 of the Code of Administrative Procedure lays down time‑limits ranging from one month to two months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well‑founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay.", "If need be, the authority may order that measures be applied to prevent future delays. 41. On 1 October 1995 the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force. According to the provisions of section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision. Section 26 of the Law provides: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” 42.", "Pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question. 43. Under the same provision, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under section 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. Such a claim should be first lodged with that authority.", "A decision on the compensation claim should be taken by that administrative authority within three months. If the authority concerned fails to give a ruling in this respect within this time-limit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court. 44. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Procedure before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2(8) and section 149 of the 2002 Act contains provisions analogous to section 17 and 26 of the 1995 Act.", "A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law. Section 154 provides for a possibility of lodging a compensation claim against the administrative authority concerned if a party to the proceedings sustained damage as a result of a failure of that authority to act in compliance with the judgment of the administrative court. The principles of the Civil Code shall apply accordingly. B. State’s liability for a tort committed by its official 1.", "Provisions applicable before 1 September 2004 45. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” 46.", "Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order: “1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of a prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person. 2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.” 2. Provisions applicable as from 1 September 2004 47.", "On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. It introduced a new Article 417¹. Article 417¹ § 3 provides for a possibility of lodging a compensation claim for damages resulting from the unreasonable length of administrative proceedings after it was formally determined in the relevant proceedings that there had been an unlawful failure to issue an administrative decision within the relevant time-limits. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 48.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 49. The Government contested that argument. 50. The Court notes that the proceedings commenced on 5 January 1993 when the applicant lodged with the Ministry of Agriculture an application to have the expropriation decision declared null and void. However, the period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect.", "Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question has not yet ended. It has thus lasted 14 years and nearly 9 months. A. Admissibility 1. The Government’s plea of non-exhaustion of domestic remedies 51.", "The Government acknowledged that the applicant had lodged several complaints about inactivity of the Minister with the administrative courts. However, they argued that the applicant had not exhausted all remedies available under Polish law. 52. Firstly, the Government submitted that the applicant could have requested the administrative court to impose a fine on the Minister of Agriculture for the non-enforcement of that court’s judgments. They produced, as an example, a judgment of the Supreme Administrative Court of 18 February 2003 delivered in another case, imposing a fine of PLN 10,000 on the Minister of Agriculture for failure to issue a decision within the time-limit set by the court.", "53. The applicant submitted that the imposition of a fine would not have guaranteed a more effective handling of the case, in particular in the light of the fact that the proceedings had been pending for over fourteen years and during that time the examination of the case had been supervised by several different ministers. 54. Secondly, the Government submitted that it was open to the applicant to have recourse to the remedy provided for by section 31 §§ 4 and 5 of the Supreme Administrative Court Act and later by section 154 §§ 4 and 5 of the Law on Procedure before Administrative Courts. They argued that under these provisions, as applicable at the material time, the applicant could have claimed compensation for damage allegedly sustained as a result of non-enforcement of the judgment upholding her complaint about inactivity of the Minister.", "55. The Government further argued that the applicant had a possibility of seeking redress for the alleged damage resulting from the Minster’s inactivity by lodging a compensation claim directly with the civil courts under Article 417 of the Civil Code and, after 1 September 2004, under Article 4171 § 3 of the Civil Code. 56. The applicant contested these arguments. She argued, inter alia, that according to the relevant provisions the award of compensation depended on the aggrieved party proving that she/he had sustained pecuniary loss and that there was a casual link between the loss and the conduct of the administrative authorities for which they could be held responsible.", "According to the applicant, it would be extremely difficult to prove that such a loss had been sustained solely as a result of the excessive length of the proceedings. 2. The Court’s assessment 57. The Court reiterates at the outset that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp.", "2275‑76, §§ 51–52). 58. The Court further reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; Mifsud v. France (dec.), no.", "57220/00, § 15, ECHR 2002‑VIII; Skawińska v. Poland (dec.), no. 42096/98, 4 March 2003). 59. The Court notes that the Government have failed to substantiate their argument that a fine would have had a practical effect on the proceedings. Although they referred to a judgment of 18 February 2003, the Government did not provide any information as to the effect that that judgment had had on the length of the proceedings in question.", "Thus, the Court cannot see how the imposition of a fine on the Minister could have had an impact on the instant proceedings, and it is obviously not capable of redressing the violation. It follows that this part of the Government’s objection must be rejected. 60. As regards the remedies provided by Polish civil law the Court notes that it has already examined whether a compensation claim in tort as provided by civil law was an effective remedy in respect of complaints about the length of proceedings. It held that no persuasive arguments had been adduced to show that Article 417 of the Civil Code could at the relevant time be relied on for the purpose of seeking compensation for excessive length of proceedings or that such action offered reasonable prospects of success (see, mutatis mutandis, Skawińska v. Poland (dec.), no.", "42096/98, 4 March 2003, Małasiewicz v. Poland, no. 22072/02, §§ 32‑34, 14 October 2003, and for administrative proceedings Boszko v. Poland, no. 4054/03, § 35, 5 December 2006). The Court sees no grounds on which to depart from these findings in the present case. 61.", "The Court further notes that according to Article 417¹ § 3 of the Civil Code no claim for damages resulting from the unreasonable length of administrative proceedings may arise unless it was formally determined that there had been an unlawful failure to issue an administrative decision within the relevant time-limits. The Court observes in this connection that the Government provided no evidence of any judicial practice to show that a claim for compensation based on Article 417¹ § 3 of the Civil Code was an effective remedy and have thus failed to substantiate their contention (see Grabiński v. Poland, no. 43702/02, § 74, 17 October 2006). 62. As to the compensation claim provided by the administrative provisions, the Court observes that that remedy addresses situations where damage has been sustained as a result of non-enforcement of a judgment upholding a complaint about inactivity of an administrative body.", "Thus, the success of such a claim depends on prior establishment of the existence of damage and not merely the fact that the proceedings had been unreasonably lengthy. No arguments have been advanced to show that this remedy was effective in the context of excessive length of administrative proceedings. 63. The Court further notes in the above connection that the Government’s objection is confined to the mere statement that such a remedy is provided for by law. No further information as to relevant juridical practice has been furnished.", "In the absence of such information and having regard to the above-mentioned principle, the Court finds that the Government have failed to substantiate their contention that the remedy at issue is an effective one. 64. In any event, the Court also reiterates that, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see, mutatis mutandis, H.D. v. Poland (dec.), no. 33310/96, 7 June 2001).", "65. The Court considers therefore that, having exhausted the possibilities available to him within the administrative procedure system, the applicant was not required to embark on another attempt to obtain redress by bringing a civil action for compensation (see Kaniewski v. Poland, no. 38049/02, §§ 36-39, 8 November 2005). 66. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.", "67. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 68. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 69. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Zynger, cited above).", "70. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 71. Having regard to the applicant’s allegation that despite her numerous complaints about inactivity of the Minister the impugned proceedings have been pending for over fourteen years, the Court considered it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 13 of the Convention. This provision provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 72. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 73. The applicant argued that on several occasions she made use of the remedies available to her within the administrative procedure system but they had proved ineffective.", "She emphasised that despite the judgments of the administrative courts the proceedings were still pending before the Minister of Agriculture. 74. The Government maintained that the applicant had at her disposal the remedies to which they had earlier referred in their plea of inadmissibility on the ground of non-exhaustion of domestic remedies. They thus concluded that the applicant had an effective remedy as required under Article 13. 2.", "The Court’s assessment 75. The Court recalls that it has already held, in the context of Article 13 and remedies for excessive length of proceedings, that such a remedy, or the aggregate of remedies, in order to be “effective” must be capable either of preventing the alleged violation of the right to a “hearing within a reasonable time” or its continuation, or of providing adequate redress for a violation that had already occurred (see, mutatis mutandis, Kudła v. Poland, [GC], no. 30210/96, § 158 et seq. ECHR 2000-X). 76.", "The Court has already found that the complaint under section 17 of the Supreme Administrative Court Act was an effective remedy in cases in which an applicant complains about the excessive length of administrative proceedings (see, Zynger v. Poland (dec.), no. 66096/01, 7 May 2002 and Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002). The same applies to the analogous remedy introduced by sections 3 and 149 of the Law on Procedure before Administrative Courts. 77.", "The Court first observes that the applicant did not contest the availability of this remedy. She claimed, however, that in her case this remedy had proved ineffective (see paragraphs 71 and 73 above). 78. In this connection the Court reiterates that the existence of effective remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII; Cocchiarella v. Italy [GC], no.", "64886/01, § 40, ECHR 2006‑...). 79. The Court further notes that the applicant lodged several complaints about inactivity on the part of the Minister, invoking the administrative provisions in force at the relevant time (see paragraphs 17, 21, 27 and 34 above). On each occasion the Supreme Administrative Court and the Regional Administrative Court found that the complaints had been well‑founded, criticised the Minister and ordered the authorities to issue a decision without any further delay (see paragraphs 18, 28 and 35 above). 80.", "Nevertheless the Ministry did not abide by the administrative courts’ judgments and the impugned proceedings have been pending for nearly fifteen years, despite the successfully lodged complaints. 81. Examining the instant case in the light of the criteria laid down in its case-law the Court considers that the complaint about inactivity of administrative bodies, although in theory capable of accelerating the process of obtaining an administrative decision (see Bukowski, cited above), in practice did not satisfy the requisite criteria. Consequently, it cannot be regarded as an “effective” remedy within the meaning of Article 13 of the Convention. 82.", "Insofar as other remedies relied on by the Government are concerned, the Court has already found, when examining the Government’s plea of non-exhaustion, that the Government had not proved their effectiveness in respect of excessive length of administrative proceedings (see paragraphs 51-63 above). 83. Accordingly, there has been a violation of Article 13 in the present case. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 TO THE CONVENTION 84. The applicant lastly complained under Article 1 of Protocol No 1 about her prolonged inability to assert her rights to the property in question. This provision provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 85.", "The Court observes that the domestic proceedings to determine the applicant’s claim are currently pending. Therefore, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. The complaint must therefore be declared inadmissible for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. In so far as the applicant complains about the length of those proceedings and its impact on her right to property, this matter has been addressed under Article 6 and no separate issue arises under Article 1 (see, for example, Zanghì v. Italy, Series A no.", "194-C, § 23, Di Pede v. Italy, Reports of Judgments and Decisions 1996-IV, p. 17, § 35; Szenk v. Poland no. 67979/01, § 63). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 87. The applicant claimed PLN 40,000[1] in respect of non-pecuniary damage. 88. The Government contested these claims. 89.", "The Court considers that the applicant must have sustained non‑pecuniary damage and that it should award the full sum claimed. B. Costs and expenses 90. The applicant, who received legal aid from the Council of Europe in connection with the presentation of her case, did not make additional claim for costs and expenses involved in the proceedings. C. Default interest 91.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the excessive length of the proceedings and lack of an effective remedy admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 11,200 (eleven thousand two hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 4 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza Registrar President [1] Approx. EUR 11,200" ]

[ "GRAND CHAMBER CASE OF SALDUZ v. TURKEY (Application no. 36391/02) JUDGMENT STRASBOURG 27 November 2008 In the case of Salduz v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of: Nicolas Bratza, President,Christos Rozakis,Josep Casadevall,Rıza Türmen,Rait Maruste,Vladimiro Zagrebelsky,Stanislav Pavlovschi,Alvina Gyulumyan,Ljiljana Mijović,Dean Spielmann,Renate Jaeger,Davíd Thór Björgvinsson,Ján Šikuta,Ineta Ziemele,Mark Villiger,Luis López Guerra,Mirjana Lazarova Trajkovska, judges,and Vincent Berger, Jurisconsult, Having deliberated in private on 19 March and on 15 October 2008, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 36391/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yusuf Salduz (“the applicant”), on 8 August 2002. 2.", "The applicant alleged, in particular, that his defence rights had been violated in that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him and that he had been denied access to a lawyer while in police custody. In respect of his complaints, he relied on Article 6 §§ 1 and 3 (c) of the Convention. 3. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). 4.", "By a decision dated 28 March 2006, the application was declared partly inadmissible by a Chamber of that Section, composed of Jean-Paul Costa, Andras Baka, Rıza Türmen, Karl Jungwiert, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström, judges, and Sally Dollé, Section Registrar. 5. In its judgment of 26 April 2007 (“the Chamber judgment”), the Chamber, made up of Françoise Tulkens, Andras Baka, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni and Danutė Jočienė, judges, and Sally Dollé, Section Registrar, held unanimously that there had been a violation of Article 6 § 1 of the Convention on account of the non-communication of the Principal Public Prosecutor’s written opinion and further held by five votes to two that there had been no violation of Article 6 § 3 (c) of the Convention on account of the lack of legal assistance to the applicant while in police custody. 6. On 20 July 2007 the applicant requested that the case be referred to the Grand Chamber (Article 43 of the Convention).", "7. On 24 September 2007 a panel of the Grand Chamber decided to accept his request (Rule 73). 8. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 9.", "The applicant and the Government each filed observations on the merits. 10. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 March 2008 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrM. Özmen,Co-Agent,MsN.", "Çetin,MsA. Özdemir,Msİ. Kocayiğit,MrC. Aydin,Advisers; (b) for the applicantMrU. Kilinç,Counsel,MsT.", "Aslan,Adviser. The Court heard addresses by Mr Kılınç and Mr Özmen, as well as their replies to questions put by the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born on 2 February 1984 and lives in İzmir.", "A. The applicant’s arrest and detention 12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the anti-terrorism branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001. 13.", "At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body. 14. Subsequently, at about 1 a.m., the applicant was interrogated at the anti-terrorism branch in the absence of a lawyer. According to a form explaining arrested persons’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent.", "In his statement, the applicant admitted his involvement in the youth branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK.", "He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant’s handwriting and sent it to the police laboratory for examination. 15.", "On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant’s handwriting to that on the banner. It concluded that although certain characteristics of the applicant’s handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his. 16. At 11.45 p.m. on 1 June 2001 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body. 17.", "On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress.", "He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer. B.", "The trial 18. On 11 July 2001 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713). 19. On 16 July 2001 the State Security Court held a preparatory hearing.", "It decided that the applicant’s detention on remand should be continued and that the accused be invited to prepare their defence submissions. 20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. The applicant also rejected the police statement, alleging that it had been extracted from him under duress.", "He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 April 2001. 21.", "At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant’s lawyer requested time to submit the applicant’s defence submissions. 22. On 5 December 2001 the applicant made his defence submissions.", "He denied the charges against him and requested his release. On the same day, the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months’ imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence. 23.", "In convicting the applicant, the State Security Court had regard to the applicant’s statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant’s handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded: “... in view of these material facts, the court does not accept the applicant’s denial and finds that his confession to the police is substantiated.” C. The appeal 24.", "On 2 January 2002 the applicant’s lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly. 25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted that the Division should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative.", "26. On 10 June 2002 the Ninth Division of the Court of Cassation, upholding the İzmir State Security Court’s reasoning and assessment of the evidence, dismissed the applicant’s appeal. II. RELEVANT LAW AND PRACTICE A. Domestic law 1.", "The legislation in force at the time of the application 27. The relevant provisions of the former Code of Criminal Procedure (Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. Article 138 clearly stipulated that for juveniles, legal assistance was obligatory. 28.", "According to section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts. 2. Recent amendments 29. On 15 July 2003, by Law no.", "4928, the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted. 30. On 1 July 2005 a new Code of Criminal Procedure entered into force. According to the relevant provisions of the new Code (Articles 149 and 150), all detained persons have the right of access to a lawyer from the moment they are taken into police custody. The appointment of a lawyer is obligatory if the person concerned is a minor or if he or she is accused of an offence punishable by a maximum of at least five years’ imprisonment.", "31. Finally, section 10 of the Prevention of Terrorism Act (Law no. 3713), as amended on 29 June 2006, provides that for terrorist-related offences, the right of access to a lawyer may be delayed for twenty-four hours on the order of a public prosecutor. However, the accused cannot be interrogated during this period. B.", "Relevant international law materials 1. Procedure in juvenile cases (a) Council of Europe 32. The Recommendation of the Committee of Ministers to member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec(2003)20), adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding.", "While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor ...” 33. The Recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency (Recommendation No. R (87) 20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Recommends the governments of member States to review, if necessary, their legislation and practice with a view: 8. to reinforcing the legal position of minors throughout the proceedings, including the police interrogation, by recognising, inter alia: – the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the State.” (b) United Nations (i) Convention on the Rights of the Child 34. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows: “States Parties shall ensure that: ... (d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” (ii) General Comment No.", "10 of the Committee on the Rights of the Child, dated 25 April 2007 (CRC/C/GC/10) 35. The relevant part of this text concerning legal assistance to minors in police custody provides as follows: “49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States Parties to determine how this assistance is provided but it should be free of charge ... ... 52.", "The Committee recommends that the States Parties set and implement time‑limits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time-limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.” (iii) Concluding Observations of the Committee on the Rights of the Child: Turkey, dated 9 July 2001 (CRC/C/15/Add.152) 36.", "The relevant part of this text provides as follows: “66. The Committee recommends that the State Party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention [on the Rights of the Child], in particular Articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State Party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.” 2. Right of access to a lawyer during police custody (a) Council of Europe (i) Rules adopted by the Committee of Ministers 37.", "Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 38. Furthermore, the Recommendation of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules (Rec(2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Legal advice 23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.", "23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.” (ii) European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 39. Following its visit to Turkey in July 2000, the CPT published its report dated 8 November 2001 (CPT/Inf(2001)25). It stated: “61. Despite the many changes to legislation in recent years, certain weaknesses remain as regards formal safeguards against ill-treatment.", "Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of the State Security Courts are still not entitled to access to a lawyer during the first four days of their custody. Further, despite earlier affirmations to the contrary, the Turkish authorities made clear in their response to the report on the February/March 1999 visit that such persons are being denied during the first four days of their custody the possibility to inform a relative of their situation. Such incommunicado detention can only facilitate the infliction of ill-treatment. The CPT must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person’s access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged.", "The implementation of the above recommendation will require legislative measures. However, in the meantime, immediate steps should be taken to ensure that existing legal provisions are complied with. Indeed, the information gathered during the July 2000 ad hoc visit clearly indicates that even after the first four days of police custody, access to a lawyer for persons suspected of State Security Court offences is in practice the exception rather than the rule. The CPT recommends that the officials responsible for carrying out checks and inspections under the previously-mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of the State Security Courts are being informed of their right to have access to a lawyer after the first four days of their custody and are being placed in a position effectively to exercise that right.” 40. The CPT visited Turkey again in September 2001 and in its report dated 24 April 2002 (CPT/Inf(2002)8) stated: “12.", "The amendments made to Article 16 of the Law on the Organisation and Trial Procedures of State Security Courts have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts. For such persons, the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond forty-eight hours; in other words, they are now denied access to a lawyer only for two days as compared to four days under the previous law. Whilst welcoming this step forward, the CPT regrets that the opportunity was not taken to guarantee to persons detained for collective State Security Court offences a right of access to a lawyer as from the very outset of their custody (and hence align their rights in this respect with those of ordinary criminal suspects). The CPT trusts that the Turkish authorities will in the near future implement the Committee’s long-standing recommendation that all persons deprived of their liberty by law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. ... 46.", "Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one’s custody notified to a relative (cf. paragraphs 12 to 14). They have further improved an already impressive legal and regulatory framework to combat torture and ill-treatment. Nevertheless, the CPT remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts are still denied access to a lawyer during the first two days of their custody; its position on this point has been made clear in paragraph 12. Further, the actual content of the right of access to a lawyer for persons suspected of State Security Court offences remains less well developed than in the case of ordinary criminal suspects.", "In particular, as far as the CPT can ascertain, it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by the Bar Association is not applicable to them. Similarly, the provision making obligatory the appointment of a lawyer for persons under 18 still does not apply to juveniles who are detained on suspicion of State Security Court offences. In this regard, the CPT reiterates the recommendation already made in the report on the October 1997 visit, that the relevant provisions of Articles 135, 136 and 138 of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of the State Security Courts.” (b) United Nations (i) International Covenant on Civil and Political Rights 41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. (ii) United Nations Committee against Torture 42.", "In its Conclusions and Recommendations on Turkey, dated 27 May 2003 (CAT/C/CR/30/5), the Committee stated the following: “5. The Committee expresses concern about ... (c) allegations that persons in police custody have been denied prompt and adequate access to legal and medical assistance and that family members have not been promptly notified of their detention; ... 7. The Committee recommends that the State Party (a) ensure that detainees, including those held for offences under the jurisdiction of State Security Courts, benefit fully in practice from the available safeguards against ill-treatment and torture, particularly by guaranteeing their right to medical and legal assistance and to contact with their families; ...” 43. In its General Comment No. 2, dated 24 January 2008 (CAT/C/GC/2), the Committee stated: “13.", "Certain basic guarantees apply to all persons deprived of liberty. Some of these are specified in the Convention, and the Committee consistently calls upon the States Parties to use them. The Committee’s recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive. Such guarantees include, inter alia, ... the right promptly to receive independent legal assistance ...” (c) European Union 44. Article 48 of the Charter of Fundamental Rights states that “[r]espect for the rights of the defence of anyone who has been charged shall be guaranteed”.", "Article 52 § 3 further states that the meaning and scope of the right guaranteed under Article 48 are the same as the equivalent right laid down by the European Convention on Human Rights. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A. Access to a lawyer during police custody 45. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during his police custody.", "He relied on Article 6 § 3 (c) of the Convention, which provides: “3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” 1. The Chamber judgment 46. In its judgment of 26 April 2007, the Chamber held that there had been no violation of Article 6 § 3 (c) of the Convention. In that connection, it pointed out that the applicant had been represented during the trial and appeal proceedings by a lawyer and that the applicant’s statement to the police was not the sole basis for his conviction.", "According to the Chamber, the applicant had had the opportunity of challenging the prosecution’s allegations under conditions which did not place him at a substantial disadvantage vis-à-vis his opponent. The Chamber also noted that in convicting the applicant, the İzmir State Security Court had had regard to the circumstances in which the applicant was arrested, the expert report concerning the handwriting on the banner, and witness statements. In view of the above, it concluded that the fairness of the applicant’s trial had not been prejudiced by the lack of legal assistance during his police custody. 2. The parties’ submissions (a) The applicant 47.", "The applicant contested the grounds on which the Chamber had found that there had been no violation of Article 6 § 3 (c) of the Convention. He stated that the assistance of a lawyer in police custody was a fundamental right. He reminded the Court that all the evidence which had been used against him had been collected at the preliminary investigation stage, during which he had been denied the assistance of a lawyer. At this point, the applicant also argued that although the domestic court had convicted him, there had been no evidence to prove that he was guilty. He also stated that he had been ill-treated during his police custody and had signed his statement to the police under duress.", "That statement had been used by the İzmir State Security Court, although he had clearly retracted it before the public prosecutor, the investigating judge and at the trial. The applicant also stressed that he had been a minor at the material time and had no previous criminal record. In his submission, in view of the serious charges that had been brought against him, the lack of legal assistance had breached his right to a fair trial. He also argued that the Government had failed to submit any good reason to justify the lack of legal assistance. (b) The Government 48.", "The Government asked the Grand Chamber to endorse the Chamber’s finding that there had been no violation of Article 6 § 3 (c) of the Convention. They stated, firstly, that the legislation had been changed in 2005. Furthermore, in their submission, the restriction imposed on the applicant’s access to a lawyer had not infringed his right to a fair trial under Article 6 of the Convention. Referring to the case-law of the Court (see, in particular, Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275; John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996‑I; Averill v. the United Kingdom, no.", "36408/97, ECHR 2000‑VI; Magee v. the United Kingdom, no. 28135/95, ECHR 2000‑VI; and Brennan v. the United Kingdom, no. 39846/98, ECHR 2001‑X), they maintained that in assessing whether or not the trial was fair, regard should be had to the entirety of the proceedings. Thus, as the applicant had been represented by a lawyer during the proceedings before the İzmir State Security Court and the Court of Cassation, his right to a fair hearing had not been violated. The Government further drew attention to several Turkish cases (see Saraç v. Turkey (dec.), no.", "35841/97, 2 September 2004; Yurtsever v. Turkey (dec.), no. 42086/02, 31 August 2006; Uçma v. Turkey (dec.), no. 15071/03, 3 October 2006; Yavuz and Others v. Turkey (dec.), no. 38827/02, 21 November 2006; and Yıldız v. Turkey (dec.), nos. 3543/03 and 3557/03, 5 December 2006), in which the Court had declared similar complaints inadmissible as being manifestly ill-founded on the ground that, since the police statements had not been the only evidence to support the convictions, the lack of legal assistance during police custody had not constituted a violation of Article 6 of the Convention.", "49. Turning to the facts of the instant case, the Government maintained that when the applicant was taken into police custody, he was reminded of his right to remain silent and that during the ensuing criminal proceedings his lawyer had had the opportunity to challenge the prosecution’s allegations. They further emphasised that the applicant’s statement to the police was not the sole basis for his conviction. 3. The Court’s assessment (a) The general principles applicable in this case 50.", "The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45). 51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no.", "277‑A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Imbrioscia, cited above, § 38).", "52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).", "53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37‑42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused. 54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Can v. Austria, no.", "9300/81, Commission’s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no.", "54810/00, § 100, ECHR 2006‑IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (see paragraphs 39‑40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time.", "These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies. 55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.", "(b) Application of the above principles to the present case 56. In the present case, the applicant’s right of access to a lawyer was restricted during his police custody, pursuant to section 31 of Law no. 3842, as he was accused of committing an offence falling within the jurisdiction of the State Security Courts. As a result, he did not have access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively. Thus, no other justification was given for denying the applicant access to a lawyer than the fact that this was provided for on a systematic basis by the relevant legal provisions.", "As such, this already falls short of the requirements of Article 6 in this respect, as set out at paragraph 52 above. 57. The Court further observes that the applicant had access to a lawyer following his detention on remand. During the ensuing criminal proceedings, he was also able to call witnesses on his behalf and had the possibility of challenging the prosecution’s arguments. It is also noted that the applicant repeatedly denied the content of his statement to the police, both at the trial and on appeal.", "However, as is apparent from the case file, the investigation had in large part been completed before the applicant appeared before the investigating judge on 1 June 2001. Moreover, not only did the İzmir State Security Court not take a stance on the admissibility of the applicant’s statements made in police custody before going on to examine the merits of the case, it also used the statement to the police as the main evidence on which to convict him, despite his denial of its accuracy (see paragraph 23 above). In this connection, the Court observes that in convicting the applicant, the İzmir State Security Court in fact used the evidence before it to confirm the applicant’s statement to the police. This evidence included the expert’s report dated 1 June 2001 and the statements of the other accused to the police and the public prosecutor. In this respect, however, the Court finds it striking that the expert’s report mentioned in the judgment of the first-instance court was in favour of the applicant, as it stated that it could not be established whether the handwriting on the banner matched the applicant’s (see paragraph 15 above).", "It is also significant that all the co-defendants, who had testified against the applicant in their statements to the police and the public prosecutor, retracted their statements at the trial and denied having participated in the demonstration. 58. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. However, it is not for the Court to speculate on the impact which the applicant’s access to a lawyer during police custody would have had on the ensuing proceedings.", "59. The Court further notes that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II; Kolu, cited above, § 53; and Colozza v. Italy, 12 February 1985, § 28, Series A no.", "89). Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent (see paragraph 14 above). 60. Finally, the Court notes that one of the specific elements of the instant case was the applicant’s age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody (see paragraphs 32‑36 above), the Court stresses the fundamental importance of providing access to a lawyer where the person in custody is a minor.", "61. Still, in the present case, as explained above, the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the State Security Courts. 62. In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights. (c) Conclusion 63.", "In view of the above, the Court concludes that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case. B. The non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation 64. The applicant complained that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him. In this respect, he relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 1.", "The Chamber judgment 65. In its judgment of 26 April 2007, the Chamber found that, in the light of the established case-law on the matter, the non-communication to the applicant of the written opinion of the Principal Public Prosecutor at the Court of Cassation had infringed his right to adversarial proceedings. It therefore concluded that there had been a violation of Article 6 § 1 of the Convention. 2. The parties’ submissions 66.", "The parties filed no further observations on this question. 3. The Court’s assessment 67. The Court considers, for the reasons given by the Chamber, that the applicant’s right to adversarial proceedings has been breached. There has therefore been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties’ submissions 69.", "The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 70. The Government contended that the amounts claimed were excessive and unacceptable. 2. The Chamber judgment 71.", "The Chamber did not award any pecuniary compensation to the applicant, holding that he had failed to substantiate his claims. It considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. 3. The Court’s assessment 72. The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Teteriny v. Russia, no.", "11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006‑XII; and Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Gençel v. Turkey, no.", "53431/99, § 27, 23 October 2003). 73. As regards the remaining non-pecuniary damage, ruling on an equitable basis, it awards the applicant EUR 2,000. B. Costs and expenses 1.", "The parties’ submissions 74. The applicant claimed EUR 3,500 for the costs and expenses incurred in the domestic proceedings and before the Chamber, without submitting any documents in support of his claims. It is to be noted that the applicant has not amended the initial claim he made before the Chamber, but has submitted a legal-aid request for the expenses incurred before the Grand Chamber. 75. The Government contested the claim, arguing that it was unsubstantiated.", "2. The Chamber judgment 76. The Chamber awarded the applicant EUR 1,000 for costs and expenses. 3. The Court’s assessment 77.", "The Court observes that the applicant had the benefit of legal aid for the costs and expenses incurred during the Grand Chamber proceedings. As a result, the costs and expenses only include those incurred in the proceedings before the domestic courts and the Chamber. 78. According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, among other authorities, Beyeler v. Italy (just satisfaction) [GC], no.", "33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003‑VIII). 79. In the light of the above, the Court awards the applicant the sum already awarded by the Chamber, namely EUR 1,000. C. Default interest 80.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while he was in police custody; 2. Holds that there has been a violation of Article 6 § 1 of the Convention, in respect of the non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 November 2008. Vincent Berger Nicolas Bratza Jurisconsult President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Bratza; (b) joint concurring opinion of Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska; (c) concurring opinion of Judge Zagrebelsky, joined by Judges Casadevall and Türmen. N.B.V.B. CONCURRING OPINION OF JUDGE BRATZA The central issue in the present case concerns the use made in evidence against the applicant of a confession made during the course of police interrogation at a time when he had been denied access to a lawyer.", "The Grand Chamber has found that the restriction on such access irretrievably prejudiced the applicant’s rights of defence and that neither the legal assistance subsequently provided to the applicant nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred while the applicant was in police custody. The applicant’s rights under Article 6 § 3 (c) of the Convention, read in conjunction with Article 6 § 1, were accordingly violated on account of this lack of legal assistance. I am in full agreement with this conclusion. In paragraph 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 requires that, as a rule, access to a lawyer should be provided “as from the first interrogation of a suspect by the police”. This principle is consistent with the Court’s earlier case-law and is clearly sufficient to enable the Court to reach a finding of a violation of Article 6 on the facts of the present case.", "However, I share the doubts of Judge Zagrebelsky as to whether, in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under Article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre-trial detention. It would be regrettable if the impression were to be left by the judgment that no issue could arise under Article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that Article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect. The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate Article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect. JOINT CONCURRING OPINION OF JUDGES ROZAKIS, SPIELMANN, ZIEMELE AND LAZAROVA TRAJKOVSKA 1.", "We agree in all respects with the Court’s conclusions as to the violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention. 2. We would, however, have liked the reasoning set out in paragraph 72 of the judgment, on account of its importance, to have been included in the operative provisions as well, for reasons which have already been explained to a certain extent in the joint concurring opinion of Judges Spielmann and Malinverni in Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008), as well as the concurring opinion of Judge Spielmann in Polufakin and Chernyshev v. Russia (no. 30997/02, 25 September 2008), and are now repeated here.", "3. Firstly, it is common knowledge that while the reasoning of a judgment allows the Contracting States to ascertain the grounds on which the Court reached a finding of a violation or no violation of the Convention, and is of decisive importance on that account for the interpretation of the Convention, it is the operative provisions that are binding on the parties for the purposes of Article 46 § 1 of the Convention. 4. And indeed, what the Court says in paragraph 72 of the judgment is in our view of the utmost importance. It reiterates that when a person has been convicted in breach of the procedural safeguards afforded by Article 6, he should, as far as possible, be put in the position in which he would have been had the requirements of that Article not been disregarded (the principle of restitutio in integrum).", "5. The principle of restitutio in integrum has its origin in the judgment of 13 September 1928 of the Permanent Court of International Justice (PCIJ) in the case concerning the Factory at Chorzów (claim for indemnity) (merits), where the Court held as follows: “The essential principle is ... that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.” (Collection of Judgments, Series A no. 17, p. 47) 6. This principle, namely that restitutio in integrum is considered to be the primary remedy for effecting reparation for breaches of international law, has been constantly reaffirmed by international case-law and practice, and is recalled in Article 35 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, which reads as follows: “A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.” There is no reason not to apply this principle to make reparation for internationally wrongful acts in the field of human rights (see Loukis G. Loucaides, “Reparation for Violations of Human Rights under the European Convention and Restitutio in Integrum”, [2008] European Human Rights Law Review, pp. 182-92).", "In Papamichalopoulos and Others v. Greece ((Article 50), 31 October 1995, Series A no. 330‑B) the Court held: “34. The Court points out that by Article 53 of the Convention the High Contracting Parties undertook to abide by the decision of the Court in any case to which they were parties; furthermore, Article 54 provides that the judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach.", "This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.” 7. In the present case, and given that the absence of a lawyer while the applicant was in police custody irretrievably affected his defence rights (see paragraph 62 of the judgment), the best means of achieving this is the reopening of the proceedings and the commencement of a new trial at which all the guarantees of a fair trial would be observed, provided, of course, that the applicant requests this option and it is available in the domestic law of the respondent State. 8.", "The reason why we wish to stress this point is that it must not be overlooked that the damages which the Court orders to be paid to victims of a violation of the Convention are, according to the terms and the spirit of Article 41, of a subsidiary nature. This is in line with the subsidiary character attributed to compensation of damages in international law. Article 36 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts states: “1. The State responsible for an internationally wrongful act is under an obligation to compensate the damage caused thereby, insofar as such damage is not made good by restitution. ...” It is therefore right that, wherever possible, the Court should seek to restore the status quo ante for the victim.", "However, the Court should also take into consideration that “Wiping out all the consequences of the wrongful act may ... require some or all forms of reparation to be provided, depending on the type and extent of the injury that has been caused” (see J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 211, (2)) and in view of the remedies available at the domestic level (Article 41). 9. Admittedly, States are not required by the Convention to introduce procedures in their domestic legal systems whereby judgments of their Supreme Courts constituting res judicata may be reviewed. However, they are strongly encouraged to do so, especially in criminal matters. 10.", "In Turkey, Article 311 § 1 (f) of the Turkish Code of Criminal Procedure provides that the reopening of domestic proceedings which are found to be unfair by the European Court of Human Rights can be requested within one year following the final decision of the European Court of Human Rights. There is, however, a temporal limitation for the applicability of this provision. Article 311 § 2 states that the above-mentioned provision is not applicable to applications which were lodged with the European Court of Human Rights before 4 February 2003 and for those judgments which became final before 4 February 2003. We believe that where, as in the present case, the respondent State has equipped itself with such a procedure it is the Court’s duty not only to suggest timidly that reopening is the most appropriate form of redress, as paragraph 72 of the judgment does, but also to urge the authorities to make use of that procedure, however unsatisfactory it may appear, or to adapt existing procedures, provided, of course, that the applicant so wishes. However, this is not legally possible unless such an exhortation appears in the operative provisions of the judgment.", "11. Moreover, the Court has already included directions of this nature in the operative provisions of judgments. For example, in Claes and Others v. Belgium (nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in point 5 (a) of the operative provisions of its judgment that “unless it grants a request by [the] applicants for a retrial or for the proceedings to be reopened, the respondent State is to pay, within three months from the date on which the applicant in question indicates that he does not wish to submit such a request or it appears that he does not intend to do so, or from the date on which such a request is refused”, sums in respect of non-pecuniary damage and costs and expenses. Similarly, in Lungoci v. Romania (no.", "62710/00, 26 January 2006) the Court held in point 3 (a) of the operative provisions of its judgment that “the respondent State is to ensure that, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the proceedings are reopened if the applicant so desires, and at the same time is to pay her EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, to be converted into Romanian lei at the rate applicable at the date of settlement”. 12. By virtue of Article 46 § 2 of the Convention, supervision of the execution of the Court’s judgments is the responsibility of the Committee of Ministers. That does not mean, however, that the Court should not play any part in the matter and should not take measures designed to facilitate the Committee of Ministers’ task in discharging these functions. In fact, there is nothing in Article 41 or anywhere else in the Convention that would prevent the Court from assessing the issue of full reparation in accordance with the principles outlined above.", "Since the Court has jurisdiction to interpret and apply the Convention, it also has jurisdiction to assess “the form and quantum of reparation to be made” (see J. Crawford, ibid., p. 201). As was explained by the PCIJ in the Factory at Chorzów case: “Reparation ... is the indispensable complement of a failure to apply a convention ...” (p. 21). 13. To that end, it is essential that in its judgments the Court should not merely give as precise a description as possible of the nature of the Convention violation found but should also indicate to the State concerned in the operative provisions, if the circumstances of the case so require, the measures it considers the most appropriate to redress the violation. CONCURRING OPINION OF JUDGE ZAGREBELSKY,JOINED BY JUDGES CASADEVALL AND TÜRMEN (Translation) To my vote in favour of the judgment’s operative provisions, I would like to add a few words to explain the meaning of the Court’s reasoning, as I understand it.", "The Court found a violation “of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while he was in police custody” (point 1 of the operative provisions). It thus replied to the applicant’s complaint “that his defence rights had been violated in that ... he had been denied access to a lawyer while in police custody”. That complaint, raised by the applicant under Article 6 § 3 (c), was rightly formulated more precisely by the Court, which linked it with Article 6 § 1. To my mind, the meaning of the Court’s judgment is quite clear. If there is any doubt at all, what the Court says in paragraph 53, referring back to paragraph 37, makes things clearer still.", "The generally recognised international standards, which the Court accepts and which form the framework for its case-law, provide: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions ...” It is therefore at the very beginning of police custody or pre-trial detention that a person accused of an offence must have the possibility of being assisted by a lawyer, and not only while being questioned. The importance of interrogations in the context of criminal procedure is obvious, so that, as the judgment makes clear, the impossibility of being assisted by a lawyer while being questioned amounts, subject to exceptions, to a serious failing with regard to the requirements of a fair trial. But the fairness of proceedings against an accused person in custody also requires that he be able to obtain (and that defence counsel be able to provide) the whole wide range of services specifically associated with legal assistance, including discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support to an accused in distress, checking his conditions of detention and so on. The legal principle to be derived from the judgment is therefore that, normally and apart from exceptional limitations, an accused person in custody is entitled, right from the beginning of police custody or pre-trial detention, to be visited by defence counsel to discuss everything concerning his defence and his legitimate needs. Failure to allow that possibility, regardless of the question of interrogations and their use by the courts, amounts, subject to exceptions, to a violation of Article 6 of the Convention.", "I would add that, naturally, the fact that defence counsel may see the accused throughout his detention in police stations or in prison is more apt than any other measure to prevent treatment prohibited by Article 3 of the Convention. The foregoing considerations would not have been necessary if the Court’s reasoning had not contained passages capable of suggesting to the reader that the Court requires accused persons to be assisted by defence counsel only from the start of and during interrogation (or even only during an interview of which a formal record is to be produced to be used as evidence by the court). From paragraph 55 onwards the text adopted by the Court concentrates entirely on the answers given by the applicant when questioned which were later used against him. I would find such a reading of the judgment too reductive. The importance of the Court’s decision for the protection of an accused person deprived of his liberty would be severely weakened thereby.", "And wrongly so, to my mind, since the reasoning linked to the questioning of the applicant and the way his answers were used by the courts is easily explained by the Court’s concern to take into consideration the specific facts of the case before it." ]

[ "FIFTH SECTION CASE OF ISAYEV AND OTHERS v. UKRAINE (Applications nos. 1292/14 and 16 others - see appended list) JUDGMENT STRASBOURG 6 December 2018 This judgment is final but it may be subject to editorial revision. In the case of Isayev and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President,Mārtiņš Mits,Lado Chanturia, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 15 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained that they were deprived of an opportunity to comment on the appeals lodged by the defendants in their cases.", "Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE LOCUS STANDI OF MS OLENA VASYLIVNA SIROZHENKO 6.", "As concerns the complaints raised by the applicant in application no. 42952/14, the Court notes that the applicant died on 27 March 2015, while the case was pending before the Court. The applicant’s wife, Ms Olena Vasylivna Sirozhenko, has requested to pursue the application on her husband’s behalf. As the request is in line with its case-law, the Court sees no reason to refuse it (see, among other authorities, Petr Korolev v. Russia, no. 38112/04, §§ 43-45, 21 October 2010; Sergey Denisov and Others v. Russia, nos.", "1985/05 and 4 others, §§ 73-75, 19 April 2016; Benyaminson v. Ukraine, no. 31585/02, § 83, 26 July 2007; and Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005). However, reference will still be made to the applicant throughout the present text. III.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 7. The applicants complained that the principle of equality of arms had been breached on account of the domestic courts’ failure to serve appeals on them or otherwise inform them of the appeals lodged in their cases. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 8. The Court reiterates that the general concept of a fair trial, encompassing the fundamental principle that proceedings should be adversarial (see Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262), requires that the person against whom proceedings have been initiated should be informed of this fact (see Dilipak and Karakaya v. Turkey, nos.", "7942/05 and 24838/05, § 77, 4 March 2014). The principle of equality of arms requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Avotiņš v. Latvia [GC], no. 17502/07, § 119, ECHR 2016, and Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274). Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party, including the other party’s appeal.", "What is at stake is the litigants’ confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file (see Beer v. Austria, no. 30428/96, §§ 17-18, 6 February 2001). 9. It may, therefore, be incumbent on the domestic courts to ascertain that their summonses or other documents have reached the parties sufficiently in advance and, where appropriate, record their findings in the text of the judgment (see Gankin and Others v. Russia, nos. 2430/06 et al, § 36, 31 May 2016).", "If court documents are not duly served on a litigant, then he or she might be prevented from defending him or herself in the proceedings (see Zavodnik v. Slovenia, no. 53723/13, § 70, 21 May 2015, with further references). 10. In the leading case of Lazarenko and Others v. Ukraine, (nos. 70329/12 and 5 others, 27 June 2017), the Court already found a violation in respect of issues similar to those in the present case.", "11. Having examined all the material submitted to it and lacking any evidence of proper notification of the applicants, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court finds that by proceeding to consider the appeals lodged in the applicants’ cases without attempting to ascertain whether they were served on the applicants or whether the applicants were informed of the appeals by any other means, the domestic courts deprived the applicants of the opportunity to comment on the appeals lodged in their cases and fell short of their obligation to respect the principle of equality of arms enshrined in Article 6 of the Convention. 12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.", "IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 13. The applicants in applications nos. 30523/14, 29820/15, 16469/16 and 66870/17 submitted other complaints under the articles of the Convention and its Protocols which also raised issues, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground.", "Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Ustimenko v. Ukraine (no. 32053/13, §§ 48-54, 29 October 2015) and Ponomaryov v. Ukraine (no. 3236/03, §§ 40-42, 43 and 47, 3 April 2008). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 15. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sums indicated in the appended table. 16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Decides that Ms Sirozhenko, the wife of the applicant in application no. 42952/14, has locus standi in the proceedings; 3. Declares the applications admissible; 4. Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the unfairness of the civil proceedings; 5.", "Holds that there has been a violation of the Convention and its Protocols as regards the other complaints raised under well-established case-law of the Court (see appended table); 6. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 6 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtSíofra O’Leary Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (lack of opportunity to comment on the appeal) No. Application no.", "Date of introduction Applicant’s name Date of birth Representative’s name and location Date of the First instance court decision Date of the Court of appeal decision Date of the Higher Administrative Court (“HAC”) ruling on appeal on points of law, if applicable Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 1292/14 17/12/2013 Oleksandr Vasylyovych Isayev 29/12/1949 10/05/2011 Novomoskovskyy Local Court of Dnipropetrovsk 28/01/2013 Dnipropetrovsk Administrative Court of Appeal - 500 3478/14 17/12/2013 Olena Zinoviyivna Grybnikova 03/03/1954 29/06/2011 Pechersky District Court of Kyiv 10/04/2012 Kyiv Administrative Court of Appeal - 500 4504/14 17/12/2013 Oleg Ivanovych Levchenko 01/01/1949 22/11/2011 Komsomolskyy Local Court of Kherson 08/11/2012 Odesa Administrative Court of Appeal - 500 9300/14 26/12/2013 Sergey Mikhaylovich Valuyskiy 09/01/1960 Lyubov Sergiyivna Styeksova Kamyanske 08/10/2008 Artemivskyy District Court of Lugansk 02/12/2008 Donetsk Administrative Court of Appeal 29/04/2010 500 17084/14 17/02/2014 Vira Oleksiyivna Ushchapovska 06/09/1951 01/07/2011 Desnyanskyy Local Court of Kyiv 24/01/2013 Kyiv Administrative Court of Appeal - 500 27866/14 31/03/2014 Lyudmyla Georgiyivna Zagoruyko 18/10/1952 04/07/2011 Saksaganskyy Local Court of Kryvyy Rig 07/10/2013 Dnipropetrovsk Administrative Court of Appeal - 500 30523/14 08/04/2014 Mykola Stepanovych Legkodukh 09/04/1953 10/12/2010 Shevchenkivskyy District Court of Zaporizhzhya 07/06/2013 Dnipropetrovsk Administrative Court of Appeal - Art. 6 (1) - breach of the principle of legal certainty - the first-instance court judgment of 10/12/2010 was quashed on appeal, although the appeal was lodged outside the statutory time-limit with no justification of the delay 650 42952/14 21/05/2014 Oleksandr Georgiyovych Sirozhenko 06/09/1958 The applicant died on 27/03/2015. Ms Olena Vasylivna Sirozhenko has the quality of heir. 24/10/2011 Dzerzhynsky District Court of Kryvy Rig 23/09/2013 Dnipropetrovsk Administrative Court of Appeal - 500 52866/14 14/04/2014 Fedir Dmytrovych Donets 13/09/1938 24/09/2013 Irpin Local Court of Kyiv Region 13/11/2013 Kyiv Administrative Court of Appeal - 500 55268/14 30/07/2014 Leonid Dmytrovych Trykulych 25/01/1945 20/07/2011 Zhovtnevy District Court of Kryvy Rig 21/10/2013 Dnipropetrovsk Administrative Court of Appeal - 500 55323/14 31/07/2014 Vasyl Kostyantynovych Klyvets 08/02/1951 07/07/2011 Tsentralno-miskyy Local Court of Kryvyy Rig 16/05/2013 Dnipropetrovsk Administrative Court of Appeal - 500 68947/14 30/12/2014 Lyubov Mykhaylivna Khazaryan 19/09/1948 17/03/2011 Konotop City Court of Sumy Region 02/03/2012 Kharkiv Administrative Court of Appeal - 500 23384/15 30/04/2015 Stanislav Leonidovych Makiyevskyy 18/10/1946 11/07/2011 Leninsky District Court of Vinnytsia 21/03/2013 Vinnytsia Administrative Court of Appeal - 500 29820/15 05/06/2015 Mykola Kostyantynovych Omelchuk 16/09/1946 Mykhaylo Oleksandrovych Tarakhkalo Kyiv 30/05/2011 Prymorskyy Local Court of Odesa 12/12/2014 Odesa Administrative Court of Appeal - Art. 6 (1) - breach of the principle of legal certainty - The judgment of the Prymorskyy Local Court of Odesa of 30/05/2011, final and enforceable as of 09/06/2012, was quashed by the Odesa Administrative Court of Appeal on 12/12/2014 on the basis of the defendant’s appeal lodged outside the established time limits.", "650 16469/16 18/03/2016 Lyudmyla Ivanivna Kulshytska 19/05/1950 28/04/2011 Moskovskyi Local Court of Kharkiv 24/02/2012 Kharkiv Administrative Court of Appeal - Art. 6 (1) - breach of the principle of legal certainty - The judgment of the Moskovskyi Local Court of Kharkiv of 28/04/2011, final and enforceable, was quashed by the Kharkiv Administrative Court of Appeal on 24/02/2012 on the basis of the defendant’s appeal lodged outside the established time-limits Prot. 1 Art. 1 - interference with peaceful enjoyment of possessions - unlawful quashing of the local court’s decision by which the applicant was essentially deprived of her pension 650 59571/17 04/08/2017 Mykola Trokhymovych Romanenko 23/09/1946 18/03/2011 Brovary Local Court of Kyiv Region 24/11/2011 Kyiv Administrative Court of Appeal - 500 66870/17 31/08/2017 Andriy Kostyantynovych Levchenko 13/12/1941 Mykhaylo Oleksandrovych Tarakhkalo Kyiv 13/06/2016 Kyivskyy Local Court of Odesa 01/03/2017 Odesa Administrative Court of Appeal - Art. 6 (1) - breach of the principle of legal certainty - The judgment of the Kyivskyy Local Court of Odesa of 13/06/2016, final and enforceable as of 23/06/2016, was quashed by the Odesa Administrative Court of Appeal on 01/03/2017 on the basis of the defendant’s appeal lodged outside the established time limits.", "650 [1]. Plus any tax that may be chargeable to the applicants." ]

[ "FIFTH SECTION CASE OF GRUMANN v. GERMANY (Application no. 43155/08) JUDGMENT STRASBOURG 21 October 2010 This judgment is final but it may be subject to editorial revision. In the case of Grumann v. Germany, The European Court of Human Rights (Fifth Section), sitting as a committee composed of: Mark Villiger, President,Isabelle Berro-Lefèvre,Ganna Yudkivska, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 28 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43155/08) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Ms Maike Grumann (“the applicant”), on 3 September 2008.", "2. The applicant was represented by Mr G. Rixe, a lawyer practising in Bielefeld. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice. 3. On 5 October 2009 the President of the Fifth Section decided to communicate the complaint concerning the length of the proceedings to the Government.", "In accordance with Protocol 14, the application was assigned to a Committee of three Judges. 4. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant, an arts teacher, was born in 1946 and lives in Munich. 6. On 19 November 1996 she underwent elective surgery on her right eye. Subsequently, her vision deteriorated, causing her, in 2003, to become incapable of working. A.", "Civil proceedings 7. On 24 June 1998 the applicant lodged a claim of medical malpractice against the hospital and three of its physicians with the Munich I Regional Court. Prior to the first hearing on 26 October 1998 the court ordered the applicant to file medical records and a declaration releasing her physicians from their medical confidentiality. In November 1998 the applicant withdrew her action against two of the defendants, and the Regional Court requested medical records from the physicians. On 30 December 1998 the court ordered the applicant to file additional medical records, which were partly filed in March 1999.", "On 20 April 1999 the applicant’s counsel informed the court that no more records existed. 8. On 3 December 1999, following another hearing on 20 October 1999 the Regional Court ordered an expert report from S. which he submitted on 19 April 2000. On 8 May 2000 the date of the next oral hearing was fixed for 13 September 2000. In view of the parties’ comments on the expert opinion, this hearing was cancelled on 13 July 2000, and S. was asked to supplement his report; he produced the supplement on 13 October 2000.", "9. On 9 April and 30 August 2001, following oral hearings on 31 January and 13 August 2001, the Regional Court ordered further supplements from S. which were submitted on 18 June and on 17 October 2001. On 17 December 2001 the applicant increased her claim for pecuniary damage and was ordered to make a further advance payment of court fees. 10. On 29 January 2002 the Regional Court cancelled the hearing set for 6 February 2002 because payment of the further court fees could not be confirmed.", "On 12 June 2002 the applicant informed the court that her insurance had already paid the additional court fees in January; actual confirmation of the payment was only made on 23 August 2002. On 9 December 2002, after the expert had not replied to the court’s letters from August 2002, the Regional Court informed the parties that he could not be located. 11. On 23 January 2003 the applicant increased her pecuniary damage claim. On 8 April 2003 an oral hearing set for 16 April 2003 was cancelled.", "On 3 July 2003 the Regional Court ordered a new expert report from O. since S., who had meanwhile been traced, was not available for a hearing. On 31 July 2003 the applicant again increased her pecuniary damage claim. After comments on the claim extension by the defendants the court on 8 September commissioned O. On 7 November 2003 he informed the court that he was unable to accept the assignment but recommended his colleague, K. On 5 December 2003 the applicant objected to the appointment of K. 12. On 1 April 2004 O. returned the files to the court.", "On 20 April 2004 G. was appointed as expert. He submitted his report on 6 December 2004 after a reminder of the court dated 15 November 2004. 13. On 4 February 2005, after having received comments from the parties, the Regional Court ordered a supplement to the report, which G. submitted on 28 February 2005. An oral hearing scheduled for 25 May 2005 was cancelled on 15 April 2005 upon both parties’ request; a new date was set for 16 November 2005.", "On 21 September 2005 G., who could not come to a hearing due to health problems, submitted written answers to further questions of the applicant. On 16 November 2005 the oral hearing was held. On 31 December 2005 the applicant increased her pecuniary damage claim. 14. On 6 April 2006 the Regional Court informed the parties that it intended to have the applicant examined.", "On 14 April 2006 G. died. On 7 June 2006 the court designated L. to assess the applicant’s current medical status. In September 2006 the court was advised that one and the same expert should examine the applicant and also submit a follow-up to G’s opinion. On 12 October 2006 Sp. was appointed after the applicant had objected to the appointment of L. On 25 October 2006, at the defendants’ request, the oral hearing, which had been set for 5 February 2007, was rescheduled for 29 January 2007.", "On 13 November 2006 the files were forwarded to Sp. 15. On 23 January 2007 the court, which had not yet received the expert report, cancelled the hearing set for 29 January 2007. On 29 January 2007 Sp. submitted her report and on 19 March 2007 she was heard in an oral hearing.", "In April and July 2007 the Regional Court proposed a settlement which the parties did not accept. On 25 July 2007 it then handed down a partial and a full judgment on the basis of the cause of action (Teil‑und Grundurteil). 16. On 11 September 2007 the defendants appealed the judgment. On 12 October 2007 they submitted the reasoning of the appeal.", "On 7 December 2007 the Court of Appeal scheduled an oral hearing for 21 February 2008. On 24 January 2008 the applicant lodged a cross-appeal (Anschlussberufung). On 29 May 2008 the appeals were dismissed. 17. On 3 July 2008 the defendant lodged a complaint against the Court of Appeal’s refusal to grant leave to appeal.", "On 6 October 2008 the grounds for the complaint were lodged. On 5 January 2009 the applicant submitted a response. On 21 January 2009 the Federal Court of Justice quashed the judgment and remitted the case to the Court of Appeal. 18. On 23 February 2009 the files were returned to the Court of Appeal which on 25 March 2009 proposed a settlement and advised the parties that otherwise a new expert needed to be appointed.", "On 7 May 2009 the defendants refused the settlement. On 28 May 2009 the Court of Appeal appointed K. as the new expert. On 17 June 2009 the applicant reiterated her objection from 2003 to the appointment of K. On 25 June 2009 the Court of Appeal appointed A., who on 14 July 2009 informed the court that he was not be able to render the expert opinion. On 5 August 2009 the Court of Appeal appointed G., who on 7 September 2009 also informed the court that he was not available. On 3 November 2009 R. was appointed.", "B. Criminal proceedings 19. On 19 September 2006 the applicant pressed criminal charges against the defendants alleging procedural fraud (Prozessbetrug). On 9 October 2006 the Public Prosecutor’s Office acknowledged receipt of the complaint. On 8 May 2009 the applicant renewed her complaint against the defendants.", "II. RELEVANT DOMESTIC LAW 20. Section 358 a Code of Civil Procedure “The court can issue an evidence order already before the oral hearing. The order can be implemented before the oral hearing as far as it orders: ... 4. an expert opinion. ...” 21.", "Section 409 Code of Civil Procedure “(1) Where an expert fails to appear in court or refuses to render an expert opinion although he is obliged to do so, or if he retains the files or other documents, he shall be obliged to pay the costs arising therefrom. At the same time, an administrative fine shall be imposed. In the event of repeated disobedience, the administrative fine may be imposed a second time. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22.", "The applicant complained that the length of the still pending proceedings was incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 23. The Government contested this argument and maintained that the length of the proceedings was not excessive. They emphasised the complexity of the medical malpractice proceedings at issue, in particular the necessity of obtaining expert evidence. They pointed out the difficulties involved, namely the search for competent experts willing to prepare not only the report but also to appear at a hearing. In this context they also submitted that it was reasonable for the court not to take coercive measures against experts who ask not to be summoned to a hearing, because such measures would make it even more difficult to find experts in the future.", "Moreover, numerous questions of the parties made addendums to the reports necessary; the resulting delay could not be attributed to the court. The Government pointed out that it must be seen as proper conduct of the proceedings that the court only ordered the first expert opinion after the applicant had withdrawn her action against two of the defendants and all medical records were on file. They also maintained that the cancellation of a hearing because payment of additional court fees could not be confirmed could not be objected to. As to the applicant’s conduct, the Government submitted that she contributed to the length of the proceedings with her late submission of medical records at the beginning of the proceedings, her delayed payment of additional court fees, her objections to experts, her claim extensions and several requests for an extension of time limits. While the Government conceded that the proceedings were of some importance to the applicant, they also pointed out that the surgery had not been medically indicated and that the applicant was still in a financially secure situation.", "24. The period to be taken into consideration began on 24 June 1998 with the lodging of the action and has not yet ended. It has thus lasted so far more than twelve years at three levels of jurisdiction. A. Admissibility 25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 27. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 28. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "While the Court accepts that medical malpractice proceedings may well be complex, it finds that in the instant case the proceedings were not conducted with the efficiency that can be expected with a view to the “reasonable time” requirement of Article 6 of the Convention. The Court sees no reason why the Regional Court did not at the very beginning order the parties to submit all medical records and issue an evidence order already before the first oral hearing as is possible under domestic law (see Relevant domestic law above), but instead waited more than one year. The Court also observes that the whole process of obtaining expert reports and supplements to these reports could have been cut short if the expert had been summoned to the first hearing to give an oral expert report or, at least, if he had been summoned to explain his written report at the earliest possible hearing. In this context the domestic courts should verify that only experts who are available for an oral hearing are appointed and should also make use, if necessary, of coercive measures as provided for by domestic law. 29.", "As to the applicant’s conduct the Court takes note of her frequent claim extensions. However, it also observes that they dealt with the applicant’s pecuniary damage claim which the domestic courts have so far not even addressed; the Court hence does not discern any causal link between the claim extensions and the length of the proceedings. The same is true for the alleged late payment of additional court fees following a claim extension. The Court does not see any reason why an oral hearing dealing with the basis of the cause of action and not the pecuniary damage claim should be cancelled for this reason. As far as the applicant’s requests for extensions of time limits and her objections experts are concerned the Court finds that any delay arising therefrom is negligible.", "Finally, the Court accepts that the proceedings were rather important for the applicant who had become incapable of working due to the surgery at issue. 30. Having regard to the above considerations and its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of the “reasonable time” requirement of Article 6 § 1. II.", "THE REMAINDER OF THE APPLICANT’S COMPLAINTS 31. The applicant, once more relying on Article 6 of the Convention, further complained about the way in which evidence was taken by the domestic courts, about the length of the proceedings regarding the criminal charges she brought against the defendants and that her right to have a criminal offence prosecuted was violated. 32. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34. The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage.", "35. The Government left the issue of non-pecuniary damage to the discretion of the Court. 36. The Court considers that the applicant must have sustained non‑pecuniary damage as a result of the excessive length of the proceedings. Ruling on an equitable basis and having regard to the nature of the Convention violations it has found as well as, in particular, to what was at stake for the applicant, it awards her EUR 10,000 under that head.", "B. Costs and expenses 37. The applicant, submitting documentary evidence, claimed EUR 3,550 for costs and expenses incurred before the domestic courts. 38. Regarding costs and expenses incurred before this Court the applicant claimed EUR 2,296.99, comprising lawyer’s fees of EUR 2,213.44 and own expenses of EUR 83.59.", "39. The Government contested the claim for costs and expenses incurred before the domestic courts, maintaining that since the German fee schedule for lawyers did not provide for any special fee with regard to advice on the length of the proceedings the costs claimed in this regard could only be based on a fees agreement which had not been submitted. 40. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the applicant has not established that the costs and expenses claimed for the proceedings before the domestic courts were incurred in order to seek prevention or rectification of the specific violation caused by the excessive length of the proceedings.", "In particular, the Court finds that the evidence submitted for extra lawyers’ fees allegedly incurred specifically because of the length of proceedings is not sufficiently substantiated. The German fee schedule for lawyers does not provide for an extra fee because of the length of the proceedings; an agreement providing for a extra remuneration in this regard was not submitted. However, seeing that in length of proceedings cases the protracted examination of a case beyond a “reasonable time” involves an increase in the applicants’ costs (see, among other authorities, Sürmeli v. Germany [GC], no. 75529/01, § 148, ECHR 2006‑VII), it finds it reasonable to award EUR 500 under this head. This amount also covers the EUR 360 claimed by the applicant for additional legal advice because of the length of the proceedings.", "The Court further considers it reasonable to award the sum of EUR 2,296.99 covering lawyer’s fees and the applicant’s own expenses for the proceedings before the Court. C. Default interest 41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, (i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,796.99 (two thousand seven hundred ninety-six euros and ninety-nine cents) in respect of costs and expenses; (iii) any tax that may be chargeable to the applicant in respect of the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsMark VilligerDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF ASALYA v. TURKEY (Application no. 43875/09) JUDGMENT STRASBOURG 15 April 2014 FINAL 15/07/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Asalya v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,András Sajó,Nebojša Vučinić,Helen Keller,Egidijus Kūris,Robert Spano, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 18 March 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43875/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr İslam H.M. Asalya (“the applicant”), on 14 August 2009. The applicant is stateless and holds a passport issued by the Palestinian Authority. 2. The applicant was represented by Ms L. Demir, Mr A. Yılmaz and Ms Ü. Sırımsı Candemir, lawyers practising in Tekirdağ and Istanbul. The Turkish Government (“the Government”) were represented by their Agent.", "3. On 4 January 2010 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Israel and/or the Gaza Strip until the outcome of the procedure before the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) in his regard was known. It was also decided on the same date to give the case priority under Rule 41 of the Rules of Court. 4. On 31 August 2011 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1988 and lives in Istanbul. A. Background to the case 6.", "The applicant is a Palestinian who lived in the Gaza Strip until March 2008. He claims to have lost approximately twenty-five relatives to Israeli attacks over the years, and to have personally suffered three missile attacks between 2000 and 2007. According to his allegations before the Court, he was directly and personally targeted in the most recent attack, in 2007, as the missile that struck near him on that day immediately followed an anonymous call on his mobile phone asking him to confirm his name, a ruse by the Israeli forces to identify his location. That attack left him severely injured and rendered him paraplegic. 7.", "On 25 March 2008 the applicant was taken to Turkey by a humanitarian organisation, the Foundation for Human Rights and Freedoms and Humanitarian Relief (İnsani Yardım Vakfı, “İHH”), along with fortynine other injured civilians from the Palestinian territories, to have access to better medical care. 8. In June 2008 the Ministry of the Interior (“the Ministry”) issued the group of Palestinians with short-term residence permits in view of their continuing medical treatment in Turkey. 9. On 30 April 2009 the applicant married a Turkish national, who was also his physiotherapist.", "Because he was married to a Turkish national, he was granted a long-term temporary residence permit valid until 17 May 2010. B. The applicant’s arrest and detention 10. On 12 August 2009, at approximately 11 a.m., two police officers from the Istanbul Police Headquarters arrived at the applicant’s house. They informed the applicant and his wife that his presence was required at the police headquarters for an interview and that he would be brought back afterwards.", "Once he was at the police headquarters, however, he was verbally informed that his temporary residence permit had been cancelled in accordance with orders received from the Ministry and that he would soon be deported from Turkey. Without being given any further information as to the reasons for the deportation order, when it would be carried out and where he would be deported to, the applicant was placed in the Kumkapı Foreigners’ Admission and Accommodation Centre attached to the Istanbul Police Headquarters. 11. According to the police record drawn up on the same day at 3.30 p.m., the Ministry had decided on 27 July 2009 to deport the applicant. This decision had been taken at the request of the National Intelligence Agency of Turkey, which had received intelligence regarding the applicant’s possible involvement in acts of international terrorism.", "Neither the Ministry’s deportation order nor the police record in question was served on the applicant. 12. Upon learning of the applicant’s detention, on 12 August 2009 his wife got in touch with a local human rights organisation, Mazlumder, which in turn contacted the UNHCR to seek assistance in securing the applicant’s release and halting his deportation. Mazlumder also informed the UNHCR of the poor conditions in which the applicant was being detained, including the fact that he had spent the night sleeping on a table, that he was not able to use the squat toilets at the detention centre, and that his medical treatment had been stopped on account of his detention. 13.", "On 14 August 2009 the applicant brought an action against the Ministry before the Ankara Administrative Court seeking the quashing of the deportation order, and also requested a stay of its execution until the matter had been examined by the administrative court. He maintained before the administrative court that the deportation order was unlawful, in view of his marriage to a Turkish citizen and possession of a residence permit valid until May 2010. The unlawful deportation order had moreover not been communicated to him at any point, nor had the Ministry sought his response prior to its delivery. The State authorities had similarly not put forward any concrete evidence to demonstrate why his continued presence in Turkey was perceived as a threat to national security. The applicant claimed that in the event of his deportation to Israel or elsewhere, his right to life and right to liberty and security would be put at risk, that he would face torture or even death at the hands of Israeli forces or their collaborators, and that the unity of his family would be destroyed.", "Furthermore, his medical treatment would be stopped, causing irreversible harm to his health. The applicant lastly complained that his detention was unlawful, and also maintained that the conditions of his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre were highly degrading, in view of the lack of basic infrastructure to accommodate people with disabilities in his situation. As he was not able to use the squat toilet available at the place of detention, he had to be taken to a hotel nearby by police officers each time he had to relieve himself. It appears that his wife was occasionally able to accompany them to the hotel. His medical treatment was also stopped during his detention there, which was likely to result in the worsening of his condition.", "14. In a decision delivered on the very same day, the Ankara Administrative Court asked the Ministry for a copy of its deportation order of 27 July 2009, as well as all the information and documents which formed the basis of that decision. Moreover, noting the irreversible nature of the harm that might be caused in the event of the applicant’s deportation, it ordered a stay of its execution until a further decision. 15. On the same date, the applicant’s lawyer applied for release from the Kumkapı Foreigners’ Admission and Accommodation Centre on the basis of the Ankara Administrative Court decision granting a stay of execution.", "16. Following a decision of the Ministry on 18 August 2009, the applicant was released from the Kumkapı Foreigners’ Admission and Accommodation Centre. 17. On 9 September 2009 the Ministry submitted its replies to the Ankara Administrative Court in relation to the applicant’s request for the quashing of the deportation order. It stated that the decision to deport had been taken on the basis of a National Intelligence Agency report dated 16 July 2009.", "The report indicated that within the context of ongoing investigations in connection with international terrorism the applicant had been identified as having had contact with some telephone numbers registered in Israel on issues such as “procurement of arms, new recruits to the group, and measures to be taken to ensure the confidentiality of activities”. His presence in Turkey was therefore perceived as a risk to national security within the meaning of section 8 (5) of the Passport Act (Law no. 5682) and section 19 of the Act on the Residence and Travel of Foreigners in Turkey (Law no. 5683). It also submitted a number of supporting documents as an annex.", "These documents were not made available to the applicant, nor were they later submitted to the Court. 18. On 16 September 2009 the Ankara Administrative Court decided that there were no elements warranting the suspension of the applicant’s deportation. It thus reversed its previous decision of 14 August 2009. 19.", "On 30 September 2009 the applicant appealed against the decision of the Ankara Administrative Court lifting the stay of execution of his deportation. He submitted that the Ministry had not put forward any tangible evidence in support of its allegation that he posed a threat to national security such as to necessitate his deportation from Turkey. If the Ministry went through with its decision, his physical integrity would be irreparably damaged on account of the termination of the medical treatment he was undergoing in Istanbul. Furthermore, his deportation would disrupt the family life he had since established in Turkey, and would deprive him of the vital assistance and care undertaken by his wife. In addition, if deported he would most certainly be subjected to torture by Israeli forces and his life would be put at risk.", "Lastly, the applicant drew the administrative court’s attention to his pending application to the UNHCR for refugee status, and also complained of the conditions in which he had been detained between 12 and 18 August 2009 at the Kumkapı Foreigners’ Admission and Accommodation Centre, which had lacked basic amenities to accommodate people with disabilities, such as a non-squat toilet and a lift. 20. On 14 October 2009 the Ankara Regional Administrative Court rejected the applicant’s appeal against the Ankara Administrative Court’s decision of 16 September 2009, which had effectively lifted the stay of execution of his deportation, without providing any reasons. 21. In the meantime, on 25 September 2009 the applicant had applied to the UNHCR for refugee status.", "On 22 October 2009 he was interviewed by the Ankara office of the UNHCR as part of the refugee status determination process. 22. On 22 December 2009 the applicant’s lawyer was informed by the State authorities that, pursuant to the latest decision of the Ankara Regional Administrative Court, the applicant was requested to leave Turkey within fifteen days, and that if he refused to comply with that request he would be deported forcibly. 23. On 24 December 2009 the applicant claimed asylum in Turkey.", "He stated that he had been forced to leave Gaza because of the persecution he had faced there. Following an Israeli attack on his house in Gaza, which had left him severely injured, he had come to Turkey to seek medical treatment. This treatment was still ongoing, and in the meantime he had married a Turkish citizen. He claimed that although he had never been involved in any acts of violence, he was wanted by Israel as a terrorist. Returning to his country would entail a great risk to his life, if not from Israeli attacks then because of the termination of his treatment.", "He would also face torture if captured by the Israelis. 24. On the same date, the applicant’s lawyer also sent a letter to the Foreigners’ Department of the Istanbul Police Headquarters, reiterating the grounds of appeal against the applicant’s deportation. The lawyer emphasised in the letter that the Ministry’s deportation order had not been served on the applicant, and that the administrative proceedings for the annulment of the deportation order were still pending before the Ankara Administrative Court, which had not yet delivered a judgment on the merits. She referred in this regard to the National Action Plan on Asylum and Immigration, adopted by the Government of Turkey on 25 March 2005, which held that the execution of deportation decisions was to be suspended once administrative proceedings seeking to overturn them had been instituted.", "C. Proceedings before the Court 25. On 28 December 2009 the applicant’s representative asked the Court, under Rule 39 of its Rules of Court, to adopt an interim measure to halt the applicant’s imminent deportation from Turkey. 26. On 4 January 2010 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Israel or the Gaza Strip until the delivery of a decision by the UNHCR in his regard. D. Developments following the application of the interim measure 27.", "In the light of the interim measure applied by the Court, on 6 January 2010 the Foreigners’ Department of the Istanbul Police Headquarters ordered that the applicant be granted a three-month temporary residence permit, renewable until further notice. 28. On 22 April 2010 the Ankara Administrative Court quashed the deportation decision of 27 July 2009, as the applicant’s deportation had become unfeasible in view of the interim measure applied by the Court, which was binding on the Turkish authorities. The Ministry appealed against this judgment. 29.", "On 31 December 2010 the Supreme Administrative Court upheld the judgment of the Ankara Administrative Court, and on 6 July 2012 it refused the Ministry’s rectification request. 30. In the meantime, following a number of interviews, on 27 October 2010 the General Security Directorate of the Ministry granted the applicant a temporary residence permit for six months, apparently renewable, in view of his status as an asylum seeker. 31. On 1 June 2011 the applicant informed the Turkish authorities that he wanted to withdraw his asylum claim, for reasons unknown to the Court.", "32. On 18 March 2013 the General Security Directorate of the Ministry decided to grant the applicant a long-term residence permit, valid for one year, on the basis of evidence that he had established a genuine family life in Turkey. The decision also indicated that this permit would be extended in due course if further inquiries in respect of his marriage demonstrated that he was continuing to maintain a family life in Turkey. 33. In June 2013 the applicant withdrew his application to the UNHCR for refugee status in order to avoid being resettled to a safe third country as a result of the refugee status determination process, which might have entailed separation from his wife.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 34. A description of the relevant domestic law and practice at the material time may be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-45, 22 September 2009). III.", "RELEVANT INTERNATIONAL MATERIAL A. Relevant international law material on the rights of persons with disabilities 1. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 35. The Convention entered into force on 3 May 2008, was signed by Turkey on 30 March 2007, and was ratified on 28 September 2009. The relevant parts provide: Article 2 - Definitions “For the purposes of the present Convention: ... ‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms ...” Article 14 - Liberty and security of the person “2.", "States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.” 36. In his Interim Report of 28 July 2008 (A/63/175), the then United Nations (“UN”) Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows: “50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependent situation and make him or her an easier target of abuse ... 53.", "States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment ... 54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” 2.", "Council of Europe material 37. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: “50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment ...” B.", "Relevant country information 38. The Court notes that the Israel Defence Forces have been widely reported to carry out military operations targeting specific persons, usually suspected terrorists. In a decision it rendered in December 2006 (“the Targeted Killings case”), the Israeli Supreme Court ruled that targeted killings were not per se illegal[1]. The UN Human Rights Committee noted its concerns on this practice in its Concluding Observations on Israel on 3 September 2010 (CCPR/C/ISR/CO/3): “10. The Committee notes the State party’s affirmation that utmost consideration is given to the principles of necessity and proportionality during its conduct of military operations and in response to terrorist threats and attacks.", "Nevertheless, the Committee reiterates its concern, previously expressed in paragraph 15 of its concluding observations (CCPR/CO/78/ISR), that, since 2003, the State party’s armed forces have targeted and extrajudicially executed 184 individuals in the Gaza Strip, resulting in the collateral unintended death of 155 additional individuals, this despite the State party’s Supreme Court decision of 2006, according to which a stringent proportionality test must be applied and other safeguards respected when targeting individuals for their participation in terrorist activity (art. 6). The State party should end its practice of extrajudicial executions of individuals suspected of involvement in terrorist activities ... The State party should exhaust all measures for the arrest and detention of a person suspected of involvement in terrorist activities before resorting to the use of deadly force. The State party should also establish an independent body to promptly and thoroughly investigate complaints about disproportionate use of force.” In the same report, the Human Rights Committee also made the following observations: “11.", "The Committee notes with concern that the crime of torture, as defined in article 1 of the Convention against Torture and in conformity with article 7 of the Covenant, still has not been incorporated into the State party’s legislation. The Committee notes the Supreme Court decision on the exclusion of unlawfully obtained evidence, but is nevertheless concerned at consistent allegations of the use of torture and cruel, inhuman or degrading treatment, in particular against Palestinian detainees suspected of security-related offences. .... The Committee also expresses its concern at information that all complaints of torture are either denied factually, or justified under the “defence of necessity” as “ticking time bomb” cases.” 39. In its report of 23 June 2009 on Israel (CAT/C/ISR/CO/4) the UN Committee against Torture made similar remarks on the problem of torture and ill-treatment of Palestinian detainees: “19.", "The Committee is concerned that there are numerous, ongoing and consistent allegations of the use of methods by Israeli security officials that were prohibited by the September 1999 ruling of the Israeli Supreme Court, and that are alleged to take place before, during and after interrogations.” 40. According to the 2009 and 2010 Human Rights Reports of the United States Department of State on Israel and the Occupied Territories, Israeli law, as interpreted by a 1999 High Court decision, prohibits torture and several interrogation techniques but allows “moderate physical pressure” against detainees considered to possess information about an imminent terrorist attack. The decision also indicates that interrogators who abuse detainees suspected of possessing such information may be immune from prosecution. Various human rights organisations have reported that “moderate physical pressure” has been used in practice to include beatings, requiring an individual to hold a stress position for long periods, and painful pressure from shackles and restraints applied to the forearms. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RELATION TO THE APPLICANT’S CONDITIONS OF DETENTION 41. The applicant complained under Article 3 of the Convention that the conditions of his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre violated Article 3 of the Convention, mainly on account of the absence of special arrangements to accommodate the needs of people with disabilities who use wheelchairs, such as himself. 42. In his observations dated 1 August 2012, the applicant submitted a number of new complaints regarding the material conditions of his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre, including poor hygiene, insufficient food, damp, and limited access to fresh air as well as to hot water. A. Admissibility 43.", "The Court notes that the complaints submitted on 1 August 2012, which were not raised when the application was initially lodged, concern certain adverse conditions of the applicant’s detention, which ended on 18 August 2009. In these circumstances, the Court rejects them pursuant to Article 35 §§ 1 and 4 of the Convention as lodged outside the six-month time-limit (see Ashot Harutyunyan v. Armenia, no. 34334/04, § 99, 15 June 2010). 44. The Court notes on the other hand that the applicant’s remaining complaint under this head regarding the unsuitability of the detention facilities for a person with his disability is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It is, moreover, not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 45.", "The applicant claimed that there were no provisions at the Kumkapı Foreigners’ Admission and Accommodation Centre catering for the needs of detainees using wheelchairs, such as lifts or suitable lavatory facilities. In particular, the applicant was not able to use the squat toilets available at the place of detention. For this reason, each time he needed to relieve himself during his seven-day detention the applicant had to wait for at least two police officers to carry him to a hotel located 50 metres from the Kumkapı Foreigners’ Admission and Accommodation Centre and to assist him in the toilet, which he found utterly degrading. Similarly, no special sleeping arrangements were envisaged for people in his condition: on account of the overcrowded conditions and the unavailability of a lift, he was made to sleep on a table in an office on the ground floor. He was also deprived of his daily physiotherapy during his detention, as well as of the constant care his wife provided him with.", "46. The Government contested the applicant’s arguments, and stated that all foreigners’ admission and accommodation centres in Turkey, including the one in Kumkapı, were subject to regular inspections by national and international institutions. Without providing any supporting evidence, the Government claimed that the applicant’s special physical condition was duly taken into consideration and he was not subjected to inhuman or degrading treatment in any way during his detention. Medical assistance was also available upon request at foreigners’ admission and accommodation centres; the applicant had indeed been taken to the emergency service at the Haseki Training and Research Hospital on 14 August 2009 when he complained of a problem in the inguinal (groin) area. 2.", "The Court’s assessment 47. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Stoyan Mitev v. Bulgaria, no. 60922/00, § 63, 7 January 2010). Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical and mental suffering.", "Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006‑IX). 48. With reference to persons deprived of their liberty, Article 3 imposes a positive obligation on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no.", "30210/96, §§ 92-94, ECHR 2000‑XI; Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012; and Savičs v. Latvia, no. 17892/03, § 130, 27 November 2012). 49. It is undisputed between the parties that while detained at the Kumkapı Foreigners’ Admission and Accommodation Centre, the applicant was paraplegic and used a wheelchair.", "While they denied that the applicant had been subjected to any inhuman or degrading treatment during the term of his detention, the Government did not contest the applicant’s allegations regarding the specific conditions he was kept in, namely that he was detained for seven days in a regular detention facility, which was not adapted for wheelchair users, and that no special arrangements were made during that time to alleviate the hardships he faced. 50. The Court reiterates in this connection that where authorities decide to place and keep a person with a disability in detention they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII; Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004; Jasinskis v. Latvia, no.", "45744/08, § 59, 21 December 2010; and Z.H. v. Hungary, no. 28973/11, § 29, 8 November 2012; and the international law material in paragraphs 35‑37 above). 51. The Court notes that as a result of the lack of effort to cater for his disability, the applicant experienced serious difficulties in meeting his most basic needs, such as using the toilet.", "The Court notes in this connection that the inaccessibility of the sanitation facilities raises a particular concern under Article 3 of the Convention, in particular as the applicant was dependent entirely on the good will of the police officers to assist him, on account of the structural deficiencies at the place of detention (see Grimailovs v. Latvia, no. 6087/03, § 158, 25 June 2013). The fact that the applicant’s wife was occasionally available to accompany him and the police officers to the toilets did not diminish the applicant’s suffering in this regard. 52. The Court further considers that the circumstances in which the applicant was made to spend his nights, which apparently involved sleeping on a hard table in an office that was unsuitable for overnight use, was equally unacceptable, taking into account in particular that the applicant had sustained a serious spinal injury not very long before.", "53. There is no evidence in this case of any positive intention to humiliate or debase the applicant. The Court nevertheless considers that the detention of the applicant in conditions where he was denied some of the minimal necessities for a civilised life, such as sleeping on a bed and being able to use the toilet as often as required without having to rely on the help of strangers, was not compatible with his human dignity and exacerbated the mental anguish caused by the arbitrary nature of his detention (see paragraph 68 below), regardless of its relatively short period. In these circumstances, the Court finds that the applicant was subjected to degrading treatment incompatible with Article 3 of the Convention (see, mutatis mutandis, Price, cited above; and Aleksandra Dmitriyeva v. Russia, no. 9390/05, § 84, 3 November 2011).", "54. There has, accordingly, been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention between 12 and 18 August 2009. 55. Having reached the above conclusion, the Court does not need to examine additionally whether there has been a violation of Article 3 on account of the alleged disruption of his medical care during his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre, noting also that the applicant has not provided any detailed information about the particular treatment he needed, nor has he explained how, if at all, the seven‑day interruption of his treatment adversely affected his condition (see Arutyunyan v. Russia, no. 48977/09, § 82, 10 January 2012).", "II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 56. The applicant complained under Articles 5 §§ 1, 3 and 4 of the Convention that his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre had no legal basis and that there were no judicial remedies available to him to challenge the lawfulness of his detention. He maintained under Article 5 § 5 of the Convention that he had no right to compensation under domestic law in respect of these complaints. He further claimed under Article 8 of the Convention that his right to family life had been breached on account of his unlawful detention.", "A. Article 5 of the Convention 1. Admissibility 57. The Government did not contest the admissibility of the applicant’s complaints. 58.", "The Court observes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits 59.", "The Government maintained that the applicant had been detained with a view to deportation from Turkey in accordance with the relevant domestic legislation. His detention had therefore been in conformity with Article 5 § 1 (f) of the Convention. 60. The Government further submitted that the applicant had had the opportunity to apply to the administrative courts under Article 125 of the Constitution to object to the decision to hold him at the Kumkapı Foreigners’ Admission and Accommodation Centre, and indeed had done so. They therefore considered that the applicant had had a remedy whereby he could challenge the lawfulness of his deprivation of liberty.", "61. They lastly contended that the applicant also benefited from a right to compensation within the meaning of Article 5 § 5 of the Convention, as he could claim compensation for damage caused by any act of the administration under Article 125 of the Constitution. 62. The applicant reiterated his complaints. (a) Alleged violation of Article 5 § 1 of the Convention 63.", "The Court considers at the outset that the applicant’s complaints under Article 5 §§ 1 and 3 regarding the alleged unlawfulness of his detention should be examined from the standpoint of Article 5 § 1 of the Convention alone. 64. The Court observes that the applicant was taken into detention on 12 August 2009. Although he was initially induced to attend police headquarters under false pretences, once there he was verbally informed of the decision to deport him. He was subsequently released on 18 August 2009 by an executive decision, after spending seven days at the Kumkapı Foreigners’ Admission and Accommodation Centre.", "65. The Court notes the Government’s submission that the applicant was detained with a view to his deportation, in conformity with Article 5 § 1 (f) of the Convention. The Court reiterates that any deprivation of liberty under the second limb of Article 5 § 1 (f) would be justified as long as deportation proceedings were in progress, and only to the extent that the deprivation of liberty in question was effected “in accordance with a procedure prescribed by law”. 66. The Court has already examined a similar grievance in the case of Abdolkhani and Karimnia (cited above, §§ 125-135), in which it found that in the absence of clear legal provisions in Turkish law establishing the procedure for ordering detention with a view to deportation, the applicants’ detention was not “lawful” for the purposes of Article 5 of the Convention.", "There are no particular circumstances which would require the Court to depart from its findings in that judgment. 67. The Court is particularly struck by the fact that the applicant continued to be deprived of his liberty for four more days after an interim decision of the Ankara Administrative Court ordering the suspension of his deportation, which had unequivocally rendered his continued detention devoid of any legal ground, as the deportation procedure was no longer in progress. 68. In the light of the foregoing, the Court considers that there has been a violation of Article 5 § 1 of the Convention.", "(b) Alleged violation of Article 5 § 4 of the Convention 69. The Court notes that on 14 August 2009 the applicant applied to the Ankara Administrative Court under Article 125 of the Constitution, which provides in general terms that all acts or decisions of the authorities may be subject to judicial review, and complained specifically of the unlawfulness of his detention. 70. On the very same day, the Ankara Administrative Court suspended the execution of the applicant’s deportation pending the submission of certain information by the administration, but did not pronounce on the legality of his detention, nor did it order his release. Nevertheless, on 18 August 2009 the State authorities decided at their own discretion to release the applicant until the judicial review process before the Ankara Administrative Court was complete.", "71. The Court reiterates that the purpose of Article 5 § 4 is to guarantee persons who are deprived of their liberty the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person’s detention to allow the individual to obtain speedy judicial review of the lawfulness of the detention. That review should be capable of leading, where appropriate, to release (see Abdolkhani and Karimnia, cited above, § 139). The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue.", "Nonetheless, whatever the form of judicial review may be, it is essential that the competent domestic court or body expressly pronounce on the question of the lawfulness of a deprivation of liberty when so requested. Moreover, the question whether a person’s right under Article 5 § 4 has been respected has to be determined in the light of the particular circumstances of each case. 72. The Court observes that in the instant case, despite his specific complaint, the administrative court did not examine the lawfulness of the applicant’s detention, neither when it initially ordered the suspension of his deportation, nor at the subsequent stages of the proceedings. This is despite the fact that there was clearly no legal basis for the applicant’s detention, as established under Article 5 § 1 above.", "The Court stresses that the Ankara Administrative Court was in an even better position than the Strasbourg Court to observe this lack of legal basis in domestic law governing the procedure for detention pending deportation (see, mutatis mutandis, Athary v. Turkey, no. 50372/09, § 41, 11 December 2012). 73. The Court is mindful of the fact that the applicant regained his liberty on the seventh day of his detention. However, his release did not result from a review of the legality of his detention by a competent court, as required under Article 5 § 4 of the Convention, but was brought about by a purely discretionary decision of the executive, which could be reversed at any moment.", "Moreover, unlike in some other cases where the applicants were released within a matter of hours before any judicial scrutiny of their detention could in practice have taken place (see, for example, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 45, Series A no. 182; Slivenko v. Latvia [GC], no. 48321/99, § 159, ECHR 2003‑X; and M.B. and Others v. Turkey, no. 36009/08, § 45, 15 June 2010), the Ankara Administrative Court had the opportunity in the instant case to pronounce on the lawfulness or otherwise of the applicant’s detention, such as when it delivered its interim decision on 14 August 2009 suspending the execution of the deportation decision.", "In fact, the administrative court could reasonably have been expected to rule on the unlawfulness of the applicant’s detention on that very day, if for no other reason than that its interim decision, by its very nature, had the automatic effect of rendering the detention absolutely groundless, regardless of whatever legal regime it may have been governed by before. 74. In these circumstances, having regard to the clear lack of a legal basis for the applicant’s detention in domestic law and the very strict standards of speedy review under Article 5 § 4 where an individual’s liberty is at stake (see, mutatis mutandis, Shcherbakov v. Russia (no. 2), no. 34959/07, § 101, 24 October 2013), the Court concludes that the applicant was denied an effective remedy whereby he could obtain a speedy judicial review of the lawfulness of his detention.", "75. There has accordingly been a violation of Article 5 § 4 of the Convention. (c) Alleged violation of Article 5 § 5 of the Convention 76. Having regard to its above findings, and in the absence of any examples provided by the Government of cases where proceedings pursued under Article 125 of the Constitution resulted in the granting of compensation for unlawful detention pending deportation proceedings, the Court concludes that the applicant did not have an enforceable right to compensation within the meaning of Article 5 § 5 of the Convention (see Dbouba v. Turkey, no. 15916/09, § 55, 13 July 2010).", "77. There has therefore been a violation of Article 5 § 5 of the Convention. B. Article 8 of the Convention 78. With regard to the alleged violation of Article 8 stemming from the applicant’s detention, the Court considers that having already found that the applicant’s detention in the Kumkapı Foreigners’ Admission and Accommodation Centre was in breach of Article 5 § 1 of the Convention (see paragraph 68 above), it is not necessary to examine the admissibility or the merits of this complaint.", "III. ALLEGED VIOLATION OF ARTICLES 2, 3, AND 8 OF THE CONVENTION IN RELATION TO THE APPLICANT’S THREATENED DEPORTATION 79. The applicant complained under Articles 2 and 3 of the Convention that his deportation to Israel or the Gaza Strip, directly or indirectly, would expose him to a real risk of ill-treatment and/or death, bearing in mind that he and his family had been targeted by Israeli forces before and that he was wanted in Israel. He further maintained under Article 8 of the Convention that his removal from Turkey would constitute an interference with the family life that he had established with his wife in Turkey. 80.", "As part of his complaints under Articles 3 and 8 of the Convention, the applicant also contended that his removal from Turkey would call a halt to his medical treatment, thereby denting any prospects of his full recovery. He claimed in particular that if returned to the Gaza Strip he would not have access to the same level of treatment and care, and as his removal would entail separation from his wife, he would also be denied the constant assistance he received from her in order to meet his daily needs. A. The parties’ submissions 81. Without raising any particular objections in respect of the admissibility of the applicant’s complaints, the Government stated that the deportation order against the applicant had been based on intelligence indicating his involvement in acts of international terrorism and thus pursued the aim of protecting national security and public order.", "The deportation order did not, however, specify the country to which he would be removed; the applicant would therefore be deported to any third country willing to offer him a visa. The medical services available in that third country would also be taken into consideration before executing the deportation decision. In these circumstances, the applicant’s allegations concerning the potential risks he would face in Israel or the Gaza Strip were irrelevant. The Government also confirmed that there were no criminal charges against the applicant in Turkey, nor had an official request for his extradition been submitted by Israel. 82.", "The applicant contended that while the Government claimed that he did not have to be deported to Israel or the Gaza Strip but could choose his destination, that was not a realistic argument in view of his economic, physical and legal status as a stateless Palestinian. B. The Court’s assessment 83. Turning to the remainder of the complaints under this head, although the respondent State did not raise any objection as to the Court’s competence ratione personae in relation to these complaints, this issue calls for consideration proprio motu by the Court (see M.A. v. Cyprus, no.", "41872/10, § 115, ECHR 2013 (extracts)). 84. In this context, the Court reiterates that the word “victim” in Article 34 of the Convention denotes a person directly affected by the act or omission in issue. In other words, the person concerned must be directly affected by it or run the risk of being directly affected by it. It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no.", "60654/00, § 92, ECHR 2007‑I). 85. In cases where the applicants faced expulsion or extradition the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable (see Vijayanathan and Pusparajah v. France, judgment of 27 August 1992, Series A no. 241‑B, § 46; see also Pellumbi v. France (dec.), no. 65730/01, 18 January 2005, and Etanji v. France (dec.), no.", "60411/00, 1 March 2005). It has adopted the same stance in cases where execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Nasrulloyev v. Russia, no. 656/06, § 59, 11 October 2007; Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011; Rakhmonov v. Russia, no. 50031/11, §§ 34-37, 16 October 2012; and Budrevich v. the Czech Republic, no.", "65303/10, §§ 64-72, 17 October 2013). 86. The Court notes in this connection that the deportation order of 27 July 2009 against the applicant was quashed by the Ankara Administrative Court on 22 April 2010, following an interim decision by the Court under Rule 39 that the deportation should be suspended. Moreover, the Ministry’s objections to the quashing of the deportation order were rejected by a final decision delivered by the Supreme Administrative Court on 6 July 2012. Consequently, the deportation order, which was at the basis of the applicant’s complaints before the Court, is no longer enforceable.", "87. While the Court acknowledges that the quashing of the deportation order was due to the application of the Rule 39 measure, it also wishes to stress that the scope of that interim measure was limited both in geographic and temporal terms: accordingly, the measure barred only the applicant’s expulsion to Israel and/or the Gaza Strip, and only until such time as the UNHCR had reached a decision on the applicant’s refugee status. Despite these limitations of the interim measure, the Court notes that there have been no further attempts to remove the applicant on the grounds of national security since then to any third countries that were willing to accept him, even after the applicant withdrew his application for refugee status from the UNHCR. Moreover, whereas in the initial period following the quashing of the deportation order the applicant was granted short-term residence permits not exceeding six months, on 18 March 2013 the General Security Directorate of the Ministry finally decided to grant the applicant a long-term temporary residence permit, valid for one year with the possibility of renewal, on the strength of the genuine family life he had established in Turkey. 88.", "In the light of the aforementioned developments, the Court considers that the applicant does not currently face a risk of expulsion. 89. The Court further notes that in the event of a fresh deportation attempt in the future, it would be open to the applicant to resort to a judicial procedure in which his claim of possible ill-treatment and/or death in the country of destination would be newly assessed domestically (see Ghosh v. Germany (dec.), no. 24017/03, 5 June 2007). 90.", "In such circumstances the Court considers that the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention in relation to his complaints under Articles 2, 3 and 8 of the Convention concerning his threatened deportation from Turkey. 91. It follows that these complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 92. The Court stresses that the above finding does not prevent the applicant from lodging a new application before the Court and from making use of the available procedures, including under Rule 39 of the Rules of Court, in respect of any new circumstances that may arise, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov, cited above; Bakoyev v. Russia, no.", "30225/11, § 100, 5 February 2013; and Budrevich, cited above, § 69). IV. RULE 39 OF THE RULES OF COURT 93. In view of the above conclusion, it is appropriate to discontinue the application of Rule 39 of the Rules of Court. V. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLES 2, 3 AND 8 OF THE CONVENTION 94.", "Relying on Article 13 of the Convention, the applicant complained of the lack of an effective domestic remedy with regard to his complaints under Articles 2, 3 and 8 of the Convention, where the risks involved in his deportation from Turkey could be subjected to meaningful judicial scrutiny. In particular, he complained that a challenge to a deportation order did not have automatic suspensive effect. A. Admissibility 95. The parties did not make any specific submissions on the admissibility of this complaint. However, having regard to its findings concerning Articles 2, 3 and 8 above, the Court will examine proprio motu whether the applicant maintains his victim status in relation to his Article 13 complaint.", "96. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce - and hence to allege non-compliance with - the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. However, Article 13 cannot reasonably be interpreted as requiring a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious the complaint may be: the grievance must be an “arguable” one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). 97.", "The Court has refrained from giving an abstract definition of the notion of arguability, preferring in each case to determine, in the light of the particular facts and the nature of the legal issues raised, whether a claim of a violation forming the basis of a complaint under Article 13 is arguable, and if so whether the requirements of this provision were met in relation thereto. In making its assessment the Court will also give consideration to its findings on the admissibility of the substantive claim (see Ivan Atanasov v. Bulgaria, no. 12853/03, §§ 100-101, 2 December 2010, and Boyle and Rice, cited above, § 54). However, the fact that a substantive claim is declared inadmissible does not necessarily exclude the operation of Article 13 (see I.M. v. France, no.", "9152/09, § 103, 2 February 2012; Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 55‑56, ECHR 2007‑II; and M.A.v. Cyprus, cited above, §§ 119-121). 98. More specifically, and of relevance to the present case, in deportation cases the Court has taken the view that loss of victim status in respect of alleged violations of Articles 2, 3 and 8 of the Convention because an applicant was no longer exposed to the threat of deportation did not necessarily render that complaint non-arguable or deprive an applicant of his victim status for the purposes of Article 13 (see M.A.", "v. Cyprus, cited above, § 118). For example, in the cases of both I.M. and Gebremedhin (cited above), although the Court ruled that the applicants could no longer be considered victims in respect of the alleged violation of Article 3, it found that the main complaint raised an issue of substance and that, in the particular circumstances, the applicants were still victims of the alleged violation of Article 13 taken together with Article 3. The same approach was taken recently by the Court in the case of De Souza Ribeiro in relation to a deportation complaint under Articles 8 and 13 (see De Souza Ribeiro v. France [GC], no. 22689/07, §§ 84‑100, 13 December 2012, read together with De Souza Ribeiro v. France, no.", "22689/07, §§ 22-26, 30 June 2011). 99. It therefore falls upon the Court to determine whether the applicant’s grievances under Articles 2, 3 and 8 of the Convention in relation to his threatened deportation raised “arguable” issues that merited an examination by the national authorities for the purposes of Article 13 of the Convention. 100. As regards the complaints under Articles 2 and 3, the Court notes the applicant’s claims that he and his family were subjected to three lethal missile attacks by Israeli forces between 2000 and 2007.", "At least the last of those attacks had directly targeted his home and had left him severely injured, to the point of necessitating his transfer to Turkey for intensive medical care. The applicant had moreover claimed that he was wanted in Israel and would face torture if detained by the Israeli authorities. 101. The National Intelligence Agency of Turkey had itself alleged that the applicant was involved with terrorist organisations, apparently operating against Israeli elements. 102.", "Having regard to the information obtained proprio motu, the Court notes that during the period when the applicant faced imminent threat of deportation, Israeli forces were widely reported to be carrying out military operations targeted at persons suspected of terrorist activities by conducting incursions into Palestinian areas or by the use of remotely controlled weapons (see paragraph 38 above). Moreover, there is a plethora of material from the relevant time suggesting the torture or ill-treatment of Palestinian detainees by Israeli authorities, in particular those accused of national security offences (see paragraphs 39 and 40 above). In the Court’s opinion, this information, together with the applicant’s history of targeted attacks and possible involvement in terrorism, as suspected by the National Intelligence Agency, was sufficient to suggest that the applicant could face a risk of ill-treatment or death if returned to the Gaza Strip or Israel, bearing in mind that national security concerns do not trump the rights under Articles 2 and 3 (see Auad v. Bulgaria, no. 46390/10, § 100, 11 October 2011). 103.", "In this connection, the Government’s argument before the Court that the applicant would not be deported to Israel or the Gaza Strip is immaterial, as while the legal procedure against deportation was pending before the domestic courts, which is the material period for the purposes of the Court’s examination under Article 13, the State authorities did not deny the possibility of deportation to either of those destinations. 104. In the light of the foregoing, and without going into a separate examination of the arguability of the complaint regarding the interruption of medical treatment, the Court considers that the applicant’s complaints under Articles 2 and 3 did raise an arguable question as to the compatibility of his intended deportation in 2009 with those provisions. 105. As regards his complaint under Article 8, the Court notes that the State authorities never disputed, either during the domestic proceedings or subsequently before the Court, that the applicant had entered into a genuine family relationship with this wife, who is a Turkish citizen, in Turkey.", "In these circumstances, the Court similarly considers that the applicant’s claims under Article 8 regarding the risk of interference with his private and family life were sufficiently arguable to attract the protection of Article 13 of the Convention. While the Court acknowledges that the protection afforded under Article 8, as opposed to Articles 2 and 3, is not absolute, and that national security concerns could legitimately rupture family life, his complaint at the time still raised an issue of substance which merited a rigorous examination by the domestic authorities (see Amie and Others v. Bulgaria, no. 58149/08, §§ 98-102, 12 February 2013). 106. In view of its above findings, the Court concludes that the facts constituting the alleged violation of Article 13 had already materialised by the time the risk of the applicant’s deportation had ceased to exist, the applicant’s deportation having been halted at the time only because of the application by the Court of the Rule 39 measure.", "Moreover, although there are no enforceable deportation orders against the applicant at the moment and he has a renewable residence permit, his grievances under Article 13 have never been acknowledged or redressed by the State authorities (see M.A. v. Cyprus, cited above, § 120). 107. In these circumstances, it cannot be said that the applicant can no longer claim to be a victim of the alleged violation of Article 13 taken in conjunction with Articles 2, 3 and 8. Consequently, and given that this complaint is not inadmissible on any other grounds, it must be declared admissible.", "B. Merits 1. The parties’ submissions 108. The Government stated that the deportation order against the applicant had been based on intelligence indicating his involvement in acts of international terrorism, and thus pursued the aim of protecting national security and public order. Articles 36 and 125 of the Turkish Constitution provided the applicant with a remedy whereby he could bring proceedings before competent courts against this deportation order, and the applicant had indeed made use of this opportunity in the instant case.", "The Government reiterated that in any event, since the country of destination would be of the applicant’s own choosing, the possibility of being exposed to a real risk within the context of the Convention was non‑existent. 109. The applicant in turn argued that the available domestic remedies fell short of the requirements of Article 13. Neither the State authorities which ordered his deportation nor the administrative court that reviewed the deportation decision made an assessment of the risks involved under Articles 2 and 3 in the event of his deportation, despite his express requests, particularly during the administrative proceedings. Similarly, they did not take into account that he had established a family life in Turkey.", "The administrative court only overturned the impugned decision because of the interim measure issued by the Court, which was binding on the domestic authorities. Had it not been for the Court’s interim measure, the domestic court would have rejected his case. Moreover, at no point during the deportation proceedings had he been informed of the factual and legal grounds underlying his proposed deportation. The allegations that he had been involved in international terrorism were not supported by any concrete evidence, which was further demonstrated by the fact that no criminal proceedings had been brought against him in Turkey. 2.", "The Court’s assessment 110. The Court has already found that the applicant’s complaints under Articles 2, 3 and 8 of the Convention are “arguable” and that the applicant can still claim to have been entitled to a remedy in that respect. (a) Article 13 in conjunction with Articles 2 and 3 111. Given the irreversible nature of the harm which might occur if the alleged risk of torture or ill-treatment materialised, and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 in this context requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there is a real risk of treatment contrary to Article 3 in the event of the applicant’s expulsion to the country of destination, through direct or indirect refoulement, which must be carried out without regard to any perceived threat to the national security of the expelling State (see Auad, cited above, § 120), and (ii) a remedy with automatic suspensive effect (see Muminov v. Russia, no. 42502/06, § 101, 11 December 2008; Gebremedhin [Gaberamadhien], cited above, § 66; and Jabari v. Turkey, no.", "40035/98, § 39 or 50, ECHR 2000‑ VIII). It is, therefore, inconsistent with Article 13 for such measures to be executed before the national authorities have examined their compatibility with the Convention (see M. and Others v. Bulgaria, no. 41416/08, § 129, 26 July 2011; Salah Sheekh v. the Netherlands, no. 1948/04, § 153, 11 January 2007; and Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002‑I).", "The same principles apply when expulsion exposes the applicant to a real risk of a violation of his rights safeguarded by Article 2 of the Convention (see M.A. v. Cyprus, cited above, § 133). 112. Turning to the facts of the instant case, the Court reiterates at the outset that it has already been established that judicial review in deportation cases in Turkey could not be regarded as an effective remedy, since an application for the quashing of a deportation order did not have automatic suspensive effect, thus exposing any person in the applicant’s position to the risk of deportation at any moment without a prior independent examination of his claims (see Abdolkhani and Karimnia, cited above, § 116). 113.", "While this finding is sufficient on its own to constitute a violation of Article 13 of the Convention, the Court nevertheless wishes to address another issue which it considers particularly problematic. It notes in this connection that contrary to the requirement of rigorous scrutiny under Article 13, the Ankara Administrative Court did not in any way deal with the aforementioned issue of “personal risk” when examining the applicant’s legal challenge to his deportation. The Court believes that this deficiency is due, at least to some extent, to the fact that neither the original deportation order nor any subsequent submissions by the Ministry to the domestic courts specified where exactly the applicant would be deported to. Such ambiguity is unacceptable, not only because it exacerbated the applicant’s already precarious position, but also because it inevitably hampered a meaningful examination of the risks involved in his deportation, thus rendering the protection afforded under Article 13 illusory (see, mutatis mutandis, Auad, cited above, § 133). 114.", "In the light of the above, the Court concludes that the applicant was not afforded an effective remedy in relation to his complaints under Articles 2 and 3 of the Convention regarding his threatened deportation from Turkey. There has accordingly been a violation of Article 13 of the Convention under this head. (b) Article 13 of the Convention in conjunction with Article 8 115. The Court notes that by contrast to the requirement in relation to Articles 2 and 3, where expulsions are challenged on the basis of potential interference with private and family life, it is not imperative for a remedy to have automatic suspensive effect for it to be effective. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging the deportation order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see De Souza Ribeiro, cited above, § 83).", "116. If expulsion has been ordered by reference to national security considerations, certain procedural restrictions may be necessary to ensure that no leakage detrimental to national security occurs, and any independent appeals authority may have to afford a wide margin of appreciation to the executive. However, these limitations can by no means justify doing away with remedies altogether whenever the executive has chosen to invoke the term “national security”. There must be some form of adversarial proceedings. Furthermore, the question whether the impugned measure would interfere with the individual’s right to respect for his or her family life and, if so, whether a fair balance has been struck between the public interest involved and the individual’s rights must be examined (see Al‑Nashif v. Bulgaria, no.", "50963/99, § 137, 20 June 2002). The relevant factors to be taken into account when carrying out the balancing exercise have been summarised in the Court’s judgment in the case of Üner v. the Netherlands ([GC], no. 46410/99, §§ 57-59, ECHR 2006‑XII). 117. Unlike the situation in Al-Nashif (cited above), it appears that while the applicant did not have access to all the evidence against him, the Ankara Administrative Court, which was tasked with reviewing the deportation decision, was informed by the executive of the reasons grounding that decision.", "Be that as it may, there is nothing in the case file to suggest that the Ankara Administrative Court actually carried out a genuine inquiry into the allegations of the State authorities on the basis of the information provided to it, such as by way of verifying the relevant factual circumstances and assessing whether genuine national security concerns were truly at stake. The domestic court’s absolute silence on these matters raises the suspicion that it took the authorities’ assertions at face value, rather than subjecting them to a rigorous scrutiny. 118. This failure is particularly striking considering that the applicant was already at a disadvantage on account of his inability to access all the information used against him, which had forced him to build his defence arguments on the basis of very general accusations. The Court recalls in this connection that the accusations against the applicant were largely based on some telephone conversations he had allegedly had with unknown persons in Israel (see paragraph 17 above).", "However, there is no information in the case file to ascertain whether the secret surveillance measures in question were lawfully ordered and executed, nor was this aspect of the matter considered by the administrative court (see C.G. and Others v. Bulgaria, no. 1365/07, § 48, 24 April 2008), which again raises concerns of arbitrariness. 119. The Court further notes that the administrative court similarly failed to discuss in any way whether the applicant’s deportation would interfere with his family life, and whether such interference would strike a fair balance in the circumstances between the relevant competing interests, namely the public interest in protecting national security and the applicant’s interest in preserving his family life (see Maslov v. Austria [GC], no.", "1638/03, § 76, ECHR 2008). 120. Having regard to the foregoing, the Court concludes that the applicant did not have an effective remedy in relation to his complaint under Article 8 of the Convention, where the issues at stake were thoroughly examined in proceedings that were adversarial and which provided him with sufficient safeguards against arbitrary conduct on the part of State authorities. There has therefore been a violation of Article 13 of the Convention in conjunction with Article 8. VI.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 121. The applicant also cited Articles 6, 9 and 10 of the Convention, without however substantiating these claims in any way. 122. Having regard to the documents in its possession, the Court finds that this part of the application does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints must be declared inadmissible as manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 123. The applicant did not submit a claim for compensation for pecuniary damage. As regards non‑pecuniary damage, he claimed 70,000 euros (EUR) in view of the breach of his Convention rights.", "124. The Government contested this claim as baseless. 125. The Court considers that the applicant must have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of violations. Having regard to the gravity of the violations in question and to equitable considerations, it awards the applicant EUR 9,750 under this head.", "B. Costs and expenses 126. The applicant also claimed EUR 3,600 for legal expenses incurred before the Court and EUR 450 for other costs and expenses, such as court fees, stationery, photocopying, translation and postal costs incurred before the domestic courts and the Court. In this connection, he submitted a time sheet showing that his legal representative had carried out forty-five hours’ legal work, a legal fee agreement that he had concluded with his representative, and invoices for the remaining costs and expenses. 127.", "The Government contested this claim, which it deemed to be unsubstantiated. 128. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,400 covering costs under all heads. C. Default interest 129.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares, unanimously, the complaints under Articles 3 (conditions of detention incompatible with the applicant’s disability), 5 and 13 of the Convention admissible, and the complaints under Articles 2, 3 and 8 (regarding the applicant’s threatened deportation) and Articles 6, 9 and 10 inadmissible; 2. Holds, by six votes to one, that there has been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention at the Kumkapı Foreigners’ Admission and Accommodation Centre; 3. Holds, unanimously, that it is not necessary to examine the complaint under Article 3 in relation to the interruption of the applicant’s medical treatment during his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre; 4.", "Holds, unanimously, that there has been a violation of Article 5 § 1 of the Convention; 5. Holds, unanimously, that there has been a violation of Article 5 § 4 of the Convention; 6. Holds, unanimously, that there has been a violation of Article 5 § 5 of the Convention; 7. Holds, unanimously, that there has been a violation of Article 13 of the Convention in conjunction with the Articles 2, 3 and 8 in relation to the applicant’s threatened deportation from Turkey; 8. Holds, unanimously, that it is not necessary to examine the admissibility or the merits of the complaint under Article 8 regarding the disruption of the applicant’s family life during his detention; 9.", "Decides, unanimously, to lift the interim measure indicated to the Government under Rule 39 of the Rules of the Court; 10. Holds, unanimously, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 9,750 (nine thousand seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (ii) EUR 3,400 (three thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 11. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting and partly concurring opinion of Judge A. Sajó is annexed to this judgment.", "G.R.A. S.H.N. PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGE SAJÓ Although I share the view of the majority with respect to their Article 5 findings in this case, I respectfully disagree regarding the majority’s Article 3 conclusions. I agree with the majority’s conclusions regarding the violation of Article 13, but on a narrower ground. Under Article 3 of the Convention, the majority found that the applicant’s conditions of detention were unsuitable for a wheelchair-bound person and constituted degrading treatment.", "To date the Court has required only that “where authorities decide to place and keep a person with a disability in detention they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability” (see paragraph 50 of the judgment). There were policemen (as well as the applicant’s wife, on occasion) readily available to assist the applicant, and the hotel facilities to which he was carried by the policemen were not located at a very great distance. In fact the distance could have been the same within the detention facility, requiring the same help from the policemen. The applicant’s detention under these conditions lasted only seven days, and its short duration should not have been discounted when assessing whether the treatment constituted a violation. Were the Court to apply its standards and impose a positive obligation on States to provide accessible detention facilities for persons with disabilities, for example under Article 8 in conjunction with Article 14, I would have no difficulties in applying those considerations to the present case.", "But the treatment of the applicant, while far from ideal, does not meet the threshold of inhuman or degrading treatment required by Article 3. As to the finding of a violation of Article 13 of the Convention, I think most of the reasoning is speculative, although it follows from our case-law that in matters of deportation detention the Turkish system does not satisfy the requirements of the right to an effective remedy. These considerations apply for the period the applicant was detained and actually faced deportation. In a deportation case in which the deportation has been stayed and the applicant has arguable victim status, it appears entirely speculative to comment on the lack of an effective remedy were the domestic proceedings or the detention to have continued. It would be another matter if the deportation proceedings had progressed further and the applicant had subsequently found himself without an effective remedy.", "Given that these were not the circumstances of this case after the applicant’s release, I find it difficult to vote in favour of a violation of the right to an effective remedy where the need for such remedy was obviated to some extent by the outcome or staying of the proceedings. [1]1. The Public Committee against Torture in Israel et al v. The Government of Israel et al, Supreme Court of Israel sitting as the High Court of Justice, Judgment, 11 December 2006, HCJ 769/02, paragraph 40, available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM" ]

[ "GRAND CHAMBER CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM (Application no. 55721/07) JUDGMENT STRASBOURG 7 July 2011 In the case of Al-Skeini and Others v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Christos Rozakis,Nicolas Bratza,Françoise Tulkens,Josep Casadevall, Dean Spielmann,Giovanni Bonello,Elisabeth Steiner,Lech Garlicki,Ljiljana Mijović,Davíd Thór Björgvinsson,Isabelle Berro-Lefèvre,George Nicolaou,Luis López Guerra,Ledi Bianku,Ann Power,Mihai Poalelungi, judges,and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 9 and 16 June 2010 and 15 June 2011, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 55721/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Iraqi nationals, Mr Mazin Jum’aa Gatteh Al-Skeini, Ms Fattema Zabun Dahesh, Mr Hameed Abdul Rida Awaid Kareem, Mr Fadil Fayay Muzban, Mr Jabbar Kareem Ali and Colonel Daoud Mousa (“the applicants”), on 11 December 2007. 2.", "The applicants, who had been granted legal aid, were represented by Public Interest Lawyers, solicitors based in Birmingham. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office. 3. The applicants alleged that their relatives fell within United Kingdom jurisdiction when killed and that there had been no effective investigation into their deaths, in breach of Article 2 of the Convention. 4.", "The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 16 December 2008 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention). The parties took turns to file observations on the admissibility and merits of the case. On 19 January 2010 the Chamber decided to relinquish jurisdiction in favour of the Grand Chamber (Article 30 of the Convention and Rule 72).", "5. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. Judge Peer Lorenzen, President of the Fifth Section, withdrew and was replaced by Judge Luis López Guerra, substitute judge. 6. The applicants and the Government each filed a further memorial on the admissibility and merits, and joint third-party comments were received from the Bar Human Rights Committee, the European Human Rights Advocacy Centre, Human Rights Watch, Interights, the International Federation for Human Rights, the Law Society, and Liberty (“the third-party interveners”).", "7. A hearing took place in public in the Human Rights Building, Strasbourg, on 9 June 2010 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr D. Walton, Agent, MrJ. Eadie QC, MsC. Ivimy, MrS. Wordsworth, Counsel, MsL.", "Dann, MsH. Akiwumi, Advisers; (b) for the applicants MrR. Singh QC, MrR. Husain QC, MsS. Fatima, MsN.", "Patel, MrT. Tridimas, MsH. Law, Counsel, MrP. Shiner, MrD. Carey, MsT.", "Gregory, MrJ. Duffy,Advisers. The Court heard addresses by Mr Eadie and Mr Singh. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8.", "The facts of the case may be summarised as follows. A. The occupation of Iraq from 1 May 2003 to 28 June 2004 1. Background: United Nations Security Council Resolution 1441 9. On 8 November 2002 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1441.", "The Resolution decided, inter alia, that Iraq had been and remained in material breach of its obligations under previous United Nations Security Council resolutions to disarm and to cooperate with United Nations and International Atomic Energy Agency weapons inspectors. Resolution 1441 decided to afford Iraq a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime. It requested the Secretary-General of the United Nations immediately to notify Iraq of the Resolution and demanded that Iraq cooperate immediately, unconditionally, and actively with the inspectors. Resolution 1441 concluded by recalling that the Security Council had “repeatedly warned Iraq that it w[ould] face serious consequences as a result of its continued violations of its obligations”. The Security Council decided to remain seised of the matter.", "2. Major combat operations: 20 March to 1 May 2003 10. On 20 March 2003 a Coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq. By 5 April 2003 the British had captured Basra and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003.", "Thereafter, other States sent personnel to help with the reconstruction effort. 3. Legal and political developments in May 2003 11. On 8 May 2003 the Permanent Representatives of the United Kingdom and the United States of America at the United Nations addressed a joint letter to the President of the United Nations Security Council, which read as follows: “The United States of America, the United Kingdom of Great Britain and Northern Ireland and Coalition partners continue to act together to ensure the complete disarmament of Iraq of weapons of mass destruction and means of delivery in accordance with United Nations Security Council resolutions. The States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq.", "We will act to ensure that Iraq’s oil is protected and used for the benefit of the Iraqi people. In order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by: deterring hostilities; maintaining the territorial integrity of Iraq and securing Iraq’s borders; securing, and removing, disabling, rendering harmless, eliminating or destroying (a) all of Iraq’s weapons of mass destruction, ballistic missiles, unmanned aerial vehicles and all other chemical, biological and nuclear delivery systems; and (b) all elements of Iraq’s programme to research, develop, design, manufacture, produce, support, assemble and employ such weapons and delivery systems and subsystems and components thereof, including but not limited to stocks of chemical and biological agents, nuclear-weapon-usable material, and other related materials, technology, equipment, facilities and intellectual property that have been used in or can materially contribute to these programmes; in consultation with relevant international organisations, facilitating the orderly and voluntary return of refugees and displaced persons; maintaining civil law and order, including through encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; eliminating all terrorist infrastructure and resources within Iraq and working to ensure that terrorists and terrorist groups are denied safe haven; supporting and coordinating de-mining and related activities; promoting accountability for crimes and atrocities committed by the previous Iraqi regime; and assuming immediate control of Iraqi institutions responsible for military and security matters and providing, as appropriate, for the demilitarisation, demobilisation, control, command, reformation, disestablishment, or reorganisation of those institutions so that they no longer pose a threat to the Iraqi people or international peace and security but will be capable of defending Iraq’s sovereignty and territorial integrity. The United States, the United Kingdom and Coalition partners recognise the urgent need to create an environment in which the Iraqi people may freely determine their own political future. To this end, the United States, the United Kingdom and Coalition partners are facilitating the efforts of the Iraqi people to take the first steps towards forming a representative government, based on the rule of law, that affords fundamental freedoms and equal protection and justice under law to the people of Iraq without regard to ethnicity, religion or gender.", "The United States, the United Kingdom and Coalition partners are facilitating the establishment of representative institutions of government, and providing for the responsible administration of the Iraqi financial sector, for humanitarian relief, for economic reconstruction, for the transparent operation and repair of Iraq’s infrastructure and natural resources, and for the progressive transfer of administrative responsibilities to such representative institutions of government, as appropriate. Our goal is to transfer responsibility for administration to representative Iraqi authorities as early as possible. The United Nations has a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority. The United States, the United Kingdom and Coalition partners are ready to work closely with representatives of the United Nations and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary-General. We also welcome the support and contributions of member States, international and regional organisations, and other entities, under appropriate coordination arrangements with the Coalition Provisional Authority.", "We would be grateful if you could arrange for the present letter to be circulated as a document of the Security Council. (Signed) Jeremy GreenstockPermanent Representative of the United Kingdom (Signed) John D. NegropontePermanent Representative of the United States” 12. As mentioned in the above letter, the occupying States, acting through the Commander of Coalition Forces, created the Coalition Provisional Authority (CPA) to act as a “caretaker administration” until an Iraqi government could be established. It had power, inter alia, to issue legislation. On 13 May 2003 the US Secretary of Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq.", "In CPA Regulation No. 1, dated 16 May 2003, Ambassador Bremer provided as follows: “Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war, I hereby promulgate the following: Section 1 The Coalition Provisional Authority (1) The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development. (2) The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA Administrator. (3) As the Commander of Coalition Forces, the Commander of US Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq’s territorial integrity and security; searching for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally.", "Section 2 The Applicable Law Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of 16 April 2003 shall continue to apply in Iraq in so far as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA. ...” 13. The CPA administration was divided into regional areas. CPA South was placed under United Kingdom responsibility and control, with a United Kingdom Regional Coordinator. It covered the southernmost four of Iraq’s eighteen provinces, each having a governorate coordinator.", "United Kingdom troops were deployed in the same area. The United Kingdom was represented at CPA headquarters through the Office of the United Kingdom Special Representative. According to the Government, although the United Kingdom Special Representative and his Office sought to influence CPA policy and decisions, United Kingdom personnel had no formal decision-making power within the Authority. All the CPA’s administrative and legislative decisions were taken by Ambassador Bremer. 14.", "United Nations Security Council Resolution 1483 referred to by Ambassador Bremer in CPA Regulation No. 1 was actually adopted six days later, on 22 May 2003. It provided as follows: “The Security Council, Recalling all its previous relevant resolutions, Reaffirming the sovereignty and territorial integrity of Iraq, Reaffirming also the importance of the disarmament of Iraqi weapons of mass destruction and of eventual confirmation of the disarmament of Iraq, Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly, Encouraging efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender, and, in this connection, recalls Resolution 1325 (2000) of 31 October 2000, Welcoming the first steps of the Iraqi people in this regard, and noting in this connection the 15 April 2003 Nasiriyah statement and the 28 April 2003 Baghdad statement, Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance, ... Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognising the specific authorities, responsibilities, and obligations under applicable international law of these States as Occupying Powers under unified command (the ‘Authority’), Noting further that other States that are not Occupying Powers are working now or in the future may work under the Authority, Welcoming further the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, Concerned that many Kuwaitis and Third-State Nationals still are not accounted for since 2 August 1990, Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Appeals to member States and concerned organisations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this Resolution; 2.", "Calls upon all member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organisations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq’s economic infrastructure; 3. Appeals to member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice; 4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future; 5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; ... 8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: (a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organisations; (b) promoting the safe, orderly, and voluntary return of refugees and displaced persons; (c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognised, representative government of Iraq; (d) facilitating the reconstruction of key infrastructure, in cooperation with other international organisations; (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organisations, as appropriate, civil society, donors, and the international financial institutions; (f) encouraging international efforts to contribute to basic civilian administration functions; (g) promoting the protection of human rights; (h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and (i) encouraging international efforts to promote legal and judicial reform; 9.", "Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Authority; ... 24. Requests the Secretary-General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of the International Advisory and Monitoring Board and encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to inform the Council at regular intervals of their efforts under this Resolution; 25. Decides to review the implementation of this Resolution within twelve months of adoption and to consider further steps that might be necessary. 26. Calls upon member States and international and regional organisations to contribute to the implementation of this Resolution; 27.", "Decides to remain seised of this matter.” 5. Developments between July 2003 and June 2004 15. In July 2003 the Governing Council of Iraq was established. The CPA was required to consult with it on all matters concerning the temporary governance of Iraq. 16.", "On 16 October 2003 the United Nations Security Council passed Resolution 1511, which provided, inter alia, as follows: “The Security Council ... Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly, and recognising the importance of international support, particularly that of countries in the region, Iraq’s neighbours, and regional organisations, in taking forward this process expeditiously, Recognising that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003), Welcoming the decision of the Governing Council of Iraq to form a preparatory constitutional committee to prepare for a constitutional conference that will draft a Constitution to embody the aspirations of the Iraqi people, and urging it to complete this process quickly, ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognised and set forth in Resolution 1483 (2003), which will cease when an internationally recognised, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia, through steps envisaged in paragraphs 4 through 7 and 10 below; ... 4. Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government is established and assumes the responsibilities of the Authority; 5. Affirms that the administration of Iraq will be progressively undertaken by the evolving structures of the Iraqi interim administration; 6.", "Calls upon the Authority, in this context, to return governing responsibilities and authorities to the people of Iraq as soon as practicable and requests the Authority, in cooperation as appropriate with the Governing Council and the Secretary-General, to report to the Council on the progress being made; 7. Invites the Governing Council to provide to the Security Council, for its review, no later than 15 December 2003, in cooperation with the Authority and, as circumstances permit, the Special Representative of the Secretary-General, a timetable and a programme for the drafting of a new Constitution for Iraq and for the holding of democratic elections under that Constitution; 8. Resolves that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission for Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government; ... 13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of Resolution 1483 (2003), and authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; 14. Urges member States to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13 above; 15.", "Decides that the Council shall review the requirements and mission of the Multinational Force referred to in paragraph 13 above not later than one year from the date of this Resolution, and that in any case the mandate of the Force shall expire upon the completion of the political process as described in paragraphs 4 through 7 and 10 above, and expresses readiness to consider on that occasion any future need for the continuation of the Multinational Force, taking into account the views of an internationally recognised, representative government of Iraq; ... 25. Requests that the United States, on behalf of the Multinational Force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this Force as appropriate and not less than every six months; 26. Decides to remain seised of the matter.” 17. On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period (known as the “Transitional Administrative Law”). This provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government and the dissolution of the CPA.", "18. Provision for the new regime was made in United Nations Security Council Resolution 1546, adopted on 8 June 2004, which provided, inter alia, that the Security Council, acting under Chapter VII of the Charter of the United Nations: “1. Endorses the formation of a sovereign interim government of Iraq, as presented on 1 June 2004, which will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected transitional government of Iraq assumes office as envisaged in paragraph 4 below; 2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty; ... 8. Welcomes ongoing efforts by the incoming interim government of Iraq to develop Iraqi security forces including the Iraqi armed forces (hereinafter referred to as ‘Iraqi security forces’), operating under the authority of the interim government of Iraq and its successors, which will progressively play a greater role and ultimately assume full responsibility for the maintenance of security and stability in Iraq; 9.", "Notes that the presence of the Multinational Force in Iraq is at the request of the incoming interim government of Iraq and therefore reaffirms the authorisation for the Multinational Force under unified command established under Resolution 1511 (2003), having regard to the letters annexed to this Resolution; 10. Decides that the Multinational Force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; ...” 6. The transfer of authority to the Iraqi interim government 19. On 28 June 2004 full authority was transferred from the CPA to the Iraqi interim government and the CPA ceased to exist. Subsequently, the Multinational Force, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi government and authorisations from the United Nations Security Council.", "B. United Kingdom armed forces in Iraq from May 2003 to June 2004 20. During this period, the Coalition Forces consisted of six divisions that were under the overall command of US generals. Four were US divisions and two were multinational. Each division was given responsibility for a particular geographical area of Iraq.", "The United Kingdom was given command of the Multinational Division (South-East), which comprised the provinces of Basra, Maysan, Thi Qar and Al‑Muthanna, an area of 96,000 square kilometres with a population of 4.6 million. There were 14,500 Coalition troops, including 8,150 United Kingdom troops, stationed in the Multinational Division (South-East). The main theatre for operations by United Kingdom forces in the Multinational Division (South-East) were the Basra and Maysan provinces, with a total population of about 2.75 million people. Just over 8,000 British troops were deployed there, of whom just over 5,000 had operational responsibilities. 21.", "From 1 May 2003 onwards British forces in Iraq carried out two main functions. The first was to maintain security in the Multinational Division (South-East) area, in particular in the Basra and Maysan provinces. The principal security task was the effort to re-establish the Iraqi security forces, including the Iraqi police. Other tasks included patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations. The second main function of the British troops was the support of the civil administration in Iraq in a variety of ways, from liaison with the CPA and Governing Council of Iraq and local government, to assisting with the rebuilding of the infrastructure.", "22. In the Aitken Report (see paragraph 69 below), prepared on behalf of the Army Chief of General Staff, the post-conflict situation in Iraq was described as follows: “The context in which operations have been conducted in Iraq has been exceptionally complex. It is not for this report to comment on the jus ad bellum aspects of the operation, nor of the public’s opinions of the invasion. It is, however, important to note that the Alliance’s post-invasion plans concentrated more on the relief of a humanitarian disaster (which did not, in the event, occur on anything like the scale that had been anticipated), and less on the criminal activity and subsequent insurgency that actually took place. One consequence of that was that we had insufficient troops in theatre to deal effectively with the situation in which we found ourselves.", "Peace support operations require significantly larger numbers of troops to impose law and order than are required for prosecuting a war: ours were very thinly spread on the ground. In his investigation (in April 2005) of the Breadbasket incident [alleged abuse of Iraqis detained on suspicion of looting humanitarian aid stores], Brigadier Carter described conditions in Iraq thus: ‘... May 2003, some four weeks or so after British forces had started to begin the transition from offensive operations to stabilisation. The situation was fluid. Battlegroups had been given geographic areas of responsibility based generally around their initial tactical objectives. Combat operations had officially ended, and [the] rules of engagement had changed to reflect this, but there was a rising trend of shooting incidents.", "Although these were principally between Iraqis, seeking to settle old scores or involved in criminal activity, there were early indications that the threat to British soldiers was developing ... The structure of the British forces was changing. Many of the heavier capabilities that had been required for the invasion were now being sent home. Some force elements were required for operations elsewhere, and there was pressure from the UK to downsize quickly to more sustainable numbers ... Local attitudes were also changing. Initially ecstatic with happiness, the formerly downtrodden Shia population in and around Basra had become suspicious, and by the middle of May people were frustrated.", "Aspirations and expectations were not being met. There was no Iraqi administration or governance. Fuel and potable water were in short supply, electricity was intermittent, and the hospitals were full of wounded from the combat operations phase. Bridges and key routes had been destroyed by Coalition bombing. Law and order had completely collapsed.", "The Iraqi police service had melted away; the few security guards who remained were old and incapable; and the Iraqi armed forces had been captured, disbanded or deserted. Criminals had been turned out onto the streets and the prisons had been stripped. The judiciary were in hiding. Every government facility had been raided and all loose items had been removed. Insecure buildings had been occupied by squatters.", "Crime was endemic and in parts of Basra a state of virtual anarchy prevailed. Hijackings, child kidnappings, revenge killings, car theft and burglary were rife. In a very short space of time wealth was being comprehensively redistributed.’ In this environment, the British army was the sole agent of law and order within its area of operations. When the Association of Chief Police Officers’ Lead for International Affairs, Mr Paul Kernaghan, visited Iraq in May 2003, he said that he would not recommend the deployment of civilian police officers to the theatre of operations due to the poor security situation. The last time the army had exercised the powers of an army of occupation was in 1945 – and it had spent many months preparing for that role; in May 2003, the same soldiers who had just fought a high‑intensity, conventional war were expected to convert, almost overnight, into the only people capable of providing the agencies of government and humanitarian relief for the people of southern Iraq.", "Battlegroups (comprising a Lieutenant Colonel and about 500 soldiers) were allocated areas of responsibilities comprising hundreds of square miles; companies (a Major with about 100 men under command) were given whole towns to run. The British invasion plans had wisely limited damaging as much of the physical infrastructure as possible; but with only military personnel available to run that infrastructure, and very limited local staff support, the task placed huge strains on the army. One of the effects of this lack of civil infrastructure was the conundrum British soldiers faced when dealing with routine crime. Our experience in Northern Ireland, and in peace support operations around the world, has inculcated the clear principle of police primacy when dealing with criminals in operational environments. Soldiers accept that they will encounter crime, and that they will occasionally be required to arrest those criminals; but (despite some experience of this syndrome in Kosovo in 1999) our doctrine and practice had not prepared us for dealing with those criminals when there was no civil police force, no judicial system to deal with offenders, and no prisons to detain them in.", "Even when a nascent Iraqi police force was re-established in 2003, troops on the ground had little confidence in its ability to deal fairly or reasonably with any criminals handed over to it. In hindsight, we now know that some soldiers acted outside the law in the way they dealt with local criminals. However diligent they were, commanders were unable to be everywhere, and so were physically unable to supervise their troops to the extent that they should; as a result, when those instances did occur, they were less likely to be spotted and prevented.” 23. United Kingdom military records show that, as at 30 June 2004, there had been approximately 178 demonstrations and 1,050 violent attacks against Coalition Forces in the Multinational Division (South-East) since 1 May 2003. The violent attacks consisted of 5 anti-aircraft attacks, 12 grenade attacks, 101 attacks using improvised explosive devices, 52 attempted attacks using improvised explosive devices, 145 mortar attacks, 147 rocket-propelled grenade attacks, 535 shootings and 53 others.", "The same records show that, between May 2003 and March 2004, 49 Iraqis were known to have been killed in incidents in which British troops used force. C. The rules of engagement 24. The use of force by British troops during operations is covered by the appropriate rules of engagement. The rules of engagement governing the use of lethal force by British troops in Iraq during the relevant period were the subject of guidance contained in a card issued to every soldier, known as “Card Alpha”. Card Alpha set out the rules of engagement in the following terms: “CARD A – GUIDANCE FOR OPENING FIRE FOR SERVICE PERSONNEL AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY GENERAL GUIDANCE 1.", "This guidance does not affect your inherent right to self-defence. However, in all situations you are to use no more force than absolutely necessary. FIREARMS MUST ONLY BE USED AS A LAST RESORT 2. When guarding property, you must not use lethal force other than for the protection of human life. PROTECTION OF HUMAN LIFE 3.", "You may only open fire against a person if he/she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger. CHALLENGING 4. A challenge MUST be given before opening fire unless: (a) to do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s); OR (b) you or others in the immediate vicinity are under armed attack. 5. You are to challenge by shouting: ‘NAVY, ARMY, AIR FORCE, STOP OR I FIRE’ or words to that effect.", "OPENING FIRE 6. If you have to open fire you are to: (a) fire only aimed shots; AND (b) fire no more rounds than are necessary; AND (c) take all reasonable precautions not to injure anyone other than your target.” D. Investigations into Iraqi civilian deaths involving British soldiers 1. The decision to refer an incident for investigation by the Royal Military Police 25. On 21 June 2003 Brigadier Moore (Commander of the 19 Mechanised Brigade in Iraq from June to November 2003) issued a formal policy on the investigation of shooting incidents. This policy provided that all shooting incidents were to be reported and the Divisional Provost Marshal was to be informed.", "Non-commissioned officers from the Royal Military Police were then to evaluate the incident and decide whether it fell within the rules of engagement. If it was decided that the incident did come within the rules of engagement, statements were to be recorded and a completed bulletin submitted through the chain of command. If the incident appeared to fall outside the rules of engagement and involved death or serious injury, the investigation was to be handed to the Special Investigation Branch of the Royal Military Police (see paragraph 28 below) by the Divisional Provost Marshal at the earliest opportunity. 26. However, Brigadier Moore decided that from 28 July 2003 this policy should be revised.", "The new policy required that all such incidents should be reported immediately by the soldier involved to the Multinational Division (South-East) by means of a “serious incident report”. There would then be an investigation into the incident by the Company Commander or the soldier’s Commanding Officer. In his evidence to the domestic courts, Brigadier Moore explained that: “The form of an investigation into an incident would vary according to the security situation on the ground and the circumstances of the individual case. Generally, it would involve the Company Commander or Commanding Officer taking statements from the members of the patrol involved, and reviewing radio logs. It might also include taking photographs of the scene.", "Sometimes there would be further investigation through a meeting with the family/tribe of the person killed. Investigations at unit-level, however, would not include a full forensic examination. Within the Brigade, we had no forensic capability.” If the Commanding Officer was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, there was no requirement to initiate an investigation by the Special Investigation Branch. The Commanding Officer would record his decision in writing to Brigadier Moore. If the Commanding Officer was not so satisfied, or if he had insufficient information to arrive at a decision, he was required to initiate a Special Investigation Branch investigation.", "27. Between January and April 2004 there was a further reconsideration of this policy, prompted by the fact that the environment had become less hostile and also by the considerable media and parliamentary interest in incidents involving United Kingdom forces in which Iraqis had died. On 24 April 2004 a new policy was adopted by the Commander of the Multinational Division (South-East), requiring all shooting incidents involving United Kingdom forces which resulted in a civilian being killed or injured to be investigated by the Special Investigation Branch. In exceptional cases, the Brigade Commander could decide that an investigation was not necessary. Any such decision had to be notified to the Commander of the Multinational Division (South-East) in writing.", "2. Investigation by the Royal Military Police (Special Investigation Branch) 28. The Royal Military Police form part of the army and deploy with the army on operations abroad, but have a separate chain of command. Military police officers report to the Provost Marshal, who reports to the Adjutant General. Within the Royal Military Police, the Special Investigation Branch is responsible for the investigation of serious crimes committed by members of the British forces while on service, incidents involving contact between the military and civilians and any special investigations tasked to it, including incidents involving civilian deaths caused by British soldiers.", "To secure their practical independence on operations, the Special Investigation Branch deploy as entirely discrete units and are subject to their own chain of command, headed by provost officers who are deployed on operations for this purpose. 29. Investigations into Iraqi civilian deaths involving British soldiers were triggered either by the Special Investigation Branch being asked to investigate by the Commanding Officer of the units concerned or by the Special Investigation Branch of its own initiative, when it became aware of an incident by other means. However, the latter type of investigation could be terminated if the Special Investigation Branch was instructed to stop by the Provost Marshal or the Commanding Officer of the unit involved. 30.", "Special Investigation Branch investigations in Iraq were hampered by a number of difficulties, such as security problems, lack of interpreters, cultural considerations (for example, the Islamic practice requiring a body to be buried within twenty-four hours and left undisturbed for forty days), the lack of pathologists and post-mortem facilities, the lack of records, problems with logistics, the climate and general working conditions. The Aitken Report (see paragraph 69 below) summarised the position as follows: “It was not only the combat troops who were overstretched in these circumstances. The current military criminal justice system is relevant, independent, and fit for purpose; but even the most effective criminal justice system will struggle to investigate, advise on and prosecute cases where the civil infrastructure is effectively absent. And so, in the immediate aftermath of the ground war, the Service Police faced particular challenges in gathering evidence of a quality that would meet the very high standards required under English law. National records – usually an integral reference point for criminal investigations – were largely absent; a different understanding of the law between Iraqi people and British police added to an atmosphere of hostility and suspicion; and the army was facing an increasingly dangerous operational environment – indeed, on 24 June 2003, six members of the Royal Military Police were killed in Al Amarah.", "Local customs similarly hampered the execution of British standards of justice: in the case of Nadhem Abdullah, for instance, the family of the deceased refused to hand over the body for forensic examination – significantly reducing the quality of evidence surrounding his death.” The Aitken Report also referred to the problems caused to the Special Investigation Branch, when attempting to investigate serious allegations of abuse, by the sense of loyalty to fellow soldiers which could lead to a lack of cooperation from army personnel and to what the judge in the court martial concerning the killing of the sixth applicant’s son had described as a “wall of silence” from some of the military witnesses called to give evidence. 31. On conclusion of a Special Investigation Branch investigation, the Special Investigation Branch officer would report in writing to the Commanding Officer of the unit involved. Such a report would include a covering letter and a summary of the evidence, together with copies of any documentary evidence relevant to the investigation in the form of statements from witnesses and investigators. The report would not contain any decision as to the facts or conclusions as to what had happened.", "It was then for the Commanding Officer to decide whether or not to refer the case to the Army Prosecuting Authority for possible trial by court martial. 32. The Aitken Report, dated 25 January 2008 (see paragraph 69 below), commented on the prosecution of armed forces personnel in connection with the death of Iraqi civilians, as follows: “Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. The APA preferred charges on three of these cases on the basis that it considered there was a realistic prospect of conviction, and that trial was in the public and service interest; and yet not one conviction for murder or manslaughter has been recorded. The army’s position is straightforward on the issue of prosecution.", "Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the APA. The Director Army Legal Services (DALS), who is responsible to the Adjutant General for the provision of legal services to the army, is additionally appointed by the Queen as the APA. In that capacity, he has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command, and for the prosecution of all cases tried before courts martial, the Standing Civilian Court and the Summary Appeal Court and for appeals before the Courts-Martial Appeal Court and the House of Lords. DALS delegates these functions to ALS [(Army Legal Services)] officers appointed as prosecutors in the APA, and Brigadier Prosecutions has day-to-day responsibility for the APA. The APA is under the general superintendence of the Attorney General and is, rightly, independent of the army chain of command: the APA alone decides whether to direct court-martial trial and the appropriate charges, and neither the army chain of command, nor ministers, officials nor anyone else can make those decisions.", "However complex the situation in which it finds itself, the army must operate within the law at all times; once the APA has made its decision (based on the evidence and the law), the army has to accept that the consequences of prosecuting particular individuals or of particular charges may have a negative impact on its reputation. The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered (and, as already mentioned, this was not an easy process); that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. That is a stiff test – no different to the one that applies in our civilian courts. In the broader context, the outcome from prosecutions brought to court martial by the APA is almost exactly comparable with the equivalent civilian courts: for example, as at the end of 2006, the conviction rates after trial in the court-martial system stood at 12% as compared with 13% in the Crown Courts.", "It is inevitable that some prosecutions will fail; but this does not mean that they should not have been brought in the first place. It is the courts, after all, that determine guilt, not the prosecutors. Indeed, the fact that only a small number of all the 200-odd cases investigated by Service Police in Iraq resulted in prosecution could be interpreted as both a positive and a negative indicator: positive, in that the evidence and the context did not support the preferring of criminal charges; but negative, in that we know that the Service Police were hugely hampered, in some cases, in their ability to collect evidence of a high enough standard for charges to be preferred or for cases to be successfully prosecuted. It is important to note that none of this implies any fundamental flaws in the effectiveness of the key elements of the military criminal justice system. Both the Special Investigation Branch of the Royal Military Police (RMP(SIB)) and the APA were independently inspected during 2007.", "The police inspection reported that ‘... Her Majesty’s Inspectorate of Constabulary assess the RMP(SIB) as having the capability and capacity to run a competent level 3 (serious criminal) reactive investigation’; and the inspection of the APA in February and March 2007 by Her Majesty’s Crown Prosecution Service Inspectorate concluded that: ‘... the APA undertakes its responsibilities in a thorough and professional manner, often in difficult circumstances’, adding that 95.7% of decisions to proceed to trial were correct on evidential grounds, and 100% of decisions to proceed to trial were properly based on public or service interest grounds.” E. The deaths of the applicants’ relatives 33. The following accounts are based on the witness statements of the applicants and the British soldiers involved in each incident. These statements were also submitted to the domestic courts and, as regards all but the fifth applicant, summarised in their judgments (particularly the judgment of the Divisional Court). 1.", "The first applicant 34. The first applicant is the brother of Hazim Jum’aa Gatteh Al-Skeini (“Hazim Al-Skeini”), who was 23 years old at the time of his death. Hazim Al-Skeini was one of two Iraqis from the Beini Skein tribe who were shot dead in the Al-Majidiyah area of Basra just before midnight on 4 August 2003 by Sergeant A., the Commander of a British patrol. 35. In his witness statement, the first applicant explained that, during the evening in question, various members of his family had been gathering at a house in Al-Majidiyah for a funeral ceremony.", "In Iraq it is customary for guns to be discharged at a funeral. The first applicant stated that he was engaged in receiving guests at the house, as they arrived for the ceremony, and saw his brother fired upon by British soldiers as he was walking along the street towards the house. According to the first applicant, his brother was unarmed and only about ten metres away from the soldiers when he was shot and killed. Another man with him was also killed. He had no idea why the soldiers opened fire.", "36. According to the British account of the incident, the patrol, approaching on foot and on a very dark night, heard heavy gunfire from a number of different points in Al-Majidiyah. As the patrol got deeper into the village they came upon two Iraqi men in the street. One was about five metres from Sergeant A., who was leading the patrol. Sergeant A. saw that he was armed and pointing the gun in his direction.", "In the dark, it was impossible to tell the position of the second man. Believing that his life and those of the other soldiers in the patrol were at immediate risk, Sergeant A. opened fire on the two men without giving any verbal warning. 37. The following day, Sergeant A. produced a written statement describing the incident. This was passed to the Commanding Officer of his battalion, Colonel G., who took the view that the incident fell within the rules of engagement and duly wrote a report to that effect.", "Colonel G. sent the report to the Brigade, where it was considered by Brigadier Moore. Brigadier Moore queried whether the other man had been pointing his gun at the patrol. Colonel G. wrote a further report that dealt with this query to Brigadier Moore’s satisfaction. The original report was not retained in the Brigade records. Having considered Colonel G.’s further report, as did his Deputy Chief of Staff and his legal adviser, Brigadier Moore was satisfied that the actions of Sergeant A. fell within the rules of engagement and so he did not order any further investigation.", "38. On 11, 13 and 16 August 2003 Colonel G. met with members of the dead men’s tribe. He explained why Sergeant A. had opened fire and gave the tribe a charitable donation of 2,500 United States dollars (USD) from the British Army Goodwill Payment Committee, together with a letter explaining the circumstances of the deaths and acknowledging that the deceased had not intended to attack anyone. 2. The second applicant 39.", "The second applicant is the widow of Muhammad Salim, who was shot and fatally wounded by Sergeant C. shortly after midnight on 6 November 2003. 40. The second applicant was not present when her husband was shot and her evidence was based on what she was told by those who were present. She stated that on 5 November 2003, during Ramadan, Muhammad Salim went to visit his brother-in-law at his home in Basra. At about 11.30 p.m. British soldiers raided the house.", "They broke down the front door. One of the British soldiers came face-to-face with the second applicant’s husband in the hall of the house and fired a shot at him, hitting him in the stomach. The British soldiers took him to the Czech military hospital, where he died on 7 November 2003. 41. According to the British account of the incident, the patrol had received information from an acquaintance of one of their interpreters that a group of men armed with long-barrelled weapons, grenades and rocket- propelled grenades had been seen entering the house.", "The order was given for a quick search-and-arrest operation. After the patrol failed to gain entry by knocking, the door was broken down. Sergeant C. entered the house through the front door with two other soldiers and cleared the first room. As he entered the second room, he heard automatic gunfire from within the house. When Sergeant C. moved forward into the next room by the bottom of the stairs, two men armed with long-barrelled weapons rushed down the stairs towards him.", "There was no time to give a verbal warning. Sergeant C. believed that his life was in immediate danger. He fired one shot at the leading man, the second applicant’s husband, and hit him in the stomach. He then trained his weapon on the second man who dropped his gun. The applicant’s family subsequently informed the patrol that they were lawyers and were in dispute with another family of lawyers over the ownership of office premises, which had led to their being subjected to two armed attacks which they had reported to the police, one three days before and one only thirty minutes before the patrol’s forced entry.", "42. On 6 November 2003 the Company Commander produced a report of the incident. He concluded that the patrol had deliberately been provided with false intelligence by the other side in the feud. Having considered the report and spoken to the Company Commander, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He therefore produced a report to that effect the same day and forwarded it to the Brigade, where it was considered by Brigadier General Jones.", "Brigadier Jones discussed the matter with his Deputy Chief of Staff and his legal adviser. He also discussed the case with his political adviser. As a result, Brigadier Jones also concluded that it was a straightforward case that fell within the rules of engagement and duly issued a report to that effect. The applicant, who had three young children and an elderly mother-in-law to support, received USD 2,000 from the British Army Goodwill Payment Committee, together with a letter setting out the circumstances of the killing. 3.", "The third applicant 43. The third applicant is the widower of Hannan Mahaibas Sadde Shmailawi, who was shot and fatally wounded on 10 November 2003 at the Institute of Education in the Al-Maqaal area of Basra, where the third applicant worked as a night porter and lived with his wife and family. 44. According to the third applicant’s witness statement, at about 8 p.m. on the evening in question, he and his family were sitting round the dinner table when there was a sudden burst of machine-gunfire from outside the building. Bullets struck his wife in the head and ankles and one of his children on the arm.", "The applicant’s wife and child were taken to hospital, where his child recovered but his wife died. 45. According to the British account of the incident, the third applicant’s wife was shot during a firefight between a British patrol and a number of unknown gunmen. When the area was illuminated by parachute flares, at least three men with long-barrelled weapons were seen in open ground, two of whom were firing directly at the British soldiers. One of the gunmen was shot dead during this exchange of fire with the patrol.", "After about seven to ten minutes, the firing ceased and armed people were seen running away. A woman (the third applicant’s wife) with a head injury and a child with an arm injury were found when the buildings were searched. Both were taken to hospital. 46. The following morning, the Company Commander produced a report concerning the incident, together with statements from the soldiers involved.", "After he had considered the report and statements, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He duly produced a report to that effect, which he then forwarded to the Brigade. The report was considered by Brigadier Jones, who also discussed the matter with his Deputy Chief of Staff, his legal adviser and Colonel G. As a result, Brigadier Jones came to the conclusion that the incident fell within the rules of engagement and required no further investigation. 4. The fourth applicant 47.", "The fourth applicant is the brother of Waleed Fayay Muzban, aged 43, who was shot and fatally injured on the night of 24 August 2003 by Lance Corporal S. in the Al-Maqaal area of Basra. 48. The fourth applicant was not present when his brother was shot, but he claims that the incident was witnessed by his neighbours. In his witness statement he stated that his understanding was that his brother was returning home from work at about 8.30 p.m. on the evening in question. He was driving a minibus along a street called Souq Hitteen, near where he and the fourth applicant lived.", "For no apparent reason, according to the applicant’s statement, the minibus “came under a barrage of bullets”, as a result of which Waleed was mortally wounded in the chest and stomach. 49. Lance Corporal S. was a member of a patrol carrying out a check around the perimeter of a Coalition military base (Fort Apache), where three Royal Military Police officers had been killed by gunfire from a vehicle the previous day. According to the British soldier’s account of the incident, Lance Corporal S. became suspicious of a minibus, with curtains over its windows, that was being driven towards the patrol at a slow speed with its headlights dipped. When the vehicle was signalled to stop, it appeared to be trying to evade the soldiers so Lance Corporal S. pointed his weapon at the driver and ordered him to stop.", "The vehicle then stopped and Lance Corporal S. approached the driver’s door and greeted the driver (the fourth applicant’s brother). The driver reacted in an aggressive manner and appeared to be shouting over his shoulder to people in the curtained-off area in the back of the vehicle. When Lance Corporal S. tried to look into the back of the vehicle, the driver pushed him away by punching him in the chest. The driver then shouted into the back of the vehicle and made a grab for Lance Corporal S.’s weapon. Lance Corporal S. had to use force to pull himself free.", "The driver then accelerated away, swerving in the direction of various other members of the patrol as he did so. Lance Corporal S. fired at the vehicle’s tyres and it came to a halt about 100 metres from the patrol. The driver turned and again shouted into the rear of the vehicle. He appeared to be reaching for a weapon. Lance Corporal S. believed that his team was about to be fired on by the driver and others in the vehicle.", "He therefore fired about five aimed shots. As the vehicle sped off, Lance Corporal S. fired another two shots at the rear of the vehicle. After a short interval, the vehicle screeched to a halt. The driver got out and shouted at the British soldiers. He was ordered to lie on the ground.", "The patrol then approached the vehicle to check for other armed men. The vehicle proved to be empty. The driver was found to have three bullet wounds in his back and hip. He was given first aid and then taken to the Czech military hospital where he died later that day or the following day. 50.", "The Special Investigation Branch commenced an investigation on 29 August 2003. The investigators recovered fragments of bullets, empty bullet cases and took digital photographs of the scene. The vehicle was recovered and transported to the United Kingdom. The deceased’s body had been returned to the family for burial and no post mortem had been carried out, so the Special Investigation Branch took statements from the two Iraqi surgeons who had operated on him. A meeting was arranged with the family to seek their consent for an exhumation and post mortem, but this was delayed.", "Nine military witnesses involved in the incident were interviewed and had statements taken and a further four individuals were interviewed but found to have no evidence to offer. Lance Corporal S. was not, however, questioned. Since he was suspected by the Special Investigation Branch of having acted contrary to the rules of engagement, it was Special Investigation Branch practice not to interview him until there was enough evidence to charge him. A forensic examination was carried out at the scene on 6 September 2003. 51.", "On 29 August 2003 Colonel G. sent his initial report concerning the incident to Brigadier Moore. In it he stated that he was satisfied that Lance Corporal S. believed that he was acting lawfully within the rules of engagement. However, Colonel G. went on to express the view that it was a complex case that would benefit from a Special Investigation Branch investigation. After Brigadier Moore had considered Colonel G.’s report, discussed the matter with his Deputy Chief of Staff and taken legal advice, it was decided that the matter could be resolved with a unit-level investigation, subject to a number of queries being satisfactorily answered. As a result, Colonel G. produced a further report dated 12 September 2003, in which he dealt with the various queries and concluded that a Special Investigation Branch investigation was no longer required.", "After discussing the matter again with his Deputy Chief of Staff and having taken further legal advice, Brigadier Moore concluded that the case fell within the rules of engagement. 52. By this stage, Brigadier Moore had been informed that the Special Investigation Branch had commenced an investigation into the incident. On 17 September 2003 Colonel G. wrote to the Special Investigation Branch asking them to terminate the investigation. The same request was made by Brigadier Moore through his Chief of Staff during a meeting with the Senior Investigating Officer from the Special Investigation Branch.", "The Special Investigation Branch investigation was terminated on 23 September 2003. The deceased’s family received USD 1,400 from the British Army Goodwill Payment Committee and a further USD 3,000 in compensation for the minibus. 53. Following the fourth applicant’s application for judicial review (see paragraph 73 below), the case was reviewed by senior investigation officers in the Special Investigation Branch and the decision was taken to reopen the investigation. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite difficulties caused by the very dangerous conditions in Iraq at that time.", "54. On completing the investigation, the Special Investigation Branch reported to the soldier’s Commanding Officer, who referred the case to the Army Prosecuting Authority in February 2005. The Army Prosecuting Authority decided that a formal preliminary examination of the witnesses should be held, in order to clarify any uncertainties and ambiguities in the evidence. Depositions were taken by the Army Prosecuting Authority from the soldiers who had witnessed the shooting, and who were the only known witnesses. Advice was obtained from an independent senior counsel, who advised that there was no realistic prospect of conviction, since there was no realistic prospect of establishing that Lance Corporal S. had not fired in self‑defence.", "The file was sent to the Attorney General, who decided not to exercise his jurisdiction to order a criminal prosecution. 5. The fifth applicant 55. The fifth applicant is the father of Ahmed Jabbar Kareem Ali, who died on 8 May 2003, aged 15. 56.", "According to the statements made by the fifth applicant for the purpose of United Kingdom court proceedings, on 8 May 2003 his son did not return home at 1.30 p.m. as expected. The fifth applicant went to look for him at Al-Saad Square, where he was told that British soldiers had arrested some Iraqi youths earlier in the day. The applicant continued to search for his son and was contacted the following morning by A., another young Iraqi, who told the applicant that he, the applicant’s son and two others had been arrested by British soldiers the previous day, beaten up and forced into the waters of the Shatt Al-Arab. Later, on 9 May 2003, the applicant’s brother informed “the British police” about the incident and was requested to surrender Ahmed’s identity card. Having spent several days waiting and searching, the applicant found his son’s body in the water on 10 May 2003.", "57. The applicant immediately took his son’s body to “the British police station”, where he was told to take the body to the local hospital. The Iraqi doctor on duty told the applicant that he was not qualified to carry out a post mortem and that there were no pathologists available. The applicant decided to bury his son, since in accordance with Islamic practice burial should take place within twenty-four hours of death. 58.", "About ten to fifteen days after his son’s funeral, the applicant returned to “the British police station” to ask for an investigation, but he was informed that it was not the business of “the British police” to deal with such matters. He returned to the “police station” some days later, and was informed that the Royal Military Police wished to contact him and that he should go to the presidential palace. The following day, the applicant met with Special Investigation Branch officers at the presidential palace and was informed that an investigation would be commenced. 59. The Special Investigation Branch interviewed A. and took a statement from him.", "They took statements from the applicant and other family members. At least a month after the incident, the investigators went to Al-Saad Square and retrieved clothing belonging to the applicant’s son and to the other young men who had been arrested at the same time. At the end of the forty-day mourning period, the applicant consented to his son’s body being exhumed for post-mortem examination, but it was not possible at that point to establish either whether Ahmed had been beaten prior to death or what had been the cause of death. The applicant contends that he was never given an explanation as to the post-mortem findings and that he was not kept fully informed of the progress of the investigation in general, since many of the documents he was given were in English or had been badly translated into Arabic. 60.", "The applicant claims that eighteen months elapsed after the exhumation of his son’s body during which time he had no contact with the investigators. In August 2005 he was informed that four soldiers had been charged with manslaughter and that a trial would take place in England. The court martial was held between September 2005 and May 2006. By that time, three of the seven soldiers who had been accused of his homicide had left the army, and a further two were absent without leave. It was the prosecution case that the soldiers had assisted Iraqi police officers to arrest the four youths on suspicion of looting and that they had driven them to the river and forced them in at gunpoint “to teach them a lesson”.", "The applicant and A. gave evidence to the court martial in April 2006. The applicant found the trial process confusing and intimidating and he was left with the impression that the court was biased in favour of the accused. A. gave evidence that the applicant’s son had appeared to be in distress in the water, but that the soldiers had driven away without helping him. However, he was not able to identify the defendants as the soldiers involved. The defendants denied any responsibility for the death and were acquitted because A.’s evidence was found to be inconsistent and unreliable.", "61. The applicant’s son’s case was one of the six cases investigated in the Aitken Report (see paragraph 69 below). Under the heading “Learning lessons from discipline cases” the report stated: “... we know that two initial police reports were produced in May 2003 relating to allegations that, on two separate occasions but within the space of just over a fortnight, Iraqis had drowned in the Shat’ al-Arab at the hands of British soldiers. That one of those cases did not subsequently proceed to trial is irrelevant: at the time, an ostensibly unusual event was alleged to have occurred twice in a short space of time. With all their other duties, the commanders on the ground cannot reasonably be blamed for failing to identify what may or may not have been a trend; but a more immediate, effective system for referring that sort of information to others with the capacity to analyse it might have identified such a trend.", "In fact, the evidence suggests that these were two isolated incidents; but had they been a symptom of a more fundamental failing, they might have been overlooked. By comparison, if there had been two reports of a new weapon being used by insurgents to attack British armoured vehicles within a fortnight, it is certain that the lessons learned process would have identified its significance, determined the counter-measures needed to combat it, and quickly disseminated new procedures to mitigate the risk. The fact that this process does not apply to disciplinary matters is only partly explained by the need for confidentiality and the preservation of evidence; but it is a failure in the process that could be fairly easily rectified without compromising the fundamental principle of innocence until proven guilty.” The report continued, under the heading “Delay”: “The amount of time taken to resolve some of the cases with which this report is concerned has been unacceptable. ... The court martial in connection with the death of Ahmed Jabbar Kareem did not convene until September 2005, twenty-eight months after he died; by that time, three of the seven soldiers who had been accused of his murder had left the army, and a further two were absent without leave.", "In most cases, it is inappropriate for the army to take administrative action against any officer or soldier until the disciplinary process has been completed, because of the risk of prejudicing the trial. When that disciplinary process takes as long as it has taken in most of these cases, then the impact of any subsequent administrative sanctions is significantly reduced – indeed, such sanctions are likely to be counterproductive. Moreover, the longer the disciplinary process takes, the less likely it is that the chain of command will take proactive measures to rectify the matters that contributed to the commission of the crimes in the first place.” 62. The fifth applicant brought civil proceedings against the Ministry of Defence for damages in respect of his son’s death. The claim was settled without going to hearing, by the payment of 115,000 pounds sterling (GBP) on 15 December 2008.", "In addition, on 20 February 2009 Major General Cubbitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in his son’s death. 6. The sixth applicant 63. The sixth applicant is a Colonel in the Basra police force. His son, Baha Mousa, was aged 26 when he died while in the custody of the British army, three days after having been arrested by soldiers on 14 September 2003.", "64. According to the sixth applicant, on the night of 13 to 14 September 2003 his son had been working as a receptionist at the Ibn Al-Haitham Hotel in Basra. Early in the morning of 14 September, the applicant went to the hotel to pick his son up from work. On his arrival he noticed that a British unit had surrounded the hotel. The applicant’s son and six other hotel employees were lying on the floor of the hotel lobby with their hands behind their heads.", "The applicant expressed his concern to the lieutenant in charge of the operation, who reassured him that it was a routine investigation that would be over in a couple of hours. On the third day after his son had been detained, the sixth applicant was visited by a Royal Military Police unit. He was told that his son had been killed in custody at a British military base in Basra. He was asked to identify the corpse. The applicant’s son’s body and face were covered in blood and bruises; his nose was broken and part of the skin of his face had been torn away.", "65. One of the other hotel employees who was arrested on 14 September 2003 stated in a witness statement prepared for the United Kingdom domestic court proceedings that, once the prisoners had arrived at the base, the Iraqi detainees were hooded, forced to maintain stress positions, denied food and water and kicked and beaten. During the detention, Baha Mousa was taken into another room, where he could be heard screaming and moaning. 66. Late on 15 September 2003 Brigadier Moore, who had taken part in the operation in which the hotel employees had been arrested, was informed that Baha Mousa was dead and that other detainees had been ill-treated.", "The Special Investigation Branch was immediately called in to investigate the death. Since local hospitals were on strike, a pathologist was flown in from the United Kingdom. Baha Mousa was found to have ninety-three identifiable injuries on his body and to have died of asphyxiation. Eight other Iraqis had also been inhumanely treated, with two requiring hospital treatment. The investigation was concluded in early April 2004 and the report distributed to the unit’s chain of command.", "67. On 14 December 2004 the Divisional Court held that the inquiry into the applicant’s son’s death had not been effective (see paragraph 77 below). On 21 December 2005 the Court of Appeal decided to remit the question to the Divisional Court since there had been further developments (see paragraph 81 below). 68. On 19 July 2005 seven British soldiers were charged with criminal offences in connection with Baha Mousa’s death.", "On 19 September 2006, at the start of the court martial, one of the soldiers pleaded guilty to the war crime of inhumane treatment but not guilty to manslaughter. On 14 February 2007 charges were dropped against four of the seven soldiers and on 13 March 2007 the other two soldiers were acquitted. On 30 April 2007 the soldier convicted of inhumane treatment was sentenced to one year’s imprisonment and dismissal from the army. 69. On 25 January 2008 the Ministry of Defence published a report written by Brigadier Robert Aitken concerning six cases of alleged deliberate abuse and killing of Iraqi civilians, including the deaths of the fifth and sixth applicants’ sons (“the Aitken Report”).", "70. The applicant brought civil proceedings against the Ministry of Defence, which concluded in July 2008 by the formal and public acknowledgement of liability and the payment of GBP 575,000 in compensation. 71. In a written statement given in Parliament on 14 May 2008, the Secretary of State for Defence announced that there would be a public inquiry into the death of Baha Mousa. The inquiry is chaired by a retired Court of Appeal judge, with the following terms of reference: “To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations which have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003, and to make recommendations.” At the time of adoption of the present judgment, the inquiry had concluded the oral hearings but had not yet delivered its report.", "F. The domestic proceedings under the Human Rights Act 1. The Divisional Court 72. On 26 March 2004 the Secretary of State for Defence decided, in connection with the deaths of thirteen Iraqi civilians including the relatives of the six applicants, (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; and (3) not to pay just satisfaction. 73. The thirteen claimants applied for judicial review of these decisions, seeking declarations that both the procedural and the substantive obligations of Article 2 (and, in the case of the sixth applicant, Article 3) of the Convention had been violated as a result of the deaths and the Secretary of State’s refusal to order any investigation.", "On 11 May 2004 a judge of the Divisional Court directed that six test cases would proceed to hearing (including the cases of the first, second, third, fourth and sixth applicants) and that the other seven cases (including that of the fifth applicant) would be stayed pending the resolution of the preliminary issues. 74. On 14 December 2004 the Divisional Court rejected the claims of the first four applicants but accepted the claim of the sixth applicant ([2004] EWHC 2911 (Admin)). Having reviewed this Court’s case-law, in particular Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII), it held that, essentially, jurisdiction under Article 1 of the Convention was territorial, although there were exceptions.", "One exception applied where a State Party had effective control of an area outside its own territory. This basis of jurisdiction applied only where the territory of one Contracting State was controlled by another Contracting State, since the Convention operated essentially within its own regional sphere and permitted no vacuum within that space. This basis of jurisdiction could not, therefore, apply in Iraq. 75. There was an additional exception, which arose from the exercise of authority by a Contracting State’s agents anywhere in the world, but this was limited to specific cases recognised by international law and identified piecemeal in the Court’s case-law.", "No general rationale in respect of this group of exceptions was discernable from the Court’s case-law. However, the instances recognised so far arose out of the exercise of State authority in or from a location which had a discrete quasi-territorial quality, or where the State agent’s presence in the foreign State was consented to by that State and protected by international law, such as embassies, consulates, vessels and aircraft registered in the respondent State. A British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities and containing arrested suspects, could be covered by this narrow exception. It was arguable that Öcalan v. Turkey (no. 46221/99, 12 March 2003), also fell into this category, since the applicant was arrested in a Turkish aircraft and taken immediately to Turkey.", "However, the Divisional Court did not consider that the Chamber judgment in Öcalan should be treated as “illuminating”, since Turkey had not raised any objection based on lack of jurisdiction at the admissibility stage. 76. It followed that the deaths as a result of military operations in the field, such as those complained of by the first four applicants, did not fall within the United Kingdom’s jurisdiction under Article 1 of the Convention, but that the death of the sixth applicant’s son, in a British military prison, did. The Divisional Court further held that the scope of the Human Rights Act 1998 was identical to that of the Convention for these purposes. 77.", "The Divisional Court found that there had been a breach of the investigative duty under Articles 2 and 3 of the Convention in respect of the sixth applicant’s son since, by July 2004, some ten months after the killing, the results of the investigation were unknown and inconclusive. The judge commented that: “329. ... Although there has been evidence of a rather general nature about the difficulties of conducting investigations in Iraq at that time – about basic security problems involved in going to Iraqi homes to interview people, about lack of interpreters, cultural differences, logistic problems, lack of records, and so forth – without any further understanding of the outcome of the [Special Investigation Branch’s] report, it is impossible to understand what, if any, relevance any of this has to a death which occurred not in the highways or byways of Iraq, but in a military prison under the control of British forces. ... 330.", "Although Captain Logan says that identity parades were logistically very difficult, detainees were moved to a different location, and some military witnesses had returned to the UK, she also says that these problems only delayed the process but did not prevent it taking place ‘satisfactorily’ ... There is nothing else before us to explain the dilatoriness of the investigative process: which might possibly be compared with the progress, and open public scrutiny, which we have noted seems to have been achieved with other investigations arising out of possible offences in prisons under the control of US forces. As for the [Special Investigation Branch’s] report itself, on the evidence before us ... that would not contain any decision as to the facts or any conclusions as to what has or might have happened. 331. In these circumstances we cannot accept [counsel for the Government’s] submission that the investigation has been adequate in terms of the procedural obligation arising out of Article 2 of the Convention.", "Even if an investigation solely in the hands of the [Special Investigation Branch] might be said to be independent, on the grounds that the [Special Investigation Branch] are hierarchically and practically independent of the military units under investigation, as to which we have doubts in part because the report of the [Special Investigation Branch] is to the unit chain of command itself, it is difficult to say that the investigation which has occurred has been timely, open or effective.” In respect of the other five deaths, the judge considered that, if he were wrong on the jurisdiction issue and the claims did fall within the scope of the Convention, the investigative duty under Article 2 had not been met, for the following reasons: “337. ... in all these cases, as in the case of Mr Mousa, the United Kingdom authorities were proceeding on the basis that the Convention did not apply. Thus the immediate investigations were in each case conducted, as a matter of policy, by the unit involved: only in case 4, that concerning Mr Waleed Muzban, was there any involvement of the [Special Investigation Branch], and that was stood down, at any rate before being reopened (at some uncertain time) upon a review of the file back in the UK. The investigations were therefore not independent. Nor were they effective, for they essentially consisted only in a comparatively superficial exercise, based on the evidence of the soldiers involved themselves, and even then on a paucity of interviews or witness statements, an exercise which was one-sided and omitted the assistance of forensic evidence such as might have become available from ballistic or medical expertise.", "... 339. In connection with these cases, [counsel for the Government’s] main submission was that, in extremely difficult situations, both in operational terms in the field and in terms of post-event investigations, the army and the authorities had done their best. He particularly emphasised the following aspects of the evidence. There was no rule of law in Iraq; at the start of the occupation there was no police force at all, and at best the force was totally inadequate, as well as being under constant attack; although the Iraqi courts were functioning, they were subject to intimidation; there was no local civil inquest system or capability; the local communications systems were not functioning; there were no mortuaries, no post-mortem system, no reliable pathologists; the security situation was the worst ever experienced by seasoned soldiers; there was daily fighting between tribal and criminal gangs; the number of troops available were small; and cultural differences exacerbated all these difficulties. 340.", "We would not discount these difficulties, which cumulatively must have amounted to grave impediments for anyone concerned to conduct investigations as they might have liked to have carried them out. However, irrespective of [counsel for the applicants’] submission, in reliance on the Turkish cases, that security problems provide no excuse for a failure in the Article 2 investigative duty, we would conclude that, on the hypothesis stated, the investigations would still not pass muster. They were not independent; they were one-sided; and the commanders concerned were not trying to do their best according to the dictates of Article 2. 341. That is not to say, however, that, in other circumstances, we would ignore the strategic difficulties of the situation.", "The Turkish cases are all concerned with deaths within the State Party’s own territory. In that context, the Court was entitled to be highly sceptical about the State’s own professions of difficulties in an investigative path which it in any event may hardly have chosen to follow. It seems to us that this scepticism cannot be so easily transplanted in the extraterritorial setting. ...” 2. The Court of Appeal 78.", "The first four applicants appealed against the Divisional Court’s finding that their relatives did not fall within the United Kingdom’s jurisdiction. The Secretary of State also cross‑appealed against the finding in relation to the sixth applicant’s son; although he accepted before the Court of Appeal that an Iraqi in the actual custody of British soldiers in a military detention centre in Iraq was within the United Kingdom’s jurisdiction under Article 1 of the Convention, he contended that the Human Rights Act had no extraterritorial effect and that the sixth applicant’s claim was not, therefore, enforceable in the national courts. 79. On 21 December 2005 the Court of Appeal dismissed the appeals and the cross-appeal ([2005] EWCA Civ 1609). Having reviewed the Court’s case-law on jurisdiction under Article 1 of the Convention, Brooke LJ, who gave the leading judgment, held that a State could exercise extraterritorial jurisdiction when it applied control and authority over a complainant (which he termed “State agent authority”, abbreviated to “SAA”) and when it held effective control of an area outside its borders (“effective control of an area” or “ECA”), observing as follows: “80.", "I would therefore be more cautious than the Divisional Court in my approach to the Banković [and Others] judgment. It seems to me that it left open both the ECA and SAA approaches to extraterritorial jurisdiction, while at the same time emphasising (in paragraph 60) that because an SAA approach might constitute a violation of another State’s sovereignty (for example, when someone is kidnapped by the agents of a State on the territory of another State without that State’s invitation or consent), this route to any recognition that extraterritorial jurisdiction has been exercised within the meaning of an international treaty should be approached with caution.” He considered, inter alia, the cases of Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV); Freda v. Italy ((dec.), no. 8916/80, Commission decision of 7 October 1980, Decisions and Reports (DR) 21, p. 250); and Sánchez Ramirez v. France ((dec.), no. 28780/95, Commission decision of 24 June 1996, DR 86-A, p. 155); and observed that these cases had nothing to do with the principle of public international law relating to activities within aircraft registered with a State flying over the territory of another State.", "Instead, the findings of jurisdiction in these cases were examples of the “State agent authority” doctrine applying when someone was within the control and authority of agents of a Contracting State, even outside the espace juridique of the Council of Europe, and whether or not the host State consented to the exercise of control and authority on its soil. Applying the relevant principles to the facts of the case, he concluded that the sixth applicant’s son came within the control and authority of the United Kingdom, and therefore its jurisdiction, from the time he was arrested at the hotel. The relatives of the other claimants had not been under the control and authority of British troops at the time when they were killed, and were not therefore within the United Kingdom’s jurisdiction. He concluded in this connection that: “110. ...", "It is essential, in my judgment, to set rules which are readily intelligible. If troops deliberately and effectively restrict someone’s liberty he is under their control. This did not happen in any of these five cases.” 80. He then examined whether, on the facts, it could be said that British troops were in effective control of Basra City during the period in question, such as to fix the United Kingdom with jurisdiction under the “effective control of an area” doctrine. On this point, Brooke LJ concluded as follows: “119.", "Basra City was in the [Coalition Provisional Authority] regional area called ‘CPA South’. During the period of military occupation there was a significant degree of British responsibility and authority in CPA South, although its staff were drawn from five different countries and until the end of July 2003 the regional coordinator was a Dane. Indeed, only one of the four governorate teams in CPA South was headed by a British coordinator. However, although the chain of command for the British military presence in Iraq led ultimately to a US general, the Al-Basra and Maysan provinces were an area of direct British military responsibility. As I have already said ..., the Secretary of State accepts that the UK was an Occupying Power within the meaning of Article 42 of the Hague Regulations ..., at least in those areas of southern Iraq, and particularly Basra City, where British troops exercised sufficient authority for this purpose.", "120. But whatever may have been the position under the Hague Regulations, the question this court has to address is whether British troops were in effective control of Basra City for ECA purposes. The situation in August to November 2003 contrasts starkly with the situations in northern Cyprus and in the Russian-occupied part of Moldova which feature in Strasbourg case-law. In each of those cases part of the territory of a Contracting State was occupied by another Contracting State which had every intention of exercising its control on a long-term basis. The civilian administration of those territories was under the control of the Occupying State, and it deployed sufficient troops to ensure that its control of the area was effective.", "121. [The statement of Brigadier Moore, whose command included the British forces in the Basra area between May and November 2003] tells a very different story. He was not provided with nearly enough troops and other resources to enable his brigade to exercise effective control of Basra City. ... [H]e described how the local police would not uphold the law. If British troops arrested somebody and gave them to the Iraqi police, the police would hand them over to the judiciary, who were themselves intimidated by the local tribes, and the suspected criminals were back on the streets within a day or two.", "This state of affairs gave the British no confidence in the local criminal justice system. It also diluted their credibility with local people. Although British troops arranged local protection for the judges, this made little difference. The prisons, for their part, were barely functioning. 122.", "After describing other aspects of the highly volatile situation in which a relatively small number of British military personnel were trying to police a large city as best they could, Brig[adier] Moore said ...: ‘The combination of terrorist activity, the volatile situation and the ineffectiveness of Iraqi security forces meant that the security situation remained on a knife-edge for much of our tour. Despite our high work rate and best efforts, I felt that at the end of August 2003 we were standing on the edge of an abyss. It was only when subsequent reinforcements arrived ... and we started to receive intelligence from some of the Islamic parties that I started to regain the initiative.’ 123. Unlike the Turkish army in northern Cyprus, the British military forces had no control over the civil administration of Iraq. ... 124.", "In my judgment it is quite impossible to hold that the UK, although an Occupying Power for the purposes of the Hague Regulations and [the] Geneva IV [Convention], was in effective control of Basra City for the purposes of [the European Court’s] jurisprudence at the material time. If it had been, it would have been obliged, pursuant to the Banković [and Others] judgment, to secure to everyone in Basra City the rights and freedoms guaranteed by the [Convention]. One only has to state that proposition to see how utterly unreal it is. The UK possessed no executive, legislative or judicial authority in Basra City, other than the limited authority given to its military forces, and as an Occupying Power it was bound to respect the laws in force in Iraq unless absolutely prevented (see Article 43 of the Hague Regulations ...). It could not be equated with a civil power: it was simply there to maintain security, and to support the civil administration in Iraq in a number of different ways ...” Sedley LJ observed, in connection with this issue: “194.", "On the one hand, it sits ill in the mouth of a State which has helped to displace and dismantle by force another nation’s civil authority to plead that, as an Occupying Power, it has so little control that it cannot be responsible for securing the population’s basic rights. ... [However,] the fact is that it cannot: the invasion brought in its wake a vacuum of civil authority which British forces were and still are unable to fill. On the evidence before the Court they were, at least between mid-2003 and mid-2004, holding a fragile line against anarchy.” 81. The Court of Appeal unanimously concluded that, save for the death of the sixth applicant’s son, which fell within the “State agent authority” exception, the United Kingdom did not have jurisdiction under Article 1 of the Convention. It decided that the sixth applicant’s claim also fell within the scope of the Human Rights Act 1998.", "Since the Divisional Court’s examination of the case, additional information had emerged about the investigation into the death of the sixth applicant’s son, including that court‑martial proceedings were pending against a number of soldiers. The Court of Appeal therefore remitted the question whether there had been an adequate investigation to the Divisional Court for reconsideration following the completion of the court-martial proceedings. 82. Despite his conclusion on jurisdiction, Brooke LJ, at the express invitation of the Government, commented on the adequacy of the investigations carried out into the deaths, as follows: “139. After all, the first two Articles of the [Convention] merely articulate the contemporary concern of the entire European community about the importance that must always be attached to every human life.", "... Needless to say, the obligation to comply with these well-established international human rights standards would require, among other things, a far greater investment in the resources available to the Royal Military Police than was available to them in Iraq, and a complete severance of their investigations from the military chain of command. 140. In other words, if international standards are to be observed, the task of investigating incidents in which a human life is taken by British forces must be completely taken away from the military chain of command and vested in the [Royal Military Police]. It contains the requisite independence so long as it is free to decide for itself when to start and when to cease an investigation, and so long as it reports in the first instance to the [Army Prosecuting Authority] and not to the military chain of command. It must then conduct an effective investigation, and it will be helped in this regard by the passages from [the European Court’s] case-law I have quoted.", "Many of the deficiencies highlighted by the evidence in this case will be remedied if the [Royal Military Police] perform this role, and if they are also properly trained and properly resourced to conduct their investigations with the requisite degree of thoroughness.” 3. The House of Lords 83. The first four applicants appealed and the Secretary of State cross‑appealed to the House of Lords, which gave judgment on 13 June 2007 ([2007] UKHL 26). The majority of the House of Lords (Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood) held that the general purpose of the Human Rights Act 1998 was to provide a remedial structure in domestic law for the rights guaranteed by the Convention, and that the 1998 Act should therefore be interpreted as applying wherever the United Kingdom had jurisdiction under Article 1 of the Convention. Lord Bingham of Cornhill, dissenting, held that the Human Rights Act had no extraterritorial application.", "84. In relation to the first four applicants’ complaints, the majority of the House of Lords found that the United Kingdom did not have jurisdiction over the deaths. Because of his opinion that the Human Rights Act had no extraterritorial application, Lord Bingham did not consider it useful to express a view as to whether the United Kingdom exercised jurisdiction within the meaning of Article 1 of the Convention. 85. Lord Brown, with whom the majority agreed, began by observing that ultimately the decision about how Article 1 of the Convention should be interpreted and applied was for the European Court of Human Rights, since the duty of the national court was only to keep pace with the Court’s case-law; there was a danger in a national court construing the Convention too generously in favour of an applicant, since the respondent State had no means of referring such a case to the Court.", "Lord Brown took as his starting-point the decision of the Grand Chamber in Banković and Others (cited above), which he described as “a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated”. He considered that the following propositions could be derived from the decision in Banković and Others (paragraph 109 of the House of Lords judgment): “1. Article 1 reflects an ‘essentially territorial notion of jurisdiction’ (a phrase repeated several times in the Court’s judgment), ‘other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case’ (§ 61). The Convention operates, subject to Article 56, ‘in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States’ (§ 80) (i.e. within the area of the Council of Europe countries).", "2. The Court recognises Article 1 jurisdiction to avoid a ‘vacuum in human rights’ protection’ when the territory ‘would normally be covered by the Convention’ (§ 80) (i.e. in a Council of Europe country) where otherwise (as in northern Cyprus) the inhabitants ‘would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed’ (§ 80). 3. The rights and freedoms defined in the Convention cannot be ‘divided and tailored’ (§ 75).", "4. The circumstances in which the Court has exceptionally recognised the extraterritorial exercise of jurisdiction by a State include: (i) Where the State ‘through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory]’ (§ 71) (i.e. when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable ‘to fulfil the obligations it had undertaken under the Convention’ (§ 80) (as in northern Cyprus)). (ii) ’[C]ases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State [where] customary international law and treaty provisions have recognised the extraterritorial exercise of jurisdiction’ (§ 73). (iii) Certain other cases where a State’s responsibility ‘could, in principle, be engaged because of acts ... which produced effects or were performed outside their own territory’ (§ 69).", "Drozd [and Janousek] v. France [and Spain] ([26 June] 1992[, Series A no. 240]) 14 EHRR 745 (at § 91) is the only authority specifically referred to in Banković [and Others] as exemplifying this class of exception to the general rule. Drozd [and Janousek], however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France’s jurisdiction. (iv) The Soering v. [the] United Kingdom ([7 July] 1989[, Series A no. 161]) 11 EHRR 439 line of cases, the Court pointed out, involves action by the State whilst the person concerned is ‘on its territory, clearly within its jurisdiction’ ([Banković and Others,] § 68) and not, therefore, the exercise of the State’s jurisdiction abroad.” Lord Brown referred to the Öcalan, Freda and Sánchez Ramirez line of cases (cited above), in each of which the applicant was forcibly removed from a country outside the Council of Europe, with the full cooperation of the foreign authorities, to stand trial in the respondent State.", "He observed that this line of cases concerning “irregular extraditions” constituted one category of “exceptional” cases expressly contemplated by Banković and Others (cited above), as having “special justification” for extraterritorial jurisdiction under Article 1 of the Convention. He did not consider that the first four applicants’ cases fell into any of the exceptions to the territorial principle so far recognised by the Court. 86. Lord Brown next considered the Court’s judgment in Issa and Others v. Turkey (no. 31821/96, § 71, 16 November 2004), on which the applicants relied, and held as follows: “127.", "If and in so far as Issa [and Others] is said to support the altogether wider notions of Article 1 jurisdiction contended for by the appellants on this appeal, I cannot accept it. In the first place, the statements relied upon must be regarded as obiter dicta. Secondly, as just explained, such wider assertions of jurisdiction are not supported by the authorities cited (at any rate, those authorities accepted as relevant by the Grand Chamber in Banković [and Others]). Thirdly, such wider view of jurisdiction would clearly be inconsistent both with the reasoning in Banković [and Others] and, indeed, with its result. Either it would extend the ‘effective control’ principle beyond the Council of Europe area (where alone it had previously been applied, as has been seen, to northern Cyprus, to the Ajarian Autonomous Republic in Georgia and to Transdniestria) to Iraq, an area (like the FRY [Federal Republic of Yugoslavia] considered in Banković [and Others]) outside the Council of Europe – and, indeed, would do so contrary to the inescapable logic of the Court’s case-law on Article 56.", "Alternatively it would stretch to breaking point the concept of jurisdiction extending extraterritorially to those subject to a State’s ‘authority and control’. It is one thing to recognise as exceptional the specific narrow categories of cases I have sought to summarise above; it would be quite another to accept that whenever a Contracting State acts (militarily or otherwise) through its agents abroad, those affected by such activities fall within its Article 1 jurisdiction. Such a contention would prove altogether too much. It would make a nonsense of much that was said in Banković [and Others], not least as to the Convention being ‘a constitutional instrument of European public order’, operating ‘in an essentially regional context’, ‘not designed to be applied throughout the world, even in respect of the conduct of Contracting States’ (§ 80). It would, indeed, make redundant the principle of ‘effective control’ of an area: what need for that if jurisdiction arises in any event under a general principle of ‘authority and control’ irrespective of whether the area is (a) effectively controlled or (b) within the Council of Europe?", "128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric ‘control and authority’, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Banković [and Others] (and later Assanidze [v. Georgia [GC], no. 71503/01, ECHR 2004‑II]) stands, as stated, for the indivisible nature of Article 1 jurisdiction: it cannot be ‘divided and tailored’. As Banković [and Others] had earlier pointed out (at § 40) ‘the applicant’s interpretation of jurisdiction would invert and divide the positive obligation on Contracting States to secure the substantive rights in a manner never contemplated by Article 1 of the Convention’.", "When, moreover, the Convention applies, it operates as ‘a living instrument’. Öcalan provides an example of this, a recognition that the interpretation of Article 2 has been modified consequent on ‘the territories encompassed by the member States of the Council of Europe [having] become a zone free of capital punishment’ (§ 163). (Paragraphs 64 and 65 of Banković [and Others], I may note, contrast on the one hand ‘the Convention’s substantive provisions’ and ‘the competence of the Convention organs’, to both of which the ‘living instrument’ approach applies and, on the other hand, the scope of Article 1 – ‘the scope and reach of the entire Convention’ – to which it does not.) Bear in mind too the rigour with which the Court applies the Convention, well exemplified by the series of cases from the conflict zone of south-eastern Turkey in which, the State’s difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under Articles 2 and 3. 129.", "The point is this: except where a State really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an Occupying Power in southern Iraq and bound as such by [the] Geneva IV [Convention] and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant ‘shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’. The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms.", "So far as this being the case, however, the occupants’ obligation is to respect ‘the laws in force’, not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied.” 87. Lord Rodger (at paragraph 83), with whom Baroness Hale agreed, and Lord Carswell (paragraph 97) expressly held that the United Kingdom was not in effective control of Basra City and the surrounding area for purposes of jurisdiction under Article 1 of the Convention at the relevant time. 88. The Secretary of State accepted that the facts of the sixth applicant’s case fell within the United Kingdom’s jurisdiction under Article 1 of the Convention.", "The parties therefore agreed that if (as the majority held) the jurisdictional scope of the Human Rights Act was the same as that of the Convention, the sixth applicant’s case should be remitted to the Divisional Court, as the Court of Appeal had ordered. In consequence, it was unnecessary for the House of Lords to examine the jurisdictional issue in relation to the death of the sixth applicant’s son. However, Lord Brown, with whom the majority agreed, concluded: “132. ... As for the sixth case, I for my part would recognise the UK’s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extraterritorial exception made for embassies (an analogy recognised too in Hess v. [the] United Kingdom ([no. 6231/73, Commission decision of 28 May] 1975[, Decisions and Reports 2, p. ]72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X. v. [Germany, no.", "1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158]). ...” II. RELEVANT INTERNATIONAL LAW MATERIALS A. International humanitarian law on belligerent occupation 89. The duties of an Occupying Power can be found primarily in Articles 42 to 56 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907) (“the Hague Regulations”) and Articles 27 to 34 and 47 to 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (of 12 August 1949) (“the Fourth Geneva Convention”), as well as in certain provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 (“Additional Protocol I”).", "Articles 42 and 43 of the Hague Regulations provide as follows: Article 42 “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Article 43 “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Article 64 of the Fourth Geneva Convention provides that penal laws may be repealed or suspended by the Occupying Power only where they constitute a threat to the security or an obstacle to the application of the Fourth Geneva Convention. It also details the situations in which the Occupying Power is entitled to introduce legislative measures. These are specifically: “... provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Agreements concluded between the Occupying Power and the local authorities cannot deprive the population of the occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights (Fourth Geneva Convention, Articles 8 and 47). Occupation does not create any change in the status of the territory (see Article 4 of Additional Protocol I), which can only be effected by a peace treaty or by annexation followed by recognition.", "The former sovereign remains sovereign and there is no change in the nationality of the inhabitants. B. Case-law of the International Court of Justice concerning the interrelationship between international humanitarian law and international human rights law and the extraterritorial obligations of States under international human rights law 90. In the proceedings concerning the International Court of Justice’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), Israel denied that the human rights instruments to which it was a party, including the International Covenant on Civil and Political Rights, were applicable to the Occupied Palestinian Territory and asserted (at paragraph 102) that: “humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own government in times of peace.” In order to determine whether the instruments were applicable in the Occupied Palestinian Territory, the International Court of Justice first addressed the issue of the relationship between international humanitarian law and international human rights law, holding as follows: “106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.", "In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” The International Court of Justice next considered the question whether the International Covenant on Civil and Political Rights was capable of applying outside the State’s national territory and whether it applied in the Occupied Palestinian Territory. It held as follows (references and citations omitted): “108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ This provision can be interpreted as covering only individuals who are both present within a State’s territory and subject to that State’s jurisdiction. It can also be construed as covering both individuals present within a State’s territory and those outside that territory but subject to that State’s jurisdiction. The Court will thus seek to determine the meaning to be given to this text.", "109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States Parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory.", "It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina ... It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany ... 110. The Court takes note in this connection of the position taken by Israel, in relation to the applicability of the Covenant, in its communications to the Human Rights Committee, and of the view of the Committee. In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question ‘whether individuals resident in the occupied territories were indeed subject to Israel’s jurisdiction’ for purposes of the application of the Covenant ... Israel took the position that ‘the Covenant and similar instruments did not apply directly to the current situation in the occupied territories’ ... The Committee, in its concluding observations after examination of the report, expressed concern at Israel’s attitude and pointed ‘to the long-standing presence of Israel in [the occupied] territories, Israel’s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein’ ...", "In 2003 in face of Israel’s consistent position, to the effect that ‘the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ...’, the Committee reached the following conclusion: ‘in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, for all conduct by the State Party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law’ ... 111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” In addition, the International Court of Justice appeared to assume that, even in respect of extraterritorial acts, it would in principle be possible for a State to derogate from its obligations under the International Covenant on Civil and Political Rights, Article 4 § 1 of which provides: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” Thus, in paragraph 136 of its Advisory Opinion, having considered whether the acts in question were justified under international humanitarian law on grounds of military exigency, the International Court of Justice held: “136. The Court would further observe that some human rights conventions, and in particular the International Covenant on Civil and Political Rights, contain provisions which States Parties may invoke in order to derogate, under various conditions, from certain of their conventional obligations. In this respect, the Court would however recall that the communication notified by Israel to the Secretary-General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to the right to freedom and security of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisions of that instrument.” 91. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment).", "The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued: “178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.", "179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.” The International Court of Justice established the facts relating to the serious breaches of human rights allegedly attributable to Uganda, in the occupied Ituri region and elsewhere (§§ 205-12). In order to determine whether the conduct in question constituted a breach of Uganda’s international obligations, the International Court of Justice recalled its finding in the above-cited Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion that both international humanitarian law and international human rights law would have to be taken into consideration and that international human rights instruments were capable of having an extraterritorial application, “particularly in occupied territories” (§ 216).", "The International Court of Justice next determined which were “the applicable rules of international human rights law and international humanitarian law”, by listing the international humanitarian and international human rights treaties to which both Uganda and the Democratic Republic of the Congo were party, together with the relevant principles of customary international law (§§ 217‑19). C. The duty to investigate alleged violations of the right to life in situations of armed conflict and occupation under international humanitarian law and international human rights law 92. Article 121 of the Geneva Convention (III) relative to the Treatment of Prisoners of War (of 12 August 1949) (“the Third Geneva Convention”) provides that an official enquiry must be held by the Detaining Power following the suspected homicide of a prisoner of war. Article 131 of the Fourth Geneva Convention provides: “Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. A communication on this subject shall be sent immediately to the Protecting Power.", "The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible.” The Geneva Conventions also place an obligation on each High Contracting Party to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons (Articles 49 and 50 of the Geneva Convention (I) for the Amelioration of the Condition of the Sick and Wounded in the Field (of 12 August 1949) (“the First Geneva Convention”); Articles 50 and 51 of the Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (of 12 August 1949) (“the Second Geneva Convention”); Articles 129 and 130 of the Third Geneva Convention; and Articles 146 and 147 of the Fourth Geneva Convention). 93. In his report of 8 March 2006 on extrajudicial, summary or arbitrary executions (E/CN.4/2006/53), the United Nations Special Rapporteur, Philip Alston, observed in connection with the right to life under Article 6 of the International Covenant on Civil and Political Rights in situations of armed conflict and occupation (footnotes omitted): “36. Armed conflict and occupation do not discharge the State’s duty to investigate and prosecute human rights abuses.", "The right to life is non-derogable regardless of circumstance. This prohibits any practice of not investigating alleged violations during armed conflict or occupation. As the Human Rights Committee has held, ‘It is inherent in the protection of rights explicitly recognised as non-derogable ... that they must be secured by procedural guarantees ... The provisions of the [International Covenant on Civil and Political Rights] relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights’. It is undeniable that during armed conflicts circumstances will sometimes impede investigation.", "Such circumstances will never discharge the obligation to investigate – this would eviscerate the non-derogable character of the right to life – but they may affect the modalities or particulars of the investigation. In addition to being fully responsible for the conduct of their agents, in relation to the acts of private actors States are also held to a standard of due diligence in armed conflicts as well as peace. On a case-by-case basis a State might utilise less effective measures of investigation in response to concrete constraints. For example, when hostile forces control the scene of a shooting, conducting an autopsy may prove impossible. Regardless of the circumstances, however, investigations must always be conducted as effectively as possible and never be reduced to mere formality.", "...” 94. In its judgment in the Case of the “Mapiripán Massacre” v. Colombia of 15 September 2005, the Inter-American Court of Human Rights held, inter alia, in connection with the respondent State’s failure fully to investigate the massacre of civilians carried out by a paramilitary group with the alleged assistance of the State authorities: “238. In this regard, the Court recognises the difficult circumstances of Colombia, where its population and its institutions strive to attain peace. However, the country’s conditions, no matter how difficult, do not release a State Party to the American Convention of its obligations set forth in this treaty, which specifically continue in cases such as the instant one. The Court has argued that when the State conducts or tolerates actions leading to extra-legal executions, not investigating them adequately and not punishing those responsible, as appropriate, it breaches the duties to respect rights set forth in the Convention and to ensure their free and full exercise, both by the alleged victim and by his or her next of kin, it does not allow society to learn what happened, and it reproduces the conditions of impunity for this type of facts to happen once again.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 95. The applicants contended that their relatives were within the jurisdiction of the United Kingdom under Article 1 of the Convention at the moment of death and that, except in relation to the sixth applicant, the United Kingdom had not complied with its investigative duty under Article 2. 96. The Government accepted that the sixth applicant’s son had been within United Kingdom jurisdiction but denied that the United Kingdom had jurisdiction over any of the other deceased. They contended that, since the second and third applicants’ relatives had been killed after the adoption of United Nations Security Council Resolution 1511 (see paragraph 16 above), the acts which led to their deaths were attributable to the United Nations and not to the United Kingdom.", "In addition, the Government contended that the fifth applicant’s case should be declared inadmissible for non-exhaustion of domestic remedies and that the fifth and sixth applicants no longer had victim status. A. Admissibility 1. Attribution 97. The Government pointed out that the operations that led to the deaths of the second and third applicants’ relatives occurred after 16 October 2003, when the United Nations Security Council adopted Resolution 1511. Paragraph 13 of that Resolution authorised a Multinational Force to take “all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above).", "It followed that, in conducting the relevant operations in which the second and third applicants’ relatives were shot, United Kingdom troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multinational Force acting pursuant to the binding decision of the United Nations Security Council. 98. The applicants stressed that the Government had not raised this argument at any stage during the domestic proceedings. Moreover, an identical argument had been advanced by the Government and rejected by the House of Lords in R. (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) [2007] UKHL 58. 99.", "The Court recalls that it is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries. It is thus of importance that the arguments put by the Government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 154, ECHR 2009).", "100. The Government did not contend before the national courts that any of the killings of the applicants’ relatives were not attributable to United Kingdom armed forces. The Court considers, therefore, that the Government are estopped from raising this objection in the present proceedings. 2. Jurisdiction 101.", "The Government further contended that the acts in question took place in southern Iraq and outside the United Kingdom’s jurisdiction under Article 1 of the Convention. The sole exception was the killing of the sixth applicant’s son, which occurred in a British military prison over which the United Kingdom did have jurisdiction. 102. The Court considers that the question whether the applicants’ cases fall within the jurisdiction of the respondent State is closely linked to the merits of their complaints. It therefore joins this preliminary question to the merits.", "3. Exhaustion of domestic remedies 103. The Government contended that the fifth applicant’s case should be declared inadmissible for non-exhaustion of domestic remedies. They pointed out that although he brought judicial review proceedings alleging breaches of his substantive and procedural rights under Articles 2 and 3, his claim was stayed pending resolution of the six test cases (see paragraph 73 above). After those claims had been resolved, it would have been open to the applicant to apply to the Divisional Court to lift the stay, but he did not do so.", "His case was not a shooting incident, and the domestic courts had not had the opportunity to consider the facts relevant to his claims that his son was within the jurisdiction of the United Kingdom and that there had been a breach of the procedural obligation. 104. The applicants invited the Court to reject this submission. A judicial-review claim had been lodged by the fifth applicant on 5 May 2004. It was, by agreement, stayed pending the outcome of the six test cases (see paragraph 73 above).", "The fifth applicant would have had no reasonable prospects of success if, after the House of Lords gave judgment in Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals) [2007] UKHL 26, he had sought to revive and pursue his stayed judicial-review claim. The lower courts would have been bound by the House of Lords’ interpretation of Article 1 and would have applied it so as to find that the applicant’s deceased son had not been within United Kingdom jurisdiction. 105. The Court observes that, according to the fifth applicant, his son died when, having been arrested by United Kingdom soldiers on suspicion of looting, he was driven in an army vehicle to the river and forced to jump in. His case is, therefore, distinguishable on its alleged facts from those of the first, second and fourth applicants, whose relatives were shot by British soldiers; the third applicant, whose wife was shot during exchange of fire between British troops and unknown gunmen; and the sixth applicant, whose son was killed while detained in a British military detention facility.", "It is true that the House of Lords in the Al-Skeini proceedings did not have before it a case similar to the fifth applicant’s, where an Iraqi civilian met his death having been taken into British military custody, but without being detained in a military prison. Nonetheless, the Court considers that the applicants are correct in their assessment that the fifth applicant would have had no prospects of success had he subsequently sought to pursue his judicial-review application in the domestic courts. Lord Brown, with whom the majority of the House of Lords agreed, made it clear that he preferred the approach to jurisdiction in the sixth applicant’s case taken by the Divisional Court, namely that jurisdiction arose in respect of Baha Mousa only because he died while detained in a British military prison (see paragraph 88 above). In these circumstances, the Court does not consider that the fifth applicant can be criticised for failing to attempt to revive his claim before the Divisional Court. It follows that the Government’s preliminary objection based on non-exhaustion of domestic remedies must be rejected.", "4. Victim status 106. The Government submitted that the fifth and sixth applicants could no longer claim to be victims of any violations of their rights under Article 2, since the death of each of their sons had been fully investigated by the national authorities and compensation paid to the applicants. 107. The Court considers that this question is also closely linked and should be joined to the merits of the complaint under Article 2.", "5. Conclusion on admissibility 108. The Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits 1. Jurisdiction (a) The parties’ submissions (i) The Government 109. The Government submitted that the leading authority on the concept of “jurisdiction” within the meaning of Article 1 of the Convention was the Court’s decision in Banković and Others (cited above). Banković and Others established that the fact that an individual had been affected by an act committed by a Contracting State or its agents was not sufficient to establish that he was within that State’s jurisdiction.", "Jurisdiction under Article 1 was “primarily” or “essentially” territorial and any extension of jurisdiction outside the territory of the Contracting State was “exceptional” and required “special justification in the particular circumstances of each case”. The Court had held in Banković and Others that the Convention rights could not be “divided and tailored”. Within its jurisdiction, a Contracting State was under an obligation to secure all the Convention rights and freedoms. The Court had also held in Banković and Others that the Convention was “an instrument of European public order” and “a multilateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States”. The essentially territorial basis of jurisdiction reflected principles of international law and took account of the practical and legal difficulties faced by a State operating on another State’s territory, particularly in regions which did not share the values of the Council of Europe member States.", "110. In the Government’s submission, the Grand Chamber in Banković and Others, having conducted a comprehensive review of the case-law, identified a limited number of exceptions to the territorial principle. The principal exception derived from the case-law on northern Cyprus and applied when a State, as a consequence of military action, exercised effective control of an area outside its national territory. Where the Court had found this exceptional basis of jurisdiction to apply, it had stressed that the State exercising effective control was thereby responsible for securing the entire range of substantive Convention rights in the territory in question (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC], no.", "25781/94, §§ 75-80, ECHR 2001‑IV; Banković and Others, cited above, §§ 70-71; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 314-16, ECHR 2004‑VII). Moreover, despite dicta to the contrary in the subsequent Chamber judgment in Issa and Others (cited above), the Grand Chamber in Banković and Others made it clear that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. In addition to the control exercised by Turkey in northern Cyprus, the Court had applied this exception in relation to only one other area, Transdniestria, which also fell within the territory of another Contracting State. Any other approach would risk requiring the State to impose culturally alien standards, in breach of the principle of sovereign self‑determination.", "111. According to the Government, the Court’s case-law on Article 56 of the Convention further indicated that a State would not be held to exercise Article 1 jurisdiction over an overseas territory merely by virtue of exercising effective control there (see Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006‑XIV). If the “effective control of territory” exception were held to apply outside the territories of the Contracting States, this would lead to the conclusion that a State was free to choose whether or not to extend the Convention and its Protocols to a non‑metropolitan territory outside the Convention “espace juridique” over which it might in fact have exercised control for decades, but was not free to choose whether to extend the Convention to territories outside that space over which it exercised effective control as a result of military action only temporarily, for example only until peace and security could be restored. 112.", "The Government submitted that, since Iraq fell outside the legal space of the Convention, the “effective control of an area” exceptional basis of jurisdiction could not apply. In any event, the United Kingdom did not have “effective control” over any part of Iraq during the relevant time. This was the conclusion of the domestic courts, which had all the available evidence before them. The number of Coalition Forces, including United Kingdom forces, was small: in south-east Iraq, an area of 96,000 square kilometres with a population of 4.6 million, there were 14,500 Coalition troops, including 8,150 United Kingdom troops. United Kingdom troops operated in the Al-Basra and Maysan provinces, which had a population of 2.76 million for 8,119 troops.", "United Kingdom forces in Iraq were faced with real practical difficulties in restoring conditions of security and stability so as to enable the Iraqi people freely to determine their political future. The principal reason for this was that at the start of the occupation there was no competent system of local law enforcement in place, while at the same time there was widespread violent crime, terrorism and tribal fighting involving the use of light and heavy weapons. 113. Governing authority in Iraq during the occupation was exercised by the Coalition Provisional Authority (CPA), which was governed by United States Ambassador Paul Bremer and which was not a subordinate authority of the United Kingdom. In addition, from July 2003 there was a central Iraqi Governing Council and a number of local Iraqi councils.", "The status of the CPA and Iraqi administration was wholly different from that of the “Turkish Republic of Northern Cyprus” (the “TRNC”) in Cyprus or the “Moldovan Republic of Transdniestria” (the “MRT”) in Transdniestria, which were both characterised by the Court as “self‑proclaimed authorities which are not recognised by the international community”. The authority of the CPA and the Iraqi administration was recognised by the international community, through the United Nations Security Council. Moreover, the purpose of the United Kingdom’s joint occupation of Iraq was to transfer authority as soon as possible to a representative Iraqi administration. In keeping with this purpose, the occupation lasted for only just over a year. 114.", "In the Government’s submission, the fact that between May 2003 and June 2004 the United Kingdom was an Occupying Power within the meaning of the Hague Regulations (see paragraph 89 above) did not, in itself, give rise to an obligation to secure the Convention rights and freedoms to the inhabitants of south-east Iraq. As an Occupying Power the United Kingdom did not have sovereignty over Iraq and was not entitled to treat the area under its occupation as its own territory or as a colony subject to its complete power and authority. The Hague Regulations did not confer on the United Kingdom the power to amend the laws and Constitution of Iraq so as to conform to the United Kingdom’s own domestic law or regional multilateral international obligations such as the Convention. On the contrary, the Hague Regulations set limits on the United Kingdom’s powers, notably the obligation to respect the laws in force in Iraq “unless absolutely prevented”. Moreover, the resolutions passed by the United Nations Security Council recognised that governing authority in Iraq during the occupation was to be exercised by the CPA and that the aim of the occupation was to transfer authority as soon as possible to a representative Iraqi administration.", "It followed that the international legal framework, far from establishing that the United Kingdom was obliged to secure Convention rights in Iraq, established instead that the United Kingdom would have been acting contrary to its international obligations if it had sought to modify the Constitution of Iraq so as to comply with the Convention. In any event, the Court’s case-law demonstrated that it approached the question whether a State exercised jurisdiction extraterritorially as one of fact, informed by the particular nature and history of the Convention. The obligations imposed by the Fourth Geneva Convention and the Hague Regulations were carefully tailored to the circumstances of occupation and could not in themselves have consequences for the very different issue of jurisdiction under the Convention. 115. The Government accepted that it was possible to identify from the case-law a number of other exceptional categories where jurisdiction could be exercised by a State outside its territory and outside the Convention region.", "In Banković and Others (cited above) the Grand Chamber referred to other cases involving the activities of diplomatic or consular agents abroad and on board craft and vessels registered in or flying the flag of the State. In Banković and Others, the Court also cited as an example Drozd and Janousek v. France and Spain (26 June 1992, Series A no. 240), which demonstrated that jurisdiction could be exercised by a State if it brought an individual before its own court, sitting outside its territory, to apply its own criminal law. In its judgment in Öcalan (cited above, § 91), the Grand Chamber held that Turkey had exercised jurisdiction over the applicant when he was “arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport” and “physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey”. In the Government’s submission, none of these exceptions applied in the first, second, third and fourth applicants’ cases.", "116. The Government contended that the applicants’ submission that, in shooting their relatives, the United Kingdom soldiers exercised “authority and control” over the deceased, so as to bring them within the United Kingdom’s jurisdiction, was directly contrary to the decision in Banković and Others (cited above). In Banković and Others, the Grand Chamber considered the applicability of the Convention to extraterritorial military operations generally, having regard, inter alia, to State practice and Article 15 of the Convention, and concluded that the Convention did not apply to the military action of the respondent States which resulted in those applicants’ relatives’ deaths. Equally, in the present case, the military action of United Kingdom soldiers in shooting the applicants’ relatives while carrying out military security operations in Iraq did not constitute an exercise of jurisdiction over them. No distinction could be drawn in this respect between a death resulting from a bombing and one resulting from a shooting in the course of a ground operation.", "117. The Government rejected the applicants’ argument that a jurisdictional link existed because the United Kingdom soldiers were exercising “legal authority” over the deceased, derived from the obligation under the Hague Regulations to ensure “public order and safety” in the occupied territory. The meaning of Article 1 of the Convention was autonomous and could not be determined by reference to wholly distinct provisions of international humanitarian law. Moreover, the duty relied on was owed to every Iraqi citizen within the occupied territory and, if the applicants were correct, the United Kingdom would have been required to secure Convention rights to them all. Nor could it be said that United Kingdom troops at the relevant time were exercising “public powers” pursuant to treaty arrangements (see Banković and Others, cited above, § 73).", "In fact, United Kingdom troops were exercising military power in an effort to create a situation in which governmental functions could be exercised and the rule of law could properly operate. No sensible distinction could be drawn between the different types of military operation undertaken by them. There was no basis for concluding that the applicability of the Convention should turn upon the particular activity that a soldier was engaged in at the time of the alleged violation, whether street patrol, ground offensive or aerial bombardment. 118. In conclusion, the Government submitted that the domestic courts were correct that the United Kingdom did not exercise any Article 1 jurisdiction over the relatives of the first to fourth applicants at the time of their deaths.", "The cases could not be distinguished from that of the deceased in Banković and Others (cited above). Nor were the facts of the fifth applicant’s case sufficient to distinguish it in this respect from those of the first to fourth applicants. The fifth applicant’s son was not arrested in circumstances similar to those which founded jurisdiction in Öcalan (cited above). As a suspected looter, in the situation of extreme public disorder in the immediate aftermath of the cessation of major combat activities, he was physically required by United Kingdom soldiers to move from the place of looting to another location. The acts of the United Kingdom soldiers involved an assertion of military power over the fifth applicant’s son, but no more.", "The Government accepted that the sixth applicant’s son was within United Kingdom jurisdiction when he died, but only on the basis found by the Divisional Court and subsequently by Lord Brown, with whom Lords Rodger and Carswell and Baroness Hale agreed, namely that jurisdiction was established when the deceased was detained in a United Kingdom-run military detention facility located in a United Kingdom base, essentially by analogy with the extraterritorial exception made for embassies. At the hearing before the Court, counsel for the Government confirmed that it was the Government’s position that, for example, an individual being taken to a British detention facility on foreign soil in a British military vehicle would not fall within the United Kingdom’s jurisdiction until the moment the vehicle and individual passed within the perimeter of the facility. 119. This did not mean that United Kingdom troops were free to act with impunity in Iraq. As Lord Bingham observed in his opinion in the House of Lords, the acts of the United Kingdom forces were subject to and regulated by international humanitarian law.", "United Kingdom soldiers in Iraq were also subject to United Kingdom domestic criminal law and could be prosecuted in the national courts. The International Criminal Court had jurisdiction to prosecute war crimes where the State was unwilling or unable to prosecute. Civil claims in tort could also be brought in the United Kingdom courts against United Kingdom agents and authorities alleged to have caused injury to individuals in Iraq. (ii) The applicants 120. The applicants accepted that jurisdiction under Article 1 was essentially territorial.", "However, they underlined that it was not exclusively so and that it was possible for a Contracting State to exercise jurisdiction extraterritorially. The procedure under Article 56 allowed States to extend the reach of the Convention to other territories, with due regard to local requirements, by means of a notified declaration. However, it was clear from the case-law that Article 56 was not an exclusive mechanism for extraterritorial applicability. 121. The applicants submitted that the case-law of the Court and Commission recognised the exercise by States of jurisdiction extraterritorially through the principles of both “State agent authority” and “effective control of an area”.", "The first reference to “State agent authority” jurisdiction was in the Commission’s admissibility decision in Cyprus v. Turkey (nos. 6780/74 and 6950/75, Commission decision of 26 May 1975, DR 2, p. 125, at p. 136), when the Commission observed that “authorised agents of the State ... not only remain under its jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of that State, to the extent that they exercise authority over such persons or property”. This principle was subsequently applied in Cyprus v. Turkey (nos. 6780/74 and 6950/75, Commission’s report of 10 July 1976), when the Commission found that the actions of Turkish soldiers in Cyprus involved the exercise of Turkish jurisdiction. These actions comprised the killing of civilians, including individuals subject to the order of an officer and others shot while attempting to recover possessions from property under Turkish control; the rape of women in empty houses and on the street; the arbitrary detention of civilians; cruelty to detainees; the displacement of civilians; and the military confiscation of property.", "Since Turkey did not accept the Court’s jurisdiction until 1990, the case was never examined by the Court. The Commission’s report, however, did not support the suggestion that military custodial authority alone constituted a relationship of sufficient authority and control. 122. The applicants pointed out that in the later cases against Turkey concerning northern Cyprus which were examined by the Commission and the Court during the 1990s, Turkey accepted that its jurisdiction under Article 1 would be engaged in respect of the direct acts of Turkish military personnel. However, the Turkish Government shifted ground and argued that it did not have jurisdiction because the acts in question were not committed by Turkish agents but were instead attributable to an autonomous local administration installed in 1983, the “TRNC”.", "The Court, in Loizidou (preliminary objections) and in Cyprus v. Turkey (both cited above), countered this argument by elaborating the principle of “effective control of an area”, which applied (see Loizidou (preliminary objections), § 62): “when as a consequence of military action – whether lawful or unlawful – [a Contracting State] exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.” In these cases, the Court did not give any indication that the “State agent authority” principle had been supplanted. In fact, in Loizidou (preliminary objections), before setting out the principle of “effective control of an area” jurisdiction, the Court observed (§ 62) that: “In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory (see the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, p. 29, § 91).” Furthermore, its conclusion on the question whether the alleged violation was capable of falling within Turkish jurisdiction relied on both grounds equally (§ 63): “In this connection the respondent Government have acknowledged that the applicant’s loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘TRNC’. Furthermore, it has not been disputed that the applicant was prevented by Turkish troops from gaining access to her property.” In the Court’s subsequent case-law, the two principles had continued to be placed side by side (see Banković and Others, cited above, §§ 69-73; Issa and Others, cited above, §§ 69-71; Andreou v. Turkey (dec.), no.", "45653/99, 3 June 2008; and Solomou and Others v. Turkey, no. 36832/97, §§ 44-45, 24 June 2008). There was no precedent of the Court to suggest that “State agent authority” jurisdiction was inapt as a means of analysing direct actions by military State agents exercising authority. 123. The applicants argued that their dead family members fell within the United Kingdom’s jurisdiction under the “State agent authority” principle.", "The Government had accepted, in respect of the sixth applicant’s son, that the exercise of authority and control by British military personnel in Iraq was capable of engaging the United Kingdom’s extraterritorial jurisdiction. However, jurisdiction in extraterritorial detention cases did not rest on the idea of a military prison as a quasi-territorial enclave. Jurisdiction in respect of the sixth applicant’s son would equally have arisen had he been tortured and killed while under arrest at the hotel where he worked or in a locked army vehicle parked outside. Moreover, the authority and control exercised by military personnel was not limited in principle to actions as custodians, even if the arrest and detention of persons outside State territory could be seen as a classic instance of State agent authority (as was argued by the respondent Governments in Banković and Others, cited above, § 37). 124.", "The applicants submitted that the deceased relatives of all six applicants fell within United Kingdom jurisdiction by virtue of the authority and control exercised over them by United Kingdom State agents. They emphasised that British armed forces had responsibility for public order in Iraq, maintaining the safety and security of local civilians and supporting the civil administration. In performing these functions, the British armed forces were operating within the wider context of the United Kingdom’s occupation of south-east Iraq. The control and authority was also exercised through the CPA South Regional Office, which was staffed primarily by British personnel. The individuals killed were civilians to whom the British armed forces owed the duty of safety and security.", "There was thus a particular relationship of authority and control between the soldiers and the civilians killed. To find that these individuals fell within the authority of the United Kingdom armed forces would not require the acceptance of the impact‑based approach to jurisdiction which was rejected in Banković and Others (cited above), but would instead rest on a particular relationship of authority and control. In the alternative, the applicants argued that, at least in respect of the deceased relatives of the second, fourth, fifth and sixth applicants, the British soldiers exercised sufficient authority and control to bring the victims within the United Kingdom’s jurisdiction. 125. The applicants further contended that their dead relatives fell within United Kingdom jurisdiction because, at the relevant time, the United Kingdom was in effective control of south-east Iraq.", "It was their case that where, as a matter of international law, territory was occupied by a State as an Occupying Power, because that territory was actually placed under the authority of that State’s hostile army (see Article 42 of the Hague Regulations; paragraph 89 above), that was sufficient to constitute extraterritorial jurisdiction under Article 1 of the Convention. This consequence of belligerent occupation reflected the approach in international law, both as regards extraterritorial jurisdiction and extraterritorial application of human rights based on “jurisdiction”. 126. They rejected the idea that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. Furthermore, they reasoned that to require a State to exert complete control, similar to that exercised within its own territory, would lead to the perverse position whereby facts disclosing a violation of the Convention would, instead of entitling the victim to a remedy, form the evidential basis for a finding that the State did not exercise jurisdiction.", "Similarly, defining the existence of control over an area by reference to troop numbers alone would be uncertain, allow evasion of responsibility and promote arbitrariness. The application of the Convention should influence the actions of the Contracting States, prompting careful consideration of military intervention and ensuring sufficient troop numbers to meet their international obligations. The applicants endorsed the approach suggested by Sedley LJ in the Court of Appeal (see paragraph 80 above), that a Contracting State in military occupation was under a duty to do everything possible to keep order and protect essential civil rights. While the Court’s case-law (the northern Cyprus cases and Ilaşcu and Others, cited above) included details of numbers of military personnel deployed, this was relevant to establishing whether a territory had actually been placed under the authority of a hostile army, in cases where the respondent States (Turkey and Russia) denied being in occupation. Where, as in the present case, the respondent State accepted that it was in occupation of the territory, such an assessment was unnecessary.", "127. The applicants argued that the duty of an occupying State under international humanitarian law to apply the domestic law of the territorial State and not to impose its own law could not be used to evade jurisdiction under the Convention, since the “effective control of an area” basis of jurisdiction applied also to unlawful occupation. They referred to the judgment of the International Court of Justice in Armed Activities on the Territory of the Congo and its Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see paragraphs 90-91 above), where it found that the occupying State was under a duty to apply international human rights law. The clear principle emerging from these cases was that belligerent occupation in international law was a basis for the recognition of extraterritorial human rights jurisdiction. (iii) The third-party interveners 128.", "The third-party interveners (see paragraph 6 above) emphasised that the Convention was adopted in the aftermath of the events in Europe of the 1930s and 1940s, when appalling human rights abuses were carried out by military forces in occupied territories. It was inconceivable that the drafters of the Convention should have considered that the prospective responsibilities of States should be confined to violations perpetrated on their own territories. Moreover, public international law required that the concept of “jurisdiction” be interpreted in the light of the object and purpose of the particular treaty. The Court had repeatedly had regard to the Convention’s special character as an instrument for human rights protection. It was relevant that one of the guiding principles under international human rights law, which had been applied by the United Nations Human Rights Committee and the International Court of Justice when considering the conduct of States outside their territory, was the need to avoid unconscionable double standards, by allowing a State to perpetrate violations on foreign territory which would not be permitted on its own territory.", "129. The third-party interveners further emphasised that it was common ground between the international and regional courts and human rights bodies that, when determining whether the acts or omissions of a State’s agents abroad fall within its “jurisdiction”, regard must be had to the existence of control, authority or power of that State over the individual in question. When the agents of the State exercised such control, authority or power over an individual outside its territory, that State’s obligation to respect human rights continued. This was a factual test, to be determined with regard to the circumstances of the particular act or omission of the State agents. Certain situations, such as military occupations, created a strong presumption that individuals were under the control, authority or power of the occupying State.", "Indeed, one principle which emerged from the case-law of the International Court of Justice, inter alia (see paragraphs 90-91 above), was that once a situation was qualified as an occupation within the meaning of international humanitarian law, there was a strong presumption of “jurisdiction” for the purposes of the application of human rights law. (b) The Court’s assessment (i) General principles relevant to jurisdiction under Article 1 of the Convention 130. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“reconnaître” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others, cited above, § 66). “Jurisdiction” under Article 1 is a threshold criterion.", "The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311). (α) The territorial principle 131. A State’s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković and Others, cited above, §§ 61 and 67; and Ilaşcu and Others, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004‑II).", "Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases (see Banković and Others, cited above, § 67). 132. To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts. (β) State agent authority and control 133.", "The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State’s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek, cited above, § 91; Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996‑VI; and Banković and Others, cited above, § 69). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party’s responsibility “can be involved” in these circumstances. It is necessary to examine the Court’s case-law to identify the defining principles. 134. Firstly, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others (see Banković and Others, cited above, § 73; see also X. v. Germany, no.", "1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158; X. v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, DR 12, p. 73; and M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193). 135. Secondly, the Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government (see Banković and Others, cited above, § 71).", "Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, 14 May 2002; and X. and Y. v. Switzerland, nos. 7289/75 and 7349/76, Commission decision of 14 July 1977, DR 9, p. 57). 136. In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction.", "This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan (cited above, § 91), the Court held that “directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory”. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al-Saadoon and Mufdhi v. the United Kingdom ((dec.), no. 61498/08, §§ 86-89, 30 June 2009), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them.", "Finally, in Medvedyev and Others v. France ([GC], no. 3394/03, § 67, ECHR 2010), the Court held that the applicants were within French jurisdiction for the purposes of Article 1 of the Convention by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. 137.", "It is clear that, whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković and Others, cited above, § 75). (γ) Effective control over an area 138. Another exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration (see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52).", "Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76-77). 139.", "It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94). 140. The “effective control” principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible.", "Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, “with due regard ... to local requirements”, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term “jurisdiction” in Article 1. The situations covered by the “effective control” principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89, and Quark Fishing Ltd, cited above). (δ) The legal space (“espace juridique”) of the Convention 141. The Convention is a constitutional instrument of European public order (see Loizidou (preliminary objections), cited above, § 75).", "It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86). 142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “legal space of the Convention” (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States. The Court has not in its case-law applied any such restriction (see, among other examples, Öcalan; Issa and Others; Al‑Saadoon and Mufdhi; and Medvedyev and Others, all cited above).", "(ii) Application of these principles to the facts of the case 143. In determining whether the United Kingdom had jurisdiction over any of the applicants’ relatives when they died, the Court takes as its starting-point that, on 20 March 2003, the United Kingdom together with the United States of America and their Coalition partners, through their armed forces, entered Iraq with the aim of displacing the Ba’ath regime then in power. This aim was achieved by 1 May 2003, when major combat operations were declared to be complete and the United States of America and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations (see paragraph 89 above). 144. As explained in the letter dated 8 May 2003 sent jointly by the Permanent Representatives of the United Kingdom and the United States of America to the President of the United Nations Security Council (see paragraph 11 above), the United States of America and the United Kingdom, having displaced the previous regime, created the CPA “to exercise powers of government temporarily”.", "One of the powers of government specifically referred to in the letter of 8 May 2003 to be exercised by the United States of America and the United Kingdom through the CPA was the provision of security in Iraq, including the maintenance of civil law and order. The letter further stated that “[t]he United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by ... assuming immediate control of Iraqi institutions responsible for military and security matters”. 145. In its first legislative act, CPA Regulation No. 1 of 16 May 2003, the CPA declared that it would “exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability” (see paragraph 12 above).", "146. The contents of the letter of 8 May 2003 were noted by the Security Council in Resolution 1483, adopted on 22 May 2003. This Resolution gave further recognition to the security role which had been assumed by the United States of America and the United Kingdom when, in paragraph 4, it called upon the Occupying Powers “to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability” (see paragraph 14 above). 147. During this period, the United Kingdom had command of the military division Multinational Division (South-East), which included the province of Al-Basra, where the applicants’ relatives died.", "From 1 May 2003 onwards the British forces in Al-Basra took responsibility for maintaining security and supporting the civil administration. Among the United Kingdom’s security tasks were patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations (see paragraph 21 above). 148. In July 2003 the Governing Council of Iraq was established. The CPA remained in power, although it was required to consult with the Governing Council (see paragraph 15 above).", "In Resolution 1511, adopted on 16 October 2003, the United Nations Security Council underscored the temporary nature of the exercise by the CPA of the authorities and responsibilities set out in Resolution 1483. It also authorised “a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above). United Nations Security Council Resolution 1546, adopted on 8 June 2004, endorsed “the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq” (see paragraph 18 above). In the event, the occupation came to an end on 28 June 2004, when full authority for governing Iraq passed to the interim Iraqi government from the CPA, which then ceased to exist (see paragraph 19 above). (iii) Conclusion as regards jurisdiction 149.", "It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the interim Iraqi government, the United Kingdom (together with the United States of America) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in south-east Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention. 150. Against this background, the Court recalls that the deaths at issue in the present case occurred during the relevant period: the fifth applicant’s son died on 8 May 2003; the first and fourth applicants’ brothers died in August 2003; the sixth applicant’s son died in September 2003; and the spouses of the second and third applicants died in November 2003.", "It is not disputed that the deaths of the first, second, fourth, fifth and sixth applicants’ relatives were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basra City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased. The third applicant’s wife was killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it is not known which side fired the fatal bullet. The Court considers that, since the death occurred in the course of a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity of the applicant’s home and joined in the fatal exchange of fire, there was a jurisdictional link between the United Kingdom and this deceased also. 2.", "Alleged breach of the investigative duty under Article 2 of the Convention 151. The applicants did not complain before the Court of any substantive breach of the right to life under Article 2. Instead they complained that the Government had not fulfilled its procedural duty to carry out an effective investigation into the killings. Article 2 of the Convention provides as follows: “1. Everyone’s right to life shall be protected by law.", "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” (a) The parties’ submissions (i) The Government 152. The Government reasoned that the procedural duty under Article 2 had to be interpreted in harmony with the relevant principles of international law. Moreover, any implied duty should not be interpreted in such a way as to place an impossible or disproportionate burden on a Contracting State.", "The United Kingdom did not have full control over the territory of Iraq and, in particular, did not have legislative, administrative or judicial competence. If the investigative duty were to apply extraterritorially, it had to take account of these circumstances, and also of the very difficult security conditions in which British personnel were operating. 153. The Government accepted that the investigations into the deaths of the first, second and third applicants’ relatives were not sufficiently independent for the purposes of Article 2, since in each case the investigation was carried out solely by the Commanding Officers of the soldiers alleged to be responsible. However, they submitted that the investigations carried out in respect of the deaths of the fourth and fifth applicants’ relatives complied with Article 2.", "Nor had there been any violation of the investigative duty in respect of the sixth applicant; indeed, he did not allege that the investigation in his case had failed to comply with Article 2. 154. The Government emphasised, generally, that the Royal Military Police investigators were institutionally independent of the armed forces. They submitted that the Court of Appeal had been correct in concluding that the Special Investigation Branch of the Royal Military Police was capable of conducting independent investigations (see paragraph 82 above), although Brooke LJ had also commented that the task of investigating loss of life “must be completely taken away from the military chain of command and vested in the [Royal Military Police]”. The role of the military chain of command in notifying the Special Investigation Branch of an incident requiring investigation, and its subsequent role in referring cases investigated by the Special Investigation Branch to the Army Prosecuting Authority did not, however, mean that those investigations lacked independence as required by Articles 2 or 3 (see Cooper v. the United Kingdom [GC], no.", "48843/99, §§ 108-15, ECHR 2003‑XII; McKerr v. the United Kingdom, no. 28883/95, ECHR 2001‑III; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002‑II). The Army Prosecuting Authority was staffed by legally qualified officers. It was wholly independent from the military chain of command in relation to its prosecuting function.", "Its independence had been recognised by the Court in Cooper (cited above). 155. The Government pointed out that an investigation into the fourth applicant’s brother’s death was commenced by the Special Investigation Branch on 29 August 2003, five days after the shooting on 14 August. The Special Investigation Branch recovered fragments of bullets, empty bullet cases and the vehicle, and took digital photographs of the scene. They interviewed the doctors who treated the deceased and took statements.", "Nine military witnesses involved in the incident were interviewed and had statements taken and four further witnesses were interviewed but had no evidence to offer. The investigation was discontinued on 17 September 2003 after the Brigade Commander expressed the view that the shooting fell within the rules of engagement and was lawful. However, the decision to discontinue was taken by a Special Investigation Branch senior investigating officer, who was independent of the military chain of command. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite the difficult security conditions in Iraq at that time. The case was then referred to the Army Prosecuting Authority, which decided not to bring criminal charges as there was no realistic prospect of proving that the soldier who shot the fourth applicant’s brother had not been acting in self‑defence.", "The Attorney General was notified and he decided not to exercise his jurisdiction to order a prosecution. In the Government’s submission, the investigation was effective, in that it identified the person responsible for the death and established that the laws governing the use of force had been followed. The investigation was reasonably prompt, in particular when regard was had to the extreme difficulty of investigating in the extraterritorial context. If the halting of the initial investigation gave rise to any lack of independence, this was cured by the subsequent investigation and the involvement of the Army Prosecuting Authority and the Attorney General (see Gül v. Turkey, no. 22676/93, §§ 92-95, 14 December 2000; see also McCann and Others v. the United Kingdom, 27 September 1995, §§ 157 and 162-64, Series A no.", "324). 156. The Government submitted that there was no evidence, in the fifth applicant’s case, that the military chain of command interfered with the Special Investigation Branch investigation so as to compromise its independence. On the contrary, after receiving the investigation report the military chain of command referred the case to the Army Prosecuting Authority who in turn referred it for independent criminal trial. There was no undue delay in the investigation, in particular having regard to the difficulties faced by United Kingdom investigators investigating an incident which took place in Iraq eight days after the cessation of major combat operations.", "The fifth applicant was fully and sufficiently involved in the investigation. His participation culminated in the United Kingdom authorities flying him to England so that he could attend the court martial and give evidence. In addition to the Special Investigation Branch investigation and the criminal proceedings against the four soldiers, the fifth applicant brought civil proceedings in the United Kingdom domestic courts, claiming damages for battery and assault, negligence and misfeasance in public office. In those proceedings, he gave an account of his son’s death and the investigation which followed it. The proceedings were settled when the Ministry of Defence admitted liability and agreed to pay GBP 115,000 by way of compensation.", "Moreover, on 20 February 2009 Major General Cubitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in the death of his son. In these circumstances, the fifth applicant could no longer claim to be a victim of a violation of the Convention within the meaning of Article 34. Further, or in the alternative, it was no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). 157. The Government further emphasised that the sixth applicant had expressly confirmed that he did not claim before the Court that the Government had violated his Convention rights.", "This reflected the fact that, in relation to his son’s death, there had been (a) a full investigation by the Special Investigation Branch, leading to the bringing of criminal charges against six soldiers, one of whom was convicted; (b) civil proceedings brought by the applicant, which were settled when the Government admitted liability for the mistreatment and death of the applicant’s son and paid damages of GBP 575,000; (c) a formal public acknowledgement by the Government of the breach of the applicant’s son’s rights under Articles 2 and 3; (d) judicial review proceedings, in which the applicant complained of a breach of his procedural rights under Articles 2 and 3 and in which it was agreed by the parties and ordered by the House of Lords that the question whether there had been a breach of the procedural obligation should be remitted to the Divisional Court; and (e) a public inquiry, which was ongoing. In these circumstances, the applicant could no longer claim to be a victim for the purposes of Article 34 of the Convention. (ii) The applicants 158. The applicants emphasised that the Court’s case-law regarding south-eastern Turkey demonstrated that the procedural duty under Article 2 was not modified by reference to security problems in a conflict zone. The same principle had to apply in relation to any attempt by the Government to rely on either the security situation or the lack of infrastructure and facilities in Iraq.", "The United Kingdom was aware, or should have been aware, prior to the invasion and during the subsequent occupation, of the difficulties it would encounter. Its shortcomings in making provision for those difficulties could not exonerate it from the failure to comply with the investigative duty. 159. They submitted that the United Kingdom had failed in its procedural duty as regards the first, second, third, fourth and fifth applicants. The Royal Military Police was an element of the British army and was not, in either institutional or practical terms, independent from the military chain of command.", "The army units exercised control over it in matters relating to safety and logistical support while in theatre. Its involvement in incidents was wholly dependent on a request from the military unit in question, as was illustrated by the fourth applicant’s case, where the Special Investigation Branch response was stood down upon the instruction of the Commanding Officer. The Royal Military Police appeared to have been wholly dependent on the military chain of command for information about incidents. If it produced a report, this was given to the military chain of command, which decided whether to forward it to the Army Prosecuting Authority. The inadequacies within the Royal Military Police, regarding both lack of resources and independence, were noted by the Court of Appeal and by the Aitken Report.", "160. The applicants pointed out that the Special Investigation Branch investigation into the fourth applicant’s case had been discontinued at the request of the military chain of command. The further investigatory phase, reopened as a result of litigation in the domestic courts, was similarly deficient, given the lack of independence of the Special Investigation Branch and the extreme delay in interviewing the person responsible for firing the shots and securing other key evidence. In the fifth applicant’s case, the investigation was initiated at the repeated urging of the family, after considerable obstruction and delay on the part of the British authorities. The investigators were not independent from the military chain of command and the victim’s family were not sufficiently involved.", "The applicants contended that the Government’s objection that the fifth applicant lacked victim status should be rejected. The court-martial proceedings and the compensation he had received in settlement of the civil proceedings were inadequate to satisfy the procedural requirement under Article 2. In contrast, the sixth applicant did not claim still to be a victim of the violation of his procedural rights under Articles 2 and 3. (b) The Court’s assessment (i) General principles 161. The Court is conscious that the deaths in the present case occurred in Basra City in south-east Iraq in the aftermath of the invasion, during a period when crime and violence were endemic.", "Although major combat operations had ceased on 1 May 2003, the Coalition Forces in south-east Iraq, including British soldiers and military police, were the target of over a thousand violent attacks in the subsequent thirteen months. In tandem with the security problems, there were serious breakdowns in the civilian infrastructure, including the law enforcement and criminal justice systems (see paragraphs 22-23 above; see also the findings of the Court of Appeal at paragraph 80 above). 162. While remaining fully aware of this context, the Court’s approach must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. Article 2, which protects the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions of the Convention.", "No derogation from it is permitted under Article 15, “except in respect of deaths resulting from lawful acts of war”. Article 2 covers both intentional killing and also the situations in which it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c) (see McCann and Others, cited above, §§ 146‑48). 163. The general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities.", "The obligation to protect the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State (see McCann and Others, cited above, § 161). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005-VII). However, the investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (see, by implication, McCann and Others, cited above, §§ 150 and 162; Hugh Jordan v. the United Kingdom, no. 24746/94, § 128, 4 May 2001; McKerr, cited above, §§ 143 and 151; Shanaghan v. the United Kingdom, no.", "37715/97, §§ 100-25, 4 May 2001; Finucane v. the United Kingdom, no. 29178/95, §§ 77-78, ECHR 2003‑VIII; Nachova and Others, cited above, §§ 114-15; and, mutatis mutandis, Tzekov v. Bulgaria, no. 45500/99, § 71, 23 February 2006). 164. The Court has held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict (see, among other examples, Güleç v. Turkey, 27 July 1998, § 81, Reports 1998‑IV; Ergi v. Turkey, 28 July 1998, §§ 79 and 82, Reports 1998‑IV; Ahmet Özkan and Others v. Turkey, no.", "21689/93, §§ 85-90, 309-20 and 326-30, 6 April 2004; Isayeva v. Russia, no. 57950/00, §§ 180 and 210, 24 February 2005; and Kanlibaş v. Turkey, no. 32444/96, §§ 39-51, 8 December 2005). It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and, as the United Nations Special Rapporteur has also observed (see paragraph 93 above), concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed (see, for example, Bazorkina v. Russia, no. 69481/01, § 121, 27 July 2006).", "Nonetheless, the obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life (see, among many other examples, Kaya v. Turkey, 19 February 1998, §§ 86‑92, Reports 1998‑I; Ergi, cited above, §§ 82-85; Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-10, ECHR 1999‑IV; Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 156-66, 24 February 2005; Isayeva, cited above, §§ 215‑24; and Musayev and Others v. Russia, nos. 57941/00, 58699/00 and 60403/00, §§ 158-65, 26 July 2007). 165.", "What form of investigation will achieve the purposes of Article 2 may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see Ahmet Özkan and Others, cited above, § 310, and Isayeva, cited above, § 210). Civil proceedings, which are undertaken on the initiative of the next of kin, not the authorities, and which do not involve the identification or punishment of any alleged perpetrator, cannot be taken into account in the assessment of the State’s compliance with its procedural obligations under Article 2 of the Convention (see, for example, Hugh Jordan, cited above, § 141). Moreover, the procedural obligation of the State under Article 2 cannot be satisfied merely by awarding damages (see McKerr, cited above, § 121, and Bazorkina, cited above, § 117).", "166. As stated above, the investigation must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see Ahmet Özkan and Others, cited above, § 312, and Isayeva, cited above, § 212 and the cases cited therein).", "167. For an investigation into alleged unlawful killing by State agents to be effective, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Shanaghan, cited above, § 104). A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.", "For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Ahmet Özkan and Others, cited above, §§ 311‑14, and Isayeva, cited above, §§ 211-14 and the cases cited therein). (ii) Application of these principles to the facts of the case 168. The Court takes as its starting-point the practical problems caused to the investigating authorities by the fact that the United Kingdom was an Occupying Power in a foreign and hostile region in the immediate aftermath of invasion and war.", "These practical problems included the breakdown in the civil infrastructure, leading, inter alia, to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time. As stated above, the Court considers that in circumstances such as these the procedural duty under Article 2 must be applied realistically, to take account of specific problems faced by investigators. 169. Nonetheless, the fact that the United Kingdom was in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be effective, it was particularly important that the investigating authority was, and was seen to be, operationally independent of the military chain of command. 170.", "It was not in issue in the first, second and fourth applicants’ cases that their relatives were shot by British soldiers, whose identities were known. The question for investigation was whether in each case the soldier fired in conformity with the rules of engagement. In respect of the third applicant, Article 2 required an investigation to determine the circumstances of the shooting, including whether appropriate steps were taken to safeguard civilians in the vicinity. As regards the fifth applicant’s son, although the Court has not been provided with the documents relating to the court martial, it appears to have been accepted that he died of drowning. It needed to be determined whether British soldiers had, as alleged, beaten the boy and forced him into the water.", "In each case, eyewitness testimony was crucial. It was therefore essential that, as quickly after the event as possible, the military witnesses, and in particular the alleged perpetrators, should have been questioned by an expert and fully independent investigator. Similarly, every effort should have been taken to identify Iraqi eyewitnesses and to persuade them that they would not place themselves at risk by coming forward and giving information and that their evidence would be treated seriously and acted upon without delay. 171. It is clear that the investigations into the shooting of the first, second and third applicants’ relatives fell short of the requirements of Article 2, since the investigation process remained entirely within the military chain of command and was limited to taking statements from the soldiers involved.", "Moreover, the Government accept this conclusion. 172. As regards the other applicants, although there was an investigation by the Special Investigation Branch into the death of the fourth applicant’s brother and the fifth applicant’s son, the Court does not consider that this was sufficient to comply with the requirements of Article 2. It is true that the Royal Military Police, including its Special Investigation Branch, had a separate chain of command from the soldiers on combat duty whom it was required to investigate. However, as the domestic courts observed (see paragraphs 77 and 82 above), the Special Investigation Branch was not, during the relevant period, operationally independent from the military chain of command.", "It was generally for the Commanding Officer of the unit involved in the incident to decide whether the Special Investigation Branch should be called in. If the Special Investigation Branch decided on its own initiative to commence an investigation, this investigation could be closed at the request of the military chain of command, as demonstrated in the fourth applicant’s case. On conclusion of a Special Investigation Branch investigation, the report was sent to the Commanding Officer, who was responsible for deciding whether or not the case should be referred to the Army Prosecuting Authority. The Court considers, in agreement with Brooke LJ (see paragraph 82 above), that the fact that the Special Investigation Branch was not “free to decide for itself when to start and cease an investigation” and did not report “in the first instance to the [Army Prosecuting Authority]” rather than to the military chain of command, meant that it could not be seen as sufficiently independent from the soldiers implicated in the events to satisfy the requirements of Article 2. 173.", "It follows that the initial investigation into the shooting of the fourth applicant’s brother was flawed by the lack of independence of the Special Investigation Branch officers. During the initial phase of the investigation, material was collected from the scene of the shooting and statements were taken from the soldiers present. However, Lance Corporal S., the soldier who shot the applicant’s brother, was not questioned by Special Investigation Branch investigators during this initial phase. It appears that the Special Investigation Branch interviewed four Iraqi witnesses, who may have included the neighbours the applicant believes to have witnessed the shooting, but did not take statements from them. In any event, as a result of the lack of independence, the investigation was terminated while still incomplete.", "It was subsequently reopened, some nine months later, and it would appear that forensic tests were carried out at that stage on the material collected from the scene, including the bullet fragments and the vehicle. The Special Investigation Branch report was sent to the Commanding Officer, who decided to refer the case to the Army Prosecuting Authority. The prosecutors took depositions from the soldiers who witnessed the incident and decided, having taken further independent legal advice, that there was no evidence that Lance Corporal S. had not acted in legitimate self-defence. As previously stated, eyewitness testimony was central in this case, since the cause of the death was not in dispute. The Court considers that the long period of time that was allowed to elapse before Lance Corporal S. was questioned about the incident, combined with the delay in having a fully independent investigator interview the other military witnesses, entailed a high risk that the evidence was contaminated and unreliable by the time the Army Prosecuting Authority came to consider it.", "Moreover, it does not appear that any fully independent investigator took evidence from the Iraqi neighbours who the applicant claims witnessed the shooting. 174. While there is no evidence that the military chain of command attempted to intervene in the investigation into the fifth applicant’s son’s death, the Court considers that the Special Investigation Branch investigators lacked independence for the reasons set out above. In addition, no explanation has been provided by the Government in respect of the long delay between the death and the court martial. It appears that the delay seriously undermined the effectiveness of the investigation, not least because some of the soldiers accused of involvement in the incident were by then untraceable (see, in this respect, the comments in the Aitken Report, paragraph 61 above).", "Moreover, the Court considers that the narrow focus of the criminal proceedings against the accused soldiers was inadequate to satisfy the requirements of Article 2 in the particular circumstances of this case. There appears to be at least prima facie evidence that the applicant’s son, a minor, was taken into the custody of British soldiers who were assisting the Iraqi police to take measures to combat looting and that, as a result of his mistreatment by the soldiers, he drowned. In these circumstances, the Court considers that Article 2 required an independent examination, accessible to the victim’s family and to the public, of the broader issues of State responsibility for the death, including the instructions, training and supervision given to soldiers undertaking tasks such as this in the aftermath of the invasion. 175. In the light of the foregoing, the Court does not consider that the procedural duty under Article 2 has been satisfied in respect of the fifth applicant.", "Although he has received a substantial sum in settlement of his civil claim, together with an admission of liability on behalf of the army, there has never been a full and independent investigation into the circumstances of his son’s death (see paragraph 165 above). It follows that the fifth applicant can still claim to be a victim within the meaning of Article 34 and that the Government’s preliminary objection regarding his lack of victim status must be rejected. 176. In contrast, the Court notes that a full, public inquiry is nearing completion into the circumstances of the sixth applicant’s son’s death. In the light of this inquiry, the Court notes that the sixth applicant accepts that he is no longer a victim of any breach of the procedural obligation under Article 2.", "The Court therefore accepts the Government’s objection in respect of the sixth applicant. 177. In conclusion, the Court finds a violation of the procedural duty under Article 2 of the Convention in respect of the first, second, third, fourth and fifth applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 178.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 179. The first, second, third, fourth and fifth applicants asked the Court to order the Government to carry out an Article 2-compliant investigation into their relatives’ deaths. They also claimed 15,000 pounds sterling (GBP) each in compensation for the distress they had suffered because of the United Kingdom’s failure to conduct a Convention-compliant investigation into the deaths. 180.", "The Government pointed out that the Court had repeatedly and expressly refused to direct the State to carry out a fresh investigation in cases in which it had found a breach of the procedural duty under Article 2 (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 222, ECHR 2009; Ülkü Ekinci v. Turkey, no. 27602/95, § 179, 16 July 2002; and Finucane, cited above, § 89). They further submitted that a finding of a violation would be sufficient just satisfaction in the circumstances. In the alternative, if the Court decided to make an award, the Government noted that the sum claimed by the applicants was higher than generally awarded.", "They did not, however, propose a sum, leaving it to the Court to decide on an equitable basis. 181. As regards the applicants’ request concerning the provision of an effective investigation, the Court reiterates the general principle that the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment. Consequently, it considers that in these applications it falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance (see Varnava and Others, cited above, § 222, and the cases cited therein). 182.", "As regards the claim for monetary compensation, the Court recalls that it is not its role under Article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non‑pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Varnava and Others, cited above, § 224, and the cases cited therein). In the light of all the circumstances of the present case, the Court considers that, to compensate each of the first five applicants for the distress caused by the lack of a fully independent investigation into the deaths of their relatives, it would be just and equitable to award the full amount claimed, which, when converted into euros, comes to approximately 17,000 euros (EUR) each. B.", "Costs and expenses 183. The applicants, emphasising the complexity and importance of the case, claimed for over 580 hours’ legal work by their solicitors and four counsel in respect of the proceedings before the Court, at a total cost of GBP 119,928. 184. The Government acknowledged that the issues were complex, but nonetheless submitted that the claim was excessive, given that the applicants’ legal advisers were familiar with all aspects of the claim since they had acted for the applicants in the domestic legal proceedings, which had been publicly funded. Furthermore, the hourly rates claimed by the applicants’ counsel, ranging between GBP 500 and GBP 235, and the hourly rates claimed by the applicants’ solicitors, ranging between GBP 180 and GBP 130, were unreasonably high.", "Nor had it been necessary to engage two Queen’s Counsel and two junior counsel. 185. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 50,000 for the proceedings before the Court. C. Default interest 186.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Rejects the Government’s preliminary objections regarding attribution and non-exhaustion of domestic remedies; 2. Joins to the merits the questions whether the applicants fell within the jurisdiction of the respondent State and whether the fifth and sixth applicants retained victim status; 3. Declares the application admissible; 4.", "Holds that the applicants’ deceased relatives fell within the jurisdiction of the respondent State and dismisses the Government’s preliminary objection as regards jurisdiction; 5. Holds that the sixth applicant can no longer claim to be a victim of a violation of the procedural obligation under Article 2 of the Convention; 6. Holds that there has been a breach of the procedural obligation under Article 2 of the Convention to carry out an adequate and effective investigation into the deaths of the relatives of the first, second, third, fourth and fifth applicants and dismisses the Government’s preliminary objection as regards the victim status of the fifth applicant; 7. Holds (a) that the respondent State is to pay each of the first five applicants, within three months, EUR 17,000 (seventeen thousand euros), plus any tax that may be chargeable on this sum, in respect of non-pecuniary damage, to be converted into pounds sterling at the rate applicable at the date of settlement; (b) that the respondent State is to pay jointly to the first five applicants, within three months, EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable to the applicants on this sum, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 7 July 2011. Michael O’Boyle Jean-Paul CostaDeputy Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Rozakis; (b) concurring opinion of Judge Bonello. J.-P.C.M.O’B. CONCURRING OPINION OF JUDGE ROZAKIS When citing the general principles relevant to a State Party’s jurisdiction under Article 1 of the Convention (see paragraphs 130 et seq. of the Grand Chamber judgment), the Court reiterates its established case-law that apart from the territorial aspect determining the jurisdictional competence of a State Party to the Convention, there are “exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries” (see paragraph 132).", "It then proceeds to discuss such exceptional circumstances. In paragraphs 133 to 137, under the title “State agent authority and control”, it refers to situations where State agents operating extraterritorially, and exercising control and authority over individuals, create a jurisdictional link with their State and its obligations under the Convention, making that State responsible for the acts or omissions of its agents, in cases where they affect the rights or freedoms of individuals protected by the Convention. Characteristic examples of such exceptional circumstances of extraterritorial jurisdiction are mentioned in the judgment (see paragraphs 134-36), and concern the acts of diplomatic and consular agents, the exercise of authority and control over foreign territory by individuals which is allowed by a third State through its consent, invitation or acquiescence, and the use of force by State agents operating outside its territory. So far so good, but then, under the title “Effective control over an area”, the Court refers to “[a]nother exception to the principle [of] jurisdiction”, when “as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside [its] national territory” (see paragraph 138). I regret to say that I cannot agree that this ground of jurisdiction constitutes a separate (“another”) ground of jurisdiction, which differs from the “State authority and control” jurisdictional link.", "It is part and parcel, to my mind, of that latter jurisdictional link, and concerns a particular aspect of it. The differing elements, which distinguish that particular aspect from the jurisdictional categories mentioned by the Court, can be presented cumulatively or in isolation as the following: (a) the usually large-scale use of force; (b) the occupation of a territory for a prolonged period of time; and/or (c) in the case of occupation, the exercise of power by a subordinate local administration, whose acts do not exonerate the occupying State from its responsibility under the Convention. As a consequence, I consider that the right approach to the matter would have been for the Court to have included that aspect of jurisdiction in the exercise of the “State authority and control” test, and to have simply determined that “effective” control is a condition for the exercise of jurisdiction which brings a State within the boundaries of the Convention, as delimited by its Article 1. CONCURRING OPINION OF JUDGE BONELLO 1. These six cases deal primarily with the issue of whether Iraqi civilians who allegedly lost their lives at the hands of United Kingdom soldiers, in non-combat situations in the United Kingdom-occupied Basra region of Iraq, were “within the jurisdiction” of the United Kingdom when those killings took place.", "2. When, in March 2003, the United Kingdom, together with the other Coalition Forces, invaded Iraq, the Coalition Provisional Authority (CPA) conferred upon members of that Authority the fullest jurisdictional powers over Iraq: “The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives.” This included the “power to issue legislation”: “The CPA shall exercise powers of government temporarily.”[1] 3. I fully agreed with the findings of the Court, but I would have employed a different test (a “functional jurisdiction” test) to establish whether or not the victims fell within the jurisdiction of the United Kingdom. Though the present judgment has placed the doctrines of extraterritorial jurisdiction on a sounder footing than ever before, I still do not consider wholly satisfactory the re-elaboration of the traditional tests to which the Court has resorted. Extraterritorial jurisdiction or functional jurisdiction?", "4. The Court’s case-law on Article 1 of the Convention (the jurisdiction of the Contracting Parties) has, so far, been bedevilled by an inability or an unwillingness to establish a coherent and axiomatic regime, grounded in essential basics and even-handedly applicable across the widest spectrum of jurisdictional controversies. 5. Up until now, the Court has, in matters concerning the extraterritorial jurisdiction of Contracting Parties, spawned a number of “leading” judgments based on a need-to-decide basis, patchwork case-law at best. Inevitably, the doctrines established seem to go too far to some, and not far enough to others.", "As the Court has, in these cases, always tailored its tenets to sets of specific facts, it is hardly surprising that those tenets then seem to limp when applied to sets of different facts. Principles settled in one judgment may appear more or less justifiable in themselves, but they then betray an awkward fit when measured against principles established in another. Issa and Others v. Turkey (no. 31821/96, 16 November 2004) flies in the face of Banković and Others v. Belgium and Others ([GC] (dec.), no. 52207/99, ECHR 2001-XII) and the cohabitation of Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos.", "71412/01 and 78166/01, 2 May 2007) with Berić and Others v. Bosnia and Herzegovina ((dec.), nos. 36357/04 and others, 16 October 2007) is, overall, quite problematic. 6. The late Lord Rodger of Earlsferry in the House of Lords had my full sympathy when he lamented that, in its application of extraterritorial jurisdiction “the judgments and decisions of the European Court do not speak with one voice”. The differences, he rightly noted, are not merely ones of emphasis.", "Some “appear much more serious”[2]. 7. The truth seems to be that Article 1 case-law has, before the present judgment, enshrined everything and the opposite of everything. In consequence, the judicial decision-making process in Strasbourg has, so far, squandered more energy in attempting to reconcile the barely reconcilable than in trying to erect intellectual constructs of more universal application. A considerable number of different approaches to extraterritorial jurisdiction have so far been experimented with by the Court on a case-by-case basis, some not completely exempt from internal contradiction.", "8. My guileless plea is to return to the drawing board. To stop fashioning doctrines which somehow seem to accommodate the facts, but rather, to appraise the facts against the immutable principles which underlie the fundamental functions of the Convention. 9. The founding members of the Convention, and each subsequent Contracting Party, strove to achieve one aim, at once infinitesimal and infinite: the supremacy of the rule of human rights law.", "In Article 1 they undertook to secure to everyone within their jurisdiction the rights and freedoms enshrined in the Convention. This was, and remains, the cornerstone of the Convention. That was, and remains, the agenda heralded in its Preamble: “the universal and effective recognition and observance” of fundamental human rights. “Universal” hardly suggests an observance parcelled off by territory on the checkerboard of geography. 10.", "States ensure the observance of human rights in five primordial ways: firstly, by not violating (through their agents) human rights; secondly, by having in place systems which prevent breaches of human rights; thirdly, by investigating complaints of human rights abuses; fourthly, by scourging those of their agents who infringe human rights; and, finally, by compensating the victims of breaches of human rights. These constitute the basic minimum functions assumed by every State by virtue of its having contracted into the Convention. 11. A “functional” test would see a State effectively exercising “jurisdiction” whenever it falls within its power to perform, or not to perform, any of these five functions. Very simply put, a State has jurisdiction for the purposes of Article 1 whenever the observance or the breach of any of these functions is within its authority and control.", "12. Jurisdiction means no less and no more than “authority over” and “control of”. In relation to Convention obligations, jurisdiction is neither territorial nor extraterritorial: it ought to be functional – in the sense that when it is within a State’s authority and control whether a breach of human rights is, or is not, committed, whether its perpetrators are, or are not, identified and punished, whether the victims of violations are, or are not, compensated, it would be an imposture to claim that, ah yes, that State had authority and control, but, ah no, it had no jurisdiction. 13. The duties assumed through ratifying the Convention go hand in hand with the duty to perform and observe them.", "Jurisdiction arises from the mere fact of having assumed those obligations and from having the capability to fulfil them (or not to fulfil them). 14. If the perpetrators of an alleged human rights violation are within the authority and control of one of the Contracting Parties, it is to me totally consequential that their actions by virtue of that State’s authority engage the jurisdiction of the Contracting Party. I resist any helpful schizophrenia by which a nervous sniper is within the jurisdiction, his act of shooting is within the jurisdiction, but then the victims of that nervous sniper happily choke in blood outside it. Any hiatus between what logical superglue has inexorably bonded appears defiantly meretricious, one of those infelicitous legal fictions a court of human rights can well do without.", "15. Adhering to doctrines other than this may lead in practice to some riotous absurdities in their effects. If two civilian Iraqis are together in a street in Basra, and a United Kingdom soldier kills the first before arrest and the second after arrest, the first dies desolate, deprived of the comforts of United Kingdom jurisdiction, the second delighted that his life was evicted from his body within the jurisdiction of the United Kingdom. Same United Kingdom soldier, same gun, same ammunition, same patch of street – same inept distinctions. I find these pseudo-differentials spurious and designed to promote a culture of law that perverts, rather than fosters, the cause of human rights justice.", "16. In my view, the one honest test, in all circumstances (including extraterritoriality), is the following: did it depend on the agents of the State whether the alleged violation would be committed or would not be committed? Was it within the power of the State to punish the perpetrators and to compensate the victims? If the answer is yes, self-evidently the facts fall squarely within the jurisdiction of the State. All the rest seems to me clumsy, self-serving alibi-hunting, unworthy of any State that has grandiosely undertaken to secure the “universal” observance of human rights whenever and wherever it is within its power to secure them, and, may I add, of courts whose only raison d’être should be to ensure that those obligations are not avoided or evaded.", "The Court has, in the present judgment, thankfully placed a sanitary cordon between itself and some of these approaches. 17. The failure to espouse an obvious functional test, based exclusively on the programmatic agenda of the Convention, has, in the past, led to the adoption of a handful of sub-tests, some of which may have served defilers of Convention values far better than they have the Convention itself. Some of these tests have empowered the abusers and short-changed their victims. For me the primary questions to be answered boil down to these: when a State ratifies the Convention, does it undertake to promote human rights wherever it can, or does it undertake to promote human rights inside its own confines and to breach them everywhere else?", "Did the Contracting Party ratify the Convention with the deliberate intent of discriminating between the sanctity of human rights within its own territory and their paltry insignificance everywhere else? 18. I am unwilling to endorse à la carte respect for human rights. I think poorly of an esteem for human rights that turns casual and approximate depending on geographical coordinates. Any State that worships fundamental rights on its own territory but then feels free to make a mockery of them anywhere else does not, as far as I am concerned, belong to that comity of nations for which the supremacy of human rights is both mission and clarion call.", "In substance the United Kingdom is arguing, sadly, I believe, that it ratified the Convention with the deliberate intent of regulating the conduct of its armed forces according to latitude: gentlemen at home, hoodlums elsewhere. 19. The functional test I propose would also cater for the more rarefied reaches of human rights protection, like respect for the positive obligations imposed on Contracting Parties: was it within the State’s authority and control to see that those positive obligations would be respected? If it was, then the functional jurisdiction of the State would come into play, with all its natural consequences. If, in the circumstances, the State is not in such a position of authority and control as to be able to ensure extraterritorially the fulfilment of any or all of its positive obligations, that lack of functional authority and control excludes jurisdiction, limitedly to those specific rights the State is not in a position to enforce.", "20. This would be my universal vision of what this Court is all about – a bright-line approach rather than case-by-case improvisations, more or less inspired, more or less insipid, cluttering the case-law with doctrines which are, at best, barely compatible and at worst blatantly contradictory – and none measured against the essential yardstick of the supremacy and universality of human rights anytime, anywhere. Exceptions? 21. I consider the doctrine of functional jurisdiction to be so linear and compelling that I would be unwilling to acquiesce to any exceptions, even more so in the realm of the near-absolute rights to life and to freedom from torture and degrading or inhuman treatment or punishment.", "Without ever reneging on the principle of the inherent jurisdiction of the Occupying Power that usually flows from military conquest, at most the Court could consider very limited exceptions to the way in which Articles 2 and 3 are applied in extreme cases of clear and present threats to national security that would otherwise significantly endanger the war effort. I would not, personally, subscribe to any exceptions at all. Conclusion 22. Applying the functional test to the specifics of these cases, I arrive at the manifest and inescapable conclusion that all the facts and all the victims of the alleged killings said to have been committed by United Kingdom servicemen fall squarely within the jurisdiction of the United Kingdom, which had, in Basra and its surroundings, an obligation to ensure the observance of Articles 2 and 3 of the Convention. It is uncontested that the servicemen who allegedly committed the acts that led to the deaths of the victims were under United Kingdom authority and control; that it was within the United Kingdom’s authority and control whether to investigate those deaths or not; that it was within the United Kingdom’s authority and control whether to punish any human rights violations, if established; and that it was within the United Kingdom’s authority and control whether to compensate the victims of those alleged violations or their heirs.", "Concluding that the United Kingdom had all this within its full authority and control, but still had no jurisdiction, would for me amount to a finding as consequential as a good fairy tale and as persuasive as a bad one. 23. The test adopted by the Court in this case has led to a unanimous finding of jurisdiction. Though I believe the functional test I endorse would better suit any dispute relating to extraterritorial jurisdiction, I would still have found that, whatever the test adopted, all the six killings before the Court engaged United Kingdom jurisdiction. I attach to this opinion a few random observations to buttress my conclusions.", "Presumption of jurisdiction 24. I would propose a different test from that espoused by the domestic courts to establish or dismiss extraterritorial jurisdiction in terms of Article 1, in cases concerning military occupation, when a State becomes the recognised “Occupying Power” according to the Geneva and The Hague instruments. Once a State is acknowledged by international law to be “an Occupying Power”, a rebuttable presumption ought to arise that the Occupying Power has “authority and control” over the occupied territory, over what goes on there and over those who happen to be in it – with all the consequences that flow from a legal presumption. It will then be incumbent on the Occupying Power to prove that such was the state of anarchy and impotence prevailing, that it suffered a deficit of effective authority and control. It will no longer be for the victim of wartime atrocities to prove that the Occupying Power actually exercised authority and control.", "It will be for the Occupying Power to rebut it. 25. I was puzzled to read in the domestic proceedings that “the applicants had failed to make a case” for United Kingdom authority and control in the Basra region. I believe that the mere fact of a formally acknowledged military occupation ought to shift any burden of proof from the applicants to the respondent Government. 26.", "And it will, in my view, be quite arduous for an officially recognised “Occupying Power” to disprove authority and control over impugned acts, their victims and their perpetrators. The Occupying Power could only do that successfully in the case of infamies committed by forces other than its own, during a state of total breakdown of law and order. I find it bizarre, not to say offensive, that an Occupying Power can plead that it had no authority and control over acts committed by its own armed forces well under its own chain of command, claiming with one voice its authority and control over the perpetrators of those atrocities, but with the other, disowning any authority and control over atrocities committed by them and over their victims. 27. It is my view that jurisdiction is established when authority and control over others are established.", "For me, in the present cases, it is well beyond surreal to claim that a military colossus which waltzed into Iraq when it chose, settled there for as long as it cared to and only left when it no longer suited its interests to remain, can persuasively claim not to have exercised authority and control over an area specifically assigned to it in the geography of the war games played by the victorious. I find it uncaring to the intellect for a State to disclaim accountability for what its officers, wearing its uniforms, wielding its weapons, sallying forth from its encampments and returning there, are alleged to have done. The six victims are said to have lost their lives as a result of the unlawful actions of United Kingdom soldiers in non-combat situations – but no one answers for their death. I guess we are expected to blame it on the evil eye. 28.", "Jurisdiction flows not only from the exercise of democratic governance, not only from ruthless tyranny, not only from colonial usurpation. It also hangs from the mouth of a firearm. In non-combat situations, everyone in the line of fire of a gun is within the authority and control of whoever is wielding it. Futility of the case-law 29. The undeniable fact is that this Court has never, before today, had to deal with any case in which the factual profiles were in any way similar to those of the present applications.", "This Court has, so far, had several occasions to determine complaints which raised issues of extraterritorial jurisdiction, but all of a markedly different nature. Endeavouring to export doctrines of jurisdiction hammered out in a case of a solitary air strike over a radio station abroad (see Banković and Others, cited above) to allegations of atrocities committed by the forces of an Occupying Power, which has assumed and kept armed control of a foreign territory for well over three years, is anything but consequent. I find the jurisdictional guidelines established by the Court to regulate the capture by France of a Cambodian drug-running ship on the high seas, for the specific purpose of intercepting her cargo and bringing the crew to justice (see Medvedyev and Others v. France [GC], no. 3394/03, ECHR 2010), to be quite distracting and time-wasting when the issue relates to a large territory outside the United Kingdom, conquered and held for over three years by the force of arms of a mighty foreign military set-up, recognised officially by international law as an “Occupying Power”, and which had established itself indefinitely there. 30.", "In my view, this relentless search for eminently tangential case-law is as fruitful and fulfilling as trying to solve one crossword puzzle with the clues of another. The Court could, in my view, have started the exercise by accepting that this was judicial terra incognita, and could have worked out an organic doctrine of extraterritorial jurisdiction, untrammelled by the irrelevant and indifferent to the obfuscating. Indivisibility of human rights 31. The foregoing analysis is not at all invalidated by what is termed the “indivisibility of human rights” argument which runs thus: as human rights are indivisible, once a State is considered to have extraterritorial “jurisdiction”, then that State is held to be bound to enforce all the human rights enshrined in the Convention. Conversely, if that State is not in a position to enforce the whole range of Convention human rights, it does not have jurisdiction.", "32. Hardly so. Extraterritorially, a Contracting State is obliged to ensure the observance of all those human rights which it is in a position to ensure. It is quite possible to envisage situations in which a Contracting State, in its role as an Occupying Power, has well within its authority the power not to commit torture or extrajudicial killings, to punish those who commit them and to compensate the victims – but at the same time that Contracting State does not have the extent of authority and control required to ensure to all persons the right to education or the right to free and fair elections: those fundamental rights it can enforce would fall squarely within its jurisdiction, those it cannot, on the wrong side of the bright line. If the “indivisibility of human rights” is to have any meaning at all, I would prefer that meaning to run hand in hand with that of the “universality of human rights”.", "33. I believe that it ill suits the respondent Government to argue, as they have, that their inability to secure respect for all fundamental rights in Basra gave them the right not to respect any at all. A vacuum of jurisdiction? 34. In spite of the fact that, as a leading partner in the Coalition Provisional Authority, the United Kingdom Government were “vested with all executive, legislative and judicial authority”[3] over that part of vanquished Iraq assigned to them, the United Kingdom went a long and eloquent way in its attempt to establish that it did not exercise jurisdiction over the area assigned to it.", "It just stopped short of sharing with the Court who did. Who was the mysterious, faceless rival which, instead of it, exercised executive, legislative and judicial authority for three years and more over the area delegated to the United Kingdom? There unquestionably existed a highly volatile situation on the ground, pockets of violent insurgency and a pervasive, sullen resistance to the military presence. 35. However, in the Basra region, some authority was still giving orders, laying down the law (juris dicere – defining what the binding norm of law is), running the correctional facilities, delivering the mail, establishing and maintaining communications, providing health services, supplying food and water, restraining military contraband and controlling criminality and terrorism as best it could.", "This authority, full and complete over the United Kingdom military, harassed and maimed over the rest, was the United Kingdom’s. 36. The alternative would be to claim that Basra and the region under the United Kingdom’s executive, legislative and judicial responsibility hovered in an implacable legal void, sucked inside that legendary black hole, whose utter repulsion of any authority lasted well over three years – a proposition unlikely to find many takers on the legal market. Human rights imperialism 37. I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”.", "It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion. 38. Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy.", "For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists. 39. I, for one, advertise my diversity. At my age, it may no longer be elegant to have dreams.", "But that of being branded in perpetuity a “human rights imperialist” sounds to me, I acknowledge, particularly seductive. [1]. Paragraph 12 of the Grand Chamber judgment. [2]. Paragraph 67, House of Lords opinion in Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals), [2007] UKHL 26.", "[3]. See paragraph 12 of the Grand Chamber judgment." ]

[ "THIRD SECTION CASE OF C.G. v. THE UNITED KINGDOM (Application no. 43373/98) JUDGMENT STRASBOURG 19 December 2001 FINAL 10/07/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of C.G.", "v. the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrW. Fuhrmann,MrL. Loucaides,MrsF. Tulkens,MrK. Jungwiert,SirNicolas Bratza,MrK.", "Traja, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 26 June and 28 November 2001, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 43373/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, C.G. (“the applicant”), on 24 July 1998. 2.", "The President of the Chamber acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court). 3. The applicant alleged that she had been denied a fair hearing on account of the judge’s conduct at her criminal trial on charges of theft. In particular, she drew attention to interruptions of her counsel at various stages of the trial proceedings and deficiencies in the judge’s summing up to the jury. 4.", "The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. By a decision of 11 April 2001 the Chamber declared the application admissible. 7. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "8. A hearing took place in public in the Human Rights Building, Strasbourg, on 26 June 2001 (Rule 59 § 2). There appeared before the Court: (a) for the GovernmentMrC.A. Whomersley, Foreign and Commonwealth Office,Agent,MrD. Pannick QC,MrM.", "Shaw,Counsel,MsN. Samuel, Home Office,MsG. Harrison, Home Office,Advisers; (b) for the applicantMrA.J. Engel,Counsel,MrG.B. Barrett,Adviser.", "The Court heard addresses by Mr Engel and Mr Pannick. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background 9. For several years until January 1996 the applicant was employed as an accounts clerk at a fruit and vegetable wholesalers.", "It was her job to bank cash and cheques. In January 1996 she resigned after telling the company secretary (“S.”) that there was a shortfall in the accounts which had been caused by the theft in November 1995 of two bags containing GBP 3,700, which she said had been taken out of her possession at some time between her getting the money ready for banking at her place of work, visiting a local public house at lunchtime, and arriving at the bank. She said that she had not reported the theft earlier because she was afraid she would be held responsible and lose her job, and that she had made efforts to meet the shortfall from her own money, but that the strain had become too much. S. subsequently went through the accounts from 1 October 1995 and discovered a shortfall of approximately GBP 2,900. He also discovered that since October 1995 the applicant had been consistently banking the takings late and occasionally failing to bank all the cash received.", "B. The applicant’s trial, conviction and appeal 10. The applicant was charged with stealing GBP 2,905.21. She pleaded not guilty and, in April 1997, following a three-day trial in a Crown Court before a judge and jury, she was convicted of theft and sentenced to two years’ probation and one hundred hours’ community service. She was 27 years of age at the time and had no previous convictions.", "11. The applicant appealed against conviction. Her grounds of appeal were, inter alia, that the judge had made frequent interruptions and persistently hectored defence counsel, thus depriving the applicant of a fair trial. In particular, it was submitted that during the defence counsel’s cross-examination of the main prosecution witness, S., the judge had intervened so frequently that defence counsel was prevented from testing the accuracy of a schedule of banking payments prepared by S. which was the basis of the prosecution case, or from developing possible lines of defence, such as that the loss had occurred prior to the commencement date in the schedule. In addition, the applicant complained that the judge had constantly interrupted her examination-in-chief, making it impossible for her to give her evidence in a coherent manner, and had hectored her counsel to such an extent that he had felt unable to continue and had curtailed the examination.", "The grounds of appeal referred to the transcript of the trial which showed interventions by the judge on almost every page of S.’s cross-examination and on twenty-two of the thirty-one pages of the applicant’s examination-in-chief. 12. In February 1998 the Court of Appeal dismissed the applicant’s appeal against conviction, finding as follows: “The principal ground relied upon by Mr Engel, who appeared at trial and also on this appeal before us, was that the trial was unfair (and he does not mince his words) because of the attitude of the learned judge from the moment that he began to cross-examine [S.] through to the time when the appellant was giving her evidence in-chief, throughout her cross-examination, and even up to the moment when he was addressing the jury on her behalf at the close of the evidence. He says that there were frequent interruptions and that on balance they were hostile to the defence case being presented. They had the effect of disturbing his concentration and diverting the attention of the jury and also the attention of the appellant who was thereby unable to present a coherent and consecutive account of what had happened.", "We find that there is some substance in those criticisms. It appears from a reading of the transcripts that there were frequent interruptions at the start of the appellant’s evidence. In our view those interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, as seems to have been the case and as Mr Engel tells us, of disconcerting him. Likewise, so far as the evidence of [S.] is concerned, it does appear that, probably through a misunderstanding of the points that Mr Engel was seeking to make, the learned judge did interrupt cross-examination far more often than could be justified on any view. We are not impressed with the complaint which is made about the interruption which occurred during Mr Engel’s speech to the jury.", "That was simply to clear one matter up; it could have occupied no more than about ten seconds out of a speech lasting 45 minutes or thereabouts, we are told. That complaint is unjustified. We have to consider that ground and the criticisms which we feel have been made good in the context of the case as a whole. But we turn from that first ground of appeal to the second, which is to the effect that the summing-up was defective . ...", "This was a very short summing-up. It might be said that it was somewhat laconic. But we have to consider whether or not there was a sufficient reference to the defence which was being put forward. In essence the learned judge dealt with the defence at pages 9 and 10 of the transcript. He said: ‘... the broad case is the defendant says that the money was taken from her, I think it is fair to say now in October rather than November, as she originally said, and that she believes now it may well have been taken from [her place of employment], and she seeks to support that by saying there have been other small thefts [there], which suggests somebody dishonest was there who might have taken this amount.’ ... That was a very short way of putting the defence forward.", "It does not deal in great detail with the points which Mr Engel had been attempting to advance both in the course of the cross-examination and in his speech. To that extent the criticism is justified. It is a further criticism that the judge erred in withdrawing from the jury a main line of defence to the effect that the loss may have occurred prior to October 1995, but we find that that ground of appeal is misconceived. The prosecution case was quite simply that the money must have gone after 1 October because it was the reconciliation of the cash received, with the amounts paid into the bank, which produced the deficiency of GBP 2,900. No part of that sum could have been stolen before 1 October.", "Further it is said that the judge wrongly directed the jury that there was no evidence of there being a second paying-in book in use at the time, and the complaint is made that the appellant said that there was (in conflict, it has to be said, with the evidence of [S.]). This was a mistake on the judge’s part, so it appears, and something which we have to take into account. It is then said that the judge erroneously implied that defence counsel had failed to suggest to [S.] that there was more than one paying-in book, and once again it appears that the judge was in error about that. So far as we have been able to see, he was not corrected subsequently. Next it is said in further criticism of the summing-up that the judge told the jury that the appellant never made the suggestion that the money might have been stolen before she left her place of work on the day in question.", "That, too, was an error, but it was corrected by [prosecution counsel] at the close of the summing-up and in itself could not support a basis for quashing the conviction. ... As we have observed, there are criticisms which can be made of the manner in which this trial was conducted. It does seem to us that on occasions this very experienced and highly regarded circuit judge (now retired) did enter the arena, sometimes for legitimate reasons and at other times perhaps without justification. It does seem to us also that counsel found himself incommoded and disconcerted by those interventions and interruptions. Counsel have to possess (and if they do not have them they have to grow) rather thick skins.", "There was never an occasion where the learned judge in the course of trial, so it appears to us, made a ruling to the effect that Mr Engel should not continue with the line of defence that he was attempting to develop either in cross-examination or through his own witness. It appears to us that perhaps Mr Engel was on this occasion a trifle oversensitive. That does not, of course, detract from the validity of the criticisms – some well-founded, some not – in the round. In the end we have to ask ourselves whether or not we think this conviction was unsafe. That is the test we have to apply.", "The case was a strong one; indeed the evidence was overwhelming. The appellant on her account to the police and to the jury was admitting that a substantial sum of money had gone missing whilst it was in her possession. She had, by means of late banking, taken steps to cover up the deficiency. We have not a moment’s hesitation in saying that, so far as we are concerned, the conviction was entirely safe. Notwithstanding the criticisms which we have found to be made out as to the manner in which the trial was conducted, this appeal will be dismissed.” II.", "RELEVANT DOMESTIC LAW A. Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995 13. Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal: “(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss an appeal in any other case.” The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said: “This new provision......is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe.", "If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.” 14. The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson [2000] 1 Criminal Appeal Reports 141 (Court of Appeal) (after the hearing of the applicant’s appeal), where he stated: “The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition.", "In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’s innocence is subject to some lurking doubt or uneasiness whether an injustice has been done ... . If, on consideration of all the facts and circumstances of the case before it, the Court entertains real doubts whether the applicant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.” 15. This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson [2001] 1 Criminal Appeal Reports 8, where Lord Justice Mantell, delivering the judgment of the court, stated that: “The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following.", "The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read: ‘assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’.” Later in his judgment, Lord Justice Mantell stated that: “We are satisfied that [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The E.C.H.R.", "is charged with inquiring into whether there has been a breach of a Convention right. This Court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the E.C.H.R.", "leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree.” B. Case-law on judicial intervention and misconduct 16. The subject of judicial interventions at trial has arisen in a number of appeals. In R v. Hulusi (1973) 58 Criminal Appeal Reports 378 (Court of Appeal) the appellants complained that the conduct of the trial judge had made it impossible for counsel to conduct the case for the defence effectively.", "The judge had in particular made frequent interruptions to the examination-in-chief of the appellants and their witnesses. Lord Justice Lawton stated that: “It is a fundamental principle of an English trial that, if an accused gives evidence, he must be allowed to do so without being badgered and interrupted. Judges should remember that most people go into the witness-box, whether they be witnesses for the Crown or for the defence, in a state of nervousness. They are anxious to do their best. They expect to receive a courteous hearing, and when they find, almost as soon as they get into the witness-box and are starting to tell their story, that the judge of all people is intervening in a hostile way, then, human nature being what it is, they are liable to become confused and not to do as well as they would have done had they not been badgered and interrupted.” The court concluded that the judge must have given the impression that he was cross-examining on the evidence-in-chief as it was being given and that defending counsel was at times driven off-course by the judge’s interventions.", "The convictions were accordingly quashed. 17. In R v. Ahmed (unreported, 3 March 1995, Court of Appeal), Lord Justice Glidewell, delivering the judgment of the court, said that interventions by a judge in a criminal trial were generally undesirable for a number of reasons: (i) they might unsettle a witness; (ii) they might prevent counsel from pursuing a legitimate point; (iii) they might belittle counsel for the defence; and (iv) they might indicate a pre-conceived view by the judge. However, on the facts of the case, despite the inappropriate interventions by the judge, the court was satisfied that counsel for the defence had not been prevented from making the points he wished to make and that the conviction was not “unsafe or unsatisfactory” (which reflected the test contained in section 2 of the 1968 Act at that time). The appeal was therefore dismissed.", "18. The Ahmed case was cited by the Court of Appeal in the context of the new test under the 1995 Act in R v. Roohi (Kambiz) (unreported, 11 July 1997). The court concluded that the Recorder conducting the trial had intervened “far too often” during the questioning of expert witnesses and that various of the undesirable consequences identified by Glidewell L.J. had followed. In all the circumstances, the court concluded that the verdict was unsafe on the basis that the appellant had not received a fair trial.", "19. In R v. Frixou [1998] Criminal Appeal Reports 352 (Court of Appeal), the appellant complained that the Recorder had intervened with his examination-in-chief at trial to such an extent that he had been denied a fair trial. The court upheld the complaint and allowed the appeal, finding that the appellant had been effectively deprived of an opportunity to put his whole case before the jury in an ordered and structured form before that case was tested by the rigours of cross-examination. 20. Similarly, in R v. Roncoli [1998] Crim.", "LR 584 (Court of Appeal), the court found that the trial judge’s hostile interruptions of the appellant’s examination-in-chief had effectively constituted a cross-examination and concluded that the jury was bound to have thought that the judge was of the view that the appellant had no defence. The court stated that the fact that the prosecution case was a strong one did not deprive the appellant of his right to be tried fairly and thus allowed the appeal on the basis that the conviction was unsafe. 21. All of the cases cited at paragraphs 16 to 20 above were decided by the Court of Appeal before the appeal in the applicant’s case. 22.", "In R v. Kartal and others (unreported, 15 July 1999, Court of Appeal), Lord Justice Clarke, giving the judgment of the court, commented as follows: “The key principle is that every person is entitled to a fair trial. That general principle is enshrined in Article 6 of the European Convention on Human Rights. This appeal involves a particular application of that general principle. The particular principles are summarised in ...Archbold 1999... under the heading ‘Conduct of Trial Judge’: ‘Interventions by the judge during a trial will lead to a quashing of a conviction: (a) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured by the common formula in the summing-up that the facts are for the jury, and that they may disregard anything said on the facts by the judge with which they did not agree; (b) when they have made it impossible for defending counsel to do his duty; (c) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way’ (...). We have seen a transcript of the whole trial except for the opening and counsel’s closing submissions to the jury.", "The transcript shows that the judge intervened on a considerable number of occasions during the evidence. He did so in particular during the cross-examination of prosecution witnesses by defence counsel. It is clear from the transcript that he did so for a number of different reasons. For example, he took the view that counsel were cross-examining the witnesses at excessive length and that they were inclined to make comments to witnesses when they should have been asking questions. It is the duty of counsel (...) both to cross-examine witnesses firmly, fairly and with reasonable dispatch and to avoid making comments which should be confined to submissions.", "It is equally the responsibility of the judge to do his or her best to ensure that counsel does not overstep the mark in these or indeed in other respects. Moreover, we see no reason why appropriate comments should not be made by the judge on these topics in the presence of the jury. On the other hand, as we have already said, it is of the utmost importance that every defendant should have a fair trial and indeed that he must be seen to be having a fair trial. It is therefore important that any rebuke to counsel should be delivered in measured tones, especially if it is done in the presence of the jury, and nothing should be done which might have any adverse impact upon the fair presentation of the defendant’s case or which might lead the jury to conclude that the judge was unfairly prejudiced against the defendants (...). It is submitted on behalf of the appellants that in this case on a number of occasions the judge unfortunately treated defence counsel in such a way as to make it difficult for them to put their client’s case fairly to the jury, and was such as might lead the jury to conclude that the judge was prejudiced against both defence counsel and the defendants.", "We have regretfully reached the conclusion that there is considerable force in these submissions. (...) (H)aving considered the transcript as a whole we have reached the conclusion that in the light of the judge’s approach to defence counsel and his frequent interruptions during the cross-examination of prosecution witnesses, none of which favoured the defence and many of which tended to favour the prosecution, together with his attitude to part, at least, of the defence case, these defendants did not receive a fair trial. An impartial observer at that time would, in our opinion, clearly have reached that conclusion. Yet, as we have already said, each defendant has a right to a fair trial. (...) (W)e are quite unable to say that these verdicts are safe given the fact that these appellants did not receive a fair trial.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. The applicant contended that the trial judge’s constant interventions and hectoring of her counsel, together with the Court of Appeal’s decision that the conviction was safe, deprived her of a fair trial, in breach of Article 6 § 1 of the Convention, which provides as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” A. Arguments of the parties 1. The applicant 24.", "The applicant complained that the trial judge made improper interruptions and comments at various stages of the proceedings. The first interruptions took place in the course of her counsel’s cross-examination of the main prosecution witness, S. The applicant highlighted various points at which the judge butted in on her counsel’s questions, and drew attention to the Court of Appeal’s conclusion that the judge interrupted the cross-examination “far more often than could be justified on any view”. She contended that the judge had effectively taken over the cross-examination and in so doing had prevented her counsel from pursuing lines of defence to the effect that the schedule of banking payments prepared by S. was inaccurate and that the money concerned had gone missing before the schedule had been prepared. 25. The applicant’s examination-in-chief followed, and she again highlighted various interruptions by the judge which, she maintained, prevented her from putting her version of events fairly to the jury.", "She contended that her position was particularly vulnerable due to her relatively young age at the time of the trial and the fact that she had never before found herself in court facing criminal charges. She indicated that the judge bullied her counsel by taking over conduct of the examination at a very early stage, leading her counsel to request an adjournment to allow him to re-gather his thoughts before continuing. Even then, she said, the judge continued interrupting her counsel at various points throughout the remainder of the examination. She drew attention to the Court of Appeal’s view that the interruptions, “though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, as seems to have been the case and as [the applicant’s counsel] tells us, of disconcerting him”. 26.", "The applicant also referred to the judge’s interruption of her counsel’s closing speech to the jury which, she said, is a very rare occurrence in English criminal proceedings. She considered that the judge should have awaited his own summing up before making any remarks. She cited extracts from the Court of Appeal’s judgment which also criticised aspects of the judge’s summing up. 27. All in all, the applicant asserted that the whole trial process had been vitiated by the judge’s conduct and “very extreme” interruptions.", "She stated that she had thus suffered greater unfairness at her trial than had the applicants in the previous cases of the Edwards v. the United Kingdom judgment of 16 December 1992 , Series A no. 247-B, Rowe and Davis v. the United Kingdom [GC], no. 28901/95 ECHR 2000-II and Condron v. the United Kingdom, ECHR 2000-V. She highlighted that the Court of Appeal reached its decision only on the basis of a partial transcript of the trial and without the benefit of hearing or seeing the witnesses. 28. The applicant pointed to differences between the test of “safety” as applied by the Court of Appeal under the 1968 Act, as amended, and the test of “fairness” as applied by this Court under Article 6 § 1 of the Convention.", "She cited the Condron case (paragraph 65), which recognised that distinction at the Convention level, and said that the distinction had also been recognised at the domestic level by the Court of Appeal in the above-mentioned Davis, Rowe and Johnson case. She argued that there was no justification for the Court of Appeal finding the conviction “safe” at the same time as, she says, concluding that the trial was unfair. As a result, she maintained that the appeal proceedings did not remedy the defects at trial so as to make the proceedings as a whole fair. 2. The Government 29.", "The Government submitted that the applicant’s trial before the judge and jury was fair for the purposes of Article 6 § 1. They noted, in respect of the applicant’s counsel’s cross-examination of S., that the Court of Appeal did not consider that any of the judge’s interruptions were malevolent. Rather, they seemed to have been caused by a misunderstanding between the judge and the applicant’s counsel. In so far as the examination-in-chief of the applicant was concerned, they pointed out that the trial judge’s interruptions were more frequent at the start of the examination and that, thereafter, the applicant was given a proper opportunity to tell her story. They highlighted also that the judge’s interruption of defence counsel’s closing speech was intended to clarify one matter, and occupied no more than ten seconds of a speech lasting approximately forty-five minutes.", "30. They indicated that, although the judge perhaps interrupted more often than ideally he should have done, the Court of Appeal found the applicant’s counsel to have been oversensitive to those interruptions. In particular, they stated that no relevant evidence was excluded as a result of the judge’s conduct, and pointed out that the judge did not misdirect the jury as to the law. Furthermore, the applicant was not denied the opportunity to develop her lines of defence in relation to the schedule of payments prepared by S. since the Court of Appeal recognised that the schedule had been shown to be inaccurate and the trial judge ruled that the argument that the theft might have occurred prior to the period covered by the schedule was impossible to sustain. 31.", "The Government stated that it was important to put the defects in the trial proceedings into perspective. In particular, they submitted that Article 6 cannot be breached simply because, in the course of a three day trial, the judge had interrupted the applicant’s counsel on some occasions. They highlighted the fact that the jury’s verdict was unanimous and prompt, and that the Court of Appeal described the evidence against the applicant as “overwhelming”. 32. Even if the trial itself was unfair, the Government submitted that there had been no breach of Article 6 considering the proceedings as a whole because any defects at first instance were remedied on appeal.", "They referred to the above-mentioned Edwards case, where the Court of Appeal was able to consider evidence withheld from the defence by the prosecution at trial and, having heard representations from the defendant, to conclude that the fresh information did not affect the jury’s verdict. They pointed out that the Court held that the proceedings as a whole were fair even though the Court of Appeal had not heard the evidence given at trial and the jury had not heard the withheld evidence. By contrast, in the above-mentioned Rowe and Davis case, the Government recalled that the Court held that the appeal proceedings did not remedy defects at trial because previously undisclosed evidence was only examined, and dismissed, by the Court of Appeal in the absence of any appearance or representations on behalf of the defence. They equated the appeal proceedings in the present case more closely to those in the Edwards case, and added that it is easier for the Court of Appeal to remedy defects caused at trial by a judge’s interruptions, since the gravity and frequency of such interruptions is readily identifiable from the transcript, than it is to remedy proceedings where relevant evidence has been excluded from the judge and jury. 33.", "The Government also referred to the above-mentioned Condron case, where it was confirmed that defects during trial can be remedied by a subsequent procedure before a court of appeal. They added that the case was distinguishable on the facts from the applicant’s case, since it concerned a defective direction by the trial judge which had adverse implications for the defendant’s “fundamental” right to silence. The Court of Appeal could not assess the impact which such defects may have had upon the jury’s verdict at trial. 34. The Government submitted that the principles applied by the domestic courts when applying the “safety test” under the 1968 Act, as amended by the 1995 Act, are entirely consistent with the requirements of Article 6 of the Convention.", "They referred to the case-law of the Court of Appeal (see paragraphs 16 to 20 above), and emphasised that, although the domestic courts have explained that a conviction can never be safe if there is doubt about guilt, they have also said that it might be unsafe even if there is no such doubt but there has been some serious unfairness or irregularity in the trial process. They added that domestic case-law also shows that there are cases where unfairness at trial does not lead to the quashing of a conviction because the rights of the defence can be secured by the appeal. The Government said that the applicant’s appeal had been unsuccessful because she had failed to satisfy the Court of Appeal that the defects identified had made her trial unfair. B. The Court’s assessment 35.", "The central question raised is whether the nature and frequency of the trial judge’s interventions, combined with the deficiencies found by the Court of Appeal in his summing-up, were such as to render the proceedings against the applicant unfair. The Court recalls that, in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court (see, for example, the above-mentioned Edwards judgment, § 34). 36. The Court notes that, in the present case, the applicant’s primary ground of appeal in the domestic proceedings was that the trial was unfair because of the excessive and hostile interventions by the trial judge and that this complaint was examined in detail by the Court of Appeal which, after considering those parts of the transcript of the evidence and summing up particularly relied on by the applicant as demonstrating unfairness, rejected the applicant’s appeal. The Court considers that in these circumstances particular weight should be attached to the assessment of the national appellate court, which because of its knowledge and experience of the conduct of jury trials, is especially well placed to determine whether a trial judge’s handling of a trial resulted in unfairness.", "It is true that, while holding that there was “some substance” in the criticisms made of the conduct of the trial judge, the Court of Appeal did not in terms reach a conclusion as to whether such conduct had resulted in unfairness, finding instead that the applicant’s conviction was not “unsafe”. It is true, too, that in its above-mentioned Condron judgment (at paragraph 65), the Court observed that the question whether or not the rights of defence under Article 6 of the Convention were secured in any given case could not be assimilated to a finding that a conviction was “safe” in the absence of any inquiry into the issue of fairness. However, the Court notes not only that such an inquiry was at the heart of the appeal in the present case but that the case-law of the Court of Appeal demonstrates the breadth of the “safety” test in the context of a complaint that judicial interventions rendered a trial unfair. It is apparent from that case-law that, even in cases where the evidence against a defendant is strong and a jury would have been likely to convict in any event, a conviction will be quashed if the Court of Appeal is satisfied that the trial proceedings, taken as a whole, were unfair. In particular, the Court observes that in the cases of R. v. Roohi, R. v. Frixou, R. v. Roncoli and R. v. Kartal the conviction of the defendant was quashed as “unsafe” by the Court of Appeal on the grounds of the excessive interventions by the trial judge, notwithstanding the acknowledged strength of the evidence against each of the defendants.", "Had the applicant been able to demonstrate that the trial judge’s interventions in the present case, which were the subject of criticism by the Court of Appeal, had resulted in an unfair trial the Court is satisfied that her conviction would similarly have been quashed, notwithstanding the “overwhelming” case against her. 37. The first significant interruptions by the trial judge came during the cross-examination of S. by the applicant’s counsel. The Court notes that the judge can be seen to have intervened on all but four of the twenty-six pages of the transcript of the cross-examination, leading the Court of Appeal to conclude that he had interrupted “far more often than could be justified on any view.” However, that court considered it probable that the interruptions resulted from a misunderstanding on the judge’s part of the points which the applicant’s counsel was trying to make. The Court, having examined the transcript, concludes that the interruptions were excessive in number and, on occasion, unduly blunt.", "However, it agrees that a substantial number of the interruptions seem to have resulted from misunderstandings or from the judge’s legitimate concern that the jury should not be confused by the line of questioning which was being pursued. Furthermore, the Court notes that at no point did the trial judge stop the applicant’s counsel from continuing any line of defence in connection with the schedule of payments produced by S. 38. The next interruptions came in the course of the applicant’s own examination-in-chief by her counsel. The Court notes that these were again frequent in number, appearing on twenty-two of the thirty-one pages of the transcript, and that they commenced very early in the course of the examination. The judge effectively took over the examination for a short time (between pages 2 and 4 of the transcript), and his interruptions led the applicant’s counsel to seek a short adjournment, which the judge granted (at page 6).", "The Court thus accepts that the judge’s conduct seems to have had the effect of putting the applicant and her counsel at least temporarily out of their stride at an important point of the trial. The Court notes, however, that following the short adjournment the judge’s interruptions became less frequent and the applicant then appears to have been given a proper opportunity to present her version of events to the court without being restricted from pursuing any particular lines of defence. 39. As for the judge’s interruption in the course of defence counsel’s closing speech, the Court notes that it was very brief. Furthermore, although such interruptions are only rarely warranted, that at issue in the present case appears to the Court, as it did to the Court of Appeal, to have been justified in order to clarify an important aspect of the applicant’s defence for the benefit of the jury.", "Furthermore, although the judge’s summing up was short and contained a small number of factual errors, the Court is of the view that it portrayed the essential features of the applicant’s case and that the scope and significance of the errors, to the extent that they were not corrected subsequently, was limited. 40. The Court accordingly agrees with the Court of Appeal that there is substance in the applicant’s criticisms of the trial judge’s conduct of the proceedings. The question however remains whether this conduct – in particular, the nature and frequency of the judicial interventions – was such as to render the trial, viewed as a whole, unfair. 41.", "The Court observes in the first place that, although the evidence of S. and of the applicant herself in which the interventions occurred was doubtless the most important oral evidence given in the trial, it made up only a part of the trial proceedings which occupied three days. Further, while certain of these interventions of the trial judge were found by the Court of Appeal to be without justification, others were found to be justified. While the Court accepts the assessment of the Court of Appeal that the applicant’s counsel found himself incommoded and disconcerted by these interruptions, it also agrees with the Court of Appeal, from its own examination of the transcript of the evidence, that the applicant’s counsel was never prevented from continuing with the line of defence that he was attempting to develop either in cross-examination or through his own witness. In addition, the Court attaches importance to the fact that the applicant’s counsel was able to address the jury in a final speech which lasted for 45 minutes without interruption, apart from a brief intervention which was found to be justified, and that the substance of the applicant’s defence was reiterated in the trial judge’s summing-up, albeit in a very abbreviated form. 42.", "In these circumstances, the Court does not find that the judicial interventions in the present case, although excessive and undesirable, rendered the trial proceedings as a whole unfair. 43. There has, accordingly, been no breach of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 44.", "The applicant complained that the Court of Appeal’s decision to uphold her conviction upon a partial review of the evidence violated Article 6 § 2 of the Convention, which states: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 45. The Government, with reference to their submissions under Article 6 § 1, disputed this argument. 46. The Court considers that the applicant’s argument amounts to a restatement of her case under Article 6 § 1 of the Convention. For this reason, it concludes that no separate issue arises under this head.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) AND (d) OF THE CONVENTION 47. The applicant complained that the Court of Appeal’s determination of her appeal on the basis of partial transcripts of the trial violated her rights under Article 6 § 3 (c) and (d). She also complained that the judge’s interruptions during her own examination and the cross-examination of S. violated Article 6 § 3 (d). The relevant parts of Article 6 § 3 provide: “Everyone charged with a criminal offence has the following minimum rights: ... c. to defend himself ... through legal assistance of his own choosing ... ; ... d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 48.", "The Government, with reference to their submissions under Article 6 § 1, disputed this argument. 49. The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set out in paragraph 1 (see the above-mentioned judgment in Rowe and Davis v. the United Kingdom, § 59). Having regard to its finding on the applicant’s complaint under Article 6 § 1, the Court considers that the issues which she raises from the standpoint of paragraph 3 (c) and (d) amount in reality to a complaint that she did not receive a fair hearing. For that reason, it concludes that it is unnecessary to examine them.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 50. The applicant complained that United Kingdom law provided no effective remedy to a defendant whose trial had been unfair, and that this constituted a violation of Article 13, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 51. She argued that the “safety” test applied by the Court of Appeal under the 1968 Act as amended by the 1995 Act failed to secure the quashing of a conviction following an unfair trial. 52.", "The Government disputed this argument. 53. Having regard to its decision on Article 6 § 1, the Court considers that it is not necessary to examine the case under Article 13 since its requirements are less strict than, and are here absorbed by those of Article 6 § 1 (see, notably, the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 32, § 88). FOR THESE REASONS, THE COURT 1.", "Holds by six votes to one that there has been no violation of Article 6 § 1 of the Convention; 2. Holds unanimously that the applicant’s complaints under Article 6 §§ 2, 3 (c) and (d) and Article 13 of the Convention do not give rise to any separate issues. Done in English, and notified in writing on 19 December 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) concurring opinion of Sir Nicolas Bratza; (b) dissenting opinion of Mr Loucaides. J.-P. C.S.", "D. CONCURRING OPINION OF JUDGE BRATZA With some hesitation I have concluded that there was no violation of Article 6 § 1 in the present case. The trial judge’s interventions, particularly during the early part of the evidence-in-chief of the applicant were clearly excessive and in several instances without any apparent justification. In the end, however, I am persuaded that, although plainly disconcerting for the applicant and her counsel, the interruptions did not prevent the applicant from putting forward her account of events or her counsel from pursuing and developing his line of defence and that, viewed as a whole, the applicant’s trial was not unfair. In reaching this conclusion, I attach some weight to the fact that the criticisms of the trial judge’s conduct of the case were subjected to detailed scrutiny by the Court of Appeal. However, I would have felt more confident in this conclusion if the Court of Appeal had itself expressly ruled on the question whether the judge’s interventions were such as to result in unfairness, rather than confining itself to examining whether the applicant’s conviction was “unsafe”.", "As pointed out in the majority judgment and in the dissenting opinion of Judge Loucaides, this case gives rise again to the problem identified by the Court in its Condron judgment of the apparent divergence between the Convention test of what constitutes a “fair hearing” and the national courts’ test of whether a conviction is “safe”. It is apparent from the authorities cited in paragraph 36 of the judgment that, in a case such as the present the two tests coincide to the extent that a conviction will not be treated as “safe”, if as a result of excessive interventions by a trial judge the trial proceedings are, taken as a whole, unfair. The particular difficulty which arises in the present case is that these authorities and the principles stated in them were not referred to by the Court of Appeal in dismissing the applicant’s appeal. While I am able to accept the view of the majority of the Court that, if the Court of Appeal had been satisfied that the trial proceedings were unfair, it would have quashed the applicant’s conviction notwithstanding the overwhelming case against her, it would I consider have been preferable that the question whether the trial proceedings were unfair had been expressly addressed and ruled on. DISSENTING OPINION OF JUDGE LOUCAIDES The applicant’s complaint in this case is that there has been a breach of the principle of fairness as guaranteed by Article 6 § 1 of the Convention inasmuch as the judge sitting in the court of first instance intervened in defence counsel’s cross-examination of a key witness and his examination-in-chief of the applicant to such an excessive extent and in such an unjustified manner that it disturbed counsel’s concentration, diverted the jury’s attention and prevented the applicant from presenting her version of events coherently and in chronological order.", "According to the applicant this unfairness was not remedied by the appeal proceedings. The first question that has to be answered is whether there was in fact a breach of the principle of fairness during the first-instance proceedings. There is no definition of the term “fairness” for the purposes of the Convention. It is not a term of art and does not have to be given any strict or technical meaning. On the contrary, as pointed out by the Court, the “right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting [the guarantees of] Article 6 § 1 of the Convention restrictively” (Moreira de Azevedo v. Portugal judgment of 23 October 1990, Series A no.", "189, § 66). It should also be pointed out that from the Convention standpoint a hearing may be held “unfair” and a breach of Article 6 even in the absence of proof of actual prejudice. It is not so much the effect on the outcome of the proceedings that is in question but the process of “hearing” (see Artico v. Italy judgment, Series A no. 37, § 35). In this respect, I believe that the appearance of a fair administration of justice on the basis of an objective test should also be relevant to the question of fairness.", "It is true that the proceedings should be looked at as a whole but at the same time it is correct to say that a single incident or a particular attitude of the Court, even for a limited duration, may render the hearing unfair. For the purposes of the present case it is important to bear in mind the role of a judge in the common-law system in force in the respondent State. For if a judge goes beyond his legitimate role in the conduct of the proceedings, that is an element that points to unfairness. In contrast with the civil-law system (the inquisitorial system) the judge in the common-law system is not himself carrying out an investigation into the facts of the case and cannot question the witnesses other than to seek clarification on specific matters which appear to him unclear. The questioning of witnesses and any objections to any questions fall within the competence of counsel of the parties (the accusatorial system) (see Halsbury’s Laws of England 4th Edition vol.", "17 paragraph 281 no. 1; “If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well tuned cymbal’”: per Denning L.J. in Jones v. National Coal Board [1957}2 All ER 155, CA.) It is evident in this case that the trial judge went beyond his role and to a great extent took over the task of questioning key witnesses himself and on occasions even disallowed questions to which the counsel concerned had raised no objection (see the transcript of the cross-examination by applicant’s counsel of Mr David Shepherd, 16 April 1997 and of the examination-in-chief of the applicant, 17 April 1997).", "The Court of Appeal seems to have accepted that the judge exceeded his role by stating in this respect the following: “the learned judge did interrupt cross-examination [of S.] far more often than could be justified on any view... it does seem to us that on occasions this very experienced and highly regarded circuit judge (now retired) did enter the arena sometimes for legitimate reasons and at other times perhaps without justification” (emphasis added). However, the applicant’s complaint regarding the interventions in question is not confined to their extent but covers also their nature and effect. She complained in particular that the judge intervened and interrupted the testimony of the witnesses in question in such a way and with such frequency that her counsel’s concentration was disturbed and the attention of the jury and also of the applicant were diverted, the applicant thereby being prevented from presenting a coherent and chronological account of her version of events. Bearing in mind the interventions in question recorded in the transcript of the evidence presented to this Court, one can readily understand that the applicant and her counsel were disconcerted and thrown off balance and that that had a negative effect on the proper presentation of the case for the defence. In fact, the Court of Appeal itself has accepted the substance of this complaint as is evident from the following passages of its judgment: “It appears from a reading of the transcripts that there were frequent interruptions at the start of the appellant’s evidence.", "In our view those interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, as seems to have been the case and as Mr Engel tells us, of disconcerting him. Likewise, so far as the evidence of [S.] is concerned, it does appear that, probably through a misunderstanding of the points that Mr Engel was seeking to make, the learned judge did interrupt cross-examination for more often than could be justified on any view.” In this context it is important to bear in mind the inequality between counsel in judicial proceedings and the judge presiding over them. If the judge is wrong on any point, if he oversteps his role in any way, or even is discourteous to the lawyer or a witness or obstructs the proper presentation of the evidence or the submissions of the parties, there is nothing that counsel can do during the hearing of the case to remedy the situation. However courageous and able a counsel may be, he cannot afford to point out effectively during the course of the proceedings any errors or irregularities committed by a judge without thereby running the risk of clashing with the judge or of causing ill-feeling that could adversely affect his case. In short, counsel cannot afford to do anything that may arouse the judge’s hostility or antagonise him or which the judge may interpret as so doing.", "Therefore, the judge should always be conscious of the delicate position of the lawyers appearing before him and exercise the restraint necessary to avoid placing them in an incommodious position that can only have the result of a feeling of oppression on their part to the detriment of the proper presentation of their case. I am inclined to find that the judge failed to exercise such restraint in this case. Having gone through the transcript I am convinced that the interruptions by the judge did have the effect of preventing counsel for the applicant and the applicant herself from having an adequate and effective opportunity to present their case. That, in my opinion, was unfair and contrary to the relevant provisions of Article 6 § 1 of the Convention. It may be useful to refer here, by way of example, to an unjustified interruption by the judge when he questioned the applicant during the first few minutes of her examination-in-chief.", "The judge put twenty-two questions to the applicant and they were followed by an exchange between the judge and applicant’s counsel which ended as follows: “JUDGE HARRISON-HALL: Well, you carry on, you carry on, you carry on then. Don’t let me try to shorten the case. Mr ENGEL: Sorry? JUDGE HARRISON-HALL: I said don’t let me try to shorten the case. Mr ENGEL: Well, it’s not a matter of shortening the case, your Honour.", "It’s a matter of her being able to put her evidence before the court in the way I think is proper on her behalf and that’s what I am trying to do, in the shortest way possible that I can. Your Honour, could I ask for a short adjournment? JUDGE HARRISON-HALL: Yes, certainly. Mr ENGEL: Thank you very much”. Another example of an intervention on the part of the judge in question which supports the view I have expressed above is the lengthy series of exchanges between the judge and counsel for the applicant initiated by the former during the cross-examination of Mr Sheppard and which included the following: “Mr ENGEL: What I’m suggesting, your Honour, is that this money was not stolen by the defendant.", "What she has said in interview is that is could have been stolen at work or in the pub. JUDGE HARRISON-HALL: Yes. Mr ENGEL: So it’s right, in my submission, that these questions are put, which is the reason that I am putting them. JUDGE HARRISON-HALL: But if it was stolen in the pub, the money, then surely the pay-in slip, what are you suggesting, that there is a pay in slip showing this money would have been paid in on a specific date and she’d written it all out and when the money went the pay-in slip had gone as well? Mr ENGEL: If it went at work rather than in the pub.", "JUDGE HARRISON-HALL: Well only she knows when it went. Mr ENGEL: No, no, she doesn’t know your Honour, that’s not fair. JUDGE HARRISON-HALL: Well I understood your case was that it had gone from her handbag. Mr ENGEL: Sorry, she’s saying, with respect, that it either went at work or in the pub, she’s not saying she knows where ... JUDGE HARRISON-HALL: Oh ... (inaudible) ... right.” The applicant alleges that the interruptions demonstrated an element of hostility towards the defence. On the basis of the transcript produced to our Court I am not prepared to accept that there was any deliberate hostility on the part of the judge against any of the parties.", "Nevertheless, the extent and nature of the judge’s interventions, considered as a whole, might reasonably create the impression to an objective observer that the judge unduly hampered the task of the defence and, in that sense, he was hostile. Consequently, in my opinion there has also been in this case a failure to ensure the required appearance of a “fair hearing”. The Government in their observations of July 2000 state the following: “Not all the trial judge’s interruptions were hostile to the defence ... Even those that were, were aimed at clarifying matters for the jury”. In arriving at the above conclusions I have been conscious too of the whole context of the case, including certain other irregularities in the conduct of the case by the trial judge; although these were not invoked by the applicant before us, they appear to have been accepted by the Court of Appeal in its judgment that was communicated to the Government as part of our examination of the case with the following question: “Did the applicant receive a fair hearing before the trial judge in accordance with Article 6 § 1 of the Convention?” These irregularities are evidenced by the following passages of the aforementioned judgment: “... That was a very short way of putting the defence forward.", "It does not deal in great detail with the points which Mr Engel had been attempting to advance both in the course of the cross-examination and in his speech. To that extent the criticism is justified. ... Further it is said that the judge wrongly directed the jury that there was no evidence of there being a second paying-in-book in use at the time, and the complaint is made that the appellant said that there was (in conflict, it has to be said, with the evidence of [S.]). This was a mistake on the judge’s part, so it appears, and something which we have to take into account. It is then said that the judge erroneously implied that defence counsel had failed to suggest to [S.] that there was more than one paying-in book, and once again it appears that the judge was in error about that.", "... As we have observed, there are criticisms which can be made of the manner in which this trial was conducted”. For the above reasons I have come to the conclusion that there has been a breach of the principle of fair hearing during the trial of this case. There remains the question whether the unfairness at the trial was remedied by the Court of Appeal. The applicant in his appeal has included the complaint that the trial was unfair for exactly the same reasons that were stated to us. The Court of Appeal at page 4 of its judgment stated: “The principal ground relied upon by Mr Engel, who appeared at trial and also on this appeal before us, was that the trial was unfair (and he does not mince his words) because of the attitude of the learned judge from the moment that he began to cross-examine Mr Shepherd ...” Thereafter, the Court of Appeal after setting out in detail the complaint regarding unfairness during the trial, stated: “We find that there is some substance in those criticisms”.", "There follow in the judgment the findings of the Court of Appeal in respect of the “criticisms” in question which I have already quoted above and which can be summarised as follows: “There were frequent interruptions at the start of the appellant’s evidence”. “The interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, disconcerting[ the counsel of the applicant].” “Likewise, so far as the evidence of Mr Shepherd is concerned,... the judge did interrupt cross-examination far more often than could be justified on any view.” Later on in its judgment the Court of Appeal repeats: “there are criticisms which can be made of the manner in which this trial was conducted” and “counsel found himself incommoded and disconcerted by those interventions and interruptions [of the trial judge]”. The Court then expresses the view that “perhaps Mr Engel was on this occasion a trifle oversensitive” but the Court admits that “that does not, of course, detract from the validity of the criticisms which has made of the manner in which this trial was conducted”. Yet, in spite of the vindication in substance by the Court of Appeal of the appellant’s complaints regarding the unfair conduct of the trial, as explained above, and in spite of the English case-law, brought to our notice, to the effect that on appeal the appellate court is entitled to examine whether there was in fact an unfair trial, that being something which may result in the judgment of the lower court being quash, the appeal court in this case did not in the end apply the test of unfairness but only the test of whether the conviction was “unsafe”. In fact, it appears that the Court of Appeal felt that that was the only test applicable in an appeal case like the present one.", "This is evident from the following passage at the end of the judgment: “We look at those criticisms – some well-founded, some not – in the round. In the end we have to ask ourselves whether or not we think this conviction was unsafe. That is the test we have to apply. The case was a very strong one; indeed the evidence was overwhelming ... we have not a moment’s hesitation in saying that, so far as we are concerned, the conviction was entirely safe. Notwithstanding the criticisms which we have found to be made out as to the manner in which the trial was conducted, this appeal will be dismissed.” However, the test of safety of a conviction does not satisfy the test of fairness of a hearing as required by Article 6 of the Convention.", "I reiterate here what our Court said in the case of Condron v. the United Kingdom judgment of 2 May 2000, ECHR 2000-V: “The Court must also have regard to the fact that the Court of Appeal was concerned with the safety of the applicants’ conviction, not whether they had in the circumstances received a fair trial. In the Court’s opinion, the question whether or not the rights of the defence guaranteed to an accused under Article 6 of the Convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness”. Therefore, the unfairness of the trial was not, in my opinion, remedied in the appeal proceedings. For all the above reasons, I find that there has been in this case a breach of the principle of fairness as guaranteed by Article 6 § 1 of the Convention." ]

[ "SECOND SECTION CASE OF TAYDAŞ v. TURKEY (Application no. 52534/09) JUDGMENT STRASBOURG 26 November 2013 FINAL 26/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Taydaş v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Peer Lorenzen,Dragoljub Popović,Nebojša Vučinić,Paulo Pinto de Albuquerque,Egidijus Kūris, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 5 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "52534/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hıdır Taydaş (“the applicant”), on 29 September 2009. 2. The applicant was represented by Mr B. Yıldırım, a lawyer practising in Tunceli. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged that he had been shot by the gendarmerie; that the force used against him had not been absolutely necessary; and that the domestic authorities had failed to carry out an effective investigation into the circumstances of his wounding. 4. On 7 September 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1960 and lives in Izmir. 6. On 3 September 2007 at around 8.10 p.m. the applicant was shot by officers from a gendarmerie special operations team immediately after he and his brother left a neighbouring house in the vicinity of their hamlet, Gölek, in the district of Mazgirt, in Tunceli, south-east Turkey. 7.", "As a result of the shooting, the applicant was hit with a total of eight bullets and suffered injuries to his arms, his legs, and his left shoulder. According to a medical report issued by the Forensic Medicine Department of Fırat University dated 13 November 2007, the injuries that the applicant sustained were life-threatening. According to the report, the applicant received medical treatment and underwent surgical operations at the cardiac surgery units at the Elazığ Military Hospital and the Fırat University Hospital between 3 and 19 September 2007. He was then transferred to the Ege University Hospital in Izmir upon the request of his family members. A further medical report issued on 27 June 2011 by a board of doctors from the Karşıyaka State Hospital stated that the applicant was experiencing difficulties in walking and using his left shoulder as a result of firearm injuries.", "In particular, he had suffered a 48% loss of function in his legs and a 10% loss of function in his left shoulder. According to the report, the applicant was permanently disabled and only able to walk with the aid of two crutches. The applicant’s brother was not injured during the shooting. A. Crime scene investigation of 4 September 2007 8.", "On 4 September 2007 a crime scene investigation was carried out by gendarmerie officers from the Tunceli Provincial Gendarmerie Command, who then drafted a crime scene report. The report was signed by six gendarmerie officers, including İ.S. and M.K., who had taken part in the operation of 3 September 2007. The report drafted by the officers stated that the special operations team had received information that members of the PKK[1], an illegal organisation, would be going to the house where the applicant and his brother had gone. The information had been given by B.B., the son of M.B., the owner of the house, who had been threatened by members of the PKK.", "The security forces began search and detection activities in the region at around 3.30 a.m. after the receipt of this information and at 3.30 p.m. the commander of the operation, together with two team commanders, identified four points in the vicinity of M.B.’s house at which the officers could position themselves. At around 7.40 p.m. gendarmerie officers arrived in the vicinity, took up position at the four different points identified earlier by their commanders and waited for PKK members. The applicant and his brother arrived at the house at 8 p.m. and left at 8.10 p.m. When they had left the house, E.Ö. and G.A., officers positioned at point no.", "3 who had a thermal camera and a night vision device, informed the commander of the operation, İ.S., who was positioned at point no. 2, that the applicant and his brother might have weapons on them. They also informed the commander that the applicant and his brother were acting suspiciously and that they had checked the area around the house with their torches and then turned them off. The team commander subsequently asked M.A. and Y.S., officers who were positioned at the same point and who had thermal cameras, whether the applicant and his brother were carrying weapons.", "The officers informed the commander that the applicant and his brother had objects in their hands which looked like weapons. The team commander then ordered the applicant and his brother to stop when they were 60 metres away. As they failed to do so, officers first fired warning shots in the air (3-5 shots) and then opened fire in the direction of the applicant and his brother (13-14 shots) towards their feet. They stopped firing when the applicant and his brother shouted that they were villagers. The report further stated that when the officers approached the applicant and his brother and found that the former was wounded, they gave him first aid straight away and the applicant was transferred to Elazığ Military Hospital by helicopter.", "According to the report, a total of twenty‑six spent bullet cases were found where the officers had been located and there was a distance of 15 to 30 metres between the officers and the applicant and his brother. 9. A gendarmerie officer also drew a sketch of the scene, according to which the applicant was 60 metres away from M.B.’s house and 15 and 30 metres away from points no. 2 and 1, respectively, where spent bullet cases had been found. B.", "Investigation carried out by the Mazgirt Public Prosecutor 10. On an unspecified date the applicant and his brother lodged a complaint against the gendarmerie officers who had been responsible for the applicant’s shooting. The Mazgirt Public Prosecutor subsequently initiated an investigation against six gendarmerie officers on a charge of exceeding the limits of their powers in resorting to force. 11. On 6 September 2007 the Mazgirt Public Prosecutor took statements from the applicant’s brother, S.T.", "He submitted that they had gone to M.B.’s house because they had wished to inform his son, B.B., that their mother would not be going to the town centre with him the next day. S.T. further maintained that they had walked with their torches on and that there had been no warning or warning shots before the shooting. He contended that when the shooting had started, he had been 1-2 metres behind his brother. They had both thrown themselves on the ground when the shooting had started.", "12. On 6 and 13 September 2007 the public prosecutor obtained statements from B.B. and M.B., the occupants of the house, respectively. They both maintained that they had informed the security forces of the threats that M.B. had received.", "B.B. further contended that he had seen the applicant’s mother at around 5 p.m. on the same day and that she had asked him to take her to the town centre the next day. B.B. and M.B. stated that the applicant and his brother had come to their house in order to tell them that their mother would not be going to the town centre with B.B after all and that they had subsequently left.", "B.B. maintained that he had been surprised when he first saw the applicant and S.T., given that their visit had occurred after sunset. B.B. further noted that he had told the applicant and S.T. to turn their torches on when they left and that they had said “OK”.", "M.B. maintained that the applicant and his brother had had lit torches in their hands when they had arrived at his house. He also contended that the gunfire had started 2-3 minutes after the applicant and his brother had left; that it had lasted a few minutes; and that at the same time as the gunfire he had heard the applicant and S.T. shouting “We are villagers. Do not fire.” M.B.", "submitted that his house had also been hit by bullets. 13. On 11 September 2007 the Mazgirt Public Prosecutor took statements from a number of gendarmerie officers who had been involved in the operation of 3 September 2007. İ.S., the team commander, maintained before the public prosecutor that they had started the operation upon receipt of information that terrorists would be going to M.B.’s house. He noted that a total of twenty-six gendarmerie officers had taken part in the operation.", "He further contended that E.Ö. and G.A. had informed him that there had been a flash of light from an object carried on the shoulder of one of the suspects which extended to hip level. He further stated that M.A. and Y.S.", "had also informed him that one suspect was carrying an object that extended from the shoulder to the hip. The commander maintained that the applicant and his brother had come within 10 metres of the point where they were positioned when he shouted at them to stop. According to the commander, the applicant and his brother had failed to stop despite the warning and had attempted to escape when they heard the warning shots. At that point he instructed the officers to open fire. İ.S.", "noted that a total of five officers had fired towards their feet and that they had stopped firing when the applicant had been shot and his brother had shouted that they were villagers. İ.S. lastly contended that the applicant’s injuries had been his own fault and that they had not intended to kill the applicant or his brother. According to İ.S., if they had intended to kill them, neither the applicant nor his brother would have survived. 14.", "In their statements before the public prosecutor, E.Ö. and G.A. maintained that they had seen the applicant and his brother by using a night vision device and a thermal camera while the suspects were walking towards M.B.’s house. They had observed that the suspects had stopped when they were close to the house and had remained kneeling down for a while before entering into the house. They further maintained that they had seen shiny objects on the suspects’ shoulders.", "The officers noted that when they had left the house the suspects had lit their torches, had pointed them towards the path that they would take and had then turned them off. The officers had informed İ.S. of the aforementioned observations and had considered that the suspects might have been sending a message to another group in the area with their torches. They had then heard İ.S. ordering the suspects to stop and had subsequently heard firing for around five seconds.", "15. M.A., Y.S., and three other officers, R.E., B.B.A and M.K., in almost identical statements before the Mazgirt Public Prosecutor, maintained that İ.S. had told them that officers from another position had informed him that one of the two suspects was carrying an object on his shoulder which extended to hip level. Y.S. and M.K.", "further noted that they had also received this information through their radio transmitters. They further stated that the applicant and his brother had attempted to run away when their commander had told them to stop. As the suspects had not complied with the commander’s instruction, they had first fired warning shots and had then opened fire towards the suspects’ feet. They had stopped firing when one of the suspects had shouted that they were villagers a few seconds later. They maintained that it had been dark when the shootings occurred and that the applicant and his brother had not had lit torches with them.", "They stated that the applicant had been wounded because of his own conduct and that they would not have opened fire if the applicant and his brother had stopped in the first place. According to these five officers, the applicant must have been shot in the shoulder after falling to the ground upon being shot in the legs. They lastly contended that they had not intended to kill the applicant or his brother and that if they had had that intention, neither the applicant nor his brother would have survived. 16. In their statements before the public prosecutor, Ş.Y.", "and A.Ş., two officers who had been positioned at the farthest point from the house, stated that they had not heard their commander give the order to stop, as it had been impossible due to the distance between them, and that they had heard gunfire for a few seconds. They had also heard their commander’s instruction to hold fire over the radio transmitter. 17. On 13 September 2007 the Mazgirt Public Prosecutor held an onsite inspection in Gölek. The public prosecutor observed the area where the applicant had been shot and heard İ.S., M.K.", "and A.Ş., who reiterated their statements given on 11 September 2007. During the inspection, a gendarmerie officer took photographs of the area under the instructions of the Mazgirt Public Prosecutor. 18. On 1 February 2008 the Mazgirt Public Prosecutor decided that his office did not have jurisdiction over the prosecution, given that the suspects had allegedly committed the offence of excessive use of force. The Mazgirt Public Prosecutor then sent the investigation file to the Elazığ Military Prosecutor’s Office.", "C. Decision of the Elazığ Military Prosecutor 19. On 31 December 2008 the Elazığ Military Prosecutor decided not to bring criminal proceedings against the six gendarmerie officers. The military prosecutor noted that the applicant had stated that he and his brother had had their torches on when he had been shot and that there had been hundreds of shots. The prosecutor found these claims unfounded, considering that at the time of the shootings night had not entirely fallen and that it would not therefore have been reasonable to have torches switched on. In the light of the statements of the applicant and his brother that they had not at first realised that they were being targeted and had only thrown themselves to the ground after the shooting had started, the prosecutor considered that the accused officers had not fired directly towards the applicant and his brother.", "The prosecutor further noted that the applicant’s brother, M.B. and B.B. had all stated that the officers had fired because they had considered the applicant and his brother to be terrorists, a statement which was in line with the accused officers’ defence submissions. According to the prosecutor, the manner in which the applicant and his brother had acted (staying in the house only for 5 minutes, leaving the house without the hosts coming out of the house, keeping a distance between them and turning their torches off while walking) had justified the officers’ suspicions that they were terrorists. The prosecutor further noted that, had there been hundreds of shots fired, the applicant’s brother would also have been injured.", "The prosecutor considered that it had been reasonable for the gendarmerie officers to think that the torches had been weapons as it had been dark and because the torches, whose dimensions were 25 cm x 15 cm, had not been switched on, and that the information given to the security forces had corresponded to the circumstances as they unfolded. The military prosecutor finally found it established that gendarmerie officers had fired towards the ground and towards the feet of the applicant, whom they had considered to be a terrorist, and with a view to effecting his arrest in accordance with the law. He therefore concluded that the officers had not been at fault and had not used excessive force. 20. On an unspecified date the applicant lodged an objection against the decision of the military prosecutor.", "21. On 6 April 2009 the Malatya Military Court upheld the Elazığ Military Prosecutor’s reasoning and dismissed the applicant’s objection. II. RELEVANT DOMESTIC LAW 22. A description of the relevant domestic law can be found in Mustafa Aldemir v. Turkey, no.", "53087/07, §§ 28-31, 2 July 2013. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2, 3, 6 AND 13 OF THE CONVENTION 23. The applicant complained under Articles 2 and 3 of the Convention that the force used by the gendarmerie officers had not been absolutely necessary, that the excessive nature of the use of force had shown that the officers had in fact intended to kill him, and that he had suffered bodily harm as a result of the shootings. He further complained under Articles 2, 6 and 13 of the Convention that the domestic authorities had failed to carry out an effective investigation into the circumstances of his wounding.", "24. The Government contested that argument. 25. The Court notes at the outset that the Government did not challenge the applicability of Article 2 of the Convention. In any event, the Court considers that the applicant’s fortuitous survival does not prevent the Court from examining the complaint under Article 2 of the Convention, since the use of firearms in the instant case was potentially fatal and put the applicant’s life at risk (see paragraph 7 above).", "Indeed, the Court has examined complaints under this provision in a number of cases where the alleged victim did not die as a result of the impugned conduct (see Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004-XI); Peker (no. 2) v. Turkey, no. 42136/06, §§ 39-43, 12 April 2011 and the cases cited therein; Evrim Öktem v. Turkey, no. 9207/03, §§ 42 and 43, 4 April 2008 and the cases cited therein; and compare with Mustafa Aldemir, cited above, §§ 28-31).", "Thus, having regard, in particular, to the fact that the injuries that the applicant sustained were life-threatening and in the light of the aforementioned case-law, the Court deems it more appropriate to examine the applicant’s complaints solely from the standpoint of Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility 26.", "The Government submitted that the applicant had failed to exhaust domestic remedies as the domestic proceedings were still pending. In the alternative, they maintained that the applicant, who claimed that the investigation had been ineffective, should have applied to the Court within six months after the shooting. 27. The applicant replied that he had exhausted domestic remedies and had introduced the application within six months after the final domestic decision. 28.", "The Court observes that the investigation into the applicant’s allegations ended on 6 April 2009, when the Malatya Military Court dismissed the applicant’s objection to the decision of 31 December 2008, whereas the application was introduced on 29 September 2009. It therefore dismisses the Government’s objection that the domestic proceedings were pending at the time of the introduction of the present application. Similarly, given that the application was lodged within six months after the final decision in the domestic proceedings, the Court also dismisses the second limb of the Government’s objections. 29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 30.", "The applicant argued that the force used by the gendarmerie officers against him had been unlawful. He maintained that the excessive nature of the use of force, as a result of which he had become disabled, showed that the security forces had in fact intended to kill him. He further contended that the security forces had not warned him and his brother to stop and that he had not attempted to escape, as the members of the security forces had alleged. According to the applicant, the security forces had actually seen him and his brother carrying torches, and not weapons, before firing but had fired anyway, since they had thought that he and his brother were terrorists. 31.", "The applicant further submitted that the investigation carried out by the Mazgirt Public Prosecutor and the military prosecutor had been ineffective. He stated in this respect that the investigation had been conducted by the gendarmerie forces and that the Mazgirt Public Prosecutor had only gone to the place where he had been shot after 10 days had passed. The applicant further maintained that neither he nor his lawyer had been allowed access to the investigation file. He contended, in this connection, that the onsite inspection conducted by the Mazgirt Public Prosecutor had also been inadequate, as the fact that M.B.’s house had also been hit by bullets had not been noted in the report prepared afterwards. In addition, the Elazığ Military Public Prosecutor had also failed to carry out an onsite visit.", "32. The Government submitted that the security forces had acted in accordance with the law. According to the Government, the torches carried by the applicant and his brother had been identified as weapons by the gendarmerie officers because the nature of the area had prevented the security forces from having a clear view of the applicant and his brother. Furthermore, the information given to the security forces had corresponded to the circumstances in which they had found themselves. The Government maintained that the gendarmerie officers had first warned the applicant and his brother and had fired warning shots before opening fire towards them.", "They concluded that the force used against the applicant had been absolutely necessary and proportionate. 33. As regards the investigation, the Government submitted that the Mazgirt Public Prosecutor had conducted an onsite visit and prepared a report and a sketch of the scene of the incident. Furthermore, the evidence found at the scene had been safeguarded. The Government contended that both the Mazgirt Public Prosecutor and the Elazığ Military Public Prosecutor had conducted an adequate investigation, to which the applicant had had access.", "According to the Government, both prosecutors had heard the applicant, his brother, the accused officers and witnesses. They maintained that the investigation had been effective and had been concluded within a year and seven months. 2. The Court’s assessment 34. The Court reiterates that the text of Article 2 of the Convention read as a whole demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life.", "The use of force, however, must be no more than “absolutely necessary” for the achievement of any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8-11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 148-149, Series A no. 324). 35.", "Turning to the circumstances of the present case, it is not disputed between the parties that the applicant was shot and seriously injured by the security forces of the respondent State. The Court will therefore examine whether the Government have discharged their burden of justifying the shooting. In doing so, it will have particular regard to the investigation carried out at the domestic level in order to establish whether that investigation was effective, in the sense that it was capable of leading to the determination of whether the force used was or was not justified in the circumstances (see, for example, Gülbahar Özer and Others v. Turkey, no. 44125/06, § 59, 2 July 2013, and Özcan v. Turkey, no. 18893/05, § 61, 20 April 2010).", "36. The central importance of the protection afforded under Article 2 of the Convention is such that the Court is required to subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination – even where domestic proceedings and investigations have already taken place (see Özcan, cited above, § 63, and Erdoğan and Others v. Turkey, no. 19807/92, § 71, 25 April 2006). 37. As for the planning of the operation, the Court observes that the security forces had received information from B.B.", "that members of the PKK would be going to his father’s house, where the applicant and his brother subsequently went. They therefore instigated an operation in the area during the early hours of 3 September 2007. After almost twelve hours of work, the operation commander and team commanders chose four points facing M.B.’s house at which the members of the security forces could position themselves. Gendarmerie officers then took up position at those points and began waiting. The gendarmerie officers thus had adequate time and resources to give thought to different ways of observing possible suspects and apprehending them by using non‑lethal methods.", "Thus, it cannot be said that the security forces had to take decisions and act in the heat of the moment (compare with Anik and Others v. Turkey, no. 63758/00, § 63, 5 June 2007). In this connection, the Court has serious doubts regarding the Government’s submissions that the officers – who had a thermal camera and a night vision device – were unable to have a clear view of the applicant and his brother from where they were positioned. 38. As to the investigation, the Court observes at the outset that the initial and critical phases of the investigation were carried out by members of the gendarmerie unit who had carried out the operation of 3 September 2007.", "M.K. and the four other officers who signed the crime scene report were subsequently identified as suspected of being responsible for the applicant’s wounding by the Mazgirt Public Prosecutor. In fact, İ.S. was the commander of the whole operation of 3 September 2007. The same officers also secured the crucial evidence, such as the spent bullet cases found in the area.", "The Court considers that allowing the same unit of gendarmerie officers involved in the operation to take such an active part in the investigation was not only so serious as to taint the independence of the entirety of the investigation but also entailed the risk that evidence crucial for establishing the responsibility of the gendarmerie officers would be destroyed or ignored (see Gülbahar Özer and Others, cited above, § 63; Mižigárová v. Slovakia, no. 74832/01, § 100, 14 December 2010 and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 333-341, ECHR 2007‑II). 39. Furthermore, the Mazgirt Public Prosecutor failed to conduct an onsite inspection in the area for ten days, which entailed a further risk of the evidence being destroyed.", "What is more, when the public prosecutor visited the area in question three of the members of the security forces who had directed and taken part in the operation accompanied him. The Court does not ignore the fact that they made statements to the public prosecutor in their capacity as suspects. Yet, the Court finds the absence of the applicant’s lawyer, his brother or the witnesses during that visit inappropriate. In the Court’s view, their presence would not only have helped the public prosecutor in establishing the circumstances of the incident, it would have also given the applicant’s representative or his brother a chance to challenge the statements of the officers on the spot. The Court further observes that the Mazgirt Public Prosecutor failed to inspect M.B.’s house with a view to verifying his statements that his house had been hit by the bullets and, thus, assessing the proportionality of the force used.", "Neither did he ensure the collection of the bullets used during the operation. 40. The Court further observes that the Mazgirt Public Prosecutor did not take any steps aimed at resolving the inconsistency between the account of the applicant and his brother and that of the security forces. In particular, he failed to establish with specific evidence whether the security forces had actually fired warning shots before shooting the applicant. The public prosecutor should have ensured that the bullets, the empty cartridges and the firearms of the gendarmerie officers were collected and sent for ballistic examination (see Mustafa Aldemir, cited above, §§ 49 and 55).", "41. Moreover, there is a serious inconsistency between the account of events as described by İ.S. and that of M.A. and Y.S., the officers who were also positioned at point 2. İ.S.", "maintained before the Mazgirt Public Prosecutor that he had received information from both the officers at point no. 3 and M.A. and Y.S. that one suspect had an object that extended from the shoulder to the hip, whereas M.A. and Y.S.", "stated that it had been İ.S. who had told them about that object. There is nothing in the documents submitted to the Court demonstrating that the Mazgirt Public Prosecutor attempted to eliminate this inconsistency. He also failed to enquire why and how the statements of five gendarmerie officers, namely M.A., Y.S., R.E., B.B.A. and M.K., regarding the operation were almost identical to the extent that most of the texts were word-for-word the same.", "The Court also cannot overlook the fact that only ten of the twenty-six officers who took part in the operation of 3 September 2007 made statements before the Mazgirt Public Prosecutor. 42. In their observations to the Court, the Government submitted that the accused officers, the applicant and the witnesses had given evidence to the Elazığ Military Public Prosecutor. However, they failed to produce any document in support of these submissions. What is more, the military public prosecutor’s decision of 31 December 2008 does not contain any reference to statements taken at his office.", "It appears that the Elazığ Military Public Prosecutor simply took into account the statements taken by the Mazgirt Public Prosecutor, as well as the documents prepared by the latter. It appears that he did not conduct an onsite inspection either. The Court is therefore led to conclude that the Elazığ Military Public Prosecutor rendered his decision solely on the basis of the investigation conducted by the Mazgirt Public Prosecutor, contrary to what was claimed by the Government. 43. Similarly, the applicant alleged that he and his lawyer had not been allowed to have access to the investigation file at the initial stages of the investigation by a decision of Mazgirt Magistrates’ Court.", "However, he did not submit the decision in issue. As a result, the Court cannot give further consideration to the applicant’s allegation. 44. Nevertheless, in the light of the serious defects in the investigation which are highlighted above and which are in breach of the obligation under Article 2 of the Convention to carry out effective investigations, the Court considers that the investigation carried out at the domestic level was clearly inadequate and left many important questions unanswered. As a result, the investigation was not capable of establishing the true circumstances surrounding the applicant’s shooting.", "The Court therefore concludes that the Government have failed to show to the Court’s satisfaction that the resort to the use of lethal force against the applicant was absolutely necessary and proportionate (see Gülbahar Özer and Others, cited above, §§ 74 and 75, and Peker (no. 2), cited above, § 59). 45. There has accordingly been a violation of Article 2 of the Convention in its substantive and procedural aspects in respect of the shooting of the applicant. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 47. The applicant claimed 700,000 Turkish liras (TRY), approximately 304,000 euros (EUR), in respect of non-pecuniary damage. He further claimed TRY 500,000 in respect of pecuniary damage.", "This sum concerned medical expenses incurred and loss of earnings arising as a result of his incapacity for work. In support of his claims, the applicant submitted medical reports issued by the Karşıyaka State Hospital and the Ege University Hospital. The report by the Karşıyaka State Hospital demonstrates his permanent disability. According to the report of the Ege University Hospital, the applicant was hospitalised and received medical treatment, including surgical operations, between 3 October and 14 December 2007. The applicant also submitted a number of invoices in relation to his medical examinations between December 2007 and August 2008 at the Orthopaedics Department of the Ege University Hospital amounting to a total of EUR 285.", "48. The Government considered that the claims for non-pecuniary and pecuniary damage were excessive and unsubstantiated. 49. Having regard to the applicant’s failure to submit any evidence or other information in support of his claim for pecuniary damage in so far as it concerns his loss of earnings and incapacity for work, the Court rejects this part of the applicant’s claim for pecuniary damage. On the other hand, the Court considers that there is a direct causal link between the applicant’s injuries sustained as a result of the shooting and the applicant’s medical examinations between December 2007 and August 2008 for which invoices were submitted to the Court.", "In addition, the Government did not challenge this causal link. The Court accordingly awards the applicant EUR 285 in respect of pecuniary damage. 50. As to the claim in respect of non-pecuniary damage, in the light of the violation of Article 2 of the Convention found above and taking into account the applicant’s permanent disability, the Court awards the applicant EUR 52,000 in respect of non-pecuniary damage. B.", "Costs and expenses 51. The applicant also claimed TRY 5,100, approximately EUR 2,200, for costs and expenses incurred before the Court. He sought EUR 650 to cover administrative costs, such as postage and translation fees. He further claimed EUR 1,550 for his lawyer’s fee, referring to the recommendations of the Union of Bar Associations of Turkey regarding lawyers’ fees. 52.", "The Government submitted that the applicant’s claims were not supported by documentary evidence. 53. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant failed to substantiate that he actually incurred the costs claimed. In particular, he failed to submit documentary evidence, such as invoices demonstrating administrative costs, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case.", "Accordingly, the Court makes no award under this head. C. Default interest 54. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 2 of the Convention in both its substantive and procedural aspects; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 285 (two hundred and eighty-five euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 52,000 (fifty-two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident [1] Kurdistan Workers’ Party." ]

[ "SECOND SECTION CASE OF TAMER TANRIKULU v. TURKEY (Application no. 36488/08) JUDGMENT STRASBOURG 29 November 2016 This judgment is final but it may be subject to editorial revision. In the case of Tamer Tanrıkulu v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Nebojša Vučinić, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 8 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 36488/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr. Tamer Tanrıkulu (“the applicant”), on 29 July 2008.", "2. The applicant was represented by Mr. B. Mugan, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3. On 23 January 2014 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1983 and lives in Iğdır. 5. On 14 January 2005, while the applicant was serving as a conscript in the army, he fell from the roof where he was on guard.", "Subsequently, he was treated in various civilian and military hospitals. According to a medical report dated 4 May 2005, the applicant was diagnosed as suffering from a left parietal craniotomy and was declared unfit for military service. 6. On 8 July 2005 the applicant applied to the Ministry of Defence for compensation for his injury. 7.", "Following a tacit dismissal of the claim by the administrative authorities, the applicant initiated compensation proceedings in respect of the injuries he had sustained during his military service before the Supreme Military Administrative Court on 1 November 2005. He sought 20,000 Turkish liras (TRY) (approximately 12,400 euros (EUR)[1]) in respect of pecuniary damage and the same sum in respect of non-pecuniary damage. 8. An expert report dated 4 October 2007 assessed the applicant’s pecuniary damage at TRY 58,384 (approximately EUR 36,260). 9.", "On 19 October 2007 the applicant asked the court to increase his initial claim via an amendment (ıslah), stating that he had only become aware of the true extent of his pecuniary damage when he had received the expert’s report. 10. On 28 November 2007 the Supreme Military Administrative Court ruled in favour of the applicant and awarded him the full amount of his initial claim in respect of pecuniary damage, namely TRY 20,000. It awarded him a further TRY 12,000 in respect of non-pecuniary damage. However, the court dismissed the applicant’s application for an amendment, considering itself bound by the initial claim.", "The court stated in particular: “The purpose of an amendment is to rectify a procedural act. Having regard to the judgment of the Constitutional Court published in the Official Journal of 4 November 2000, we must conclude that, in civil law, injured persons are entitled to seek additional compensation once an expert report has been issued. However, in the proceedings before the Supreme Military Administrative Court, the time-limits of one year [from the date when a claimant becomes aware of the impugned act] and sixty days from the date of referral of the administrative authorities apply. Under section 46(4) of the Supreme Military Administrative Court Act, the amount claimed cannot be rectified once those deadlines have passed. Consequently, the applicant’s amendment claim must be rejected for being out of time ...” 11.", "By a judgment of 16 April 2008 the Supreme Administrative Court dismissed the applicant’s application for rectification of its previous decision. II. RELEVANT DOMESTIC LAW 12. The relevant domestic law and practice in force at the material time can be found in Fatma Nur Erten and Adnan Erten v. Turkey (no. 14674/11, §§ 17 and 18, 25 November 2014).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 13. The applicant submitted that the judgment of the Supreme Military Administrative Court to dismiss his additional claim for compensation for being out of time had deprived him of his right of access to a court and, therefore, of his right to a fair trial within the meaning of Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 14. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 15. The applicant maintained that he had been deprived of his right to a fair trial and effective access to a court on the grounds that the Supreme Military Administrative Court had dismissed his additional claim for compensation for being out of time. He alleged that the procedural rule which prevented a claimant from amending his or her initial claim in military administrative proceedings had operated so as to restrict his right to bring an action before he was aware of the true extent of the pecuniary damage he had suffered.", "16. The Government left it to the Court’s discretion to assess the applicant’s complaint and submitted that the legislation in question, which had prevented the applicant from modifying his initial claim before the military courts, had been amended on 30 April 2013. Accordingly, the present legislation (section 46(4) of Law no. 1603) now permitted claimants before military administrative courts to amend their initial claims once during the course of the proceedings at the first-instance level. 17.", "The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, 21 January 1975, §§ 34 in fine and 35-36, Series A no. 18, and Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 91‑93, ECHR 2001-V). 18.", "The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals”. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.", "Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). 19. The Court notes that the present case concerns the application of a procedural rule at the material time which prevented a claimant from amending his or her initial claim during the course of proceedings before military administrative courts (see, in particular, Okçu v. Turkey, no. 39515/03, § 32, 21 July 2009).", "The applicant in the present case brought a compensation claim of TRY 20,000 before the military administrative courts. The trial court ordered an expert report to determine the extent of the pecuniary damage suffered by the applicant. The expert concluded that the pecuniary damage amounted to TRY 58,384, in the light of which the applicant requested to amend his initial claim and seek additional damages of TRY 38,384, which was refused by the court solely on account of the applicable procedural rule. 20. The Court takes the view that it could not have been reasonably expected of the applicant to have known the exact extent of his pecuniary damage at the time he lodged his case with the military administrative court since the true extent of that damage was only brought to light during the course of the proceedings by an expert report ordered ex officio by the court.", "Likewise, to require the applicant to overestimate his claim deliberately and lodge an application with a significantly higher amount in the hope that it would cover his damage and pay the requisite court fees in advance would be a disproportionate limitation to the right of access to a court (see Fatma Nur Erten and Adnan Erten, v. Turkey (no. 14674/11, § 31, 25 November 2014). 21. In the light of the Court’s findings in Fatma Nur Erten and Adnan Erten (ibid., §§ 29-33) in respect of the violation of the right of access to a court under Turkish administrative military law whereby the applicants were prevented from amending their initial claims during the course of the proceedings, the Court finds no reason to depart from those conclusions in the present case. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. The applicant claimed 100,000 United States dollars (USD) (approximately 74,800 euros (EUR)) in respect of pecuniary damage and the same amount in respect of non-pecuniary damage. He further claimed EUR 30,000 for legal fees but did not submit an invoice or any other documents in support of that claim. 23.", "The Government submitted that the applicant’s just satisfaction claims as well as his claims for legal fees were excessive and unfounded. 24. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. Accordingly, it considers that no award can be made to the applicant under this head. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicant EUR 6,000 under this head.", "25. The Court further reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that applicants, as far as possible, are put in the position in which they would have been had that provision not been disregarded (see Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 47, 17 July 2007). It considers that, having regard to the nature of the violation found under Article 6 § 1 of the Convention, in principle the most appropriate form of redress for this violation would be to restart or to reopen the proceedings. In this respect, the Court notes that section 64(i) of the Law on the Supreme Military Administrative Court in force as of 30 April 2013 provides for the reopening of proceedings following a judgment by the Court.", "Thus, it is now for the applicant to make use of that opportunity (Bistrović v. Croatia, no. 25774/05, § 58, 31 May 2007, and Fatma Nur Erten and Adnan Erten, cited above, § 37). 26. Lastly, as regards costs and expenses the Court reiterates that according to its case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case the applicant has not substantiated his claim for costs and expenses.", "Accordingly, the Court makes no award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıNebojša VučinićDeputy RegistrarPresident [1]. All conversions into euros have been made on the basis of the rate of exchange in force at the material time." ]

[ "FIRST SECTION CASE OF EYDELMANand other “Emigrant Pensioners” v. RUSSIA (Applications nos. 7319/05, 9992/07, 10359/07, 13476/07, 3565/08, 10628/08, 33904/08, 33918/08, 40058/08, 42112/08, 42115/08, and 60792/08) JUDGMENT STRASBOURG 4 November 2010 FINAL 04/02/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Eydelman and other “Emigrant pensioners” v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 14 October 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in twelve applications (nos.", "7319/05, 9992/07 10359/07, 13476/07, 3565/08, 10628/08, 33904/08, 33918/08, 40058/08, 42112/08, 42115/08, and 60792/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Israeli nationals. The applicants' names, years of birth and the dates of their applications to the Court appear in the table below. 2. All the applicants were represented by Mr R.A. Zarbeyev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicants complained, inter alia, of the quashing in supervisory-review proceedings of binding and enforceable judgments delivered in their favour between 2004 and 2007. 4. On various dates the President of the First Section decided to communicate these complaints to the respondent Government. It was also decided in all cases to examine the merits of the applications at the same time as their admissibility (Article 29 § 1).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The circumstances of the present case are similar to those in the case Tarnopolskaya and Others v. Russia (nos. 11093/07 et seq., §§ 6-13, 7 July 2009). 6.", "The applicants' names and other details are indicated in the appended table. 7. The applicants emigrated to Israel from the USSR in the 1980s and 1990s and obtained Israeli nationality. Before immigration they had been receiving old-age pensions from the Soviet authorities. However, once the applicants left the USSR, the payments were discontinued in accordance with the USSR pension law applicable at the material time.", "As they left the USSR prior to its collapse, they were not entitled to a pension under the new Russian legislation. 8. In early 2000 the applicants unsuccessfully applied to the regional departments of the Pension Fund of the Russian Federation (“the Pension Fund”) for the payment of their pensions to be restored. On unspecified dates they brought civil proceedings against the Pension Fund requesting restoration of the payment of their pensions. 9.", "By the final judgments listed in the appended table the applicants' claims were allowed and the Pension Fund was ordered to restore pension payments. 10. In the case of Ms Eydelman the final judgment of 5 July 2004 was being enforced from April 2005 until July 2006, when it was quashed. 11. In the case of Ms Margulis the applicant submitted to a State body responsible for enforcement, the required additional documents, including her bank account, by 30 June 2005.", "The final judgment in her favour in part of the periodical payments due in 1998-2005 was subsequently enforced on 20 January 2006. The judgment has not been enforced since then. 12. In the cases of Ms Shinkova and Ms Rogatskaya the judgments have never been enforced. 13.", "In the cases of Ms Itskovich and Ms Orlova the payments were restored and were stopped only after the subsequent quashing of the judgments in their favour. 14. In the case of Ms Lyalina the payments under the judgment were made in part. 15. In the cases of Ms Rozhnikovskaya and Ms Mnushkina the monthly payments were made in full until January 2008, that is one month before the judgment was quashed by way of supervisory review.", "16. In the cases of Ms Soltanova and Ms Litvinova the payments were not made due to the applicants' alleged failure to provide the necessary documents. 17. In the case of Ms Vcherashnyaya the judgment in her favour was being enforced in full before the quashing via supervisory review. 18.", "Subsequently, earlier than 7 January 2008, the Pension Fund, as a party to the proceedings in the present case, lodged requests with the competent regional courts for supervisory review of the final judgments in the applicants' favour. The Presidia of the regional courts granted the requests, quashed the judgments and dismissed the applicants' claims. 19. The Presidia found that according to the relevant USSR legislation, under which the pensions had been awarded, there was no possibility to continue the payments to the applicants, as they had left the country. They considered that the payments were to be restored only if the pensions had been awarded in accordance with the legislation of the Russian Federation, not the USSR.", "The Presidia accordingly concluded that there was no basis under the domestic law for the payments to be awarded to the applicants. 20. The relevant data on the Presidia decisions is listed below. II. RELEVANT DOMESTIC LAW 21.", "For the relevant domestic law see Tarnopolskaya and Others, cited above, §§ 15‑26. 22. The new supervisory review procedure entered in force on 7 January 2008 (see Martynets v. Russia (dec.), no. 29612/09, ECHR 2009‑...). All the applications for supervisory review lodged before that date should have been considered under the previous procedure.", "THE LAW I. JOINDER OF THE APPLICATIONS 23. Given that all the applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE APPLICANTS' FAVOUR 24.", "The applicants complained that the quashing by way of supervisory review of the binding and enforceable judgments in their favour had violated their rights under Article 6. They also complained in substance that Article 1 of Protocol No. 1 had also been violated. The relevant provisions provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 25. The Court considers that the complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.", "Merits 26. The applicants argued that the quashing of the binding and enforceable judgments delivered by domestic courts in their favour had violated the principle of legal certainty and, therefore, their right to a court. 27. The Government stated that in the present cases the supervisory review of the final judgments complied with the requirements of legality established by the Convention, namely, that the supervisory appeals were filed by a party to the proceedings; this party had exhausted the ordinary right of appeal in most of the cases; the applications for supervisory review were filed within one year from the date of adoption of the final judgments; the ground for the quashing was a material breach of law. The Government specified that the lower courts had made a fundamental error in applying the material law, in particular, abuse of authority, exceeding their limits of competence.", "Thus, the supervisory-review proceedings had been lawful and necessary to remedy a gross miscarriage of justice in the application of material law by the lower courts. They concluded that the quashing of the judgments in the present case had been justified, well-founded and thus compatible with the principle of legal certainty and the applicants should accordingly have had no expectation of any benefit arising from the judgments in their favour. 28. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, presupposes respect for the principle of res judicata, which is the principle of the finality of judgments. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see Brumărescu v. Romania [GC], no.", "28342/95, § 61, ECHR 1999‑VII; Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003‑IX). 29. The Court further recalls that it has already found numerous violations of the Convention on account of the quashing of binding and enforceable judgments by way of supervisory review under the Code of Civil Procedure as in force at the material time (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007).", "Some of these violations were found in similar and, on certain occasions, virtually identical circumstances concerning benefits to the pensioners who had emigrated to Israel from the USSR (see Tarnopolskaya and Others, cited above, § 35). In those cases the Court found that the quashing of final judgments in the applicants' favour was not justified by circumstances of compelling and exceptional character. The Court finds no reason to come to a different conclusion in the present cases. 30. The arguments submitted by the Government in the present cases were addressed in detail and dismissed in previous similar cases.", "The alleged misapplication of material law by the first instance courts does not in itself justify the quashing of binding and enforceable judgments on supervisory review (Kot, cited above, § 29; Tarnopolskaya and Others, cited above, § 35). 31. The Court accordingly concludes that the quashing of the binding and enforceable judgments in the applicants' favour amounts to a breach of the principle of legal certainty in violation of Article 6 of the Convention. 32. The Court further reiterates that the binding and enforceable judgments created an established right to payment in the applicants' favour, which is considered as an asset within the meaning of Article 1 of Protocol No.", "1 (see Vasilopoulou v. Greece, no. 47541/99, § 22, 21 March 2002). The quashing of these judgments in breach of the principle of legal certainty frustrated the applicants' reliance on the binding judicial decisions and deprived them of an opportunity to receive the judicial awards they had legitimately expected to receive (see Dovguchits v. Russia, no. 2999/03, § 35, 7 June 2007). There has accordingly been also a violation of that Article 1 of Protocol No.", "1. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33. The applicants invoked Article 1 of Protocol No. 1 and Article 14, claiming that they had been initially unlawfully deprived of their pension and that this deprivation had occurred on political grounds because they had left the USSR for a “capitalist country”, while citizens who had left for a “socialist country” retained their pensions.", "34. It should first be noted that the initial withdrawal of the applicants' pension rights was an instantaneous act, which did not give rise to any possible continuous situation of a violation of the Convention. This withdrawal was triggered by their emigration to Israel, which took place prior to 5 May 1998 when the Convention entered into force in respect of Russia. The Convention only governs facts subsequent to its entry into force with regard to that Party (see Jovanović v. Croatia (dec.), no. 59109/00, ECHR 2002‑III).", "It follows that the complaints under Article 1 of Protocol No. 1 and Article 14 of the Convention are incompatible ratione temporis (see Tarnopolskaya and Others, cited above, § 39). 35. Ms Margulis and Ms Itskovich also complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the judgments in their favour had not been enforced during a lengthy period before its quashing.", "36. As to the case of Ms Margulis, the Court finds it reasonable that the authorities requested the applicant to produce additional documents, such as bank details (see paragraph 11 above), to allow or speed up the execution of a judgment (see Kosmidis and Kosmidou v. Greece, no. 32141/04, §§ 24-26, 8 November 2007; and Akashev v. Russia, no. 30616/05, §§ 21–23, 12 June 2008), especially when the applicant is a citizen and a resident of another country. Indeed, it seems inappropriately demanding to require from the respondent State to ascertain a foreign citizen's bank account to enforce a judgment in his or her favour.", "Therefore under these special circumstances of the present case the State may be considered as responsible for the non-enforcement only from 30 June 2005 until 20 January 2006, which is not excessive. 37. As to the case of Ms Itskovich, she was paid the judgment debt on 6 December 2005, that is roughly five and a half months after the judgment became enforceable, which is a reasonable delay. 38. It follows that these complaints are inadmissible and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties' submissions 40.", "The applicants claimed in respect of pecuniary damage the sums of their pensions from the date indicated in the final judgments until and after the dates when these judgments were quashed. Where in some of the cases certain sums had been paid, these were excluded from the calculations. 41. They also asked for the payment of their pensions to be restored. 42.", "The applicants claimed 10,000 euros (EUR) each in respect of non‑pecuniary damage as well. 43. The Government asserted that there were no arrears in payments to some of the applicants, whereas to the others the payments were not made as they had failed to provide the necessary documents. The Government made no specific comment on the methods of calculation of pecuniary damage by the applicants. 2.", "The Court's assessment 44. The Court recalls that in general the most appropriate form of redress in respect of violations found is to put applicants as far as possible in the position they would have been in if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003; also Dovguchits, cited above, § 48). 45.", "In the instant case the Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the judgments in the applicants' favour had been quashed by way of supervisory review. Insofar as the applicants did not receive the money they had legitimately expected to receive under these final judgments in the period until they were quashed, there is a causal link between the violations found and the applicants' claims in respect of pecuniary damage. In the cases in which the payments were not made due to the alleged applicants' failure to provide necessary documents, this legitimate expectation remained, even if it was subject to compliance with some practical formalities. 46.", "The Government have not submitted any comment in respect of the methods used or suggested by the applicants for the calculation of such pecuniary damage. Nor have the Government provided the Court with any alternative calculations even as regards the pensions that they concede might not have been paid. Therefore the Court accepts the applicants' calculations and awards compensation for pecuniary damage for the periods from the dates indicated in the judgments until the dates when the judgments were quashed as follows: Applicant's name Amount of pension per month(RUB) The dates from which the payments were not made despite the final judgments The dates of the quashing of the final judgments The period to be taken into account The award to be made in respect of pecuniary damagein RUB (and EUR) Margulis 3,000 01/01/2006 30/06/2006 Six months 18,000 (503) Shinkova 5,701.08 01/12/2005 23/08/2007 One year and nine months 119,722 (2,672) Rozhnikovskaya 3,423.63 01/01/2008 06/02/2008 One month 3,423.63 (76) Mnushkina 7,597.49 01/01/2008 06/02/2008 One month 7,597.49 (170) Soltanova 4,661.50 29/12/2002 06/02/2008 Five years and one month 284,351.50 (6,347) Litvinova 4,549.01 10/11/2001 05/03/2008 Six years and four months 345,724.76 (7,717) Rogatskaya 5,025 14/12/2003 05/03/2008 Four years and three months 256,275 (5,720) 47. In the case of Ms Lyalina Ira Davidovna the applicant provided the Court with a Pension Fund certificate and calculations substantiating a judgment debt of 128,959.77 Russian roubles (RUB) (EUR 2,933) before its quashing via supervisory review. The Court awards her this sum for pecuniary damage.", "48. In the cases of Mr Eydelman, Ms Itskovich, Ms Orlova (see paragraphs 10 and 13 above) and Ms Vcherashnaya (see paragraph 17 above) the final judgments had been enforced at least until they were quashed. Therefore no awards are to be made in their cases. 49. As regards the applicants' claims in respect of their pecuniary loss after the judgments in their favour were quashed by way of supervisory review, the Court considers that given the many imponderables in evolving political and economic conditions that could affect future pension entitlements and calculations it would be a largely hypothetical exercise to attempt to predict in the long term the amounts of pension which would have been paid, if any, if the final judgments had not been quashed.", "The Court can only therefore award the sums which should have been paid until the final rejection of the applicants' claims made after the quashing by way of supervisory review (Tarnopolskaya and Others, cited above, § 51). Consequently, no pecuniary awards can be made for the periods after these decisions were taken. 50. The Court furthermore finds that the applicants have suffered non‑pecuniary damage as a result of the violations found which cannot be compensated by the mere finding of a violation. The applicants have, in particular, suffered a certain loss of expectation.", "Having regard to the circumstances of the cases and making its assessment on an equitable basis, the Court awards to each applicant the sum of EUR 3,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount. 51. The sums awarded by the Court are to be paid in euros. B. Costs and expenses 52.", "The applicants did not claim any costs or expenses. Accordingly, the Court does not make any award under this head. C. Default interest 53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the complaints concerning the quashing of the binding and enforceable judgments in supervisory review proceedings admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 in all cases on account of the quashing of the judgments in the applicants' favour by way of supervisory review; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums: (i) in respect of pecuniary damage: EUR 503 (five hundred and three euros) to Margulis Rozaliya Borisovna; EUR 2,933 (two thousand nine hundred and thirty-three euros) to Lyalina Ira Davidovna; EUR 2,672 (two thousand six hundred and seventy-two euros) to Shinkova Alla Iosifovna; EUR 76 (seventy-six euros) to Rozhnikovskaya Yelizaveta Aleksandrovna; EUR 170 (one hundred and seventy euros) to Mnushkina Sofiya Vulfovna; EUR 6,347 (six thousand three hundred and forty-seven euros) to Soltanova Evilena Aleksandrovna; EUR 7,717 (seven thousand seven hundred and seventeen euros) to Litvinova Yelena Maksimovna; EUR 5,720 (five thousand seven hundred and twenty euros) to Rogatskaya Elli Semenovna; (ii) EUR 3,000 (three thousand euros) to each applicant in respect of non-pecuniary damage plus any tax that may be chargeable on these amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 4 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Registrar President APPENDIX App. No. date of introduction Applicant year of birth judgment(s) court(s)/date(s) supervisory review judgment court/date(s) 7319/05 23/02/2005 Eydelman Vladimir Lazarevich 1925 Zheleznodorozhniy District Court of Novosibirsk, 05/07/2004 Presidium of the Novosibirsk Regional Court, 30/06/2006 9992/07 27/12/2006 Margulis Rozaliya Borisovna 1928 Zayeltsobskiy District Court of the Novosibirsk Region, 04/10/2004; enforceable on 23/12/2004 Presidium of the Novosibirsk Regional Court, 30/06/2006 10359/07 19/01/2007 Itskovich Mariya Iosifovna 1929 Zheleznodorozhniy District Court of Novosibirsk, 10/06/2005; enforceable 21/07/2005 Presidium of the Novosibirsk Regional Court, 28/07/2006 13476/07 31/01/2007 Orlova Mayya Vasilyevna 1928 Zheleznodorozhnyj District Court of Novosibirsk, 03/05/2005; enforceable on 16/06/2005 Presidium of the Novosibirsk Regional Court, 08/09/2006 3565/08 03/12/2007 Lyalina Ira Davidovna 1933 Oktyabrskiy District Court of St Petersburg, 17/01/2006; enforceable on 27/01/2006 Presidium of the St Petersburg City Court, 03/06/2007 10628/08 22/01/2008 Shinkova Alla Iosifovna 1939 Oktyabrskiy District Court of Rostov-on-Don, 04/09/2006; enforceable on 15/09/2006 Presidium of the Rostov Regional Court, 23/08/2007 33904/08 11/06/2008 Rozhnikovskaya Yelizaveta Aleksandrovna 1930 Mytishchi Town Court of the Moscow Region, 20/02/2007; enforceable on 05/03/2007 Application forwarded to the Presidium on 28/12/2007; Presidium of the Moscow Regional Court, 06/02/2008 33918/08 11/06/2008 Mnushkina Sofiya Vulfovna 1939 Mytishchi Town Court of the Moscow Region, 09/01/2007; enforceable on 19/01/2007 Application of 05/03/2007; Presidium of the Moscow Regional Court, 06/02/2008 40058/08 16/06/2008 Soltanova Evilena Aleksandrovna 1933 Mytishchi Town Court of the Moscow Region, 09/01/2007; enforceable on 19/01/2007 Application forwarded to the Presidium on 28/12/2007; Presidium of the Moscow Regional Court, 06/02/2008 42112/08 24/08/2008 Litvinova Yelena Maksimovna 1923 Mytishchi Town Court of the Moscow Region 06/11/2007, enforceable on 16/11/2007 Application of 26/12/2007; Presidium of the Moscow Regional Court, 05/03/2008 42115/08 23/04/2008 Vcherashnyaya Etta Davydovna 1929 Vyborgskiy District Court of St Petersburg, 22/03/2006, enforceable on 19/05/2006 Presidium of the St Petersburg City Court, 24/12/2007 60792/08 14/08/2008 Rogatskaya Elli Semenovna 1932 Mytishchinskiy District Court of Moscow (no appeal was lodged) 22/05/2007; enforceable on 01/06/2007 Application of 24/09/2007; Presidium of the Moscow City Court 05/03/2008" ]

[ "THIRD SECTION CASE OF MAYLENSKIY v. RUSSIA (Application no. 12646/15) JUDGMENT STRASBOURG 4 October 2016 FINAL 30/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Maylenskiy v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 6 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "12646/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Artem Vladimirovich Maylenskiy (“the applicant”), on 12 March 2015. Following the applicant’s death on 3 October 2015, his mother, Ms Irina Yuryevna Maylenskaya, informed the Court of her wish to pursue her son’s application. 2. The applicant and later his mother were represented by Mr S. Petryakov, a lawyer practising in Kazan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged that he had not received adequate medical assistance while in detention. 4. On 23 March 2015 the President of the Section, acting upon the applicant’ s request, decided to apply Rules 39 and 41 of the Rules of Court. 5.", "On 10 July 2015 the application was communicated to the Government. Among other matters, the Court asked the Government whether their response to the Court’s decision on 23 March 2015 to impose an interim measure under Rule 39 of the Rules of Court could entail a breach of Article 34 of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1983 and lived in Verkhnyaya Pyshma, Sverdlovsk Region.", "A. Arrest and conviction 7. On 27 May 2012 the applicant was arrested on suspicion of murder. He remained in detention throughout the investigation and trial. 8.", "On 18 January 2014 the Verkhnyaya Pyshma Town Court convicted the applicant of the charges and sentenced him to ten years’ imprisonment. B. The applicant’s medical condition 9. The applicant was seriously ill at the time of the arrest. He suffered from advanced HIV, long-term tuberculosis at the stage of lung tissue destruction and chronic hepatitis C. 10.", "In June 2012 the applicant was admitted to the tuberculosis unit of the medical wing of remand prison no. IZ-66/1 in Yekaterinburg for treatment. On his admission to prison he had informed the doctor that he had been receiving tuberculosis treatment for several years, but that it had not been successful. A drug regimen based on a combination of five anti‑tuberculosis drugs was prescribed for him. In the second half of 2012 a highly active antiretroviral therapy was ordered by a medical panel for his HIV.", "11. A chest X-ray carried out on 26 September 2012 revealed the formation of lung cavities, showing the further progress of the disease. 12. On 23 January 2013 drug susceptibility testing was performed. It showed that the applicant’s tuberculosis was resistant to all the drugs he had received since June 2012, when his treatment had begun.", "No alteration in his treatment took place until 18 April 2013, when the applicant was admitted to Prison Hospital no. 6 in St Donato in Sverdlovsk Region. Given the development of the applicant’s drug resistance, a medical panel at the hospital ordered different antibiotics to be used. 13. The applicant’s condition improved slightly and on 10 February 2014 he was discharged from the hospital to a medical wing.", "However, in the following months he started experiencing back pain. In July 2014 a tuberculous infection of the vertebrae was diagnosed and the applicant was readmitted to the prison hospital. 14. On 26 September 2014 a medical panel found him eligible for early release on health grounds. His application for release was examined by the Leninskiy District Court of Nizhniy Tagil on 27 November 2014.", "At the hearing the applicant’s doctor testified that he was suffering from serious diseases, that he could not care for himself and that the prospects of his recovery were poor. On the same day the District Court dismissed the application, citing the applicant’s history of previous convictions which, in the court’s opinion, demonstrated that he “had failed to take the path of improvement”. The decision was upheld on appeal by the Sverdlovsk Regional Court on 24 February 2015. C. Rule 39 request 15. On 12 March 2015 the applicant asked the Court to apply Rule 39 of the Rules of Court and to indicate to the Government that he should be provided with adequate medical care and immediately released.", "The applicant stated that he was not receiving the necessary medical care and treatment in detention, despite suffering from a life-threatening and rapidly progressing illness. The deterioration of his condition required an urgent medical intervention, which was unavailable in the prison hospital. 16. On 23 March 2015 the President of the Section, acting upon the applicant’ s request, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should be immediately examined by medical experts which were independent from the prison system. They were to determine (1) whether he was receiving adequate treatment in the prison hospital for his condition; (2) whether his state of health was compatible with detention in the conditions of a prison hospital; and (3) whether his condition required his admission to a specialist, possibly civilian, hospital.", "Furthermore, the Government were to ensure his transfer to a specialist hospital if the medical experts concluded that admission to such a hospital was necessary. 17. On 7 April 2015 the Government responded to the Court’s letter of 24 March 2015. It submitted documents related to the applicant’s conviction; certificates issued by the head of the detention facility where the applicant had been previously detained, describing the state of his health and giving a list of medical procedures he had undergone; documents showing that the detention facility was authorised to provide medical services to inmates; extracts from the applicant’s medical history; certificates issued by the head of the prison hospital describing the state of the applicant’s health, the quality of the medical treatment and the conditions of his detention; handwritten statements by three of the prison hospital’s staff stating that they had provided the applicant with the necessary care; the report of the special medical panel of 26 September 2014; and copies of the decisions of 27 November 2014 and 24 February 2015 on his applications for early release. 18.", "The Government also asserted that the scope and quality of the treatment provided to the applicant in the prison hospital was appropriate for his state of health. However, they admitted that there had been a serious deterioration in the applicant’s condition in 2014. Lastly, they submitted that an examination of the applicant by a medical panel to check his entitlement to early release had been scheduled for 9 April 2015. 19. On 22 May 2015 the applicant’s representative reported that the independent medical examination had not been carried out by the Government.", "However, two independent doctors acting at the request of the applicant’s lawyer had assessed the quality of the applicant’s medical treatment in detention and whether his further detention in the prison hospital was appropriate for someone as ill as him. In their report, dated 20 May 2015, the doctors concluded that the medical care provided by the detention authorities had been inadequate, particularly in view of the continued use of ineffective drugs. They also stated that the applicant required spinal surgery owing to the tuberculous infection of the vertebrae and that it was vital he be transferred from the prison hospital to a specialist medical facility. D. Developments following the application of Rule 39 20. On 22 May 2015 the Leninskiy District Court of Nizhniy Tagil dismissed the applicant’s second application for release on health grounds, referring to his failure to improve his character.", "21. On 21 August 2015 the Sverdlovsk Regional Court set aside that decision. The court held that the applicant should be released immediately, owing to the state of his health and the absence of disciplinary violations. 22. After his release the applicant was admitted to a civilian hospital in Verkhnyaya Pyshma, where he died on 3 October 2015.", "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Medical care afforded to detainees 23. The relevant provisions of Russian and international law on the medical care of detainees are set out in the following judgments: Ivko v. Russia (no. 30575/08, §§ 55-63, 15 December 2015); Amirov v. Russia (no.", "51857/13, §§ 50-57, 27 November 2014); Pakhomov v. Russia (no. 44917/08, 30 September 2011); and Yevgeniy Alekseyenko v. Russia (no. 41833/04, 27 January 2011). B. General guidelines for tuberculosis treatment 24.", "The following are extracts from the “Treatment of Tuberculosis: Guidelines”, fourth edition, World Health Organisation, 2009: “2.6. ... Previously treated patients have received 1 month or more of anti-tuberculosis drugs in the past, may have positive or negative bacteriology and may have disease at any anatomical site. They are further classified by the outcome of their most recent course of treatment ... 3.6. Previous tuberculosis (“TB”) treatment is a strong determinant of drug resistance, and previously treated patients comprise a significant proportion (13%) of the global TB notifica­tions in 2007.", "Of all the forms of drug resistance, it is most critical to detect multidrug resistance (“MDR”) because it makes regimens with first-line drugs much less effective and resistance can be further amplified. Prompt identification of MDR and initiation of MDR treatment with second-line drugs gives a better chance of cure and prevents the development and spread of further resistance ... 3.7. Standard regimes for previously treated patients The Global Plan to Stop TB 2006–2015 sets a target of all previously treated patients having access to [drug susceptibility testing] at the beginning of treatment by 2015. The purpose is to identify MDR as early as possible so that appropriate treatment can be given ... Recommendation 7.1 Specimens for culture and drug susceptibility testing (DST) should be obtained from all previously treated TB patients at or before the start of treatment.", "DST should be performed for at least isoniazid and rifampicin ... Recommendation 7.2 In settings where rapid molecular-based DST is available, the results should guide the choice of regimen.” THE LAW I. PRELIMINARY CONSIDERATIONS: THE LOCUS STANDI OF THE APPLICANT’S MOTHER 25. The Court must first decide whether Ms Maylenskaya can pursue the application lodged by the applicant. It reiterates that on 21 December 2015 she informed the Court of her wish to continue the proceedings on her son’s behalf.", "26. The Government expressed doubts as to whether the applicant’s mother had locus standi to pursue the application since the rights enshrined by Article 3 of the Convention are eminently personal and non-transferable. 27. The Court notes that it normally permits the next of kin to pursue an application, provided he or she has a legitimate interest, where the original applicant died after lodging the application with the Court (see Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016; Malhous v. the Czech Republic (dec.) [GC], no.", "33071/96, ECHR 2000‑XII; and Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 172, 25 November 2014). Having regard to the subject matter of the application and all the information in its possession, the Court considers that the applicant’s mother has a legitimate interest in pursuing the application and that she thus has the requisite locus standi under Article 34 of the Convention (see Koryak v. Russia, no. 24677/10, §§ 58-68, 13 November 2012). It therefore dismisses the Government’s preliminary objection.", "II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 28. The applicant argued that the Government’s failure to ensure he have a medical examination to answer the questions asked by the Court had been in breach of the interim measure indicated by the Court under Rule 39 of the Rule of Court and had thus violated his right to individual application. He relied on Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 29.", "Rule 39 provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3.", "The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. Submissions by the parties 30. The Government opened their argument with an assertion that it could not be inferred from Article 34 of the Convention or “from any other source” that the interim measure indicated under Rule 39 was legally binding. They further stressed that the Rules of Court, and accordingly the interim measure applied, did not have binding force on the State Party and that, accordingly, their failure to submit answers to the questions raised by the Court did not entail a violation of Article 34, or of any other provision of the Convention. 31. The Government continued by arguing that the applicant’s right to communicate with the Court had in no way been interfered with.", "The applicant had retained counsel, who had made submissions and had continued to communicate freely with the Court. Lastly, the Government submitted that in response to the Court’s questions they had furnished medical reports prepared by prison doctors and that their submissions had in substance answered the questions posed. 32. The applicant argued that the situation was similar to the case of Amirov v. Russia (no. 51857/13, 27 November 2014), in which the Court had found a violation of Article 34 of the Convention following the Government’s failure to comply with an interim measure imposed under Rule 39.", "As in Amirov (ibid. ), the Russian authorities had again failed to comply with an order by the Court to provide an expert opinion from independent medical specialists on the applicant’s state of health. B. The Court’s assessment 1. General principles 33.", "The applicable general principles are set out in Paladi v. Moldova ([GC], no. 39806/05, §§ 84-92, 10 March 2009) and Amirov (cited above, §§ 65-68). 2. Application of the general principles to the present case 34. Turning to the circumstances of the present case, the Court notes that on 23 March 2015 it indicated to the Russian Government that the applicant should be immediately examined by medical experts who were independent from the prison system, with a view to determining (1) whether he was receiving adequate treatment in the prison hospital for his condition; (2) whether his state of health was compatible with detention in the conditions of a prison hospital; and (3) whether his condition required his placement in a specialist, possibly civilian, hospital.", "Furthermore, the Government were to ensure his transfer to a specialist hospital if the medical experts concluded that that was necessary. The Government responded by submitting various medical reports, certificates and documents related to the applicant’s detention (see paragraph 17 above). They also asserted that the scope and quality of the treatment provided to the applicant in the prison hospital had been exactly what had been needed for his state of health. 35. The Court is not convinced by the Government’s arguments.", "It reiterates that the aim of the interim measure in the present case was to obtain an independent medical assessment of the state of the applicant’s health, the quality of the treatment he was receiving and the adequacy of the conditions of his detention in view of his medical needs. That expert evidence was necessary to decide whether, as the applicant argued, his life was at real risk as a result of the alleged lack of requisite medical care in detention. In addition, the Court was concerned with the contradictory nature of the evidence in its possession. The interim measure was therefore also meant to ensure that the applicant could effectively pursue his case before the Court (see Amirov, cited above, § 70, and Shtukaturov v. Russia, no. 44009/05, § 141, ECHR 2008).", "36. Whilst the formulation of an interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34 of the Convention, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, cited above, § 91) and, indeed, to its very purpose. The main purpose of the interim measure, as indicated by the Court in the present case – and the Government did not claim to be unaware of this – was to prevent the applicant’s exposure to inhuman and degrading suffering in view of his poor health and his remaining in a prison hospital that was – according to him – unable to ensure that he received adequate medical assistance. There could have been no doubt about either the purpose or the rationale of that interim measure. 37.", "The Court does not need to assess the independence, professional expertise or qualifications of the doctors who prepared the documents submitted by the Government. It notes that the medical examination it requested, aimed at answering the Court’s questions, was not ordered by the Government. Neither the medical reports, nor the certificates issued by the authorities contained any analysis of the adequacy of the applicant’s medical treatment and the compatibility of the conditions of his detention with his state of health. Nothing suggests that the doctors compared the quality of medical assistance afforded to the applicant with the requirements of applicable medical standards, guidelines or regulations. 38.", "The aim of the medical examination of 26 September 2014 was limited simply to a comparison of the applicant’s medical condition with the exhaustive list of illnesses in a Government decree which warranted early release. At no point during the examination did the doctors from the prison hospital assess the applicant’s state of health independently from that list or considered whether his illness, given the stage it was at, its nature and duration, required his transfer to a specialist hospital. The Court therefore concludes that the documents furnished by the authorities have little relevance to the implementation of the interim measure indicated by the Court to the Russian Government in the present case. 39. The Government further argued that they themselves had responded to the three questions put by the Court on 23 March 2015.", "The Court notes that in view of the vital role played by interim measures in the Convention system, they must be strictly complied with by the State concerned. The Court cannot conceive, therefore, of allowing the authorities to circumvent an interim measure such as the one indicated in the present case by replacing expert medical opinion with their own assessment of the applicant’s situation. Yet that is exactly what the Government did. In so doing, the State has frustrated the purpose of the interim measure, which sought to enable the Court, on the basis of relevant, independent medical opinion, to effectively respond to and, if need be, prevent the possible continued exposure of the applicant to physical and mental suffering (see Khloyev v. Russia, no. 46404/13, § 67, 5 February 2015, and Salakhov and Islyamova v. Ukraine, no.", "28005/08, § 222, 14 March 2013). 40. The Government did not show that there was any objective impediment preventing compliance with the interim measure (see Paladi, cited above, § 92). Consequently, the Court concludes that the State has failed to comply with the interim measure indicated by it in the present case under Rule 39, in breach of its obligation under Article 34 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 41. The applicant complained that the authorities had failed to provide him with the requisite medical care in detention, in breach of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 42. The Government put forward two lines of argument. Firstly, they argued that the applicant had failed to exhaust domestic remedies as he had not raised his complaint before the domestic authorities, such as the administration of the detention facilities, a prosecutor’s office or a court. Secondly, they argued that the applicant had been provided with the requisite medical treatment.", "43. The applicant argued that the medical assistance afforded to him was deficient, as confirmed by the experts’ report of 20 May 2015, particularly in view of his continued treatment with ineffective drugs. He further stated that the authorities had known of his condition, but had not addressed the issue. The legal avenues proposed by the Government were ineffective. B.", "The Court’s assessment 1. Admissibility 44. In assessing the Government’s argument that the applicant failed to exhaust the available avenues of domestic protection regarding the allegedly inadequate medical treatment, the Court notes that it has consistently held that the remedies proposed by the Government do not satisfy the relevant criteria (see Ivko, cited above, §§ 85-88; Khalvash v. Russia, no. 32917/13, §§ 49-52, 15 December 2015; Patranin v. Russia, no. 12983/14, §§ 82-88, 23 July 2015; Koryak, cited above, §§ 82-86; and Reshetnyak v. Russia, no.", "56027/10, §§ 65-73, 8 January 2013). The Court therefore rejects the non-exhaustion objection. 45. The Court further notes that the applicant’s complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits (a) General principles 46. The applicable general principles were recently summarised in Ivko (cited above, §§ 91-95). (b) Application of the general principles to the present case 47.", "Turning to the circumstances of the present case, the Court observes that the applicant suffered from advanced tuberculosis and HIV. The life‑threatening nature of that condition was beyond doubt. His main contention was that he did not receive adequate treatment for his illness, especially in the initial period, when he was prescribed medication to which his tuberculosis had developed resistance. The Government disagreed. They insisted that he had received comprehensive medical care in detention.", "48. The Court has examined a large number of cases against Russia raising complaints of inadequate medical provision for inmates (see, among the most recent examples, Ivko, cited above; Koryak, cited above; Dirdizov v. Russia, no. 41461/10, 27 November 2012; Reshetnyak, cited above; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Gurenko v. Russia, no. 41828/10, 5 February 2013; Bubnov v. Russia, no.", "76317/11, 5 February 2013; Budanov v. Russia, no. 66583/11, 9 January 2014; and Gorelov v. Russia, no. 49072/11, 9 January 2014). In the absence of an effective remedy in Russia to deal with such complaints, the Court has had, of necessity, to undertake the role of a court of first instance in determining whether the guarantees of Articles 2 or 3 of the Convention have been observed. In that role, paying particular attention to the vulnerability of applicants who are in detention, the Court has called on the Government to provide credible and convincing evidence that the applicant concerned received comprehensive and adequate medical care in detention.", "49. Coming back to the medical certificates and the experts’ report of 20 May 2015 submitted by the applicant (see paragraph 19 above), the Court is satisfied that there is prima facie evidence in favour of his submissions and that the burden of proof should shift to the respondent Government. 50. Having closely scrutinised the evidence submitted by them in support of their position, it finds that they have failed to demonstrate conclusively that the applicant received effective medical treatment for his illnesses while in detention. The evidence in question is unconvincing and insufficient to rebut the applicant’s account of the treatment he had in detention and the experts’ conclusion of 20 May 2015.", "In such circumstances, the Court considers that the applicant’s allegations have been established to the requisite standard of proof. 51. The Court observes that the medical authorities were indeed aware of the applicant’s serious ailments, including untreated tuberculosis and advanced HIV, right from the start of his detention in June 2012 (see paragraph 10 above). However, a drug susceptibility test was only performed on 23 January 2013 (see paragraph 12 above). Although the test revealed that the drugs being received by the applicant were totally ineffective, the treatment was not altered until April 2013 (see paragraph 12 above).", "In the absence of drugs able to kill or inhibit the growth of the tuberculosis bacteria, the disease progressed to a stage where pulmonary cavities appeared. 52. The Court notes the authorities’ failure to perform a drug susceptibility test in a timely fashion. The importance and value of that test may be seen from the Guidelines of the World Health Organisation listed in paragraph 24 above. Given the applicant’s history of unsuccessful tuberculosis treatment, there was a vital necessity to perform that test.", "In particular, it was impossible to choose the appropriate treatment for the applicant without testing him for drug resistance. The Court has already condemned delays in recommending and performing drug susceptibility tests in the initial stages of the diagnostic process (see Ivko, cited above, § 105; Kushnir v. Ukraine, no. 42184/09, § 146, 11 December 2014; Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 90, 22 November 2011; and Gladkiy v. Russia, no. 3242/03, § 93, 21 December 2010).", "As a result of the authorities’ failure to arrange that vital test, the prospects of success of the first ten months of the tuberculosis treatment were undermined. The Court also considers that it was unacceptable that even though they had learned of the resistance of the applicant’s tuberculosis to the treatment being used, the medical authorities did not change it within a reasonable time, but continued to use it for the next two months. 53. The Court considers that the above deficiencies on the part of the medical authorities were tantamount to deprivation of the requisite medical care and amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 55. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 56.", "The Government left the issue to the Court to decide. 57. The Court awards the applicant the sum claimed in respect of non‑pecuniary damage in full, plus any tax that may be chargeable on that amount to be paid in full to the applicant’s mother, Ms Maylenskaya. B. Costs and expenses 58.", "The applicant also claimed EUR 850 to ensure some remuneration for his lawyer, who provided his services pro bono. 59. The Government also left that issue to the Court to decide. 60. Taking into account the absence of any supporting documents or actually incurred costs, the Court cannot grant the claim.", "It therefore rejects the claim in full. C. Default interest 61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides that the applicant’s mother, Ms Maylenskaya, has locus standi in the proceedings; 2.", "Declares the application admissible; 3. Holds that the respondent State has failed to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court, in violation of its obligation under Article 34 of the Convention; 4. Holds that there has been a violation of Article 3 of the Convention; 5. Holds (a) that the respondent State is to pay Ms Maylenskaya, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "FIRST SECTION CASE OF UDOVIČIĆ v. CROATIA (Application no. 27310/09) JUDGMENT STRASBOURG 24 April 2014 FINAL 24/07/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Udovičić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 1 April 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "27310/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Ljubica Udovičić (“the applicant”), on 29 April 2009. 2. The applicant was represented by Mr B. Udovičić, a lawyer practising in Križevci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged a breach of her right to respect for her private life and home, her right to peaceful enjoyment of possessions and the right to a fair trial, under Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention respectively. 4. On 14 November 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and lives in Cubinec. 6. Part of the house where the applicant has been living since 1991 with her family is occupied by a bar, and for a certain period of time a shop (see paragraph 43 below), run by company O-P. and its predecessor company F. (hereinafter “the company”), since August 2002. 7.", "The applicant is the owner of 59.63% of the house, while the company owns the remainder of the house with a share of 40.37%. 8. The bar is located on the ground floor of the house, below the applicant’s flat. The applicant also owns a flat on the ground floor adjacent to the bar. A.", "Administrative proceedings concerning the construction work carried out by the company 9. In August 2002 the company began reconstruction work on its premises in order to open a bar and a shop. 10. On 21 August 2002 a building inspector (građevinski inspektor), acting on a complaint by the applicant, found that the reconstruction carried out by the company had not required any additional planning permission or authorisation. 11.", "The applicant lodged an appeal against the decision of the building inspector with the Ministry of Ecology, Spatial Planning and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, hereinafter “the Ministry of Construction”), arguing that the company had demolished one of the load-bearing walls and had made a hole in the façade. 12. On 28 June 2004 the Ministry of Construction allowed the applicant’s appeal and remitted the case to the building inspector on the grounds that he had failed to establish all the relevant facts. 13. On 7 June 2005 the building inspector found that the company had carried out the construction within the scope defined by the existing planning permissions.", "14. The applicant again appealed to the Ministry of Construction, arguing that she had not had an opportunity to participate in the proceedings and that the findings of the building inspector were erroneous. 15. On 6 February 2006 the Ministry of Construction remitted the case to the building inspector on the grounds that he had failed to take into account the obvious modifications to the building, in particular the demolition of the load-bearing wall and fissures on the surrounding walls. 16.", "On 4 June 2007 the construction inspector ordered the applicant and the company to remove certain walls, a balcony, staircases and part of a rooftop, considering that they had been constructed without the necessary planning permissions. 17. The applicant appealed against that decision to the Ministry of Construction and on 26 October 2007 the Ministry dismissed her appeal. 18. On an unspecified date in 2008 the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske) challenging the decisions of the building inspector and the Ministry of Construction.", "19. On 3 November 2011 the Administrative Court quashed the decisions of the administrative bodies and ordered that the case be re-examined on the grounds that the relevant facts had not been correctly established. 20. The administrative proceedings are still pending. B.", "Administrative proceedings concerning the company’s request for operating licences 21. In August 2002 the company applied to the Koprivničko-Križevačka County State Administration Office (Ured državne uprave u Koprivničko-križevačkoj županiji, hereinafter “the County Office”) for an operating licence to run a bar and a shop. 22. An administrative commission, established to examine whether the premises in which the company intended to run a bar met the necessary operating requirements, noted in its report of 27 August 2002 that those requirements had been met. It relied on an expert report provided by company Z. which, without measuring the noise in the applicant’s flat, because she allegedly would not allow such measurements to be taken in her flat, found that the necessary measures of noise insulation had been put in place.", "23. On 30 August 2002 the County Office granted the company a licence to run a bar. 24. The applicant complained to the County Office about that decision, arguing that she had not been allowed to participate in the administrative proceedings. She requested that the proceedings be reopened.", "25. On 18 June 2003 the County Office dismissed the applicant’s complaint as ill-founded. 26. The applicant lodged an appeal against that decision with the Ministry of Tourism (Ministarstvo turizma) and on 17 September 2003 the Ministry quashed the decisions of the County Office and ordered that the applicant be allowed to participate in the proceedings. This decision was later, on 6 September 2007, upheld by the Administrative Court.", "27. On 22 February 2004 the County Office dismissed the applicant’s request for reopening of the administrative proceedings, and this decision was upheld by the Ministry of Tourism on 22 April 2004. The Ministry held that the applicant had been allowed access to all the relevant documents from the case file, and that therefore it was not necessary to reopen the proceedings. 28. On an unspecified date in 2004 the applicant lodged an administrative action with the Administrative Court.", "She contended that noise measurements had never been taken in her flat and that the decisions of the lower administrative bodies had numerous substantive and procedural flaws. 29. In October 2005, after company O-P. succeeded to the business activity of company F., it applied to the County Office for operating licences to run a bar and a shop. 30. The company submitted a report drawn up by company E. of noise measurements taken on 5 October 2005.", "The report measured the level of noise during the night (after 10 p.m.) in the bar, the parking area and the entrance to the applicant’s flat located on the first floor. In assessing the maximum permitted noise levels, this report took into account that the house was situated near a road and considered the applicant’s house to fall within zone 4 under section 5 of the by-law on the maximum permitted levels of noise in areas where people live and work (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, hereinafter “the by-law”) relevant to properties consisting of dwellings and business premises but predominantly used for business purposes (see paragraph 110 below). However, the report indicated that it had not taken into account the relevant spatial planning documents placing a property in the relevant zone because no such documents had been presented to the experts when the measurements were taken (see paragraph 110 below and section 5 § 3 of the by-law). 31. The measurements showed that the external level of noise in the parking area and in the entrance to the applicant’s flat was 48 dB, while the permitted level was 50 dB.", "It concluded that the noise emanating from the bar to the nearby open and closed areas daily and during the night did not pose any danger to the health of the persons living there. 32. On 6 October 2005 the County Office granted the company O-P. a licence to run a shop. 33. On an unspecified date the applicant challenged this decision before the Ministry of the Economy (Ministarstvo gospodarstva, rada i poduzetništva, hereinafter “the Ministry of the Economy”) arguing that she had not had an opportunity to participate in the proceedings.", "34. On 10 October 2005 the County Office agreed with the report drawn up by company E. concerning the level of noise emanating from the bar. This decision was never served on the applicant and it became final and enforceable on 27 October 2005. 35. On 28 October 2005 the County Office issued the company with a licence to run a bar.", "36. On an unspecified date in 2005 the applicant lodged an appeal against the County Office’s decision with the Ministry of Tourism, and on 22 December 2005 the Ministry dismissed it as ill-founded. 37. The applicant brought an administrative action against that decision in the Administrative Court, complaining of a number of substantive and procedural flaws in the proceedings before the lower administrative bodies. She contended that she had not had an opportunity to participate in the proceedings, that no measurements of noise and other emissions had ever been taken in her flat, and that the house had not been equipped with the necessary noise insulation.", "38. On 15 May 2006 the Ministry of the Economy dismissed the applicant’s appeal against the County Office’s decision granting the company a licence to run a shop (see paragraphs 32 and 33 above). 39. The applicant lodged an administrative action with the Administrative Court Against that decision, reiterating her complaints that she had not been able to participate in the proceedings granting the company a licence to run a shop. 40.", "On 17 December 2009 the Administrative Court allowed the applicant’s action against the decisions granting the company a licence to run a bar (see paragraphs 35-37 above) and ordered the administrative bodies to re-examine the case on the grounds that they had failed to decide on the applicant’s request for disqualification of the officials who had previously participated in the proceedings. 41. On the same day, the Administrative Court quashed the decisions of the County Office and the Ministry of the Economy granting the company a licence to run a shop (see paragraphs 32-33 and 38-39 above) and remitted the case for re-examination, on the grounds that the applicant had not had an opportunity to participate in the administrative proceedings. 42. On 25 October 2010 the Administrative Inspectorate of the Ministry of Administration (Ministarstvo uprave, Upravna inspekcija, hereinafter “the Administrative Inspectorate”) urged the County Office to adopt a decision on the applicant’s complaints.", "It stressed that the County Office had failed to comply with the judgments of the Administrative Court (see paragraphs 40 and 41 above) and that the relevant thirty-day time-limit for adopting a decision in the administrative proceedings had been significantly exceeded. It also considered that the central problem lay in the impossibility for the applicant to participate in the proceedings, and thus it instructed the County Office to allow the applicant to take part in the proceedings and to take her arguments into account. 43. On 12 November 2010 the company informed the County Office that it was closing the shop. 44.", "On 24 November 2010 the Administrative Inspectorate again urged the County Office to terminate the proceedings. It considered that there had been no justified reason for not adopting a decision concerning the applicant’s complaints. As regards the company’s request for a licence to run a bar, the Administrative Inspection identified two central problems: first, insufficient height of the ceiling in the bar, and second, the problem of noise insulation. In respect of the latter, the Administrative Inspection considered that the operating licence issued five years earlier (see paragraph 35 above) could no longer be a valid ground for consideration. It also noted the inordinate length of the proceedings and numerous procedural flaws in the decisions of the County Office, considering such procedural defects contrary to the relevant domestic law.", "45. The administrative proceedings are still pending. C. Administrative proceedings concerning the noise insulation measurements in the applicant’s house 46. On 9 September 2008 the County Office instigated administrative proceedings to ascertain whether the noise emanating from the bar and the shop exceeded the permitted levels under the relevant law. 47.", "On 15 September 2008 the County Office commissioned an expert report from company EL. concerning the noise insulation in the applicant’s house. 48. On 24 November 2008 EL. submitted its report, in which it examined the structure of the separating wall between the living room of the applicant’s flat on the first floor and the bar, and the flooring in the bar.", "It also examined the separating wall between a room in the applicant’s flat and the shop, as well as the flooring in the shop. 49. The report found that the noise insulation did not satisfy the necessary requirements. Specifically, the noise insulation between the applicant’s living room and the bar was insufficient, while the noise insulation between the shop and the applicant’s flat was within the required parameters. 50.", "On 15 December 2012 a hearing was held at the County Office, at which the company requested that a new noise report be commissioned, arguing that in the meantime it had taken the necessary measures to improve the noise insulation. 51. On 22 December 2008 an official of the County Office carried out an on-site inspection and heard the parties’ arguments concerning the expert report of 24 November 2008. 52. On 13 February 2009 EL.", "carried out further measurements of the noise insulation in the structure of the wall separating the applicant’s living room from the bar, and in the flooring of the bar. It found that at the time there was no relevant legislation requiring noise insulation, because at the beginning of 2009 the Croatian Standards Institute (Hrvatski zavod za norme) had repealed all previously existing standards for noise insulation. Thus the report only compared the new results with the results from the previous measurements (see paragraph 49 above). Basing its reasoning on that methodology, and relying on the noise measurements carried out by company B-I. (see paragraphs 62 and 63 below) and company E. (see paragraphs 30 and 31 above), the report found that the noise insulation in the bar was sufficient.", "53. On 23 February 2009 the County Office agreed with EL.’s report and found that the noise insulation in the bar and the shop was sufficient. 54. On an unspecified date in 2009 the applicant lodged an appeal with the Ministry of Health (Ministarstvo zdravlja) challenging the decision of the County Office. 55.", "On 19 March 2009 the Ministry of Health declared the applicant’s appeal inadmissible on the grounds that she did not have standing to lodge an appeal. 56. The applicant lodged an administrative action in the Administrative Court against the decision of the Ministry of Health, arguing that as the owner of a flat located in the same building as the bar she had every interest in lodging an appeal against the decision concerning the noise insulation measures. 57. On 6 June 2012 the Administrative Court quashed the decision of the Ministry of Health and ordered that the applicant’s appeal be examined on the merits.", "58. The administrative proceedings are still pending. D. The applicant’s complaints to the sanitary inspector 59. In May 2005 the applicant and her husband, B.U., complained to the sanitary inspector (sanitarni inspektor) about the level of noise coming from the bar. 60.", "On 6 June 2007 the Administrative Court, acting upon a complaint concerning the sanitary inspector’s failure to respond, ordered that the complaints be examined. 61. During the proceedings, the inspector commissioned an expert report from company B-I. 62. On 21 January 2008 company B-I.", "submitted a report on its measurements of the level of noise in the bar and in the applicant’s flats. The level of noise during the day was measured in the entrance and inside the living room of the applicant’s flat on the first floor, with all sources of noise inside the bar switched on; with only an air-conditioning fan running; and while chairs were being dragged across the floor inside the bar. Measurements were also taken inside the applicant’s flat on the ground floor, with all sources of noise switched on, and while chairs were being dragged across the floor inside the bar. The level of noise during the night (after 10 p.m.) was measured under the same conditions and in the same places, with an additional measurement of the level of noise in the entrance and inside the living room of the applicant’s flat on the first floor while only the audio system in the bar was switched on. 63.", "For the daytime, taking into account the fact that house was situated near a road, the measurements showed that the level of noise was excessive in the applicant’s flat on the ground floor (42dB while the permitted level was 31 dB) and inside the living room of the applicant’s flat on the first floor (40 dB while the permitted level was 36 dB) when chairs were being dragged across the floor inside the bar. During the night, the level of noise was excessive in the entrance to the living room of the flat on the first floor while all sources of noise inside the bar were switched on and in the same area with only the fan running in the bar (46 dB when the permitted level was 44 dB). Furthermore, the level of noise was excessive inside the living room while all sources of noise inside the bar were switched on, and in the same area with only the fan running (30 dB when the permitted level was 27 dB), as well as when chairs were being dragged across the floor inside the bar (40 dB when the permitted level was 27 dB). The level of noise was excessive inside the flat on the ground floor with all sources of noise switched on (30 dB when the permitted level was 26 dB) and while chairs were being dragged across the floor inside the bar (42 dB when the permitted level was 26 dB). 64.", "On 8 February 2008 the environmental health inspector heard the parties’ objections and commissioned further expert reports from companies B-I. and E. 65. On 7 March 2008 company B-I. submitted its report, in which it found that the company had replaced the air-conditioning system which had been generating noise. It then measured the average noise level inside the living room of the applicant’s flat on the first floor for three fifteen-minute periods during the day and two fifteen-minute periods during the night.", "It also measured the average noise level in front of the air-conditioning system during the night for two fifteen-minute periods. The report found that the level of noise coming from the bar was not excessive. 66. In March 2008 company E. submitted its report, which also found that the level of noise coming from the bar was not excessive. 67.", "On 12 March 2008 the sanitary inspector found that the noise coming from the bar had not exceeded the permitted levels. 68. On an unspecified date in 2008 the applicant’s husband lodged an appeal with the Ministry of Health challenging the findings of the sanitary inspector. 69. Meanwhile the applicant’s husband obtained an expert report drawn up by company G-P. and dated 15 March 2008 concerning the level of noise emanating from the bar.", "This report measured the level of noise during the day and night inside the living room of the flat on the first floor and in front of a window in the living room. In assessing the maximum permitted noise levels this report considered that the applicant’s house fell within zone 3 under section 5 of the by-law pertaining to dwellings and business premises where the predominant use is as residential property (see paragraph 110 below). It found, taking into account the ambient noise, that the level of noise measured inside the applicant’s living room during the night was excessive (30.9 dB with sources of noise switched on when the permitted level was 25 dB) and that the bar’s noise protection measures were not adequate. 70. On 28 April 2008 the Ministry of Health upheld the sanitary inspector’s decision of 12 March 2008 (see paragraph 67 above).", "71. The applicant’s husband then lodged an administrative action with the Administrative Court, arguing that the noise measurements had not been taken correctly and that the relevant facts had not been correctly established. 72. On 12 May 2008 the sanitary inspector declared the applicant’s complaint of noise nuisance inadmissible on the grounds that he was not competent to examine the case since at the time civil proceedings were pending before the Križevci Municipal Court (Općinski sud u Križevcima) (see paragraphs 79-95 below). 73.", "The sanitary inspector’s decision was upheld by the Ministry of Health on 23 June 2008. 74. On an unspecified date in 2008 the applicant lodged an administrative action with the Administrative Court against the above decision of the Ministry of Health. 75. On 28 September 2010 the sanitary inspector carried out an on-site inspection in the bar and found that the necessary noise insulation measures had been put in place.", "76. On 22 September 2011 the Administrative Court quashed the decision of the Ministry of Health of 28 April 2008 (see paragraphs 67 and 70 above) and ordered a re-examination of the case on the grounds that the decision had been based on contradictory expert reports. 77. On 10 November 2011 the Administrative Court quashed the decision of the Ministry of Health of 23 June 2008 (see paragraph 72 above) and ordered the sanitary inspector to examine the applicant’s complaints on the merits. 78.", "The proceedings before the sanitary inspector are still pending. E. Civil proceedings instituted by the applicant 79. On 10 January 2006 the applicant lodged a civil action in the Križevci Municipal Court (Općinski sud u Križevcima) against the company and its director, seeking an injunction against any further noise emissions from the bar. 80. At a hearing on 1 June 2006 the applicant gave evidence before the Križevci Municipal Court.", "She contended that the noise emanating from the bar had become unbearable and that it was affecting her everyday life. She also complained about smell and other nuisance coming from the bar, in particular about the problems she and her husband had had with drunk and violent customers of the bar. 81. On 29 September 2006 the Križevci Municipal Court conducted an on-site inspection, to which it invited two expert witnesses from the Zagreb Public Health Institute (Zavod za javno zdravstvo Grada Zagreba, hereinafter “the Institute”). It ordered the experts to take the necessary measurements and commissioned noise and pollution expert reports.", "82. In its report of 2 October 2006 the Institute took into account the expert report drawn up by company E. (see paragraphs 20 and 31 above). In assessing the maximum permitted noise levels this report observed that the house was situated near a road and considered that it fell within zone 3 under section 5 of the by-law pertaining to dwellings and business premises but predominantly residential properties (see paragraph 110 below). The report found that the level of noise in the open area surrounding the bar and inside the applicant’s flat did not exceed the permitted levels for daytime and evening. 83.", "The Institute also submitted a report concerning the level of pollution emanating from the bar, which found that all emissions were within the permitted levels. 84. On 3 and 5 January 2007 the applicant objected to the Institute’s reports. She contended that noise measurements had been taken only in the living room of her flat on the first floor, and that all sources of the noise in the bar had been switched off when the measurements were taken. She asked the Križevci Municipal Court to question four witnesses, Z.S., Ž.P., I.Č.", "and D.B., who could confirm her allegations. She also pointed out that the experts had failed to take into account the documentation concerning the noise insulation in the building, and had thus erred in their findings. 85. On 15 February 2007 the Križevci Municipal Court heard the expert witnesses in the presence of the applicant’s lawyer. The noise expert reiterated his findings, and argued that the level of noise had been measured only in the living room, which was the closest area to the bar and in which, as the applicant had told him herself, the noise nuisance was the greatest.", "He also submitted that the noise had been measured on the balcony of the applicant’s flat on the first floor and that while the measurements were being taken all sources of the noise in the bar had been switched on. He explained that he had not taken into account the documentation on noise insulation because that was not part of his remit. He also considered that the operation of the air-conditioning fan in the bar could in no way influence the level of noise in the applicant’s flat. Lastly, the expert witness pointed out that the previous noise measurements had not found the level of noise in the applicant’s flat to be excessive. 86.", "At a hearing on 27 March 2007 the Križevci Municipal Court heard the applicant, who reiterated her objections to the expert reports. She asked for the witnesses who had been present during the measuring to be questioned and for a new expert report to be commissioned. 87. At the same hearing the Križevci Municipal Court dismissed the applicant’s request and terminated the proceedings. 88.", "On 3 April 2007 the four witnesses, Z.S., Ž.P., I.Č. and D.B., who the applicant had asked to be heard at the trial, submitted a statement to the Križevci Municipal Court expressing their dissatisfaction with the manner in which that court had accepted the expert report which, according to them, had contained a number of incorrect statements. 89. On 10 April 2007 the Križevci Municipal Court dismissed the applicant’s civil action, on the grounds that the expert report showed that the level of noise had not exceeded the permitted level and that other evidence from the case file showed that there had been no other nuisance coming from the bar. As regards the applicant’s request for witnesses to be heard, that court held that all relevant facts had been sufficiently established and that there had been no need to take further evidence in respect of the level of noise, particularly since it considered the expert reports well drafted and convincing.", "90. The applicant lodged an appeal against the above judgment with the Koprivnica County Court (Županijski sud u Koprivnici) on 29 May 2007, challenging the findings of the first-instance court and reiterating her previous arguments. 91. On 27 March 2008 the Koprivnica County Court dismissed the applicant’s appeal against the Križevci Municipal Court’s judgment as ill-founded. It considered the expert reports convincing and well constructed.", "92. On 28 May 2008 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Koprivnica County Court, reiterating her arguments that her private life, home and property had been unjustifiably interfered with by the company. 93. On 2 June 2008 the applicant lodged a criminal complaint with the Križevci Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Križevcima) against the Institute’s experts and the managing director of the company, accusing them of perjury. 94.", "On 16 October 2008 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the findings of the lower courts. This decision was served on the applicant on 28 November 2008. 95. On 17 December 2008 the Križevci Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that any objection as to the findings of the experts was within the competence of the civil courts and that there was no evidence that the experts or the company director had deliberately given false evidence to the court. F. The applicant’s other complaints 96.", "In the period between 2002 and 2013 the applicant called the police on a number of occasions in connection with noise and other emissions from the bar. 97. The police were called in total fifty-seven times (of which forty-nine calls were by the applicant) to the bar in connection with breaches of public peace and order; these calls resulted in twenty-six minor offences proceedings against various individuals. 98. The police also instigated thirty visits by other state bodies (the revenue service, health inspectorate and so on) to the bar, which resulted in sixteen minor offences proceedings for breaches of public peace and order.", "99. The applicant also complained to the Križevci Municipal State Attorney’s Office, the Central Inspectorate (Državni Inspektorat), the Office of the Prime Minister of the Republic of Croatia and the Croatian Parliament (Hrvatski sabor) that local and domestic authorities had taken no action, contending that the level of noise and other nuisance coming from the bar had adversely affected her health, dignity, her private and family life and respect for peaceful enjoyment of her possessions. 100. On 27 March 2009 a parliamentary board dealing with the individual complaints urged the Ministry of Health and the Central Inspectorate Office to examine the applicant’s complaints. 101.", "On 11 October 2012 the parliamentary board again urged the competent authorities to examine the applicant’s complaints, pointing out that the Administrative Court’s judgments had never been complied with and that there had been numerous police call-outs to the bar. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Relevant domestic law 1. Constitution 102.", "The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows: Article 34 “The home is inviolable ... “ Article 35 “Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.” Article 48 “The right of ownership shall be guaranteed ...“ 2. Property Act 103. The relevant provisions of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12) read: Emissions Section 110 “(1) No one may exploit or use a property in a manner causing smoke, unpleasant odours, soot, sewage outflow, subsidence, noise or other nuisance to reach the property of another, either accidentally or in the nature of that use, if, given the purpose of the property, they are excessive in place and time, cause more substantial damage or are prohibited under the relevant law (excessive indirect emissions).", "(2) The owners of properties exposed to excessive indirect emissions are authorised to request the owner of the property from which such emissions emanate to eliminate the cause of the emissions and to compensate for the resulting damage, as well as to refrain from any activities causing the excessive emissions until all measures required to eliminate the possibility of excessive emissions have been taken. (3) Without prejudice to the provision of paragraph 2 of this section, where excessive emissions are the product of activities authorised by the competent authority, the owners of the exposed property do not have the right to request the cessation of the activity as long as the relevant permissions exist; however, they are authorised to claim compensation for damage caused by the emissions, as well as to take appropriate measures to prevent excessive emissions in the future or to minimise them. (4) Unless there is a special legal basis, the owner of a property should not have to endure the emission of smoke, unpleasant odours, soot, sewage outflow, subsidence, noise (direct emissions) directly to his real property in any way, and he is authorised to request the cessation of the emissions and compensation for any damage sustained. (5) An owner whose property is in foreseeable danger of being exposed to direct or indirect emissions from another property, which he should not otherwise have to endure, is authorised to require the necessary interim measures.” Protection from nuisance Section 167 “(1) If a third party unlawfully disturbs the owner, without depriving him of his possessions, the owner may request the court to issue an injunction. (2) In order to exercise his right referred to in paragraph 1 of this section in courts or in the proceedings before another competent authority, the owner has to prove his ownership and that there has been nuisance by the third party; and if the third party claims to have the right to carry out the impugned activity, he or she has the burden of proof.", "(3) If damage is sustained as the result of nuisance referred to in paragraph 1 of this section, the owner is entitled to claim compensation in accordance with the general rules governing compensation for damage ... “ 3. Hospitality Industry Act 104. The relevant provisions of the Hospitality Industry Act (Zakon o ugostiteljskoj djelatnosti, Official Gazette nos. 136/2008, 152/2008, 43/2009, 88/1010, 50/2012, 80/2013) are: Section 14 “(1) In order to provide hospitality services a property must be adequately equipped, and must meet all other conditions under this Act or regulations based on this Act (the minimum conditions) ...” Section 39 “(2) Monitoring the application of this Act and the related legislation, as well as hospitality services provided by physical and legal persons, shall be carried out by trading standards inspectors and other inspectors, each within their competence ... “ 105. The by-law on minimum conditions for premises providing hospitality services – restaurants, bars, other catering facilities and basic catering services facilities (Pravilnik o minimalnim uvjetima ugostiteljskih objekata iz skupina “Restorani”, “Barovi”, “Catering objekti” i “Objekti jednostavnih usluga”, Official Gazette, no.", "82/2007) provide: Section 39 “Noise protection measures must be put in place, as provided under the relevant law.” 4. Sanitary inspection 106. The Sanitary Inspection Act (Zakon o sanitarnoj inspekciji, Official Gazette, nos. 113/2008 and 88/2010) provides: Section 2 “Sanitary inspection is monitoring of the application of relevant laws for the protection of health with regard to ... noise nuisance ... “ Section 13 “... sanitary inspection in connection with noise nuisance shall monitor the application of laws and other regulations concerning noise protection aimed at the protection of health ...” Section 24 “If during an inspection the sanitary inspector finds breaches of laws which are within the provenance of other state bodies, he or she shall inform the competent authority.” Section 25 “The sanitary inspector shall institute proceedings of his own motion whenever circumstances suggesting that administrative proceedings should be opened in order to protect health are brought to his attention; and in that regard he shall take into account any individual complaint. The sanitary inspector shall examine all individual complaints made by physical or legal persons concerning the area of his competence and he shall inform the complainant in writing about measures taken ... “ Section 26 “If the sanitary inspector considers that there is no reason to commission a further expert report but the complainant insists on it, the proceedings shall be conducted on the basis of the request of the party ... “ Section 30 “When the sanitary inspector finds that the law has been breached, he shall order the elimination of the irregularity within the appropriate time-limits, if that can be done without cessation of the activity.", "In the event of a breach of the law, the sanitary inspector shall order a ban on the use of given working premises, industry, machines and equipment, as well as the prohibition of further activity by named individuals ... “ Section 31 “During a sanitary inspection, the inspector is authorised to issue an oral order to any physical or legal person, until that person complies with the law, requesting it not to use given working premises, industry, machines and equipment, and not to do any further work, and may immediately enforce the order under section 33 paragraph 1 of this Act, without any further decision in cases of ... 9. non-compliance with the noise insulation requirements or if the level of noise exceeds 5 dB(A) ...” 5. Noise protection legislation 107. The 2003 Noise Protection Act (Zakon o zaštiti od buke, Official Gazette no. 20/2003) provided: Section 2 “Noise endangering the health of people within the meaning of this Act is any sound exceeding the permitted levels of noise with a view to the place and time of emission in the area where people live and work. “ Section 4 “ ...", "Noise protection measures are ... 3. noise insulation in workplaces and residential premises ... 5. measurements of the level of noise, 6. temporary limitations on noise emissions.” Section 11 “Buildings must be constructed in such a manner that the level of noise in the building or the surrounding areas does not endanger the health of people and ensures peaceful and sustainable living conditions.” Section 13 “The competent state body shall not issue a certificate attesting that the minimal technical requirements for an activity are met unless an environmental inspection confirms that noise protection measures have been put in place ... “ Section 17 “It is prohibited to perform any work or activity in a manner disturbing the peace and rest of people in both closed and open living areas.” Section 25 “During a sanitary inspection inspectors are authorised to: 1. commission noise measurements ... in areas where people live and work, 2. impose noise protection measures, 3. prohibit the use of a building until noise protection measures have been put in place, 4. prohibit the use of a source of noise until noise protection measures have been put in place, 5. prohibit activities endangering rest and peace at night, unless the same result can be achieved by the use of measures under 4 above, 6. prohibit the use of a machine, transport vehicle, or equipment which does not have a certificate of the level of noise it produces under certain conditions, 7. prohibit an activity which has commenced without the permission of the competent body attesting that the measures of noise protection have been put in place ... “ 108. On 20 February 2009 a new Noise Protection Act was enacted (Zakon o zaštiti od buke, Official Gazette nos. 30/2009 and 55/2013) which repealed the 2003 Noise Protection Act, although as regards the issues raised in the present case it sets out substantially the same requirements. 109. The relevant provisions of the by-law concerning activities which require inspection of the noise protection measures (Pravilnik o djelatnostima za koje je potrebno utvrditi provedbu mjera za zaštitu od buke, Official Gazette no.", "91/2007) are: Section 2 “All activities using devices emitting noise whose level of noise may in certain circumstances exceed permitted levels in the surrounding dwellings and/or working premises shall be subjected to inspection of noise protection measures.” Section 3 “When more than one activity is registered on the same premises, stricter measures of noise protection shall apply.” Section 4 “Inspection of noise protection measures shall include: 1. measurements of the level of noise, 2. inspection of noise insulation, 3. inspection of noise protection measures taken with regard to the measurements under 1 and 2 above ... “ Section 6 “Noise protection measurements must be conducted during working time in the period when residential noise is at its lowest level.” Section 8 “A certificate that noise protection measures have been put in place must be produced whenever [the premises on which] the activity is carried out and where closed premises which should be protected from noise are placed in the same or adjacent connected buildings ... “ Section 10 “The residential and specific noise emanating from the relevant activity must be measured ... “ Section 11 “During individual noise measurements all sources of noise on the premises where the activity is carried out must be switched on. The measurements must be taken during all work periods. Sources of noise should be switched on and turned up to the maximum level used and in the least favourable conditions for the premises to be protected.” 110. The relevant sections of the by-law on the maximum permitted levels of noise in areas where people live and work (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, Official Gazette no 145/2004) provides: Section 5 “(1) The limit for external noise levels is set out in table no. 1 of this by-law.", "Table no. 1 Zone Purpose of premises Noise limit LRAeq in dB(A) day(Lday) night(Lnight) 1. Holiday and health resorts 50 40 2. Exclusively residential 55 40 3. Mixed zone, predominantly residential 55 45 4.", "Mixed zone, predominantly for business purposes, with dwellings 65 50 5. Business zone (production, industry, storage and service premises) - On the borders of the property noise should not exceed 80 dB(A) - Noise on the border of the zone should not exceed the permitted levels for the adjacent zone (2) The levels of noise in table no. 1 of this by-law concern all existing and planned sources of noise taken together. (3) The zones in table no. 1 of this by-law shall be determined by the relevant spatial planning document.” Section 6 “... (2) For areas where the residential level of noise is below the level provided in table no. 1 of this by-law, the level of noise produced by newly built, reconstructed or adapted buildings and their sources of noise must not exceed the existing level of noise by more than 1 dB(A).“ Section 8 “(1) The limit for the interior equivalent LRAeq noise level for the [above] zones is provided in table no.", "2. This is applicable when the doors and windows are closed. Table no. 2 Zone provided in table no. 1 of this by-law 1 2 3 4 5 The maximum limit for the equivalent LRAeq noise level in dB(A) - day 30 35 35 40 40 - night 25 25 25 30 30 Section 10 “The maximum standard interior noise levels LRAFmax,nT with regard to the work of service equipment (water-supply systems, energy-supply systems, heating, air conditioning ...) are given in table no.", "3 of this by-law. Table no. 3 Noise emission Permitted level of noise LRAFmax,nT in dB(A) Constant or sequenced noise (for example heating) 25 Momentary or transient noise (for example lifts, toilet flushing) 30 B. Relevant international standards 111. Most environmental noise can be approximately described by one of several simple measures.", "The sound pressure level is a measure of the air vibrations that make up sound and it indicates how much greater the measured sound is than the threshold of hearing. Because the human ear can detect a wide range of sound pressure levels, they are measured on a logarithmic scale with units of decibels (dB). If the instantaneous noise pressure level is measured this is called “A-weighting” (abbreviated dBA), whereas if the noise pressure level is measured over a certain time span, this is called the “equivalent continuous sound pressure level” (abbreviated LAeq). Such average levels are usually based on integration of A-weighted levels. A simple LAeq type measure will indicate reasonably well the expected effects of specific noise.", "112. The World Health Organization (WHO) has published ‘Guidelines for Community Noise’ (1999) and ‘Fact Sheet No. 258, on Occupational and Community Noise’ (revised February 2001) which give guideline values for various environments and situations (Chapter 4 of the Guidelines). These guideline values are set at the level of the lowest adverse effect on health, meaning any temporary or long-term deterioration in physical, psychological or social functioning that is associated with noise exposure, and represent the sound pressure level which affects the most exposed receiver in a given environment. 113.", "In relation to noise levels in homes, the guidelines state that to protect the majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and in outdoor living areas should not exceed 55 dB LAeq for steady continuous noise and should not exceed 50 dB LAeq to protect people from being moderately annoyed. These values are based on annoyance studies, but most European countries have adopted a 40 dB LAeq as the maximum allowable for new developments. 114. At night, sound pressure levels at the outer walls of living spaces should not exceed 45 dB LAeq, so that people may sleep with bedroom windows open. This value has been obtained by assuming that the noise reduction from outside to inside with a window partly open is 15 dB and, where noise is continuous, the equivalent sound pressure level should not exceed 30 dB indoors, if negative effects on sleep, such as a reduction in the proportion of REM sleep, are to be avoided.", "THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION 115. The applicant complained that there had not been an adequate and effective response by the domestic authorities to bring the nuisance from a bar located in her house to an end. She relied on Articles 6 and 8 of the Convention, the relevant parts of which read as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 116. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). While Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, private life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Iosub Caras v. Romania, no.", "7198/04, § 48, 27 July 2006, and Moretti and Benedetti v. Italy, no. 16318/07, § 27, 27 April 2010). 117. Therefore, in the instant case the Court considers that the complaint raised by the applicant should be examined under Article 8 (see Zammit Maempel v. Malta, no. 24202/10, § 33, 22 November 2011).", "A. Admissibility 1. Non-exhaustion of domestic remedies and compliance with the six-month time-limit (a) The parties’ arguments 118. The Government considered that instead of instituting the civil proceedings by which she had sought an injunction against all nuisance emanating from the company’s premises (see paragraph 103 above and section 167 of the Property Act), the applicant should have brought an action seeking an injunction against further emissions from the company’s premises (see paragraph 103 above and section 110 of the Property Act). The latter remedy was more focused on the problem of noise nuisance and was thus more appropriate for the applicant’s complaints. Furthermore, the applicant had failed to lodge a request with the local administration for a reduction in the working hours of the bar and the shop, which would have eliminated noise nuisance during the night.", "In any event, the Government considered that the applicant’s complaints were premature, since a number of proceedings before the competent domestic authorities, namely the sanitary inspector, the County Office, various inspectorates, and the Administrative Court, were still pending. In the Government’s view all these remedies were effective and appropriate for the applicant’s complaints, and thus she should have waited for the decisions of the domestic authorities before bringing her complaints before the Court. 119. On the other hand, the Government observed that the alleged nuisance from the company’s premises had commenced in 2002 and that the applicant had brought her application before the Court only in 2009, namely seven years later. In the Government’s view it was obvious from the applicant’s submissions that she considered that the remedies she had been pursuing before the domestic authorities were ineffective.", "Therefore, she should have brought her complaints to the Court within six months of realising that this was the case. However, at that time she had lodged a further civil action in the domestic courts, although she should have been aware that it would not have produced a different result from the one obtained during the administrative proceedings. 120. The applicant argued that she had exhausted all available and effective domestic remedies concerning her complaints about the nuisance emanating from the company’s premises. This had resulted in a number of judgments of the Administrative Court in her favour, but these judgments had never been enforced by the competent administrative authorities.", "She therefore considered that, given that she had been pursuing various remedies before the competent administrative authorities for more than ten years without ever having her complaints effectively and properly examined, and thus never achieving a final settlement of her case, her application to the Court could not be considered premature for not waiting for a final decision by the administrative authorities. She also considered that she had diligently pursued the domestic remedies in the civil courts, considering that the courts could give her protection, but this had resulted only in manifestly unfair proceedings and decisions. She had therefore lodged a constitutional complaint, and when the Constitutional Court had declined to examine it she had lodged an application with the Court. (b) The Court’s assessment 121. The Court considers that both the question of exhaustion of domestic remedies and compliance with the six-month time-limit, which are closely interrelated (see, amongst many others, Čamovski v. Croatia, no.", "38280/10, § 26, 23 October 2012), should be joined to the merits, since they are linked to the substance of the applicant’s complaint that the State had failed to protect her from excessive nuisance for a prolonged period of time (see, mutatis mutandis, Oluić v. Croatia, no. 61260/08, § 41, 20 May 2010). 2. Abuse of the right of individual application (a) The parties’ arguments 122. The Government argued that the applicant had submitted a number of documents to the Court concerning domestic proceedings which had been instituted by her husband and not by her, and had also submitted a number of documents concerning property disputes with her neighbours which were not related to the issues of the present case.", "She had also failed to inform the Court that the shop had been closed. In the Government’s view the manner in which the applicant had argued her case had been aimed at misleading the Court into accepting her complaints, and the language in which she had expressed her dissatisfaction with the conduct of the domestic authorities had not been appropriate. 123. The applicant submitted that her complaints to the Court could in no way be considered vexatious, since she had complained to the Court because she had been helpless to defend hers and her family’s dignity and respect for their private life and home at the domestic level. (b) The Court’s assessment 124.", "The Court reiterates that the notion of abuse of the right of application in general is any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it (see, for example, Miroļubovs and Others v. Latvia, no. 798/05, § 65, 15 September 2009). 125. In the case at issue the Court does not consider that by submitting all the relevant documents concerning noise and other nuisance allegedly coming from the company’s premises to the applicant’s flat and the documents concerning the attempts to put an end to such nuisance the applicant has abused her right of individual application. The Court also does not consider that the applicant deliberately withheld the information concerning the shop, since that information followed from the documents available to the Court and in any event is not central to her complaints, which predominantly concern nuisance from the bar.", "Furthermore, it cannot be held that by arguing her case the applicant in any way abused her rights. The documents submitted by the applicant and all her arguments in that regard are part of the dispute between the parties about the alleged violation of the applicant’s rights under Article 8 of the Convention. As such they are available for the parties’ arguments, which the Court can accept or reject but which cannot be considered in themselves as an abuse of the right of application. 126. The Government’s objection should thus be rejected.", "3. Non-significant disadvantage (a) The parties’ arguments 127. The Government submitted that the applicant had not suffered any significant disadvantage from the alleged noise emanating from the bar, because her house was situated near a public road where vehicles in any event produced noise, as had been confirmed by the expert reports commissioned during the proceedings. Therefore, even if the noise coming from the bar were eliminated, there would still be a high level of noise affecting the applicant’s flat. 128.", "The applicant argued that over the years she had been subjected to constant distress caused by excessive noise and other nuisance from the bar. She considered that the Government’s argument was unacceptable because it implied that she had had no right to protection from the excessive level of noise from the bar because she was already exposed to high noise levels from the road. In her view the fact that the level of noise from the road was already high was an argument in favour of protecting her from the additional excessive noise nuisance from the bar. (b) The Court’s assessment 129. The Court notes at the outset that the gist of the applicant’s complaints is the inaction of the domestic authorities in responding properly to her complaints about the level of noise and other nuisance emanating from the bar, and not the general level of noise where the applicant lives.", "Moreover, without assessing at this point the particular aspects of the available noise expert reports, the Court observes that the expert reports commissioned during the proceedings took into account the fact that the applicant’s house was located near a road. Nevertheless, the reports of 21 January and 15 March 2008 found that the level of noise from the bar was excessive and that the noise protection measures in the bar were not adequate (see paragraphs 62-63 and 69 above). 130. Therefore, having regard to the Government’s submission, the Court rejects this objection. 4.", "Conclusion 131. The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ arguments 132. The applicant contended that the problem with the nuisance emanating from the company’s premises had started in August 2002, when the company had begun reconstruction work on its premises in order to open a bar and a shop. She had not been allowed to participate in the application process which granted the company planning permission to carry out the reconstruction, nor did she have any opportunity to put forward her objections in that regard. However, the Administrative Court had accepted her arguments and remitted the case for re-examination, but to date the administrative bodies had not settled the issue and the bar was still open.", "Furthermore, she had not had an opportunity to participate in the administrative proceedings granting the company operating licences to run a bar and a shop. In those proceedings she had also complained to the Administrative Court, which had ordered the administrative bodies to allow her to participate in the proceedings, but that too had been to no avail, as the administrative bodies had failed to comply with the Administrative Court’s judgment. The Administrative Court had also upheld several other complaints she had submitted, but the judgments of the Administrative Court had never been enforced, and the proceedings before the administrative bodies were still pending after more than ten years. She had attempted to use remedies in the civil courts, but the Križevci Municipal Court had dismissed all her evidence and had eventually based its judgment on an expert report which was flawed because measurements had not been taken properly. She had attempted to demonstrate the irregularities in the expert report by calling witnesses who had been present when the measurements were taken, but the Križevci Municipal Court had dismissed her request without providing any relevant reasons.", "133. The applicant referred to the expert reports of 21 January and 15 March 2008 (see paragraphs 62-63 and 69 above) which showed that the level of noise emanating from the bar had been excessive and that her family had been living in those conditions for six years. The expert report of 24 November 2008 concerning the noise insulation (see paragraphs 48 and 49 above) had also confirmed this. It was not true that appropriate measures for improving the noise insulation had been carried out after the latter report. That had been confirmed by the Administrative Court’s judgment quashing the decisions of the administrative bodies, which had found that the company had carried out such improvements.", "This had all resulted in years of her family’s exposure to excessive noise, music, shouting, singing, glass smashing and various other activities, as well as to threats, public urinating and aggressive behaviour by customers of the bar, which was why the police had also intervened on a number of occasions. The excessive levels of noise she and her family had been exposed to had adversely affected their mental and physical well-being. 134. The Government considered that there had been no interference with the applicant’s right to respect for her private life and her home, because the level of noise and other alleged nuisance had not attained the minimum level of severity required by Article 8 of the Convention. Contrary to the case of Oluić (cited above) the level of noise in the case at issue had been excessive only a few times and had not been sufficiently severe to raise an issue under Article 8.", "The Government firstly pointed out that the applicant’s house was located near a road. Moreover, the measurements of 5 October 2005 (see paragraphs 30 and 31 above) had showed that the level of noise had not been excessive and had not posed any threat to the health of persons living in the surrounding dwellings. The measurements of 21 January 2008 (see paragraphs 62 and 63 above) had showed that the noise had only slightly exceeded the permitted levels. It was true that this report had showed that the permitted level of noise had been significantly exceeded (by 13 and 15 dB) in the living room of the applicant’s flat on the first floor and inside the flat on the ground floor, but that had happened only when chairs were being dragged, which had been only a temporary occurrence that could not affect any of the applicant’s rights. Furthermore, the measurements of March 2008 (see paragraph 69 above) had found that the level of noise was excessive during the night, but that needed to be viewed in the context of the fact that the house was located near a road.", "The expert report of 14 November 2008 concerning the noise insulation in the house (see paragraphs 48-49 and 52 above) had first found the noise insulation insufficient but then, after the company had carried out the necessary work on the insulation, the report had found the noise insulation adequate. In addition, the expert report commissioned during the civil proceedings confirmed that the noise in the applicant’s flat did not exceed permitted levels, and in that regard the applicant had all the procedural guarantees of a fair trial to challenge the findings. The Government also pointed out that the expert reports had not found the level of any other emissions affecting the applicant’s flat excessive. The applicant had not argued or demonstrated that she had suffered any damage to her health or well-being as a result of the alleged nuisance or that it had adversely affected any of her property rights and interests. 135.", "Furthermore, the Government considered that the applicant had had every opportunity to participate in the proceedings at the domestic level and that she had used those opportunities to lodge numerous complaints. She had also taken complaints to the Administrative Court, which had given her leave to participate in the application process for operating licences, although that was not mandatory under the relevant domestic law. The applicant had taken an active part in all the noise measurements conducted during the domestic proceedings, but during the first noise measurements in 2002 (see paragraph 22 above) she had expressly refused to allow those measurements to be taken in her flat. She had also complained about various kinds of odour nuisance, but that had also been duly examined and all her complaints in that regard had been dismissed. 2.", "The Court’s assessment (a) General principles 136. The Court reiterates that Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be a place, a physically defined area, where private and family life goes on. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference.", "A serious breach may result in the breach of a person’s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII). 137. The Court reiterates further that although there is no explicit right in the Convention to a clean and quiet environment, where an individual is directly and seriously affected by noise or other pollution an issue may arise under Article 8 of the Convention (see Hatton and Others, cited above, § 96; López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C; Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no.", "172, p. 18, § 40; and Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008). 138. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, this may involve those authorities adopting measures designed to secure respect for private life even in the sphere of relations between individuals (see, among other authorities, Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1505, § 62, and Surugiu v. Romania, no.", "48995/99, § 59, 20 April 2004). Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Hatton and Others, cited above, § 98). (b) Application of these principles to the present case (i) Whether the nuisance were sufficient to trigger the authorities’ positive obligations under Article 8 139.", "The first question for decision is whether the nuisance reached the minimum level of severity required for it to amount to an interference with the applicant’s rights to respect for her home and private life. The assessment of that minimum is relative, and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects (see Oluić, cited above, § 49). 140. The Court finds the present case similar to the case of Oluić (cited above) in which it examined complaints of excessive levels of noise from a bar located in the building in which the applicant lived, and to the case of Moreno Gómez v. Spain (no. 4143/02, ECHR 2004‑X) concerning complaints of excessive levels of noise emanating from nightclubs.", "In the former case the Court was satisfied, on the basis of a number of unequivocal and compelling tests carried out over a period of eight years, that the level of noise there exceeded the maximum permitted levels under the domestic law and under the relevant international standards (see Oluić, cited above, §§ 52-63). The Court reached the same conclusion in the case of Moreno Gómez, in which it found it obvious that the applicant’s daily life was disrupted by the excessive night-time noise from nightclubs, which continued over a number of years and thus amounted to a breach of Article 8 (see Moreno Gómez, cited above, §§ 58-60). Similarly, in the case of Mileva and Others v. Bulgaria (nos. 43449/02 and 21475/04, 25 November 2010), comparable to the present case in that it concerned allegations of excessive noise from a computer club located in the same residential building as the applicants’ and below their flat, the Court found, even without any noise tests being carried out at the domestic level, that the disturbance affecting the applicants’ homes and their private and family lives reached the minimum level of severity under Article 8 of the Convention. It based its findings on the noise and various other disturbances created by those attending the computer club in and around the residential building (see Mileva and Others, cited above, § 97).", "141. In the present case the Court is unable to draw any clear conclusion from the expert reports commissioned during the domestic proceedings as to the exact level of noise coming from the bar. It observes, however, that several expert reports suggest that the noise in the applicant’s flat exceeded the permitted levels. 142. In this connection the Court notes that the first noise tests concerning the level of noise and noise insulation in the bar were carried out in August 2002 by company Z.", "(see paragraph 22 above). This report indicated that the level of noise and the noise insulation were in compliance with the relevant domestic law. However, the noise level was not measured in the applicant’s flat at the time, and these findings were later refuted by the noise measurements of 21 January 2008 (see paragraphs 62 and 63 above) and 15 March 2008 (see paragraph 69 above). As regards the reference in the report that the applicant had declined to allow noise measurements to be taken in her flat, the Court sees no reason not to accept the findings of the Ministry of Tourism of 17 September 2003 and the Administrative Court of 6 September 2007, which both found that the applicant had not been given an opportunity to participate in the proceedings (see paragraph 26 above). Therefore, the Court is unable to place sufficient confidence in the assertion made in this report.", "143. The noise expert report of 5 October 2005 drawn up by company E. also found that the level of noise was not excessive. This report, however, did not measure the level of noise in the applicant’s flat, and it took the limit for external noise reception under the by-law applicable to dwellings in areas predominantly used for business purposes (see paragraphs 30 and 110 above and zone 4 under table no. 1 of the by-law). Thus, the report found that the measured level of noise at 48 dB in the parking area and in the entrance to the applicant’s flat did not exceed the permitted level of 50 dB during the night (see paragraph 31 above).", "It is not, however, clear how the report came to the conclusion that the house was predominantly used for business purposes, given that the applicant used 59.63% of the house as living space, while the company used 40.37% for business purposes (see paragraph 7 above). This leads to the conclusion that the house was predominantly used as a residential property, and that the maximum noise level under the by-law should be 45 dB (see paragraph 110 above and zone 3 of table no. 1 of the by-law) applicable to premises predominantly used as dwellings. This approach, considering the applicant’s house to fall within zone 3 under table no. 1 of the by-law, was later used in two reports on noise measurements (see paragraphs 69 and 82 above).", "Therefore, if the expert report drawn up by company E. had correctly placed the house under the relevant zone it would have found that the measured level of noise at 48 dB in fact exceeded the permitted level of 45 dB under the relevant domestic law and the international standards (see paragraph 114 above). 144. The expert report of 2 October 2006, commissioned from the Institute during the civil proceedings, relied on company E.’s report, above, and found that the noise did not exceed the permitted levels (see paragraph 82 above). For the reasons set out above concerning company E.’s report the Court has serious doubts as to the findings of the Institute. Its relevance is placed even more in question by the fact that the civil courts, without providing the relevant reasons, never responded properly to the allegations made by the applicant and several witnesses that the Institute’s experts measured the level of noise while the sources of noise in the bar were switched off (see paragraphs 84 and 88-89 above).", "Furthermore, the noise expert stated at the hearing before the Križevci Municipal Court that he had not taken into account the documentation concerning the noise insulation, and that he considered the running of the air-conditioning fan in the bar irrelevant as regards the noise measurements (see paragraph 85 above) although it was a relevant factor for the measurements conducted by company B-I. (see paragraphs 63 and 65 above) and it was provided as a relevant factor under the domestic law (see paragraph 110 above and section 10 of the by-law). 145. Further noise tests were carried out by company B-I. on 21 January and 7 March 2008 (see paragraphs 62-63 and 65 above).", "The first report found that when chairs were being dragged across the floor inside the bar during the day the level of noise in the applicant’s flat on the ground floor exceeded the permitted level by 11 dB and in the living room of the applicant’s flat on the first floor by 4 dB. During the night the level of noise in the entrance to the living room of the applicant’s flat on the first floor exceeded the permitted level by 2 dB while all sources of noise in the bar were switched on and while only the air-conditioning fan was running in the bar. Inside the living room the level of noise during the night was over the limit by 3 dB when the sources of noise were turned on and when the fan was running, and by 13 dB while the chairs were being dragged across the floor in the bar. The level of noise inside the flat on the ground floor was over the limit by 4 dB while the sources of noise were switched on and by 16 dB while the chairs were being dragged across the floor in the bar (see paragraph 63 above). Moreover, these measurements show that the level of noise exceeded the relevant international standards for noise levels (see paragraph 114 above, and compare Oluić, cited above, §§ 54-60).", "The report of 7 March 2008 drawn up by company B-I., which was focused on the improvements to the air-conditioning system in the bar, found that the level of noise was not excessive; that was also confirmed by company E. (see paragraphs 65 and 66 above). However, since there are no indications that at that point any improvements to the noise insulation in the flooring of the bar had been made, and in fact in November 2008 the noise insulation was found to be insufficient (see paragraph 48 above), it could be concluded that the noise created by dragging the chairs across the floor inside the bar remained excessive. Such noise, given the extent to which it exceeded the permitted levels and the fact that it was pervasive in the ordinary regular activities of the customers of the bar, must have disturbed the amenity of the applicant’s everyday life. 146. The structure of the noise insulation was examined by company EL.", "on 24 November 2008 and 13 February 2009 (see paragraphs 48 and 52 above). While the first measurements, taken on 24 November 2008, showed that the noise insulation was not adequate, the second measurements of 13 February 2009 showed that the noise insulation was sufficient. However, the latter findings were not based on any noise insulation standards, since such standards did not exist at the time (see paragraph 52 above). Therefore, the Court has serious doubts as to the relevance of these findings, which were arrived at without any relevant ground. 147.", "The most recent expert report, drawn up by company G-P. and dated 15 March 2008, found that the level of noise coming from the bar during the night exceeded the permitted limit by 5 dB and that measures for protection from excessive noise from the bar were not in place (see paragraph 69 above). 148. In view of these findings, the Court is particularly mindful that the noise in question originated from a bar which had been operating for more than ten years in the building in which the applicant lives. Neither can it overlook eighty-seven attendances by police in connection with various disturbances created by its customers, which resulted in forty-two actions for minor offences against various individuals for breaches of public peace and order. This same concern was also in the focus of the parliamentary board which examined the applicant’s case (see paragraph 101 above).", "149. In view of all the above, the Court is satisfied that the disturbance affecting the applicant’s home and her private life reached the minimum level of severity which required the authorities to implement measures to protect the applicant from that disturbance (see Moreno Gómez, cited above, § 60, and Mileva and Others, cited above, § 97). (ii) Domestic authorities’ compliance with Article 8 150. The Court reiterates that in a case concerning environmental issues there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the decision of the domestic authorities, to ensure that it is compatible with Article 8.", "Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual (see Hatton and Others, cited above, § 99), taking into account the positive obligations under Article 8 of the Convention (see paragraph 138 above). 151. In connection with the procedural element of the Court’s review of cases involving environmental issues, the Court is required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making process, and the procedural safeguards available (ibid., § 104). The Court must therefore first examine whether the decision-making process was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Fadeyeva v. Russia, no. 55723/00, § 105, ECHR 2005‑IV).", "152. In this respect the Court notes that despite a number of complaints by the applicant and proceedings instituted at the domestic level before the competent administrative authorities, for more than ten years these authorities had failed to adopt appropriate decisions in that regard. 153. The Court observes that in 2002, at the very beginning of the process of the company’s opening the bar and the shop, the applicant did not have an opportunity to participate effectively in the administrative proceedings granting the necessary operating licences for the company’s business activity (see paragraph 26 above). Thus, following the applicant’s complaints, the Administrative Court on 17 December 2009 quashed the decisions of the administrative authorities authorising that activity and remitted the case for re-examination (see paragraphs 40 and 41 above).", "However, the order made by the Administrative Court remained futile, as it was not effectively complied with, and in fact, according to the material available before the Court, the relevant proceedings are still pending after almost four years. At the same time it remains unclear under what operating licence the bar is still operating, particularly having in mind the findings of the Administrative Inspectorate of 24 November 2010, which noted that the operating licence issued in 2005 was no longer valid (see paragraph 44 above, and compare Mileva and Others, cited above, § 99). 154. Furthermore, it is striking that the Ministry of Health declined to examine the applicant’s complaints concerning noise insulation measurements in her house, finding that she did not have the standing to submit such complaints (see paragraph 55 above). It is true that this omission was later rectified by the Administrative Court on 6 June 2012 (see paragraph 57 above) but that decision has remained without any relevant effect, since the proceedings are still pending.", "155. The Court also notes that although the applicant and her husband complained to the sanitary inspector about excessive noise from the bar in May 2005 (see paragraph 59 above), the officer adopted decisions only three years later, finding that the level of noise was not excessive (see paragraph 67 above). He also refused the applicant the right to participate in the proceedings, on the grounds that she had participated as a party in the concurrent civil proceedings before the Križevci Municipal Court (see paragraph 72 above). Both these decisions were quashed by the Administrative Court, on 22 September and 10 November 2011 (see paragraphs 76 and 77 above) on the grounds that the former had been based on contradictory noise expert reports and the latter had been based on erroneous findings of the sanitary inspector in not allowing the applicant to participate in the proceedings. However, the Administrative Court’s judgments were never complied with, as the proceedings before the sanitary inspector are still pending.", "156. Thus the Court cannot but concur with the findings of the Administrative Inspectorate of 25 October and 24 November 2010, which reproached the administrative authorities for the inordinate length of proceedings, finding such proceedings both defective and ineffective (see paragraphs 42 and 44 above). 157. As regards the civil proceedings instituted by the applicant, the Court has already noted above the flaws in the manner in which the noise expert report was commissioned and used as evidence in the proceedings before the Križevci Municipal Court (see paragraph 144 above), which was notably the central ground for the dismissal of the applicant’s civil action regarding the excessive noise emissions (see paragraph 89 above). However, although the applicant complained to the higher domestic courts that she had had no opportunity to challenge the noise expert report effectively during the trial, the Koprivnica County Court and the Constitutional Court failed to rectify that procedural omission (see paragraphs 91 and 94 above).", "It was after the Constitutional Court’s decision, which was served on the applicant on 28 November 2008, that the applicant brought her complaints before the Court on 29 April 2009. 158. Having regard to the Government’s objections that were joined to the merits of the complaint (see paragraph 121 above), the Court considers that the national authorities allowed the impugned situation to persist for more than ten years while the various proceedings before the administrative authorities and the Administrative Court were pending, thus rendering those proceedings ineffective. The applicant also used the relevant and available remedies in the civil courts and brought her application before the Court within the six-month time-limit after she had exhausted these remedies. Therefore, the Court dismisses the Government’s preliminary objections concerning the non-exhaustion of domestic remedies and non-compliance with the six-month time-limit (see Oluić, cited above, §§ 36 and 65).", "159. In these circumstances, by allowing the impugned situation to persist for more than ten years without finally settling the issue before the competent domestic authorities, the Court finds that the respondent State has failed to approach the matter with due diligence and to give proper consideration to all competing interests, and thus to discharge its positive obligation to ensure the applicant’s right to respect for her home and her private life. 160. Accordingly, the Court finds that there has been a violation of Article 8 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 161. The applicant complained of a violation of her right to peaceful enjoyment of her possessions. She relied on Article 1 of Protocol No. 1 to the Convention.", "162. The Government contested that argument. 163. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 164.", "Having regard to the finding relating to Article 8, the Court considers that it is not necessary to examine whether in this case there has been a violation of Article 1 of Protocol No. 1 (see Oluić, cited above, § 70). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 165. The applicant reiterated her complaints, citing Article 5 § 1 of the Convention.", "166. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 167.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 168. The applicant claimed 299.78 euros (EUR) in compensation for pecuniary damage and EUR 15,000 for non-pecuniary damage. 169. The Government contested the claim.", "170. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in compensation for non-pecuniary damage, plus any tax that may be chargeable to her. B.", "Costs and expenses 171. The applicant also claimed EUR 5,749.50 for costs and expenses incurred before the domestic courts and EUR 1,500 for those incurred before the Court. 172. The Government contested that claim. 173.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7,249 covering costs and expenses under all heads. C. Default interest 174. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT,UNANIMOUSLY, 1.", "Decides to join to the merits the Government’s objection as to the exhaustion of domestic remedies and compliance with the six-month time-limit and rejects it; 2. Declares the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds that there is no need to examine the complaint under Article 1 of Protocol No.", "1 to the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kuna at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 7,249 (seven thousand two hundred and forty-nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIFTH SECTION CASE OF O’LEARY v. IRELAND (Application no. 45580/16) JUDGMENT STRASBOURG 14 February 2019 This judgment is final but it may be subject to editorial revision. In the case of O’Leary v. Ireland, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lәtif Hüseynov, President,Síofra O’Leary,Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 22 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45580/16) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Alan O’Leary (“the applicant”), on 2 August 2016.", "As he lacks legal capacity, the applicant was represented before the Court by his sister and guardian, Ms Charlene O’Leary. 2. The applicant was legally represented by Denis O’Sullivan & Co. Solicitors, a law firm in Cork. The Irish Government (“the Government”) were represented by their Agent, Mr P. White of the Department of Foreign Affairs and Trade. 3.", "On 30 August 2017 notice of the complaints concerning the length of the proceedings and the lack of remedies in that respect was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1986 and lives in Cork. 5.", "He suffers from severe brain damage. It was asserted on his behalf that his condition was caused by the measles vaccination administered to him in 1988 when he was 15 months old. 6. In November 2002, 14 years after receiving the vaccine, the applicant’s mother instituted proceedings on his behalf against four defendants; the local health authority, the State, the Attorney General (collectively described in the domestic proceedings as the State defendants) and the doctor who had administered the vaccination, H. 7. On 5 August 2003, the High Court issued a limited order of discovery addressed to the local health authority seeking all relevant records about the applicant in its possession, as well as information about the vaccine used, about any adverse effects noted at the time with this vaccine, about the manner in which the mother’s consent was obtained, and about the health of the other members of the applicant’s family.", "Although the High Court set a time-limit of 8 weeks for discovery, the local health authority only complied with the order in June 2008, that is to say with a delay of over four and a half years. 8. The applicant appealed the scope of the order of discovery of 5 August 2003, leading to the grant of a further limited order of discovery by the High Court on 30 January 2004, addressed to all four defendants. The applicant brought another appeal against the order of discovery of 30 January 2004, but in July 2006 the Supreme Court dismissed the appeal, making only a minor amendment to the order granted by the High Court. 9.", "The applicant’s mother died in December 2007. 10. In June 2008 the applicant’s lawyer wrote to the local health authority to complain that the long delays in litigating the case had caused grave prejudice to the case. The applicant’s mother had been a vital witness, and with her death essential evidence had been lost. Settlement of the substantive dispute was proposed but not agreed.", "11. In May 2008 the applicant’s lawyer sought to have the defence of the State defendants set aside. The High Court refused this application on 12 March 2010. 12. The trial involved ten days of hearings.", "No factual evidence was called on behalf of the applicant, but independent medical witnesses gave evidence, having read the applicant’s medical records, and documentary evidence provided by way of discovery was before the court. On the eleventh day of the trial, 19 July 2011, the judge accepted an application by the defendants to strike the case out for failure to establish a prima facie case against them. 13. Regarding the doctor, he noted that the applicant accepted there was insufficient evidence to establish any negligence in the administration of the vaccine. The claim against the doctor H was dismissed.", "In relation to the State defendants, the judge held that no evidence had been produced that could support the various grounds relied on by the applicant. 14. The proceedings in the High Court terminated on 19 December 2011. The applicant filed a notice of appeal presenting 30 grounds of appeal. Following the establishment of the Court of Appeal in October 2014, the applicant’s case was transferred to it.", "Outline written submissions were submitted by H in February 2015 and by the State defendants in September 2015. 15. The Court of Appeal gave its judgment on 10 February 2016, dismissing the appeal. In its conclusions, the Court of Appeal stated that, by taking the case at its highest, the trial judge had adopted the correct approach on the question of striking the case out. The Court of Appeal concluded by remarking on the many legal hurdles the applicant would have had to overcome in order to succeed.", "It found no basis for overturning the decision of the High Court. 16. The proceedings ended on 10 May 2016 when the Supreme Court declined the applicant’s request for leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 17.", "On 24 October 2016 the Supreme Court gave judgment in the case of Nash v. D.P.P. ([2016] IESC 60) in which the appellant claimed that there had been excessive delay in the criminal proceedings brought against him and sought an award of damages. The Supreme Court addressed the possibility of claiming damages where legal proceedings are not completed within a reasonable time. The judgment referred first to the possibility of a claim for damages under the European Convention on Human Rights Act, 2003, which may be sought only if no other remedy in damages is available. 18.", "The Supreme Court then considered the constitutional basis for a claim in damages. The judgment set out that “2.8 It is, therefore, clear that the constitutional right to a timely trial has been well established for many years. Given that it has also been clear that, in an appropriate case, damages can be awarded for the breach of a constitutional right, it has been clearly established for some time in our jurisprudence that there is, at least at the level of principle and in some circumstances, an entitlement to damages for breach of the constitutional right to a timely trial. However, just as in the case of a claim for damages for breach of the similar right guaranteed by the ECHR, there may well be questions as to the precise circumstances in which such an entitlement to damages may arise.” THE LAW I. ADMISSIBILITY OF THE COMPLAINTS 19. The applicant complained that the length of proceedings in his case had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.", "He further complained under Article 13, in connection with the Article 6 complaint, that there was no effective remedy in the domestic system. 20. Article 6 § 1 of the Convention reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...” 21. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 22. The Government submitted that the complaint was inadmissible for non‑exhaustion, arguing that the applicant had not pursued various means at his disposal to expedite the proceedings at certain points.", "Further, the Government submitted that the applicant had not pursued domestic remedies for his complaint as to the overall delay in the proceedings, referring to the decision of the Supreme Court in Nash v. D.P.P. The applicant rejected the Government’s arguments and maintained that no effective remedy had been available to him. 23. As stated at paragraph 26 in Healy v. Ireland, no. 27291/16, 18 January 2018, the Court recalls that the issue of whether the applicant availed of the means at his disposal to expedite the proceedings goes to the substance of the complaint under Article 6 § 1.", "It will therefore examine it below. 24. Regarding the availability of a constitutional remedy in damages, the Court recalls that the domestic decisions made in the proceedings predated the clarification provided by the decision in Nash. In these particular circumstances, and given the close affinity between the requirement under Article 35 § 1 to exhaust domestic remedies and the right under the Convention to an effective remedy (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI), the issue of exhaustion will be joined to the merits of the complaint under Article 13.", "25. Accordingly, the Court notes that these complaints are not manifestly ill-founded or inadmissible on any other grounds, and must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. The parties’ submissions 1.", "The applicant 26. The applicant submitted that the length of the domestic proceedings from commencement of the action in November 2002 to determination of the application for leave to appeal on 10 May 2016 had been excessive (around thirteen years and six months in total). In particular, he pointed to several discrete periods of delay. 27. Firstly, he asserted that the local health authority had not complied with order of discovery of the Deputy Master in the High Court dated 5 August 2003 and the order of discovery of the High Court on 30 January 2004 until June 2008 (a duration of around four years and ten months).", "Secondly, he complained that the period of two years and six months from January 2004 to July 2006 for the determination of an appeal and cross‑appeal to the Supreme Court in respect of the order of discovery made in January 2004 was excessive and unreasonable. Thirdly, he complained that the period of twenty months from the issue of a motion seeking the defence of the State defendants to be set aside in May 2008 until its determination in March 2010 was excessive. Finally, he claimed that the period of four years for the appeal of the final order dated 19 December 2011 dismissing his case to be heard, and a further four months until delivery of the judgment of the Court of Appeal on 10 February 2016 was excessive and unreasonable. 28. The applicant clarified that after the High Court had made an order of limited discovery on 5 August 2003, additional discovery was ordered on appeal on 30 January 2004.", "While that order was further appealed to the Supreme Court, and was not determined until 21 July 2006, the applicant submitted that the judicially imposed duty on several of the State defendants to provide the discovery ordered had existed since at the latest January 2004 and that no stay on the orders had been in place. 29. The applicant submitted that the Supreme Court, on determining the appeal of the order of discovery on 21 July 2006, had ordered that the outstanding discovery be made by the State defendants within sixteen weeks from the date of the order. However, discovery was not made until June 2008. 30.", "The applicant refuted the submission of the Government that the complexity of the litigation had justified the length of time taken to comply with the orders of discovery made. He pointed out that the Government had alleged during the domestic proceedings that his case was entirely devoid of merit. 31. In response to the Government’s assertion that his delay in filing written submissions in respect of the appeal against the orders of discovery and the High Court decision of 19 December 2011 significantly impeded the progress of those matters, the applicant rejected this proposition. He submitted that he had correctly followed the relevant procedural rules in respect of both appeals.", "32. The applicant maintained that the establishment of the Court of Appeal could not be relied upon by the Government to justify the delay in hearing his appeal against the High Court decision. 2. The Government 33. The Government did not accept that there was delay by the local health authority in complying with the first order of discovery.", "The orders of discovery of 5 August 2003 and 30 January 2004 had not in fact been ‘finalised’ until after an appeal to the Supreme Court which resulted in an amended order of discovery dated July 2006. In this respect, the Government asserted that the applicant’s view that discovery ought to have been made pending appeal was unrealistic and impractical. 34. They also pointed to the scale, complexity, geographical and historical span of the discovery required. The Government further noted that the local health authority was replaced by and incorporated into a new national institution (the Health Service Executive) in 2004, exacerbating the difficulties it faced in making discovery.", "35. It was submitted on behalf of the Government that the applicant bore considerable responsibility for the length of the proceedings. In particular, while the applicant had lodged an appeal of the order of discovery of 30 January 2004 that same year, he had not filed complete books of appeal and submissions until June 2006. 36. The Government asserted that the applicant did not take any steps to further the proceedings between June 2008 and March 2010, when an application to set aside the defence of the State defendants was heard.", "37. With respect to the appeal of the High Court decision of 19 December 2011, the Government submitted that the applicant had failed to pursue the appeal with reasonable diligence as he had not filed his submissions until 1 July 2014, when he also made a successful application for priority. 38. The Government submitted that matters were then overtaken by the establishment of the Court of Appeal in October 2014, with the appeal being heard one year later in October 2015 and judgment being delivered on 10 February 2016. The Government considered that no delay relating to the conduct of the appeal had been attributable to the State.", "B. The Court’s assessment 39. The Court notes that the proceedings commenced in November 2002 and terminated on 10 May 2016. The overall duration was therefore thirteen years and 6 months over three levels of jurisdiction. 40.", "The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, which call for an overall assessment, with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Superwood Holdings Plc and Others v. Ireland, no. 7812/04, § 34, 8 September 2011). 41. The Court reiterates that a temporary backlog of court business does not entail a Contracting State’s international liability if it takes appropriate remedial action with the requisite promptness.", "However, according to the Court’s established case-law, a chronic overload of cases within the domestic system cannot justify an excessive length of proceedings (Probstmeier v. Germany, 1 July 1997, § 64, Reports of Judgments and Decisions 1997‑IV), nor can the fact that backlog situations have become commonplace (Unión Alimentaria Sanders S.A. v. Spain, 7 July 1989, § 40, Series A no. 157, Mikuljanac and Others v. Serbia, no. 41513/05, § 39, 9 October 2007). The Court has also recognised that in civil proceedings the principal obligation for progressing proceedings lies on the parties themselves, who have a duty to diligently carry out the relevant procedural steps (Healy v. Ireland, no. 27291/16, § 55, 18 January 2018).", "42. The Court does not consider that the proceedings involved particularly complex issues of law. Whilst the hearing before the High Court lasted for ten days, no factual evidence was called on behalf of the applicant and his claim rested exclusively on the evidence of two independent expert medical witnesses as well as certain documentary materials provided by way of discovery. At the conclusion of this evidence, the defendants successfully made an application for an order dismissing the proceedings on the basis that a prima facie case had not been made out against them. 43.", "With regard to the orders of discovery made in 2003 and 2004, the Court notes the applicant’s submission that the duty to make discovery existed from at latest 30 January 2004. However the appeal of the order of January 2004 was not disposed of until 12 July 2006 by the Supreme Court after an application for priority listing was made by the applicant. The Court considers that a waiting duration of over two years to hear a straightforward interlocutory appeal concerning discovery was excessive. 44. Compliance with the orders of discovery within four months of 21 July 2006 was somewhat onerous due to the historical time span and breadth of documents referred to.", "However, the State defendants had been aware of the nature of the discovery to be provided since 2003. The delay in providing the discovery, from the Supreme Court order of 21 July 2006 until June 2008, cannot be justified. The Court considers that the delay of a year and seven months in this regard should be attributed to the State. 45. The applicant acted at times with diligence during the proceedings, making an application for priority listing of the appeal against the orders of discovery which led to listing before the Supreme Court shortly thereafter.", "However, his application for the State defence to be set aside was not made until May 2008 (shortly before the discovery was in fact provided). The Court also notes that this application referred only to the failure of the State defendants to comply with the order of discovery of July 2006, but not the earlier orders of August 2003 and January 2004. 46. Further, despite his expressed concern about delay in correspondence in June 2008, the applicant did not make an application for priority listing of the application, which was heard and dismissed by the High Court in March 2010. The Court considers that the applicant could have been more diligent in availing of procedural mechanisms to avoid further delay in this respect.", "However, the delay in listing the set aside application of one year and ten months in the context of proceedings which had already been ongoing at that point for over seven years cannot be justified and must be at least partially attributed to the State. 47. The Court considers, with respect to the Government’s submission that the applicant had not used the means at his disposal to expedite the proceedings (see paragraph 23 above), that the applicant did avail of certain measures to prevent further delay in the proceedings at certain times (such as a request for priority listing). While he did not make this request at every opportunity in the proceedings, it is clear from the foregoing observations that the applicant generally sought to progress matters, and that delay prior to hearing of the matter had occurred notwithstanding these efforts. 48.", "Regarding the appellate stage of the proceedings, the large backlog before the Supreme Court from the end of 2011 until October 2014 caused a lengthy period of inactivity before the appeal was transferred to the caseload of the newly-created Court of Appeal. The Court recalls its previous assessment of the judicial situation in Ireland during that time in Healy at paragraph 61 to 62 and notes that: “the creation of the Court of Appeal represented a significant modification of the domestic legal system, involving amendment of the Constitution by referendum, the passage of legislation and the allocation of the necessary resources to the new court ...” 49. Once the applicant’s appeal had been transferred to the Court of Appeal, it was heard one year later and a lengthy judgment was delivered four months after the hearing, on 10 February 2016. The Court considers that the Court of Appeal dealt with the appeal with diligence. Further, the Supreme Court determined the applicant’s request for leave to appeal to that court without delay and within three months of the Court of Appeal’s decision.", "50. Nonetheless, the delay and inactivity at the appellate stage between December 2011 and October 2014 for a period of almost three years cannot be ignored, as it constituted a not insignificant period of the overall proceedings which had already been characterised by a lack of expedition in the High Court. In this respect, the situation can be distinguished from that in P.H. v. Ireland (dec.) [Committee], no. 45046/16, 2 November 2017 wherein a period of inactivity of two years and nine months at the appellate stage until transfer to the Court of Appeal was not considered unreasonable, in circumstances where no delay was apparent at first instance level.", "51. The Court also recalls that in Healy it decided that a period of inactivity lasting more than four years at the appellate stage before transfer to the Court of Appeal was excessive, notwithstanding its recognition of the clear benefit of the creation of the Court of Appeal for the applicant’s case and the efforts on the part of the respondent State to overcome structural deficiencies in its legal system. Accordingly, the Court finds in respect of the applicant that the delay of almost three years at the appellate level was not reasonable and was attributable to the State. 52. The Government submitted that the failure of the applicant to submit books of appeal and submissions until June 2006 had delayed the determination of the appeal concerning discovery orders.", "The Court is not however persuaded either that the applicant omitted to submit documents on time or that any delay in submission affected the date of listing of the appeal, particularly as it appears that the hearing was precipitated by the applicant’s application for priority listing in June 2016. Similarly, the Court is not persuaded by the argument of the Government that the applicant had failed to pursue his appeal with reasonable diligence as he did not file his submissions until July 2014, given the impending transfer of the case to the Court of Appeal’s list was necessary due to the backlog experienced in the legal system at that time. 53. The Court notes four separate periods of delay in the proceedings: (1) between January 2004 and July 2006 when the interlocutory appeal was pending; (2) between July 2006 and June 2008 caused by the failure of the local health authority to provide discovery; (3) between June 2008 and March 2010 when the set aside application was pending but little other progress was made, attributable in part to both the applicant and the respondent State; and (4) the inactivity at appellate stage between December 2011 and October 2014 pending the creation of the Court of Appeal. 54.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 55. There has accordingly been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 56.", "The applicant complained that he had no effective remedy in relation to the allegedly excessive duration of the proceedings in his case. A. The parties’ submissions 1. The applicant 57. The applicant submitted there is no remedy available in domestic law for breach of Article 6 § 1 of the Convention caused by delay on the part of the judiciary or the court’s system.", "58. He submitted that the Nash judgment was irrelevant for the purposes of a remedy for breach of Article 6 § 1 of the Convention as required by Article 13 because any possible constitutional cause of action would be rather in respect of a breach of a constitutional right of undefined content. 2. The Government 59. The Government submitted that, firstly, there existed a domestic remedy for breach of the Convention in section 3(2) of the European Convention on Human Rights Act, 2003.", "Further, the Government submitted that there is a constitutional entitlement to a damages remedy for delay in the conduct of judicial proceedings, confirmed and affirmed by the recent Nash judgment. B. The Court’s assessment 60. The Court recalls its assessment in the Healy judgment at paragraphs 69 to 72 as follows: “69. The Court recalls that as from its judgment in Doran v. Ireland, no.", "50389/99, ECHR 2003-X (extracts) it has consistently found the domestic legal system to lack a remedy for complaints of excessive length of proceedings. The objection of non-exhaustion of domestic remedies could not therefore be raised in such cases, and the Court found a violation of Article 13 each time such a complaint was raised in conjunction with Article 6 § 1 (see as the most recent example involving civil proceedings Rooney v. Ireland, no. 32614/10, 31 October 2013). More recently again, the Court struck out an application in light of the respondent Government’s acceptance, in a unilateral declaration dated 19 January 2017, that “the length of the proceedings and the lack of an effective remedy in that regard was incompatible with the reasonable time requirement contained in Article 6(1) and Article 13 of the Convention” (see Blehein v. Ireland (dec.) [Committee], no. 14704/16, 25 April 2017).", "It therefore takes note with interest of this first example brought to its attention of an action in damages for excessive length of proceedings, and of the Supreme Court’s analysis of this issue in light of the relevant principles of the Constitution and the Convention. 70. However, it must be recalled that, according to the Court’s well-established case-law, the effectiveness of a remedy is normally assessed with reference to the date on which the application was lodged (see Valada Matos das Neves v. Portugal, no. 73798/13, § 102, 29 October 2015, with further references). Given the close affinity between Article 35 § 1 and Article 13, the same approach must be taken under the latter provision (see Casse v. Luxembourg, no.", "40327/02, § 66, 27 April 2006). 71. The present application was introduced on 12 May 2016. It is clear that at that point in time there was no basis to reconsider the Court’s conclusion regarding the inexistence of a remedy in domestic law for length of proceedings, the Supreme Court’s decision in Nash coming more than five months later on 24 October 2016, and indeed following communication of the application. 72.", "It is true that the Court has approved a number of exceptions to this rule, justified by the specific circumstances of the cases in question. This refers in particular to the enactment of new legislation by States to remedy the systemic problem of length of judicial proceedings (see the cases referred to in Valada Matos das Neves, cited above, at § 102). Where the change in domestic law comes about through case-law, the Court’s approach has been, for reasons of fairness, to allow a certain time for applicants to familiarise themselves with the new jurisprudence, the exact period depending on the circumstances of each case, especially the publicity given to the decision in question (ibid., §§ 104-105). Periods ranging from one and a half months (see Poulain v. France (dec.), no. 16470/15, § 29, 21 March 2017) to eight months (see Leandro Da Silva v. Luxembourg, no.", "30273/07, § 50, 11 February 2010) have been allowed. It follows that even were the Court to modify its assessment of the domestic system in this regard, this would not have any bearing on its conclusion on the complaint raised in the present case. Accordingly, the Court will refrain on this occasion from determining the significance of the Nash decision for the purposes of Articles 35 § 1 and 13.” 61. The final domestic decision in the present proceedings was made on 10 May 2016 and the application was lodged on 2 August 2016. The Nash judgment was delivered more than two months later, on 24 October 2016.", "While the present application differs from Healy in one respect in that it was communicated after the Nash judgment, nonetheless, there was equally no basis at the time of the final decision or before the application was lodged to reconsider the Court’s conclusion regarding inexistence of a remedy in domestic law for length of proceedings. 62. The Court considers on this basis that it is not appropriate to consider in the context of this application the significance of the Nash judgment for the purposes of Articles 35 § 1 and 13. 63. In light of the foregoing, the Court finds that there has been a violation of Article 13, in conjunction with Article 6 §1 of the Convention, and, consequently, dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicant requested the Court to award him such amount as it deemed appropriate for non-pecuniary loss arising out of the violation of his rights under Articles 6 § 1 and 13.", "66. The Government did not propose to suggest a figure for non-pecuniary loss, should an award be made by the Court, noting that the assessment would be on an equitable basis having regard to the sums granted in similar cases. 67. The Court considers that the violation of Article 6 § 1 pertains in particular to those parts of the proceedings identified at paragraph 53 above, while recognising that certain periods of delay were also attributable to the applicant (see paragraphs 45 to 47 and 53(3) above). Considering that the applicant must have sustained non-pecuniary damage, and ruling on an equitable basis, the Court awards him EUR 7,000 under this head of damage.", "B. Costs and expenses 68. The applicant claimed a total of EUR 5,083 in legal fees incurred before the Court. This comprised EUR 2,500 charged by counsel for 10 hours of work at a rate of EUR 250 per hour. The remainder comprised EUR 2,583 charged by his solicitor, for 7 hours of work at a rate of EUR 300 per hour, plus VAT.", "69. The Government did not express an opinion on the matter. 70. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000.", "C. Default interest 71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join to the merits of the complaint under Article 13 the Government’s objection concerning the non-exhaustion of domestic remedies, and rejects it; 2. Declares the complaint concerning Article 6 § 1 and the related complaint under Article 13 admissible; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 14 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoLәtif HüseynovDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF ARSLAN AND OTHERS v. TURKEY (Application no. 3752/11) JUDGMENT STRASBOURG 10 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Arslan and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paul Lemmens, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 19 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 3752/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Turkish nationals, Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Ahmet Doğan, Mr Yaşar Çalışkan, Mr Gökhan Topaloğlu and Mr Olcay Bayraktar (“the applicants”), on 30 November 2010.", "2. The applicants were represented by Mr E. Cinmen, a lawyer practising in Muğla. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicants complained under Articles 10 and 11 of the Convention that their conviction under section 7(2) of Law no.", "3713 had constituted a violation of their rights to freedom of expression and freedom of assembly. They further contended under Article 6 of the Convention that the trial court had not been independent and impartial. The applicants complained under the same head about the failure of the domestic courts to suspend the pronouncement of their conviction and to provide reasoning for their decisions. The applicants lastly complained of a breach of Article 6 on account of the allegedly excessive length of the criminal proceedings against them and the alleged non-communication to them of the opinion of the public prosecutor at the Court of Cassation on the merits of the case. 4.", "On 29 May 2012 the application was communicated to the Government. 5. On 5 December 2017 the Government were informed that the Court intended to assign the application to a Committee. In a letter dated 4 January 2018 the Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1983, 1973, 1983, 1986, 1984 and 1984. Mr Yaşar Çalışkan lives in Ankara. The other applicants live in Samsun.", "According to the applicants’ submissions, which were not contested by the Government, at the time of the lodging of the application, they were serving the prison sentences arising out of their criminal convictions which gave rise to the present application. 7. On 17 and 18 June 2005 seventeen members of the Maoist Communist Party (hereinafter “the MKP”), an illegal organisation, were killed in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, by members of the security forces. 8. On 21 June 2005 a gathering was held in protest at the alleged unlawful killings of 17 and 18 June 2005 in Samsun.", "University students from the Samsun Ondokuz Mayıs Üniversitesi, including the applicants, gathered in front of the building of the Black Sea Fundamental Rights and Freedoms Association (Karadeniz Temel Haklar ve Özgürlükler Derneği) where a press statement was read out. 9. On 8 July 2005 one of the applicants, Mr Ahmet Doğan, attended another reading out of a press statement in Samsun. The press statement concerned the killings of 17 and 18 June 2005, the arrest of a number of persons subsequent to the reading out of the press statement on 21 June 2005 and the alleged unlawful killing of a detainee by the police. 10.", "On 21 February 2007 the Ankara public prosecutor initiated criminal proceedings against twenty-three people, including the applicants, charging them with disseminating propaganda in favour of the MKP, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering of 21 June 2005, slogans such as “Long live revolutionary solidarity” (“Yaşasın devrimci dayanışma”), “We have paid a price. We will make them pay a price.” (“Bedel ödedik, bedel ödeteceğiz.”), “Murderer State” (“Katil devlet”), “Revolutionary martyrs are immortal” (“Devrim şehitleri ölümsüzdür.”), “Martyrs are immortal” (“Şehit namırın”), were chanted and the applicants participated in the gathering. The public prosecutor further noted that Mr Ahmet Doğan had participated in the gathering of 8 June 2005, during which the following slogans had been chanted: “No emancipation alone, either all of us or none of us.” (“Kurtuluş yok tek başına, ya hep beraber ya hiçbirimiz.", ")”, “Arrests, provocations and coercion cannot discourage us.” (“Tutuklamalar, provakasyonlar, baskılar bizi yıldıramaz.”), “We will resist and succeed” (“Direne direne kazanacağız.”), “We have paid a price; we will make them pay a price.” “Bedel ödedik, bedel ödeteceğiz”). 11. On 31 March 2009 the Ankara Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of Law no. 3713, except for Mr Ahmet Doğan, who was sentenced to twenty months’ imprisonment. As regards the gathering of 21 June 2005, the assize court found it established that the slogan “Martyrs are immortal” had been chanted by Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Olcay Bayraktar and Mr Ahmet Doğan and that the slogans “The murderer state will pay the price”, “Revolutionary martyrs are immortal” and “Long live revolutionary solidarity” had been chanted by Mr Yaşar Çalışkan, Mr Kürşad Arslan and Ms Dilek Kömpe.", "The court also found it established that all the applicants except for Mr Olcay Bayraktar had chanted the slogan “We have paid a price; we will make them pay a price” and that Mr Ahmet Doğan had carried a banner bearing the slogan “Ovacık Martyrs are immortal”. As regards the gathering of 8 July 2005, the court noted that Mr Ahmet Doğan had chanted the slogans “Arrests, provocations and coercion cannot discourage us.”, “We will resist and succeed” and “We have paid a price; we will make them pay a price.” during that public gathering. 12. In its judgment, the Ankara Assize Court referred to Article 10 of the Convention as well as to the Court’s judgment in the case of Sürek v. Turkey (no. 1) ([GC], no.", "26682/95, ECHR 1999‑IV) and the report of the European Commission of Human Rights in the case of Karataş v. Turkey (no. 23168/94, Commission’s report of 11 December 1997). The court held that by chanting the above-mentioned slogans the applicants had not exercised their democratic rights but had glorified terror by adopting the style of discourse of terror organisations and that they had not distanced themselves from violence. In the court’s view, by chanting those slogans the applicants had not intended to find a solution to a problem but had praised and glorified the source of the problem, that is to say, the terrorist organisations concerned. Hence, the applicants had incited terror.", "The Ankara Assize Court concluded that chanting the slogans in question could not be considered as falling within the scope of the right to freedom of expression. 13. On 8 July 2010 the Court of Cassation upheld the judgment of 31 March 2009 in so far as it concerned the applicants’ conviction. 14. On unspecified dates the applicants served their prison sentences.", "II. RELEVANT DOMESTIC LAW 15. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016). 16.", "In particular, at the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows: “Any person who assists members of the above-mentioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to [serve] a term of imprisonment of one to five years and [receive] a judicial fine of five million liras to one billion liras ...” THE LAW I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 17. In their letter dated 4 January 2018, the Government claimed that on 19 August 2013 they had submitted a unilateral declaration and requested that the Court strike out the application. They submitted a copy of the unilateral declaration in question by way of annex to their letter.", "18. The Court notes at the outset that the Government’s unilateral declaration was only submitted to the Court for the first time on 4 January 2018, contrary to the Government’s assertion. It further notes that, under certain circumstances, it may be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government, even if the applicant wishes the examination of the case to be continued. It will, however, depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI, and Angelov and Others v. Bulgaria, no.", "43586/04, § 12, 4 November 2010). 19. In this connection, the Court observes that Article 311 § 1 (f) of the Code on Criminal Procedure (Law no. 5271), provides that where a final judgment of the European Court of Human Rights establishes that a judgment has violated the Convention or its Protocols, a retrial may be requested. The Court therefore considers that the unilateral declaration, which will deprive the applicant of filing a retrial request, does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Çalar v. Turkey [Committee], no.", "9626/12, § 11, 28 November 2017). 20. This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21.", "The applicants complained under Articles 10 and 11 of the Convention that the criminal proceedings brought against them under section 7(2) of Law no. 3713, and their subsequent conviction, had constituted a violation of their rights to freedom of expression and freedom of assembly. 22. The Court considers at the outset that the application should be examined from the standpoint of Article 10 which reads: “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 23. The Government submitted that on 5 July 2012 a new law (Law no.", "6352) had entered into force amending various laws with a view to rendering judicial services more effective and to suspending cases and sentences given in cases concerning crimes committed through the press and other media. They claimed that the applicants should have applied to the trial court and requested that the latter suspend the execution of their conviction in the light of the provisions of Law no. 6352. In the Government’s view, the applicants had failed to exhaust the domestic remedies as they had not availed themselves of the remedy provided for in Law no. 6352.", "24. As regards the merits of the applicants’ complaint under Article 10, the Government submitted that the interference with the applicants’ right to freedom of expression had pursued the legitimate aims of the protection of public security and national security. They further submitted that the applicants had chanted the slogans in question only four days after seventeen members of the MKP had been killed by the security forces. They noted that the applicants had chanted the slogan “We have paid a price; we will make them pay a price”, and thereby incited to violence. The Government contended that the security forces had not intervened to stop the reading out of the press statements and that the applicants had been free to express their opinions.", "25. As regards the Government’s submission that the applicants had failed to exhaust the domestic remedies, the Court notes that the remedy referred to by the Government does not provide a substantive review of the case (see Öner and Türk v. Turkey, no. 51962/12, § 17, 31 March 2015). Had the applicants applied to the trial court, the latter would have merely reviewed the question of whether the execution of the applicants’ sentences should have been suspended following the amendments made by Law no. 6352.", "The applicants’ conviction had become final as a result of the Court of Cassation’s decision of 8 July 2010, and according to the applicants’ submissions ‒ which were not contested by the Government ‒ the applicants served the prison sentences arising out of that conviction before the entry into force of Law no. 6352 (see paragraph 5 above). Hence, the Court finds that the applicants were not required to make use of the remedy referred to by the Government. It follows that this complaint cannot be rejected for non‑exhaustion of domestic remedies and the Government’s objection must therefore be dismissed. 26.", "The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 27. As to the merits of the case, the Court considers that the applicants’ criminal conviction amounted to an “interference” with the exercise of their freedom of expression and that the interference was based on section 7(2) of Law no.", "3713. In the light of its findings regarding the necessity of the interference (see paragraph 29 below) the Court considers that it is not required to conduct an examination of the “lawfulness” thereof. The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011). 28.", "As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of cases and found violations of Articles 10 and 11 of the Convention (see, for example, Savgın v. Turkey, no. 13304/03, §§ 39-48, 2 February 2010; Gül and Others v. Turkey, no. 4870/02, §§ 32-45, 8 June 2010; Menteş v. Turkey (no. 2), no. 33347/04, §§ 39-54, 25 January 2011; Kılıç and Eren v. Turkey, no.", "43807/07, §§ 20-31, 29 November 2011; Faruk Temel, cited above, §§ 58-64; Yavuz and Yaylalı v. Turkey, no. 12606/11, §§ 42-55, 17 December 2013; Öner and Türk, cited above, §§ 19-27, 31 March 2015; Gülcü v. Turkey, no. 17526/10, §§ 110-117, 19 January 2016; and Belge, cited above, §§ 24-38). In particular, in the above-mentioned case of Yavuz and Yaylalı, the Court found a breach of Article 10 of the Convention on account of the conviction of Ms Yavuz and Mr Yaylalı under section 7(2) of Law no. 3713 for having attended the public gatherings of 21 June and 8 July 2005 and having chanted the slogans described in paragraph 9 above.", "29. The Court has examined the present case and considers that the Government have not put forward any argument which would require it to reach a different conclusion in the present case. In particular, the Ankara Assize Court convicted the applicants for not distancing themselves from violence and for adopting terrorist organisations’ discourse without providing an explanation as to why it considered that chanting the slogans referred to in the indictment had constituted encouragement of violence, armed resistance or an uprising, or had been capable of inciting to violence. In the Court’s view, the applicants’ reaction to the above-mentioned killings amounted to a criticism of the acts committed by the security forces but did not incite the use of violence, armed resistance or uprising and did not constitute hate speech (see Yavuz and Yaylalı, cited above, § 52). Besides, the slogans in question are well-known and stereotyped leftist slogans and they were chanted during peaceful public gatherings (see Gül and Others, cited above, § 41).", "There is also nothing in the case file showing that the applicants were involved in any violent acts or had the intention of inciting violence. The Ankara Assize Court, however, does not appear to have given consideration to any of the above factors. In sum, the Court considers that the national courts did not provide “relevant and sufficient” reasons for the applicants’ criminal conviction under section 7(2) of Law no. 3713. 30.", "Lastly, the Court notes the severity of the penalty imposed on the applicants, that is to say ten months’ imprisonment, and in the case of Ahmet Doğan even twenty months’ imprisonment, which the applicants served (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999‑IV). 31. The Court concludes that the interference in question was not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention.", "III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 32. The applicants complained under Article 6 of the Convention that the trial court had not been independent and impartial. They further complained about the failure of the domestic courts to suspend the pronouncement of their conviction and to provide reasoning for their decisions. The applicants also complained of a breach of Article 6 on account of the allegedly excessive length of the criminal proceedings against them and the alleged non-communication to them of the opinion of the public prosecutor at the Court of Cassation on the merits of the case.", "33. Taking into account the facts of the case and its finding of a violation of Article 10 of the Convention, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicants’ complaint under Article 6 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the cases cited therein). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 35. Mr Kürşad Arslan, Mr Yaşar Çalışkan and Mr Olcay Bayraktar claimed 40,000 euros (EUR) and Ms Dilek Kömpe, Mr Ahmet Doğan, Mr Gökhan Topaloğlu claimed 45,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. Mr Kürşad Arslan and Mr Ahmet Doğan submitted that they had suffered pecuniary damage as a result of their criminal conviction since they had obtained degree qualifications in teaching but had been unable to work as teachers due to their criminal conviction. Ms Dilek Kömpe submitted that she had worked as an agricultural engineer prior to her conviction and that she had had to quit her job in the private sector as she had had to serve her prison sentence.", "Mr Gökhan Topaloğlu submitted that he had been a teacher working on a contract basis prior to his conviction. He claimed that as a result of his conviction he had lost his teaching post and therefore his salary. 36. The Government contested those claims. 37.", "The Court finds that no causal link has been satisfactorily established between the applicants’ alleged loss of earnings and the violation of Article 10 of the Convention. Moreover, the loss which the applicants claim to have suffered has not been sufficiently proved. It therefore rejects the applicants’ claims for pecuniary damage. 38. However, the Court considers that the applicants must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy.", "Ruling on an equitable basis, the Court awards Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Yaşar Çalışkan, Mr Gökhan Topaloğlu and Mr Olcay Bayraktar EUR 5,000 and Mr Ahmet Doğan EUR 10,000 in respect of non‑pecuniary damage. B. Costs and expenses 39. The applicants did not make a separate claim for their costs and expenses incurred before the domestic authorities and the Court. They contended that they had agreed to pay their representative 15% of any compensation awarded to each of them by the Court and submitted copies of the fee agreements that they had concluded with their representative containing the above-mentioned terms.", "40. The Government contested those claims. 41. The Court notes that the applicants failed to quantify their claims and that they gave no breakdown of the number of hours of work for which their lawyer sought payment. Nor did they submit any information or documents showing the costs incurred by them - such as translation, postage, stationary and secretarial fees etc.", "- in submitting their application to the Court. Accordingly, the Court considers that there is no call to award the applicants any sum under this head (Rule 60 § 2 of the Rules of Court). C. Default interest 42. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the complaint under Article 10 of the Convention admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds that there is no need to examine the admissibility or the merits of the complaints under Article 6 of the Convention; 4. Holds (a) that the respondent State is to pay the following applicants within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros) each to Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Yaşar Çalışkan, Mr Gökhan Topaloğlu and Mr Olcay Bayraktar, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 10,000 (ten thousand euros) to Mr Ahmet Doğan, plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıPaul LemmensDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF HOTI v. CROATIA (Application no. 63311/14) JUDGMENT STRASBOURG 26 April 2018 FINAL 26/07/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hoti v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Aleš Pejchal,Krzysztof Wojtyczek,Ksenija Turković,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 3 April 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "63311/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Bedri Hoti (“the applicant”) on 15 September 2014. 2. The applicant was represented by Ms N. Owens, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged that he had not had an effective possibility to regularise his residence status in Croatia, and that he was discriminated against in that respect. He relied on Article 8 of the Convention, taken alone and in conjunction with Article 14, and on Article 1 of Protocol No. 12. 4. On 9 February 2015 the application was communicated to the Government.", "In addition, third-party comments were received from the Office of the United Nations High Commissioner for Refugees (the UNHCR) (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Novska. He is of Albanian origin.", "A. Background to the case 6. In 1960 the applicant’s parents fled Albania as political refugees and settled in Kosovo,[1] which was at the relevant time an autonomous province of Serbia. They were granted refugee status in the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The SFRY was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia (with two autonomous provinces, Vojvodina and Kosovo), Slovenia, Montenegro and Macedonia.", "7. The applicant was born in Kosovo soon after his parents’ arrival to the SFRY. In 1979 the applicant, at the time seventeen years old, came from Kosovo to Croatia. He settled in Novska, where he has lived ever since. 8.", "The applicant has no family in Croatia. Since moving to Croatia, his parents have died in Kosovo. For a while, the applicant maintained a relationship with his two sisters, who lived in Germany and Belgium (see paragraphs 21, 29 and 35 below). In 2014 he declared to the domestic authorities that his only close relative was his sister in Belgium, with whom he had lost contact (see paragraph 48 below). 9.", "In 1987 the applicant applied for a permanent residence permit to the relevant police station in Novska. 10. He was instructed by the Novska police that he should regularise his status in Kosovo, where he had been officially registered. However, as the applicant refused to do that, he was provided with a temporary residence permit in Novska for the period between 4 January and 30 June 1988, pending the determination of his request for a permanent residence permit. 11.", "At the relevant time, the applicant possessed a certificate issued by the SFRY authorities in Kosovo in 1988 indicating that he had been an Albanian national with the status of a foreigner holding a temporary residence permit in the SFRY. The certificate also indicated that the applicant’s parents had been nationals of Albania living in the SFRY as refugees. 12. On 2 February 1989 the Ministry of the Interior of the then Socialist Republic of Croatia informed the Novska police that the applicant’s application for a permanent residence permit in the SFRY had been refused in accordance with the government policy according to which Albanian refugees should be instructed to apply for the SFRY citizenship. 13.", "On 22 February 1989 the applicant was interviewed by the Novska police in connection with the Ministry of the Interior’s instruction. He explained that he had been granted a temporary residence permit by the relevant authorities in Kosovo which was valid until July 1989. He also stated that he had attempted to travel to Germany but had not had a valid visa and had thus been refused entry. At the time he was waiting for a visa for Belgium. The applicant further explained that he hoped to be granted a permanent residence permit but that he was not interested in acquiring SFRY citizenship as that would not provide him with any security.", "He considered that by acquiring SFRY citizenship, he should be granted a flat or a house in private ownership just as one had been granted to his father when he had come from Albania as a refugee. However, as he would not be granted any property, he refused to apply for SFRY citizenship. 14. On 23 February 1989 the Novska police informed the Ministry of the Interior that the applicant had refused SFRY citizenship. The report further explained that the applicant was employed in a garage of a private entrepreneur, M.R., and that he had several times contacted the Novksa police insisting that he be granted permanent residence.", "The report also indicated that according to the available information the applicant had secured a temporary residence permit from the authorities in Kosovo until July 1989. 15. A further report of the Novska police to the Ministry of the Interior of 26 February 1990 indicated that the applicant was still living in Novska and working in a restaurant. As his temporary residence permit issued by the authorities in Kosovo had expired, he had been instructed to regularise his status. This report also contains a handwritten note dated 12 June 1990 according to which the applicant had come to the police station and presented an identity card for a foreigner with temporary residence status in the SFRY issued by the relevant authorities in Kosovo and valid until 5 November 1991.", "16. On 25 June 1991 the Croatian Parliament (Sabor Republike Hrvatske) declared Croatia independent of the SFRY, and on 8 October 1991 all ties between Croatia and the SFRY were severed. 17. Meanwhile, war broke out in Croatia and the applicant was called up for mandatory civilian service with the local authorities. On 22 March 1992 the Novska police issued a permit to the applicant to move freely within the region of Novska-Kutina in order to perform his mandatory civilian service.", "The permit was valid until 31 December 1992. B. The applicant’s application for Croatian citizenship 18. On 9 June 1992 the applicant applied for Croatian citizenship with the Novska police. He submitted that he had been living at his current address in Novska since 1980s, and that he had been a refugee from Albania.", "He also explained that he was working in a garage of a private entrepreneur, Z.A. 19. On 20 July 1992 the Novska police forwarded the applicant’s application to the Ministry of the Interior of the Republic of Croatia (Ministarstvo unutarnjih poslova Republike Hrvatske – hereinafter “the Ministry”) with a suggestion that it be granted. 20. On 2 November 1992 the Ministry instructed the Novska police that they had failed to provide a report concerning the applicant’s personal circumstances and information on his residence in Croatia.", "21. In connection with the above application, on 16 December 1992 the applicant was interviewed by the Novska Police. In his interview, the applicant explained that he had Albanian nationality as he had been a refugee from that country. He further explained that he had come to Novska in 1979 where he had first worked as a waiter until 1984. Between 1986 and 1989 he had worked as a car mechanic for a private entrepreneur, M.R., and since 1989 for Z.A.", "During the war he had worked as a car mechanic for the police and the army. He was not married and did not have children. He had a sister living in Germany and one living in Belgium. He also had a brother living in Kosovo and another brother living at an unknown place in Albania. His parents lived in Kosovo.", "22. On 18 December 1992 the Novska police informed the Ministry of the obtained information explaining that the applicant had lived in Novska as a foreigner since 1980 and that he had Albanian citizenship. 23. In May 1993 the national intelligence agency informed the Novska police that there was nothing preventing the applicant from being allowed to acquire Croatian citizenship. 24.", "According to the available information, the file concerning the applicant’s application also contained a birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 according to which the applicant did not have any nationality. 25. On 14 June 1993 the Ministry issued an assurance that the applicant would obtain Croatian citizenship if he obtained a release or provided evidence that he had renounced his Albanian citizenship within a period of two years. In its reasoning to this assurance, the Ministry explained that the applicant had met all the necessary conditions to be granted the assurance and thus Croatian citizenship. It also referred to section 8a of the Croatian Citizenship Act (see paragraph 60 below).", "26. Upon the expiry of the above-noted period of two years, on 16 February 1995 the applicant lodged a new application for Croatian citizenship with the Novska Police. He explained that he was a national of Albania and that he had been living in Croatia since 1979. He was asking for Croatian citizenship in order to obtain legal certainty of his position. He stressed that he was ready to renounce his current citizenship and that he had nowhere to go back to in Kosovo.", "He also explained that he was employed as a car mechanic. 27. Meanwhile, the applicant had obtained a permit for extended residence of a foreigner (he was considered to be an Albanian citizen) from the Novska police for the period between September 1993 and September 1994, which was first extended until September 1995 and then January 1996. He was also granted a driving licence on 14 April 1994 valid until 19 November 2027. 28.", "In February 1995 the intelligence agency informed the Novska police that there was no bar to the applicant’s acquiring Croatian citizenship. 29. A report on the applicant’s personal circumstances prepared by the Novska police on 8 March 1995 indicated that he had lived in Croatia since 1979. The report contains a statement that the applicant had an Albanian passport issued in Kosovo (then part of Serbia) and that he had allegedly disappeared from his place of residence during the war in Croatia. It also suggests that the applicant socialised with individuals of similar characteristics who were involved in trading of grey-market goods and repairing cars.", "Moreover, the report alleged that the applicant had never tried to regularise his status in Croatia. The report also indicated that the applicant’s parents had died and that he had two sisters, who lived in Germany and Belgium. 30. On 28 March 1995 the Novska police informed the Ministry that the applicant had had a registered residence in Croatia since September 1993 (see paragraph 27 above). 31.", "On 3 August 1995 the Ministry dismissed the applicant’s application for Croatian citizenship on the grounds that he did not have a registered residence in Croatia for an uninterrupted period of five years as required by section 8(1)(3) of the Croatian Citizenship Act (see paragraph 60 below). 32. The applicant challenged the above decision before the Administrative Court (Upravni sud Republike Hrvatske). He argued that he had had a registered residence in Novska since 1979 and that his personal circumstances had been well known to the Novska police. He also stressed that he was in employment and that he possessed an identity card and a driving licence issued by the Novska police.", "33. On 29 May 1996 the Administrative Court dismissed the applicant’s administrative action on the grounds that there was no evidence that he had had a registered residence in Croatia since 1979. In fact, according to the Novska police’s report of 28 March 1995 (see paragraph 29 above), he had had a registered residence in Novska, as a foreigner with extended residence status, since 24 September 1993. In these circumstances, the Administrative Court considered that no available evidence suggested that the applicant had had an uninterrupted registered residence in Novska for a period of more than five years as required by section 8(1)(3) of the Croatian Citizenship Act. C. The applicant’s application for a permanent residence permit 34.", "On 13 November 2001 the applicant asked the Ministry to grant him a permanent residence permit. He argued that he was employed and had sufficient means of subsistence and a strong interest to live in Croatia. Together with his application, the applicant provided the birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 (see paragraph 24 above). He also provided his employment booklet according to which he had been employed in the periods between 1 July 1986 and 15 July 1987, 1 August 1987 and 1 December 1988, and 1 January 1989 and 31 December 1989 in the garage of M.R. 35.", "A report on the applicant’s personal circumstances prepared by the Novska police on 24 April 2002 indicated that the applicant was a national of the Federal Republic of Yugoslavia (Serbia and Montenegro – hereinafter “the FRY”). According to the report, the applicant had settled in Novska in 1979 and had first worked in the garage of Z.A. until 1984; and then, between 1985 and 1990, in the garage of M.R. The report further indicated that the applicant was at that time unemployed and supported by his sisters in Germany and Belgium. He had lived in Novska for twenty-two years and had never left Croatia.", "The only document which he possessed was a driving licence. Up to that point he had been prosecuted only for a minor offence related to the status of aliens. 36. On 29 April 2002 the Ministry instructed the Novska police that the applicant should also be interviewed in connection with his application. 37.", "The applicant was interviewed by the Novska police on 10 June 2002. He explained that after he had been given an assurance of eligibility for Croatian citizenship (see paragraph 25 above) he had contacted the Albanian embassy several times. However, they had at first delayed their response and then dismissed his request. He had therefore been unable to obtain a certificate of renunciation of Albanian citizenship within the relevant period of two years. The applicant further explained how his second application for Croatian citizenship had been refused because he had not had a registered residence in Croatia for five years (see paragraphs 26‑33 above).", "38. In his interview the applicant also stated he did not have a travel document of any country. So far he had always relied on his Albanian citizenship but whenever he had tried to obtain Albanian travel documents, he had been orally refused. The same was true for his attempts to obtain travel documents from the FRY. The applicant further explained that he did not have a family and was not married.", "He wanted to stay in Novska because there he knew a lot of people and would be able to make a living there. 39. On 3 July 2003 the Ministry dismissed the applicant’s application on the grounds that he did not meet the necessary statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act (see paragraph 61 below). In particular, he was not married to a Croatian national or an alien with a permanent residence in Croatia, and he did not have three years of uninterrupted employment in Croatia. The Ministry also held that there was no particular interest of Croatia in granting him residence under section 29(2) of the Movement and Stay of Foreigners Act.", "The Ministry considered the applicant to be a national of Serbia and Montenegro. 40. The applicant challenged this decision before the Administrative Court. He argued that the fact that he had previously been a national of Serbia and Montenegro and had resided in Croatia since 1979 qualified him for permanent residence in Croatia. The applicant also contended that it was difficult for him to find a formal employment as he did not have permanent residence permit for Croatia.", "41. On 17 August 2006 the Administrative Court dismissed the applicant’s administrative action as unfounded. The Administrative Court held that the Ministry had properly established that the applicant had failed to meet the statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act as his employment booklet did not show that he had worked for an uninterrupted period of three years. Moreover, the Administrative Court considered that nothing in the circumstances of the case suggested that the applicant should be granted permanent residence under section 29(2) of that Act. 42.", "The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decisions of the lower bodies. He argued that he had continuously lived in Croatia since 1979 and that he had worked. He argued that he should have been granted permanent residence. 43. Meanwhile, the applicant obtained a note from M.R., for whom he had worked, attesting that he had been employed by M.R.", "in the period between 1986 and 1989 and that he had proved to be a hardworking and responsible employee. M.R. also promised to employ the applicant again and to secure him accommodation should he be granted permanent residence. 44. On 1 October 2008 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded endorsing the reasoning of the Administrative Court.", "D. The applicant’s stay on humanitarian grounds 45. In the period between 26 July 2011 and 27 August 2013 the police three times temporarily extended the applicant’s residence for periods of one year by reference to the humanitarian grounds under the Aliens Act (see paragraph 62 below). In the relevant decisions, the applicant was considered to be a national of Kosovo. 46. When extending his temporary residence permit on humanitarian grounds on 27 August 2013 for another year under section 65(1)(5) of the Aliens Act, the applicant was requested to provide a valid travel document as provided under section 52(4) of the Aliens Act (see paragraph 62 below).", "47. On 10 June 2014 the applicant again applied for an extension of his temporary residence permit. He argued that he did not have a travel document of Kosovo as he had not been there nor did he have any interest in going there. He explained that he just wanted to regularise his status in Croatia. 48.", "In connection with his application for an extension of his temporary residence permit, in July 2014 the applicant was interviewed by the Novska police. A note on his interview indicated that the applicant was a national of Kosovo and that he had knowledge of the Albanian language. It also stated that the applicant had been employed by M.R. in the period between 1981 and 1991 and that during the war in Croatia he had worked for Z.A. repairing military and police vehicles until 1993.", "Since then he had been unemployed but had been earning money by helping out on the farms in the Novska area. His parents had died and the only close relative he had was a sister living in Belgium, with whom he had lost contact. The note further explained that the applicant’s neighbours had been interviewed and that they confirmed that he had been a good and hardworking person. The note also indicated that the applicant had committed several minor offences for which he had been fined and a criminal complaint had been lodged against him in connection with a road accident in which he had been involved. 49.", "On 30 July 2014 the Ministry instructed the Novska police that there were no grounds to extend the applicant’s residence since he had failed to provide a valid travel document. 50. The Novska police invited the applicant for an interview on 28 August 2014 at which he was informed of the Ministry’s instruction. The applicant explained that he had come to Croatia in 1979 and had no connection to Kosovo. He had had the status of a refugee from Albania until he had reached the age of eighteen, since that status had been granted to his parents.", "He stressed that he had lived his whole life in Novska. He also promised to contact the embassy of Kosovo in order to obtain a travel document and asked the Novska police not to dismiss his request. 51. On 16 September 2014 the Novska police dismissed the applicant’s application for the extension of his temporary residence on humanitarian grounds. It held that the applicant did not meet the requirements for granting further temporary residence status as he had failed to provide a valid travel document and the Ministry had not given its consent to an extension of his residence permit.", "52. On 7 October 2014 the applicant challenged the decision of the Novska police before the Ministry, relying on Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12. He argued that he had had SFRY citizenship, which he had lost in unclear circumstances following the dissolution of that country. As he had come from Kosovo to Croatia, it was possible that he was considered to be a national of Kosovo by the Croatian authorities, but in reality he did not have citizenship of that territory.", "The applicant also argued that he was not a classic alien but an individual who found himself in the very specific circumstances of the dissolution of the SFRY in a situation whereby he was no longer able to provide a valid travel document. He also contended that he had been erased from the register of domicile and residence in Croatia without ever being informed thereof. He was therefore unable to regularise his residence status in Croatia and thus to find employment, to move freely without valid documents or to travel, which was neither a lawful nor a proportionate interference with his Article 8 rights. Moreover, the applicant contended that there was a gap in the relevant domestic law as the status of individuals who found themselves in his situation following the dissolution of the SFRY was not regulated. Accordingly, a strict formal application of the Aliens Act could not lead to a solution in his case.", "53. On 30 January 2015 the Ministry dismissed the applicant’s appeal. It referred to the applicant’s previous attempts to regularise his status in Croatia, which had all been unsuccessful. According to the Ministry, this showed that he had not been erased from the relevant registers without being informed. The Ministry further stressed that the applicant had been invited several times to provide a valid travel document and he had promised to contact the embassy of Kosovo in this connection but had failed to do so.", "Accordingly, in the Ministry’s view, his arguments that he had not been a typical alien and that the relevant authorities had formalistically applied the relevant law had been misplaced. Moreover, there was a possibility for him to obtain a temporary travel document in order to travel to his country of origin so as to obtain a valid travel document. 54. On 25 February 2015 the applicant challenged the Ministry’s decision before the Zagreb Administrative Court. He contended that he had been a national of the SFRY and that he had had a registered residence in Novska since he had arrived there in 1979, which had been erased at a later stage.", "He also relied on his available birth certificate showing that he did not have any citizenship (see paragraph 58 below). He also reiterated his complaints of an unjustified infringement of his Article 8 rights by a decision of the administrative authorities and a breach of Article 14 of the Convention and Article 1 of Protocol No. 12. On 21 April 2017 the Zagreb Administrative Court dismissed the applicant’s administrative action endorsing the reasoning of the Ministry’s decision. The applicant challenged these findings before the High Administrative Court (Visoki upravni sud Republike Hrvatske) and the proceedings are still pending.", "55. Meanwhile, on 4 September 2015 the Novska police granted the applicant temporary residence status on humanitarian grounds for a further year inviting him to provide a valid travel document. The Novska police held that the applicant was a national of Kosovo whose parents had come from Albania to Kosovo and that they had had the status of refugees in the SFRY. It also stressed that the Ministry had given consent to the extension of the applicant’s temporary residence irrespective of the fact that he had not provided a valid travel document. 56.", "On 4 October 2016 the Novska police extended the applicant’s residence status on humanitarian grounds for a further year. It referred to the same reasons as cited above. E. Other relevant facts 57. According to the applicant’s handwritten statement to his representative of 7 July 2015, he never had Albanian citizenship. He explained that he had contacted the Albanian embassy after he had been given an assurance that he had qualified for Croatian citizenship but they had told him that he had not been a national of that State (see paragraphs 25 and 37 above).", "The applicant further stressed that in his contacts with the police concerning the regularisation of his residence status, the police officers had always suggested that he had been an Albanian national. He also explained that he had been born in Kosovo and that his parents had had SFRY citizenship. He had come to Croatia in 1979. He simply wanted to regularise his status in Croatia. 58.", "According to a birth certificate issued by the Kosovo authorities on 10 June 2009, the applicant’s parents had had Kosovo nationality but the applicant did not have that nationality. II. RELEVANT DOMESTIC LAW A. Constitution of the Republic of Croatia 59. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos.", "56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: Article 33 “Foreign nationals and stateless persons may be given asylum in the Republic of Croatia, except if they are being prosecuted for non-political offences and acts contrary to the basic principles of international law. An alien residing lawfully in the territory of the Republic of Croatia cannot be expelled or extradited to another country save in the case of enforcement of a decision adopted in accordance with international law and [national] law.” Article 35 “Everyone has the right to respect for and legal protection of his or her private ... life ...” B. Croatian Citizenship Act 60. The relevant provisions of the Croatian Citizenship Act (Zakon o hrvatskom državljanstvu, Official Gazette nos. 53/1991 and 28/1992), as applicable at the relevant time, read as follows: Section 8 “(1) A foreigner may acquire Croatian citizenship by naturalisation if he or she has submitted an application [to that effect] and meets the following conditions: 1. he or she has reached the age of eighteen and has a capacity to act; 2. he or she has obtained a release from foreign citizenship or provided evidence that he or she would be released from foreign citizenship if given Croatian citizenship; 3. at the moment of the submission of the application he or she has had a registered residence for an uninterrupted period of at least five years in Croatia; 4. has proficiency in the Croatian language and Latin script; 5. his or her behaviour suggests that he or she respects the legal order and customs of Croatia and accepts Croatian culture. (2) It shall be considered that the requirement under point 2 of paragraph 1 of this section is met if the application has been submitted by a stateless person or a person who will lose his or her nationality following naturalisation.", "(3) If a foreign country does not allow release from its citizenship or if it sets conditions for release that are impossible to meet, a statement of the person who has submitted an application [for naturalisation] renouncing his or her citizenship if given Croatian citizenship shall be sufficient.” Section 8a “(1) A foreigner who submitted an application for Croatian citizenship and who, at the moment of the submission of the application, does not have release from foreign citizenship or has no evidence that he or she would be released from foreign citizenship after acquiring Croatian citizenship, can be given an assurance that he or she qualifies for Croatian citizenship if he or she meets all the other requirements under section 8 paragraph 1 of this Act. (2) The assurance is valid for two years.” C. Movement and Stay of Foreigners Act 61. The relevant provision of the Movement and Stay of Foreigners Act (Zakon o kretanju i boravku stranaca, Official Gazette no. 53/1991), applicable at the relevant time, provided: Section 29 “(1) Permanent residence may be granted to a foreigner who is married at least for a year to a Croatian national or to an alien with a permanent residence permit in Croatia or who has at least three years of uninterrupted employment in Croatia. (2) Exceptionally, permanent residence may be granted to other foreigners in view of the particular personal reasons or business-related reasons for which there is a particular economic interest of the Republic of Croatia or if other important interests of the Republic of Croatia exist.” Section 79 “(1) The status of a permanently settled alien shall be recognised, subject to the principle of reciprocity, to all persons who were considered to be Yugoslav citizens under the existing legislation and who, on the day of the coming into force of this Act, are domiciled in the Republic of Croatia.", "(2) A Yugoslav national who obtains the status of a permanently settled alien within the meaning of paragraph 1 of this section shall be considered an alien with extended residence status. (3) Aliens who, according to the existing legislation, obtained the status of permanently settled aliens, aliens with temporary residence status or refugees, on the day of the coming into force of this Act shall maintain their status in accordance with the provisions of this Act.” D. Aliens Act 62. The relevant provisions of the Aliens Act (Zakon o strancima, Official Gazette nos. 130/2011 and 74/2013) provide: Section 44 “A foreigner may have in Croatia short-term, temporary or permanent residence.” Section 47 “(1) Temporary residence may be granted for the following purposes: ... 4. humanitarian reasons; ...” Section 52 “(1) Temporary residence shall be granted for a period of one year. (2) A [foreigner’s] travel document must be valid for at least three months longer than the period for which the temporary residence is granted.", "(3) A foreigner who has no valid travel document, and who submitted a request for temporary residence in Croatia, shall be granted temporary residence. (4) The foreigner referred to in paragraph 3 of this section must provide a valid foreign travel document when submitting a request for extension of his or her temporary residence status.” Section 53 “(1) A request for the extension of temporary residence must be submitted at least sixty days before the expiry of the existing authorisation of temporary residence ... (2) The foreigner who has submitted a request for extension of temporary residence before the expiry of the existing authorisation of temporary residence can stay in Croatia until the decision upon the request becomes final and enforceable.” Section 54 “The temporary residence shall be granted to a foreigner if he or she: 1. justifies the purpose of his or her temporary stay; 2. holds a valid travel document; 3. has sufficient means of subsistence; 4. has health insurance; 5. is not prohibited from entering and staying in Croatia; 6. poses no threat to public order, national security or public health.“ Section 65 “(1) Temporary residence for humanitarian reasons shall be granted to a foreigner in the following cases: ... 5. serious justified grounds of a humanitarian nature. (2) The foreigner referred to in paragraph 1 of this section does not have to meet the conditions under section 54 paragraph 1 points 3 and 4 of this Act. (3) Before the granting of temporary residence under paragraph 1 point 5 of this section the police department or the police station shall seek the consent of the Ministry [of the Interior].” Section 73 “(3) Without a [special] work permit ... [foreigners] may work in Croatia if [they have regularised their status] on the following grounds: ... 4. temporary residence status for humanitarian reasons; ...” Section 92 “(1) Permanent residence may be granted to a foreigner who, at the moment of the submission of his or her request, has five years of uninterrupted lawful residence in Croatia, which includes the [period of] temporary residence ... ... (3) At the moment of the decision on the request for permanent residence, the foreigner must have an authorised temporary residence in Croatia.” Section 93 “... (4) Stateless persons ... do not have to meet the requirement under section 96 paragraph 1 point 1 of this Act.” Section 96 “(1) Permanent residence status shall be granted to a foreigner who, in addition to the requirements under section 92 of this Act, [meets the following conditions]: 1. has a valid travel document; 2. has sufficient means of subsistence; 3. has health insurance; 4. is proficient in the Croatian language and Latin script and has knowledge of Croatian culture and social order; 5. poses no threat to public order, national security or public health.” E. Administrative Procedure Act 63. The Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette nos.", "53/1991 and 103/1996), as applicable at the relevant time, in its relevant parts provided: Section 136 “(1) The official conducting the proceedings can throughout the proceedings examine additional facts or take evidence also concerning the facts which have not been previously disclosed or determined. (2) The official conducting the proceedings shall order proprio motu the taking of evidence if he or she finds that it is necessary for the determination of the matter.” Section 137 “(1) The party is required to present the facts in his or her application correctly, faithfully and precisely. (2) If the matter does not concern well-known facts, the party shall suggest evidence to be taken concerning his or her arguments and shall, if possible, provide [such evidence]. If the party fails to do that, the official conducting the proceedings shall invite him or her to do so. The party shall not be required to collect and submit evidence which can be more speedily and easily obtained by the body conducting the proceedings ... (3) If the party was unable to submit evidence [as requested], the body conducting the proceedings cannot reject the applications ... but shall continue with the proceedings and, in accordance with the relevant procedural rules and the substantive law, determine the administrative matter.” F. Relevant SFRY legislation 64.", "The Government provided a text of the relevant provisions of the SFRY Movement and Stay of Foreigners Act (Official Gazette of the SFRY no. 57/1980) according to which a one year temporary residence status could be granted to a foreigner by the relevant body in one of the republics or autonomous provinces of the SFRY where the foreigner had residence (section 33). The Act also recognised the status of refugees (section 50) and provided that the children of individuals who had recognised refugee status enjoyed the same rights as their parents. However, after reaching the age of eighteen, the children of refugees were considered as foreigners with temporary residence status in the SFRY (section 52). III.", "RELEVANT INTERNATIONAL LAW 65. The relevant provisions of the Convention relating to the Status of Stateless Persons (United Nations, Treaty Series, vol. 360, p. 117), 26 April 1954 (to which Croatia acceded on 12 October 1992 by succession), provide as follows: Article 1 – Definition of the term “stateless person” “1. For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.” Article 6 – The term “in the same circumstances” “For the purpose of this Convention, the term “in the same circumstances” implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a stateless person, must be fulfilled by him, with the exception of requirements which by their nature a stateless person is incapable of fulfilling.” Article 12 – Personal status “1. The personal status of a stateless person shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.” Article 25 – Administrative assistance “1.", "When the exercise of a right by a stateless person would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting State in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities.” Article 32 – Naturalization “The Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.” IV. OTHER RELEVANT MATERIALS A. Albanian Citizenship Act of 16 December 1946 66. The Citizenship Act of the People’s Republic of Albania of 16 December 1946, followed by a decree of 1954 (see paragraph 70 below) and 1961, which remained in force until the democratic changes in Albania and the adoption of further provisions on citizenship in 1992 and the new law on the matter in 1998 (see paragraph 71 below), provided in its section 3 that Albanian citizenship may be obtained by origin, birth in Albania, naturalisation and according to the applicable international treaties. 67.", "Section 4 specified that children obtain Albanian citizenship by origin if: parents were Albanian citizens; one of the parents was an Albanian citizen and the child had been born within a legal marriage concluded before the competent Albanian bodies; one of the parents was an Albanian citizen and lived together with the child in Albania permanently or had moved to Albania together with the child before the child had reached eighteen years of age; or if the child had moved to Albania permanently or to pursue studies. Citizenship could also be obtained when one of the parents was an Albanian citizen but the child had been born and lived with the parents abroad, if the parent who had Albanian citizenship had registered the child as an Albanian citizen in Albania within five years of the birth. If the child, based on the laws of the country where he or she had been born was considered an Albanian citizen, registration with the Albanian authorities was not a necessary condition to obtain Albanian citizenship. The provisions of this section applied even in cases where children had been born to a foreign citizen and it had been later proven that he or she had an Albanian father. 68.", "Section 13 provided: A. Absence “A citizen who resides continuously outside Albania loses Albanian citizenship if, within fifteen years of the day he or she reaches eighteen years of age, he or she has not fulfilled any public duty to the People’s Republic of Albania and in the last five years has not appeared in an Albanian representative office [lit. representation] or has not notified the Ministry of the Interior of his or her situation. The loss of citizenship because of absence is also extended to children who were born and have continuously lived outside the state, except when they have fulfilled the conditions provided by the first paragraph of this article. The Ministry of the Interior issues the decision of the loss of citizenship.", "The decision can be contested within two years of the date of its announcement in the Official Gazette.” B. Albanian citizenship legislation in practice 69. Within the framework of a European Union Democracy Observatory on Citizenship (EUDO-Citizenship) research project “The Europeanisation of Citizenship in the Successor States of the Former Yugoslavia”, in 2010 Gëzim Krasniqi produced a report entitled “Citizenship in an emigration nation-state: the case of Albania” where he addressed various issues of Albanian citizenship and the position of individuals who had emigrated from Albania to other countries, in particular to the SFRY. 70. The report explains that section 13 of the Albanian Citizenship Act of 1946 was used as a tool of retaliation against the enemies of the regime (see paragraph 69 above). In addition, section 14 provided for a possibility of removal of citizenship for all those who were considered to be acting contrary to Albanian national interests.", "In 1954 a decree was enacted which vested wide discretionary powers in the hands of the President when dealing with the matters of removal of citizenship. 71. The report also explains that under the post-communist Albanian Citizenship Act enacted in 1998, citizenship may be acquired by birth to at least one parent with Albanian citizenship. It may also be acquired by naturalisation, which requires that individuals who apply have lived in Albania for a certain period of time. However, there is a possibility of “facilitated naturalisation”, which applies to individuals who have renounced their Albanian citizenship in order to acquire the citizenship of another country.", "For such individuals it is sufficient to submit an application. However, in practice, they have faced many problems in re-acquiring citizenship. 72. According to the available information, in the period between 1991 and 2007 some 3,184 individuals, mostly ethnic Albanians from the former Yugoslavia, acquired Albanian citizenship. Nevertheless, on a political level, although ethnic Albanians from the former Yugoslavia are given various forms of social and cultural preferential treatments, there has not been a full extension of citizenship rights.", "73. The procedure for acquiring Albanian citizenship starts by submitting an application to the relevant police directorate, which has two months to forward the application to the Ministry of the Interior. The latter should, within six months from the filing date of the application, decide whether to forward it to the Office of the President of the Republic. The President’s Office should then, within three months of receipt of the application, decide upon the application for citizenship. 74.", "The report observes that, despite the above procedures, the implementation of the legislation still remains problematic in Albania. This in particular concerns the manner of registration of new-born children in the relevant registration offices; the fact that the civil register is not properly updated, so some individuals who have lost their citizenship are still registered as Albanian nationals; and there is a lack of transparency of the relevant procedures. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 75. The applicant complained of the insecurity of his residence status in Croatia due to the fact that he had not had an effective possibility to regularise his residence status in Croatia.", "He relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The Government’s request to strike out the application under Article 37 § 1 (b) of the Convention 76.", "The Government informed the Court, in their submission of 21 September 2015, that following the communication of the case by the Court, the applicant had requested and had been granted on 4 September 2015 temporary residence on humanitarian grounds for a further year (see paragraph 55 above). They considered that this had resolved the applicant’s case and invited the Court to strike out the application in accordance with Article 37 § 1 (b) of the Convention. 77. The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “... at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved ...”. In order to ascertain whether that provision applies to the present case, the Court must answer two questions in turn: firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Sisojeva and Others v. Latvia (striking out) [GC], no.", "60654/00, § 97, ECHR 2007‑I, and H.P. v. Denmark (dec.), no. 55607/09, § 66, 13 December 2016). 78. The Court notes that the case at issue concerns the specific circumstances related to the regularisation of the status of aliens residing in a State following the break-up of a predecessor State.", "In such cases, the Court has accepted that the cases of applicants who, following the break-up of a predecessor State, were given unequivocal assurances by the relevant authorities that they would be granted permanent residence, which then required them to diligently comply with further arrangements related to the granting of that status, should be struck out from the Court’s list of cases under Article 37 § 1 (b) of the Convention (see Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 46, 7 December 2007; Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 49, 7 December 2007; and Sisojeva and Others, cited above, §§ 98-99; see also, concerning victim status, Kurić and Others v. Slovenia [GC], no. 26828/06, § 266, ECHR 2012 (extracts); and further compare Khan v. Germany [GC], no. 38030/12, § 33, 21 September 2016, concerning the regularisation of the status of failed asylum seekers in connection with a risk of expulsion).", "79. In the present case the applicant, who has lived in Croatia for almost forty years, complained before the Court of the insecurity of his residence status in Croatia due to the fact that he was unable to regularise his residence status. He also complained that, in view of his particular personal circumstances and statelessness, the extension of the temporary residence on humanitarian grounds for a year had not provided him sufficient certainty to allow him to lead a normal life in Croatia. 80. The Court notes that following the communication of the case to the Government, the applicant’s temporary residence status on humanitarian grounds, after first having been refused on the grounds that he had failed to provide a valid travel document from the authorities in Kosovo and that the Ministry had not given its consent to extend his residence permit (see paragraphs 47-53 above), was twice extended for a year because the Ministry had meanwhile given its consent.", "By these extensions of the temporary residence status on humanitarian grounds the applicant was also required to provide a valid travel document in order to regularise his further stay (see paragraphs 55-56 above). The applicant, however, considered that this was a requirement that would be impossible for him to meet as he was stateless and was unable to obtain a valid travel document at the time of application (see paragraphs 52 and 54 above). 81. Moreover, it follows from the above that the temporary residence status on humanitarian grounds is a faculty in the discretion of the Ministry who, it appears, has a possibility always to give or refuse its consent to authorise the extension of the applicant’s residence in Croatia. In the present case the Ministry refused the extension of the applicant’s temporary residence status on humanitarian grounds on 30 January 2015.", "It thereby interrupted the period of the applicant’s regular residence status and thus put back the prospect of him permanently regularising his residence status as provided under section 92 of the Aliens Act (see paragraph 60 above). Such a decision of the Ministry was also confirmed by the Zagreb Administrative Court (see paragraph 54 above). 82. In view of the above considerations, and having regard to the nature of the applicant’s complaint, the Court finds that the effects of the temporary residence status on humanitarian grounds cannot be said to amount to a measure removing the uncertainty of the applicant’s residence status of which he complains. Nor can the effects of the applicant’s residence status on humanitarian grounds be compared to the other above-cited cases where the Court considered that the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention (see paragraph 78 above).", "83. The Court therefore rejects the Government’s request to strike the application out of its list of cases under Article 37 § 1 (b) of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. B. Admissibility 1. The Court’s temporal jurisdiction 84. The Court notes that, although the parties have not raised the issue of its jurisdiction ratione temporis, in order to satisfy itself that it has temporal jurisdiction to examine all the circumstances of the applicant’s case (see Blečić v. Croatia [GC], no.", "59532/00, § 67, ECHR 2006‑III), the Court must take into account that the Convention entered into force in respect of Croatia on 5 November 1997 and that a number of events related to the applicant’s residence status in Croatia occurred before that date. However, having regard to both parties’ arguments in the present case, the Court finds that the applicant’s alleged impossibility to regularise his residence status in Croatia may be regarded as a continuous situation. In any event, the current situation in which the applicant found himself cannot be assessed without an understanding of the facts of the case that occurred before the critical date. 85. In this connection, the Court reiterates that it can have regard to the facts which occurred prior to ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or might have been relevant for the understanding of facts occurring after that date (see Kurić and Others, cited above, § 240, with further references).", "Accordingly, in view of its case-law, the Court finds that it is not prevented from having regard to the facts of the case occurring prior to the date when the Convention entered into force in respect of Croatia. 2. Non-exhaustion of domestic remedies (a) The parties’ arguments 86. The Government contended that the applicant had not diligently pursued the relevant steps for regularising his residence status in Croatia. In particular, he was first required to properly obtain a temporary residence permit in order to apply for permanent residence and eventually, if applicable, Croatian citizenship.", "However, after first having regularised his temporary residence between 1993 and 1996, he failed to regularise his status in the subsequent period. In 2014 he had also failed to comply with all the requirements to be granted an extension of temporary residence as he had failed to provide a valid travel document. The Government also considered that the applicant’s complaint was premature given that he had had an opportunity to challenge the Ministry’s decision refusing the extension of his temporary residence status of 30 January 2015 before the Administrative Court and the Constitutional Court. 87. The applicant argued that he had duly attempted to regularise his status in Croatia and had brought his application to the Court when the last chance of his regular residence status in Croatia had been extinguished by the Ministry’s decision refusing the extension of his temporary residence status on 30 January 2015.", "In any event, in his view, the temporary residence status on humanitarian grounds was not sufficient in itself as it was completely at the Ministry’s discretion and would not be capable of regularising his status. He stressed that he was now in his fifties and that he could no longer live with uncertainty from one year to another without knowing whether his residence permit would be extended. Such uncertainty had prevented him from finding stable employment and regularising his health insurance. The applicant also relied on the UNHCR’s submission according to which it was very burdensome to regularise residence status in Croatia for somebody without a valid biometric passport from his or her country of origin. The applicant stressed that the general legislation concerning the rights of aliens was insufficient concerning the individuals in his situation and that the impossibility for him to regularise his residence status was at the heart of the issue in the present case.", "(b) The Court’s assessment 88. The Court considers that the questions related to the exhaustion of domestic remedies should be joined to the merits, since they are linked to the substance of the applicant’s complaint that he did not have an effective possibility to regularise his residence status in Croatia. 3. Abuse of the right of individual application (a) The parties’ arguments 89. The Government contended that the applicant had abused his right of individual application by submitting the erroneous arguments in his initial application to the Court.", "The first one concerned his arguments that he had had SFRY citizenship prior to 1989, the second that he had had a domicile in the then Socialist Republic of Croatia, and the third that he had been erased from the relevant registers of domicile in Croatia. In particular, the applicant had initially argued his case on the basis of the Court’s case-law in Kurić and Others (cited above) arguing that he had been a SFRY national. However, the documents provided by the Government, specifically the record of the applicant’s interview by the police in 1989 (see paragraph 13 above), clearly showed that this was incorrect information. In the Government’s view, it was irrelevant whether the applicant and/or his lawyer had mislead the Court on this issue as in any case that should be treated as an abuse of individual application. 90.", "The applicant submitted that his citizenship and residence status in the SFRY had been unclear. He pointed out that he had been born in Kosovo, that a document issued by the authorities in Kosovo had showed that his parents had had “citizenship of Kosovo” and that he had been allowed to live and work in the SFRY and enjoy all other rights of its citizens. He therefore considered that the Government could not claim that he had been aware that he had been a foreigner with temporary residence in the SFRY, particularly because the ambiguity of his status was at the heart of the dispute in the case at issue. In any case, in the applicant’s view, the important fact was that he had disappeared from the register of residence in Croatia in the period between 1993 and 1995, and that the problem of “erased persons” in Croatia had also been an issue raised by the UNHCR in its submission. (b) The Court’s assessment 91.", "The Court reiterates that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts. In any case, however, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references). 92. The Court has also already held that parties can submit arguments and counter-arguments related to their cases before it and the Court can accept or reject them, but such contentious submissions cannot in themselves be regarded as an abuse of the right of individual application (see Udovičić v. Croatia, no.", "27310/09, § 125, 24 April 2014, and Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 185, ECHR 2014 (extracts)). 93. The Court notes that in different official documents issued following the dissolution of the SFRY, the applicant’s nationality is stated differently. For instance, the Ministry’s documents of 1993 and 1995 indicate that the applicant was a national of Albania (see paragraphs 18-32 above) whereas a document from 2002 indicates that he was a national of the FRY (see paragraph 35 above).", "Further, a document of 2003 indicates that he was a national of Serbia and Montenegro (see paragraph 39 above) and the more recent documents that he was a citizen of Kosovo (see paragraphs 45-56 above). At the same time, there is no doubt that the applicant was born and lived in the SFRY until its break-up and that his parents were considered to have been citizens of Kosovo (see paragraph 57 above). Accordingly, given the complexity of the issues surrounding the applicant’s citizenship, and in view of the explanations provided by the applicant as to the reasons why he had initially been considered an Albanian national (see paragraphs 37-38 and 57 above) as well as the contentious nature of the matter, the Court does not find that the applicant attempted to intentionally mislead it with regard to his citizenship. 94. Further, the Court notes that the applicant lived in Croatia at the moment of the dissolution of the SFRY and was assured in 1993 that he would be granted citizenship as he met all the other relevant requirements under the applicable law (see paragraph 25 above), one of which was a registered residence for an uninterrupted period of at least five years in Croatia (see paragraph 60 above).", "However, in 1996 his second application for Croatian citizenship was dismissed on the grounds that he had not had a registered residence for an uninterrupted period of at least five years in Croatia (see paragraph 31 above). In these circumstances, the Court considers that a reasonable doubt could have arisen on the part of the applicant as to the erasure of his residence in the relevant registers. It cannot therefore be held that the arguments related to the applicant’s residence, which remains a matter of dispute between the parties, amount to an abuse of individual application. 95. In view of the above considerations, the Court rejects the Government’s objection.", "4. Conclusion 96. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on other grounds. It must therefore be declared admissible.", "C. Merits 1. The parties’ arguments (a) The applicant 97. The applicant contended that he had been unlawfully erased from the register of residence in Croatia sometimes in the period between 1993 and 1995, which had created a continuous situation making it impossible for him to regularise his residence status. The “erasure” in question affected those persons who had had a registered domicile in the Socialist Republic of Croatia but had not acquired Croatian citizenship or obtained permanent residence in the new Croatian State due to the fact that they had failed to meet one of the necessary requirements (to have sufficient financial means; to have secured housing; to have health insurance; to provide documents that justify the purpose of the residence; and to have a valid passport). Those subjected to the erasure had never been informed thereof and the erasure had been carried out automatically and without prior notification.", "He had also not been informed of the erasure and had not had an opportunity to challenge it before the competent authorities. Nor had he been in a position to foresee the measure complained of to envisage its repercussions on his private or family life or both. In any event, the applicant stressed that there had been no legal basis for the application of the measure of erasure. 98. The applicant further argued, relying on the UNHCR’s submission, that as a result of the erasure, he had been denied Croatian citizenship and had been left bereft of any legal status granting him a right of residence in Croatia.", "Moreover, the erasure from the residence register and the lack of personal documents had led to his loss of access to social and economic rights, such as the right to work, the right to health insurance and to pension benefits. If identified by the police, he could be subject to detention for up to eighteen months and possibly to deportation. The applicant also stressed that the Croatian authorities had failed to take any action, legislative or administrative, in order to regularise the situation of the “erased” and to regulate clearly the consequences of the “erasure”, including the residence status of those who had been subjected to it. 99. The applicant also stressed that, prior to Croatia’s independence, he had lawfully resided in that State for twelve years and had enjoyed a wide range of rights.", "However, owing to the “erasure”, he had experienced a number of adverse consequences, such as the inability to obtain or renew any identity documents, a loss of job opportunities, a loss of health insurance, and difficulties in regulating pension rights. At the same time, Croatia had failed to enact provisions aimed at permitting persons in the same situation as the applicant to regularise their residence status if they had chosen not to become Croatian citizens or had failed to do so although, in the applicant’s view, such provisions would not have undermined the legitimate aims of controlling the residence of aliens or creating a profusion of new Croatian citizens, or both. In this connection, the applicant also stressed that he was a long-term migrant in Croatia. He contended that the absence of a legal mechanism that would enable persons who had lost their legal status owing to Croatian independence in spite of their long-term residence in Croatia and the prolonged impossibility of obtaining valid residence permits had been disproportionate and unjustified. (b) The Government 100.", "The Government considered that it was important to note that the applicant was not a stateless person but a citizen of Albania. According to the Government, this was evident from the fact that during the proceedings in respect of his application for Croatian citizenship he had submitted that he had been an Albanian citizen. Moreover, in several documents issued by the SFRY authorities in Kosovo (an employment booklet and a certificate on completion of primary education) that applicant had been considered an Albanian citizen. In addition, the Government pointed out that, according to the legislation applicable in 1954 (see paragraphs 66 and 70 above), the applicant’s Albanian citizenship had been acquired by birth as his parents had been Albanian citizens. The Government also stressed that the available information showed that the applicant had never been a citizen of the SFRY or any of its republics but had rather had the status of a refugee in the SFRY.", "On Croatia’s declaration of independence, the applicant found himself in that State as an alien with a temporary residence granted in the SFRY. 101. The Government also argued that the applicant had not had a domicile in the then Socialist Republic of Croatia or the SFRY but had only had temporary residence in the SFRY, registered in Kosovo. Accordingly, the authorities in Kosovo had issued him a residence permit and he had regularised his status with those authorities. The only time when his residence had been registered in the then Socialist Republic of Croatia had been in the period between 4 January and 30 June 1988.", "Accordingly, he could not have been erased from the relevant register when Croatia declared its independence given that his residence status had already expired. In the Government’s view, the case at hand had therefore no similarities with the Kurić and Others case (cited above). 102. The Government further explained that following Croatia’s declaration of independence, the applicant had found himself on its territory as a foreign national without a regularised residence status. Thus, in 1993, the relevant Croatian authorities had taken into account the fact that he had already lived in the former country for a number of years as a refugee and also for a while had a temporary residence in Croatia and that he had expressed his wish to live in Croatia, and issued the applicant an assurance that he would be eligible for Croatian citizenship if he obtained release from Albanian citizenship.", "The applicant had however remained passive and had never taken any action aimed at renouncing his Albanian citizenship or otherwise complying with the relevant requirements under the applicable Croatian Citizenship Act. In this connection, the Government considered that it had not been unreasonable to expect the applicant to renounce his Albanian citizenship in order to acquire Croatian citizenship as such a requirement had been aimed at avoiding dual nationality. Moreover, in the Government’s view, it could not be considered that asking the applicant to contact the Albanian embassy in order to regulate the issue of release from its nationality had been an onerous administrative requirement. 103. The Government also pointed out that in the period between 1992 and 1995, after he had failed to obtain Croatian citizenship, the applicant had resided in Croatia without any legal basis.", "This had been why his second application for Croatian citizenship had been refused (see paragraphs 31-33 above). At the time of application, the applicant was unable to regularise his status as he had consistently failed to provide a valid travel document of Albania or to explain why that would be impossible for him to do so. In the Government’s view, it was for the applicant, and not for the Croatian authorities, to renounce his citizenship or to show that he was stateless or to obtain a valid travel document from a country whose citizen he was. Lastly, the Government stressed that the Croatian authorities, in view of the applicant’s specific situation, had consistently tolerated his stay in Croatia although it had not always been lawful. In fact, nothing had prevented the applicant from regularising his residence status; he had needed only to provide a valid travel document or a reason for which he had been unable to provide it.", "This would have allowed him to lawfully reside, work and secure health insurance in Croatia. 104. With regard to the situation in Croatia in general, the Government pointed out that there were not many stateless persons in comparison to the number of stateless persons globally. According to the 2011 census of population, there were 749 stateless person and 2,137 persons with unknown citizenship living in Croatia. Moreover, the “erasure” of the former SFRY nationals with a registered domicile in Croatia had been impossible owing to the safeguards provided under section 79 of the Movement and Stay of Foreigners Act (see paragraph 61 above).", "In any event, those persons had qualified for Croatian citizenship under section 8 of the Croatian Citizenship Act (see paragraph 60 above). Accordingly, there had never been an “erasure process” in Croatia following its declaration of independence. (c) Third-party intervention 105. The UNHCR stressed the need for States to address the issues of statelessness and to confront the general phenomenon of statelessness in accordance with the existing international mechanisms on the matter. The UNHCR submitted that following the disintegration of the SFRY, all successor States had used the principle of continuity of their internal (within each republic) citizenship in the creation of their new nationality laws.", "As a result, citizenship of a republic had become the central mechanism for the emerging States to grant nationality. The SFRY successor States, including Croatia, had chosen to grant nationality based upon the list of names in the nationality registers of those republics, which had had a number of consequences. In particular, although in principle statelessness should have been avoided for all former SFRY citizens because they had been presumed to be in possession of citizenship of at least one of the former republics of the SFRY, this approach had had serious repercussions for thousands of people. First of all, it had been incorrect to assume that all former SFRY citizens had possessed and could have proved citizenship of the republic in which they resided. One of the reasons for this is that some of them had not been registered as citizens in one of the republics of the SFRY to which they (or their parents) had moved.", "The UNHCR’s experience in the region had showed that owing to variations in the registration of citizenship of each republic across the six republics since 1945, it had not always been possible to obtain confirmation of citizenship of a particular republic. Those people who had been unable to prove their citizenship of a republic were left stateless because they had not been able to acquire citizenship of any of the successor States of the SFRY. 106. The UNHCR further explained that after the disintegration of the SFRY, statelessness had affected mainly two groups of persons in Croatia. The first group was those who had had Federal citizenship and had moved to reside in Croatia from another Republic before the dissolution of the SFRY (mostly non-ethnic Croats).", "The second group comprised those who had been habitually residing in the former Socialist Republic of Croatia but whose residence had never been registered. The residence of the latter group of persons had not been registered notably owing to the lack of civil registration or identity documents that had been necessary to do so. Procedures to regularise residence and subsequently citizenship status for non-ethnic Croats had been introduced in 1991 but had proven ineffective owing to a lack of adequate public information and legal advice about the administrative procedures. This had disproportionately affected vulnerable groups, particularly minority groups from other republics. Owing to the fact that they had been unable to meet onerous administrative burdens such as documentary requirements relating to proof of past residence, and had been unable to pay high application fees, many of these minorities had not been able to regularise their residence status in Croatia.", "Thus, many had been excluded from acquiring Croatian citizenship or that of another successor State of the SFRY and remained stateless. 107. The UNHCR argued that persons with a registered domicile in the former Socialist Republic of Croatia who had not acquired Croatian nationality had needed to regularise their residence status in the new State of Croatia as foreigners. If they had not been able to fulfil all of the requirements to obtain temporary or permanent residence in the new State of Croatia, they had been erased from the register of domicile. Among them had been persons who had not acquired a nationality of another successor State of the SFRY and had been thus stateless.", "As a result of the erasure, they had not only been denied access to Croatian citizenship but had also been left bereft of any legal status granting them a right of residence in Croatia. In most cases, the persons concerned had not been informed about the erasure. Erasure from the register of domicile and the lack of identity documents had led to the loss of access to social and economic rights, such as the right to work, the right to health insurance and to pension benefits. If identified by the police, they could have been subject to detention for up to eighteen months with a view to deportation to their countries of origin. The UNHCR’s experience showed that even when it had not been possible to deport stateless persons and they had eventually been released from detention, they had remained unlawfully in Croatia.", "108. The UNHCR further explained, with regard to the legal status of stateless persons, including stateless persons who had been erased from the domicile registers in Croatia, that under the current Aliens Act stateless persons could apply for temporary residence on humanitarian grounds. However, the UNHCR stressed that the renewal of temporary residence permits on humanitarian grounds was far from straightforward for stateless persons, including stateless persons who had been erased from the domicile registers, as it required a valid national biometric passport of the current country of nationality. Stateless persons could not however meet this requirement. Moreover, Croatian legislation did not take fully into account the particular situation of such persons, notably their vulnerabilities and their close ties to the country through their long-term residence.", "The UNHCR also argued that following the erasure, a number of stateless persons had been denied Croatian citizenship and had continued to experience insecurity and legal uncertainty until today. Since 1991, the Government of Croatia had not undertaken measures to regularise the legal status or provide other remedies for those affected. 2. The Court’s assessment (a) Preliminary remarks 109. The Court notes at the outset that the case at issue concerns a complex and very specific factual and legal situation related to the regularisation of the status of aliens residing in Croatia following the break-up of the former SFRY.", "In particular, the applicant, whose parents had come to the former SFRY as political refugees from Albania in 1960, was born in Kosovo in 1962, which was at the time an autonomous province of Serbia, but already at a young age came to live to Novska in Croatia. During the existence of the former SFRY, which consisted of several republics including at the time Croatia, the applicant’s residence status in Novska was regularised through the recognition of the effects of his domicile in Kosovo and the refugee status granted to his parents by the local authorities there. However, following the break-up of the former SFRY, although at the time he had resided in Novska for some twelve years and continued to reside there, the applicant’s residence status passed through many stages and legal regimes and is at present covered by the temporary extension of his residence permit on humanitarian grounds. It should also be noted in this connection that the applicant’s presence in Croatia, although in certain periods without any legal basis, was consistently tolerated by the local authorities. 110.", "Another distinctive feature of the case is the fact that, according to the available information, the applicant is at present stateless. As already noted above, a birth certificate issued by the SFRY authorities in Kosovo in 1987 indicated that the applicant had no nationality (see paragraph 24 above) and the same follows from a birth certificate issued by the current authorities in Kosovo in 2009 (see paragraph 58 above). Moreover, there are no reasons to doubt the applicant’s arguments that he was advised by the Albanian authorities that he was not an Albanian national (see paragraphs 37-38, 57 and 66-74 above). 111. The Court has also taken note of the applicant’s and the third-party intervener’s submissions concerning the alleged problem of erasure of persons from the registers of domicile in Croatia following the dissolution of the former SFRY; an issue which gave rise to a breach of Article 8 in the Kurić and Others case against Slovenia (cited above, §§ 360-62).", "However, the Court does not consider that the case at hand concerns the issue of erasure of the applicant’s name from the registers of domicile or residence in Croatia following the dissolution of the former SFRY. 112. In this connection, the Court notes that the evidence available before it conclusively shows that at the moment when Croatia declared its independence from the former SFRY in June 1991, and severed its ties with that entity in October 1991, the applicant had neither SFRY nationality nor a registered domicile or residence in Croatia. In fact, the available records of the Novska police demonstrate that the applicant was granted, as an immigrant from Albania with a regularised residence status in Kosovo, a temporary residence permit in Novska in the period between 4 January and 30 June 1988 pending the determination of his application for permanent residence in the then Socialist Republic of Croatia (see paragraph 10 above). In the subsequent period, having failed to regularise his residence status in Croatia, the applicant informed the Novska police in 12 June 1990 of a residence permit issued by the relevant authorities in Kosovo valid until 5 November 1991 on the basis of which he continued to de facto reside in Novska (see paragraph 15 above).", "113. It is accordingly evident from the above that the applicant could not have been erased from the register of domicile or residence in Croatia in 1991 as after 1988 he had not resided in Croatia on the basis of any decision or residence permit issued by the Croatian authorities. It is true that a certain misgiving in this respect might arise from the decisions of the Croatian authorities in 1993 to issue the applicant with an assurance that he was eligible for Croatian citizenship, for which a regularised five-year uninterrupted residence in Croatia was needed, and then in 1995 dismissed his application for Croatian citizenship on the grounds that he had not had a registered residence in Croatia for an uninterrupted period of five years (see paragraphs 25 and 31 above). However, the 1995 decision appears to correspond to the reality of the situation arising from the relevant evidence, whereas the 1993 decision was either based on erroneous facts or, for reasons unknown to the Court, assumed that the five-year condition had been met. In any case, the latter decision is unable, in itself, to call into question the facts flowing from the evidence available to the Court.", "114. The Court does not therefore find that the deficiencies in the legislation and practice alleged by the applicant and the third-party intervener concerning the erasure of domicile or residence of aliens residing in Croatia following the dissolution of the SFRY pertain in the applicant’s case. Accordingly, reiterating that in proceedings originating in an individual application it is not called upon to review the legislation in the abstract, but has to confine itself, as far as possible, to an examination of the concrete case before it (see, amongst many other authorities, Travaš v. Croatia, no. 75581/13, § 83, 4 October 2016), the Court will not further deal with the alleged issue of erasure from the register of domicile in Croatia following the dissolution of the former SFRY. 115.", "Moreover, in the Court’s view, the applicant’s case should be distinguished from cases concerning “settled migrants” as this notion has been used in the Court’s case-law, namely, persons who had already been formally granted a right of residence in a host country and where a subsequent withdrawal of that right, with a possibility of expulsion, was found to constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8, which needed to be justified under the second paragraph of Article 8 (see, for instance, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII; Maslov v. Austria [GC], no. 1638/03, ECHR 2008, and Savasci v. Germany (dec.), no. 45971/08, 19 March 2013; see also Jeunesse v. the Netherlands [GC], no. 12738/10, § 104, 3 October 2014).", "116. Likewise, the situation of the applicant, who has resided in Croatia already for almost forty years without ever leaving his place of residence in Novska, and who found himself in a rather specific situation following the break-up of the former SFRY, which occurred outside either the applicant’s control or individual choice, also cannot be fully equated to the situation of an alien seeking admission to a host country (see, amongst many others, A.S. v. Switzerland, no. 39350/13, § 46, 30 June 2015). 117. The applicant’s situation is rather a specific situation of a stateless migrant who complains that the uncertainty of his situation and the impossibility to regularise his residence status in Croatia following his almost forty-year, at times regular and constantly tolerated, stay in Croatia adversely affects his private life under Article 8 of the Convention.", "The instant case thus concerns the issues of the respect for the applicant’s private life and immigration lato sensu, both of which have to be understood in the context of the complex circumstances of the dissolution of the former SFRY. 118. Against the above background, the Court finds it appropriate, having in mind the circumstances of the applicant’s case, to examine his complaint on the basis of its case-law related to the complaints of aliens who, irrespective of many years of actual residence in a host country, were not able to regularise their residence status and/or their regularisation of the residence status was unjustifiably protracted. In the Court’s case-law, such cases, each of course within its particular factual circumstances, were found to involve an allegation of a failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention to ensure an effective enjoyment of an applicant’s private and/or family life (see Kurić and Others, cited above, §§ 357-58; Jeunesse, cited above, § 105; B.A.C. v. Greece, no.", "11981/15, § 36, 13 October 2016; and Abuhmaid v. Ukraine, no. 31183/13, §§ 116-18, 12 January 2017). The relevant principles concerning the State’s positive obligation in this respect will be summarised further below. (b) General principles 119. At the outset, the Court reiterates that Article 8 protects, inter alia, the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity.", "Thus, the totality of social ties between a migrant and the community in which he or she lives constitutes part of the concept of private life under Article 8 (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008, and Abuhmaid, cited above, § 102). 120. Nevertheless, according to the Court’s case-law, the Convention does not guarantee the right of an alien to enter or to reside in a particular country and Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, amongst many other authorities, Chahal v. the United Kingdom, 15 November 1996, § 73, Reports of Judgments and Decisons 1996‑V; Üner, cited above, § 54; Slivenko, cited above, § 115; Kurić and Others, cited above, § 355, and Abuhmaid, cited above, § 101). 121.", "Moreover, neither Article 8 nor any other provision of the Convention can be construed as guaranteeing, as such, the right to the granting of a particular type of residence permit, provided that a solution offered by the authorities allows the individual concerned to exercise without obstacles his or her right to respect for private and/or family life (see Aristimuño Mendizabal v. France, no. 51431/99, § 66, 17 January 2006, and B.A.C v. Greece., cited above, § 35). In particular, if a residence permit allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of Article 8. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Ramadan v. Malta, no.", "76136/12, § 91, ECHR 2016 (extracts), and cases cited therein). 122. Having said that, the Court reiterates that measures restricting the right to reside in a country may, in certain cases, entail a violation of Article 8 of the Convention if they create disproportionate repercussions on the private or family life, or both, of the individuals concerned (see Maslov, cited above, § 100, and Kurić and Others, cited above, § 355). Moreover, the Court has held that in some cases, such as in the case at issue, Article 8 may involve a positive obligation to ensure an effective enjoyment of the applicant’s private and/or family life (see paragraphs 119-120 above). In this connection, it is helpful to reiterate that the boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition.", "The applicable principles are nonetheless similar. In both instances regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see, amongst many other authorities, Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 (extracts), and B.A.C. v. Greece, cited above, § 36). 123.", "The positive obligation under Article 8 may be read as imposing on States an obligation to provide an effective and accessible means of protecting the right to respect for private and/or family life (see Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005‑X, and Abuhmaid, cited above, § 118, with further references; see also Kurić and Others, cited above, § 358). Article 8 requires, amongst other things, a domestic remedy allowing the competent national authority to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to such an obligation (see Abuhmaid, cited above, § 118). 124. Accordingly, in view of the nature of the applicant’s complaint and the fact that it is primarily for the domestic authorities to ensure compliance with the relevant Convention obligation, the Court considers that the principal question to be examined in the present case is whether, having regard to the circumstances as a whole, the Croatian authorities, pursuant to Article 8, provided an effective and accessible procedure or a combination of procedures enabling the applicant to have the issues of his further stay and status in Croatia determined with due regard to his private-life interests (see, mutatis mutandis, Kurić and Others, cited above, §§ 357-59; Jeunesse, cited above, § 105, and Abuhmaid, cited above, § 119).", "(c) Application of these principles in the present case 125. The Court notes at the outset that there can be no doubt that the applicant enjoys private life in Croatia. He came to Novska at the age of seventeen and has lived there ever since, that is to say for almost forty years (see paragraph 7 above). He has worked at different jobs and accumulated social ties in the local community where he lives (see paragraphs 15, 17, 18, 21, 43 and 48 above, and compare Abuhmaid, cited above, § 103). At present, he is fifty-five years old and has no link with any other country or place of residence and has in the meantime lost contact with all his relatives (see paragraph 8 above).", "126. At the same time, the applicant’s residence status in Croatia is uncertain as it depends on one-year extensions of his residence permit on humanitarian grounds, dependent on him providing a valid travel document, a condition which the applicant considers impossible for him to meet as he is stateless, or obtaining the discretionary consent of the Ministry for his stay, which has not been exercised consistently (see paragraphs 49 and 55‑56 above). Moreover, although nominally available to him, the applicant’s prospect of finding employment is de facto hampered without a regularisation of his residence status. He is therefore unemployed and survives by helping out on the farms in the Novska area (see paragraphs 43 and 48 above), which undoubtedly adversely affects the prospect of him securing normal health insurance or pension rights (see paragraph 99 above). In these circumstances, particularly in view of the applicant’s advanced age and fact that he has lived in Croatia for almost forty years without having any formal or de facto link with any other country, the Court accepts that the uncertainty of his residence status has adverse repercussions on his private life.", "127. The Court further notes several important particular features of the present case. It first and foremost takes into consideration the above‑observed fact that the applicant’s position cannot simply be considered to be on a par with that of other potential immigrants seeking to regularise their residence status in Croatia (see paragraph 116 above). The applicant was born in 1962 in the former SFRY as the child of an Albanian refugee couple that lawfully resided in that country. As Croatia was at the time part of the SFRY, the applicant came to live in Novska in 1979 where he settled and lived under the temporary residence regime provided by the authorities in Kosovo related to his status of an Albanian refugee which was recognised throughout the former SFRY.", "At the same time, according to a birth certificate issued in 1987, the applicant did not have any nationality (see paragraph 24 above). Although the applicant never changed his place of residence or any other feature of his personal status his already complex residence status was made even more convoluted by the break-up of the former SFRY, complex and disturbed succession process and the ensuing war. It was in these circumstances that the applicant, despite having lived in Croatia for almost forty years, found himself in the above-noted uncertainty of his residence status (see paragraph 126 above). In this sense, although the applicant was not subject to a process of erasure of his residence status (see paragraph 114 above), the applicant’s case has some resemblance to the cases of applicants in Kurić and Others (cited above, §§ 357-59) who, following the succession of the republics of the former SFRY, found themselves in a situation in which they were unable to regularise their residence status. 128.", "A second important feature of the instant case is the fact that, as already noted above, the applicant is at present stateless (see paragraphs 24 and 110 above). A further important feature of the case is the fact that the applicant’s parents died and that over the years he lost contact with his sisters (see paragraph 8 above). He has no other family or relatives in another country with whom he maintains contact nor was it ever established during the domestic proceedings that the applicant had any link with Albania or any other country. In fact, the applicant only in 1992 mentioned a brother who lived in Albania, but he did not even know where that brother lived (see paragraph 21 above). Thereafter the applicant never mentioned that brother and the information obtained by the police during the domestic proceedings did not establish that the applicant had maintained any links with his brother or anybody else in another country.", "129. The Court lastly considers it important to note in this context that an important feature of the applicant’s case is also the fact that his residence status in Croatia, although not always regularised, was tolerated by the Croatian authorities for a number of years. In particular, following the dissolution of the SFRY and the ensuing war, the applicant was recruited to perform a mandatory civil service in Novska. His residence status was afterwards regularised only in the period between 1993 and 1997 (see paragraph 27 above) and in the period between 2011 and 2014 (see paragraph 45 above) and then again since September 2015 until present (see paragraphs 55-56 above). At the same time, almost twenty-seven years have passed since Croatia declared independence and the applicant has been living in the same place of residence ever since.", "Moreover, although he was prosecuted for minor offences related to the status of aliens (see paragraph 48 above), the domestic authorities never instituted any proceedings related to the removal of unlawful aliens as provided under the relevant domestic law. 130. In this context, the Court also notes that, although a criminal complaint was lodged against him for causing a road accident, there is no evidence or suggestion that the applicant has a criminal record (see paragraph 48 above) nor did the intelligence agency find that the applicant was involved in any suspicious activity (see paragraphs 23 and 28 above). The only observation in that connection was made in the Novska police report of 1995 suggesting that the applicant had been socialising with individuals of similar characteristics with a tendency to get involved in trading of grey-market goods (see paragraph 29 above). However, the Court observes that this observation is unsubstantiated in any respect and that the report at issue contains a number of contradictions.", "For instance, it indicates that the applicant never tried to regularise his residence status in Croatia, which is not true in view of the fact that for a while in 1988 he had a regularised residence in Croatia (see paragraph 10 above). It also suggests that the applicant disappeared from his place of residence during the war in Croatia, which contradicts evidence showing that the applicant was engaged in mandatory civilian service in that period (see paragraph 17 above). It is also not clear what was meant by the suggestion that the applicant had an Albanian passport issued in Kosovo as obviously the local authorities in Kosovo could not have issued him with an Albanian passport and in any event the birth certificates issued by those authorities in 1987 and 2009 do not indicate that the applicant had Albanian nationality, which would have been a precondition for him obtaining an Albanian passport. Lastly and most importantly, the Court notes that the contents of the 1995 report were never mentioned or supported by any of the police or intelligence agency’s reports on the applicant’s personal situation. 131.", "Furthermore, having regard to the circumstances related to the applicant’s residence status as a whole (see paragraph 124 above), the Court notes several aspects of the proceedings related to the applicant’s application for a permanent residence permit in Croatia (see paragraphs 34‑44 above). In making that assessment, the Court finds it important to note that it cannot subscribe to the Government’s arguments which rely on the proceedings concerning the applicant’s applications for Croatian citizenship. As explained in the Kurić and Others case (cited above, § 357), an alien lawfully residing in a country may wish to continue living in that country without necessarily acquiring its citizenship. Indeed, the applicant’s complaint does not concern the impossibility for him to obtain Croatian citizenship but the general impossibility to regularise his residence status in Croatia. The Court is therefore not called upon to examine whether the applicant should be granted Croatian citizenship but rather whether, if he had chosen not to become Croatian citizen or had failed to do so, he would have an effective possibility to regularise his residence status allowing him to normally lead his private life in Croatia (compare Kurić and Others, cited above, §§ 357-59).", "132. With regard to the proceedings related to the applicant’s application for a permanent residence permit in Croatia, the Court notes that this request was essentially dismissed because the applicant did not have three years of uninterrupted employment in Croatia and there was no particular interest of Croatia, as provided under section 29(2) of the Movement and Stay of Foreigners Act, in granting him a residence permit (see paragraphs 39 and 41 above). 133. The Court notes, however, that the applicant’s employment booklet, which was available in the proceedings in question, indicates that he had been in employment in the period between July 1986 and December 1989 (see paragraphs 34 and 41 above). This period of employment was interrupted only for a period of some fifteen days (between 15 July and 1 August 1987).", "Although it was not explicitly mentioned in the decisions of the domestic authorities, the Court considers that if this interruption of the applicant’s employment had led to the consideration that he did not have an uninterrupted employment in Croatia for three years, such a position, although formally correct, in view of all the applicant’s personal circumstances, appears to have been overly formalistic and not reflective of the reality of the situation. Moreover, it is noted that the applicant provided assurance that he would be employed by the same employer if he managed to regularise his residence status (see paragraph 43 above). 134. In this connection, the Court also notes that the domestic authorities, including the Constitutional Court, did not take into account any private-life considerations related to the applicant’s particular situation although the above-noted special features of the applicant’s case were well known to them (see paragraphs 124-27 above; and compare, by contrast, Abuhmaid, cited above, § 122). Moreover, section 29(2) of the Act on the Movement and Stay of Foreigners, which the domestic authorities mentioned, allowed them to grant permanent residence to foreigners “in view of the particular personal reasons” (see paragraph 61 above).", "However, the domestic authorities only found that there was no particular interest of Croatia in granting the applicant permanent residence without making any assessment of the applicant’s “particular personal reasons”, as provided in the cited provision. 135. Having in mind the above circumstances of the applicant’s case, the Court will now turn to the current proceedings through which the applicant is trying to regularise his residence status in Croatia. As already discussed above, this concerns the applicant’s residence status on humanitarian grounds which is extended every year upon the applicant’s request and which, if it were to reach a period of five years of uninterrupted residence, would qualify the applicant for applying for a permanent residence permit and thus regularising his residence status (see paragraph 62 above; section 92 of the Aliens Act). It has already been noted above that in order to prolong the stay on humanitarian grounds, the applicant needs either a valid travel document or the Ministry, upon its discretion, can give consent for the extension of the stay on humanitarian grounds even in the absence of a valid travel document (see paragraphs 81-82 above).", "136. With regard to the applicant’s possibility of obtaining a valid travel document to extend the stay on humanitarian grounds, the Court takes note of the third-party intervener’s submission according to which in practice this means providing a valid national biometric passport of the current country of origin, which is a requirement that stateless persons are unable to meet (see paragraph 108 above). Indeed, the Court has already noted above that the applicant’s possibility of obtaining Albanian nationality cannot be taken as an effective and realistic option (see paragraph 110 above). 137. It should also be noted that under the relevant domestic law stateless persons are not required to have a valid travel document when applying for a permanent residence permit in Croatia (see paragraph 62 above, and sections 93 and 96 of the Aliens Act).", "However, as the applicant’s case shows, in practice this is of a limited relevance as in order to be able to apply for permanent residence, a stateless person would need to have a five-year uninterrupted temporary residence in Croatia for which a valid travel document is needed. Thus, in reality, contrary to the principles flowing from the Convention relating to the Status of Stateless Persons (see paragraph 65 above), stateless individuals, such as the applicant, are required to fulfil requirements which by the virtue of their status they are unable to fulfil. 138. Furthermore, the Court finds it striking that despite being aware that the applicant does not have any nationality, as is evident from his birth certificates issued by the authorities in Kosovo in 1987 and 2009, when extending the applicant’s residence status on humanitarian grounds the Croatian authorities insisted that the applicant was a national of Kosovo (see paragraphs 53 and 55-56 above). As there was no suggestion that the applicant had ever had Kosovo nationality, it is difficult to understand the Croatian authorities’ insistence on the fact that the applicant should obtain a travel document from the authorities in Kosovo (see paragraph 53 above).", "It is also noted in this connection that despite the applicant’s statelessness, which was apparent from the relevant documents available to the Croatian authorities, they never considered taking the relevant measures, such as providing administrative assistance to facilitate the applicant’s contact with the authorities of another country, to resolve the applicant’s situation, as provided in the international documents to which Croatia is a party (see paragraph 65 above; see also paragraph 63 above). 139. With regard to the extension of the applicant’s temporary stay on humanitarian grounds on the basis of the Ministry’s consent, the Court has already observed above that such consent is purely a discretionary facility of the Ministry (see paragraph 81 above). Indeed, without providing any reasons, the Ministry refused to allow the extension of the applicant’s temporary residence in July 2014 (see paragraph 49 above) whereas, also without providing any reasons, the Ministry gave its consent for the extension of the applicant’s temporary stay in September 2015 and October 2016 (see paragraphs 55-56 above). The situation was thus created in which the period of the applicant’s regularised stay between July 2011 and August 2014 was interrupted.", "This therefore delays his prospect of applying for permanent residence permit for a future period in which he would need to have five years of uninterrupted residence on humanitarian grounds subject to the Ministry’s discretion, which has not been exercised consistently and which appears to takes no account of the special features of the applicant’s case and his private-life situation. 140. The Court also notes that the applicant challenged the 2014 decision of the Ministry refusing the extension of his temporary stay before the Zagreb Administrative Court. However, it took that court more than two years to examine the applicant’s complaints only to dismiss them by endorsing the Ministry’s refusal to extend the applicant’s temporary stay on humanitarian grounds. It thereby made no assessment of the applicant’s specific private life situation and the circumstances of his stay in Croatia from the perspective of Article 8 of the Convention (see paragraph 54 above).", "In any case, although the applicant has challenged that ruling before the High Administrative Court, it should be noted that, even in the event of a positive ruling, it is uncertain, in view of the above considerations related to the manner in which the Ministry exercised its discretion in the applicant’s case, whether it would have any real effect on the applicant’s prospect of effectively regularising his residence status in Croatia. 141. Having regard to all the above procedures and circumstances cumulatively, the Court does not consider that, in the particular circumstances of the applicant’s case, the respondent State complied with its positive obligation to provide an effective and accessible procedure or a combination of procedures enabling the applicant to have the issues of his further stay and status in Croatia determined with due regard to his private-life interests under Article 8 of the Convention (compare Kurić and Others, cited above, § 359; and contrast Abuhmaid, cited above, § 126). 142. The Court therefore rejects the Government’s objection it has previously joined to the merits (see paragraph 88 above).", "143. It also finds that there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 12 144.", "The applicant complained of a violation of Article 14 taken in conjunction with Article 8 of the Convention, and of Article 1 of Protocol No. 12. He alleged that the manner in which the legislative context for regularisation of residence in Croatia functioned discriminated against former SFRY citizens vis-à-vis all other “real aliens”. 145. The Government contested that argument.", "146. The Court notes that it has already found above that there is no evidence that the applicant ever held SFRY citizenship (see paragraph 15 above). Accordingly, the alleged discrimination against former SFRY citizens vis-à-vis all other “real aliens” does not pertain in the applicant’s case. 147. The Court therefore finds that the applicant’s complaints are inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 148. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 149. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.", "150. The Government considered this claim excessive, unfounded and unsubstantiated. 151. The Court considers that the applicant must have sustained non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.", "B. Costs and expenses 152. The applicant also claimed EUR 4,000 for the costs and expenses incurred during the proceedings. Relying on an agreement on costs and expenses of 24 June 2016, he asked the Court to order the payment of the awarded costs and expenses directly to his representative. 153.", "The Government considered the applicant’s claim unfounded and unsubstantiated. 154. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 3,000 covering costs and expenses of the proceedings, which are to be paid into the representative’s bank account, as identified by the applicant. C. Default interest 155.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join to the merits the issue of exhaustion of domestic remedies and rejects it; 2. Declares the complaints concerning the uncertainty of the applicant’s residence status in Croatia related to the impossibility of regularising his residence status, under Article 8 of the Convention, admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 8 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas (HRK) at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representative’s bank account; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident [1]. All references to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with the United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo." ]

[ "THIRD SECTION CASE OF NOVIKOVA AND OTHERS v. RUSSIA (Applications nos. 25501/07, 57569/11, 80153/12, 5790/13 and 35015/13) JUDGMENT STRASBOURG 26 April 2016 FINAL 12/09/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Novikova and others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,George Nicolaou,Helen Keller,Johannes Silvis,Dmitry Dedov,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 22 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in five applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Russian nationals: Ms M. Novikova, Mr Y. Matsnev, Mr V. Savchenko, Mr A. Kirpichev (the applicant changed his name from “Kirpichenko” in the course of the proceedings) and Mr V. Romakhin.", "The applicants’ details and those of their representatives, the dates on which they lodged their applications and the application numbers are set out in the “Facts” section below. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of Russian Federation to the European Court of Human Rights. 3. On 24 March 2014 the complaints under Articles 5, 10, 11 of the Convention and Article 2 of Protocol No.", "4 to the Convention were communicated to the Government and the remainder of the first three applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASES A. Application no. 25501/07 4.", "This application was lodged on 27 April 2007 by Marina Viktorovna Novikova, who was born in 1972 and lives in Moscow. The applicant is represented by Yuriy Yershov, a lawyer practising in Moscow. 5. On 10 November 2006 the applicant staged a demonstration in front of the State Duma in Moscow, holding a poster that read “Psychiatry kills our children on our taxes”. According to her, it was a solo static demonstration (одиночное пикетирование) (see “Relevant domestic law and practice” below) and, as such, fell outside the statutory requirement to give prior notification to the competent public authority.", "Moreover, she took care to position herself at a distance from other people who were also present in front of the State Duma. 6. After about ten minutes, the applicant was approached by police officers, who then took her to the district police station. An arrest record was compiled; the reasons for her arrest are unclear. 7.", "According to the applicant, she spent some three hours in the police station and was then allowed to leave. 8. The Government submitted to the Court a report issued on 11 November 2006 by the senior officer on-duty, Su. The report stated that the applicant and five other people (including A., M. and S.) had been present at 8.30 a.m. in front of the State Duma, holding posters that read “Attention! Psychiatry kills.", "7.5 million roubles of public funds spent on the destruction of lives”, “Do not force taxpayers to pay for psychiatrists’ systematic extermination of Russians”, “Psychiatrists need walls to hide their crimes” and other such statements. The Government also submitted to the Court copies of documents relating to administrative offence proceedings against A., M. and S. 9. As for the applicant, the administrative offence record states that she was accused of “taking part, together with other citizens, in a demonstration in respect of which no prior notification had been provided to the public authorities”. Her actions were classified under Article 20.2 of the Code of Administrative Offences of the Russian Federation (hereinafter “the CAO”), which regulates the penalties applied to violations of the regulations on public events set out in, inter alia, the Public Assemblies Act. 10.", "Officer G. submitted a written report to his hierarchical superior indicating that the applicant “had been arrested and taken to the police station for violating the regulations on public gatherings, namely Article 20.2 of the CAO”. 11. According to the Government, on 14 November 2006 the case against the applicant was received by the justice of the peace of the Tverskoy District, who on the same day scheduled a hearing for 15 November 2006. According to the applicant, she was not informed of the hearing date until it was too late. Thus, she made no written or oral submissions to the court.", "12. Having examined the file, on 15 November 2006 the judge considered that the applicant had been apprised of the hearing but had refused to sign the summons. The court decided to proceed with the case in her absence and held that she had been afforded but had not used an adequate opportunity to make written or oral submissions. On the same day, the judge found the applicant guilty under Article 20.2 § 2 of the CAO and imposed a fine of 1,000 Russian roubles (RUB), which was at the time equivalent to 29 euros (EUR). 13.", "Referring to the arrest record, the offence record and G.’s report (see above), the court considered that the applicant had participated in a demonstration after which some five people and the applicant had been arrested. In the court’s view, the applicant’s behaviour amounted to participation in a public event requiring prior notification. The justice of the peace then held as follows: “[The applicant’s] actions constitute a violation of the regulations on static demonstrations in that no notification had been made [to the competent authority] about the possibility of staging a demonstration ... Thus, this demonstration was held without legal grounds. The court takes into account that the applicant’s presence next to the object being picketed, together with other people, directly discloses the expression of opinions and attitudes, and thus takes the form of a group public event, namely a static demonstration.” 14.", "The applicant sought re-examination of the case on appeal by the Tverskoy District Court of Moscow. On 5 December 2006 the court heard the applicant and upheld the judgment of the justice of the peace, concluding that the applicant had taken part in a public event held without prior notification to the competent authority; on 10 November 2006 she had been apprised of the hearing to be held before the justice of the peace but had failed to sign the summons. 15. On 23 January 2007 the Deputy President of the Moscow City Court upheld the District Court’s decision on supervisory review. B.", "Application no. 57569/11 16. This application was lodged on 26 August 2011 by Yuriy Ignatyevich Matsnev, who was born in 1937 and lives in Kaliningrad. He was represented by Aleksandr Koss, a lawyer practising in Kaliningrad. 17.", "On 30 July 2010 the applicant staged a solo demonstration in front of the Kaliningrad Regional Administration building. He was holding a poster showing people (apparently, officials he suspected of corruption) behind bars, and saying “They should be found accountable!” and “Mr Boos! Kaliningrad’s residents are waiting for you to solicit the President!”. Mr S., a journalist, was passing by and filmed the demonstration and the arrival of the police. 18.", "The applicant was arrested by the police and taken to the police station. He remained there for two hours and was then allowed to leave. No administrative offence proceedings were instituted against him. 19. According to reports subsequently made by the arresting officers, the applicant had not had an identity document on him and had agreed to accompany them to the police station in order to have his identity verified and to have an administrative record compiled.", "20. The applicant brought civil proceedings seeking RUB 500,000 as compensation in respect of non-pecuniary damage caused by the authorities’ actions. The applicant referred to Article 10 of the Convention. 21. By a judgment of 14 March 2010, the Tsentralnyy District Court of Kaliningrad acknowledged that the taking of the applicant to the police station and his retention there had been unlawful.", "The court held as follows: “Following the escorting of [the applicant] to the police station no administrative offence case was opened ... [Mr S.] testified that the defendant had shown his identity document and had not expressed his consent to go with the police to the police station ... The police officers acted unlawfully when escorting the applicant to the police station ...” The court awarded the applicant RUB 6,000 in respect of non-pecuniary damage (approximately EUR 149 at the time). It dismissed his claim concerning the alleged destruction of the poster by the police and made no separate findings relating to his freedom of expression. 22. On 25 May 2011 the Kaliningrad Regional Court upheld the judgment.", "C. Application no. 80153/12 23. This application was lodged on 10 November 2012 by Viktor Mikhaylovich Savchenko, who was born in 1967 and lives in the village of Platonovo-Petrovka in the Rostov Region. 24. On 23 June 2011, when Mr Putin was visiting the village of Peshkovo, the applicant staged a demonstration, standing at some distance from a road close to the village and holding a poster reading “Mr Putin!", "In the Rostov region they disregard your Decree on social assistance to families. The Russian Government disregards its obligations to issue housing certificates!” 25. According to the applicant, police officers approached him and ordered him to go to another place where journalists were filming. He arrived there and displayed his poster. He was approached by people in plain clothes who ordered the police to take him to the police station.", "The police complied. After some three hours in the police station, the applicant was free to leave. 26. The police drew up a record of the administrative escorting in respect of the applicant. 27.", "The applicant was accused of disorderly behaviour on account of using foul language in a public place on 23 June 2011. On 24 June 2011 a senior police officer found him guilty under Article 20.1 of the CAO (see paragraph 74 below) and imposed a fine of RUB 500 on him. On 21 December 2011 the Azov Town Court overruled the conviction because the senior police officer had not heard evidence from the applicant. The court then discontinued the case owing to the expiry of the time-limit for prosecution. On 7 February 2012 the Rostov Regional Court upheld the judgment on appeal.", "28. The applicant brought civil proceedings challenging the actions of the police in respect of him. On 4 April 2012 the Town Court dismissed his claims. On 14 June 2012 the Regional Court upheld the judgment on appeal. The appeal court noted that the courts dealing with the administrative offence case had not determined whether the applicant had committed the impugned action (using foul language) and whether he had committed an offence, but had simply discontinued the case on procedural grounds.", "The appeal court concluded that the above “did not disclose any unlawfulness” on the part of the law-enforcement officers, while the applicant had not substantiated, in the current case, that their actions had violated or otherwise impeded the exercise of his protected rights or freedoms. D. Application no. 5790/13 29. This application was lodged on 30 November 2012 by Aleksandr Mikhaylovich Kirpichev, who was born in 1984 and lives in Astrakhan. He is represented by Konstantin Ilyich Terekhov, a lawyer practising in Moscow.", "30. At 7.15 p.m. on 3 July 2012 the applicant staged a solo demonstration at a bus stop. He was holding a poster which read “The Kremlin is not for sale – it is a piece of architecture!”. After several minutes some five passers-by stopped and looked at him and his poster. 31.", "It appears that soon thereafter five police officers approached and warned those present that a meeting required prior notification to the authorities. The passers-by went away. 32. It appears from a video recording submitted by the applicant that one of the police officers refused to listen to the applicant’s explanations and told him that he would be taken to the police station. The applicant was then placed in a police car and taken to the police station.", "He was accused of holding a public event without giving prior notice. 33. According to the Government, the applicant had staged a public meeting first on the road and then on the pavement near a bus stop. The police officers’ written reports indicated that the applicant had called passers-by to approach and discuss with him the topic of the event. The police decided to apply the escort procedure (доставление) to the applicant because it was necessary to put an end to the administrative offence and because an administrative offence record could not be compiled on the spot since the applicant had no identity document on him.", "The applicant agreed to go with the police to the police station. 34. On 20 July 2012 a justice of the peace convicted the applicant under Article 20.2 § 2 of the CAO. The court considered that the applicant had held a public event in the form of a meeting (митинг); some five people had gathered but then dispersed after a warning from a police officer. The justice of the peace sentenced the applicant to a fine of RUB 20,000 (approximately EUR 505 at the time), noting that the applicant had committed an offence that was similar to another one for which he had already been convicted earlier the same year.", "The justice of the peace warned the applicant that his failure to pay the fine would constitute an administrative offence under Article 20.25 of the CAO, which was punishable by a fine of double the amount or up to fifteen days’ detention. 35. The applicant appealed, arguing that the court had failed to take into account his financial situation when imposing a high fine. 36. On 21 August 2012 the Kirovskiy District Court of Astrakhan upheld the judgment on appeal.", "The appeal court dismissed the argument concerning the amount of the fine by stating that it was the minimum statutory amount prescribed by Article 20.2 § 2 of the CAO. 37. In September 2012 the justice of the peace allowed the applicant to pay the fine in three monthly instalments. E. Application no. 35015/13 38.", "This application was lodged on 20 May 2013 by Valeriy Leonidovich Romakhin, who was born in 1965 and lives in Astrakhan. He is represented by Konstantin Ilyich Terekhov, a lawyer practising in Moscow. 39. At 1.30 p.m. on 10 November 2012 the applicant held a solo demonstration in front of the Maritime University in Astrakhan, to express his disagreement with the recent decision to close the university. The applicant was holding a poster that read “To close the university is to commit a crime”.", "40. Mr A. was holding a demonstration on the other side of the road, making similar claims. He was holding a poster saying “Annul order no. 101 of 27 September 2012 and find its authors liable”. According to the applicant, he was standing some 50 metres away.", "The Government submitted that the applicant and A. were at “visual distance from each other”. 41. Shortly after starting his demonstration, the applicant was approached by a police officer who warned him that he was in breach of Article 20.2 of the CAO. He then escorted the applicant to the police station. It appears that A. was also taken to the police station.", "According to the Government, it was not possible to draw up an administrative offence record on the spot because the applicant had no identity document on him. 42. The applicant was allowed to leave the police station after several hours. 43. In the Astrakhan Region, Law no.", "80/2012-FZ of 27 November 2012 set the minimum distance between solo demonstrators at twenty metres. 44. On 6 December 2012 a justice of the peace held a hearing. A. stated that he knew the applicant; without any concerted plan, they had both gone to the university to stage solo demonstrations; the applicant had not prepared his own poster and so had taken one of A.’s posters; they had placed themselves at a distance of some fifty metres from each other. 45.", "On the same day, the justice of the peace convicted the applicant under Article 20.2 § 2 of the CAO (organisation and holding of a public event without prior notification) and imposed a fine of RUB 20,000 on him. On 5 February 2013 the Sovetskiy District Court of Astrakhan upheld the judgment. The courts considered that the applicant and A. had held a public static demonstration (common logistical organisation, timing and claims disclosing a common goal), which by law required them to notify the local authorities in advance. The courts concluded that the offence impinged upon public order and public security, “having a significant adverse impact on protected public relations”. According to the Government, the applicant was a “participant” in a demonstration with A.", "46. It appears that on 26 April 2013 the Astrakhan Regional Court reviewed the case and reduced the fine to RUB 1,000. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Freedom of assembly and freedom of expression 1.", "Russian Constitution 47. The Constitution of Russia guarantees the right to freedom of peaceful assembly and the right to hold meetings, demonstrations, marches and pickets (Article 31). It also guarantees the right to freedom of thought and expression, as well as freedom to freely seek, receive, transfer and spread information by any legal means (Article 29). 48. Article 55 of the Constitution provides that rights and freedoms may be limited by a federal statute only in so far as it is necessary for protecting the foundations of the constitutional regime, the morals, health, rights and legitimate interests of others, and for ensuring national defence and security.", "2. Procedure for the conduct of public events (a) General provisions 49. Federal Law no. FZ-54 of 19 June 2004 on Gatherings, Meetings, Demonstrations, Marches and Pickets (“the Public Assemblies Act”), defines a public event (публичное мероприятие) as an open, peaceful event accessible to all, organised on the initiative of Russian citizens, political parties, other public associations or religious associations. The aims of a public event are to express or develop opinions freely and to voice demands on issues related to political, economic, social or cultural life in the country, as well as issues related to foreign policy (section 2(1)).", "50. A public event may be held in any convenient location, provided that it does not create a risk of building collapse or any other risks to the safety of the participants. The access of participants to certain locations may be banned or restricted in the circumstances specified by federal laws (section 8(1)). Public events in the immediate vicinity of a court are prohibited (section 8(2)). 51.", "No earlier than fifteen days and no later than ten days before the intended public event, its organisers must notify the competent regional or municipal authorities of the date, time, location or itinerary and purposes of the event, its type, the expected number of participants, and the names of the organisers. Notification of a picket involving several people must be submitted no later than three days before the intended picket or, if the deadline falls on a Sunday or a public holiday, no later than four days before the intended picket (section 7(1) and (3)). A notification of a public event is a document by which the competent authority is informed, in accordance with the procedure established by the Act, that an event will be held, so that the competent authority may take measures to ensure safety and public order during the event (section 2 (7)). 52. Upon receipt of such notification the competent regional or municipal authorities must, inter alia: (1) confirm receipt of the notification; (2) provide the organisers of the event, within three days of receiving the notification (or, in the case of a picket involving several people, if the notification is submitted less than five days before the intended picket, on the day of receipt of such notification), with reasoned suggestions for changing the location and/or time of the event, or for amending the purposes, type or other arrangements if they are incompatible with the requirements of the Act; (3) ensure, in cooperation with the organisers of the event and representatives of the competent law-enforcement agencies, the protection of public order and citizens’ security, as well as the administration of emergency medical aid if necessary (section 12(1)).", "53. The competent regional or municipal authority may refuse to allow a public event only if the person who has submitted the notification is not entitled to organise a public event or if it is prohibited to hold public events at the location chosen by the organisers (section 12(3)). 54. No later than three days before the intended date of the event (this time-limit does not apply to pickets involving one person) the organisers of a public assembly must inform the authorities in writing whether or not they accept the authorities’ suggestions for changing the location and/or time of the event (section 5(4)(2)). 55.", "According to the Russian Constitutional Court, the prior notification requirement is aimed at providing advance notice and relevant information (including about the type of event, its place, timing and expected number of participants) to the competent authorities. Otherwise the authorities would be deprived of a real opportunity to comply with their constitutional obligation to respect and protect individual rights and freedoms, and to take the necessary measures aimed at ensuring safety for the participants and other people (Ruling no. 4-P of 14 February 2013; ruling no. 30-P of 5 December 2012). (b) Provisions on solo static demonstrations (solo “pickets”) 56.", "The Public Assemblies Act defines a “picket” as a form of public expression of opinion that does not involve movement or the use of loudspeaker equipment, where one or more citizens with placards, posters and other means of visual expression assemble near the target object of the picket (section 2(6)). 57. No notification is required for pickets involving one person (section 7(1) and (3)). On 8 June 2012 the Public Assemblies Act was amended. New subsection (1.1) in section 7 provides that the regional statutes will determine the distance between solo demonstrators, which should not exceed fifty metres.", "It empowers the courts to declare that several solo demonstrations, taken together, constitute a single public event if they share the same goal and organisation. 58. In its ruling no. 4-P of 14 February 2013 the Russian Constitutional Court assessed the above new provision of the Act. - The court noted that the absence of the notification requirement for solo demonstrations excluded any State interference with such public events, which could be held at any venue and at any time, unless otherwise provided by the law.", "However, to avoid a group event being disguised as solo demonstrations and to prevent the event’s organiser from evading his duty to notify the authority, the legislator imposed the requirement that a minimum distance be kept between solo demonstrators; this distance was to be specified by each region of Russia but could not exceed fifty metres. If the organiser evaded the duty to notify, the public authorities would be impeded in taking timely and adequate measures to ensure the requisite order for running a given civic initiative and to secure public safety and protection of the rights of the event’s participants and other people. - In some situations even the observance of the minimum distance requirement would not exclude the abusive use of freedom of assembly by way of disguising a group event as simultaneous solo demonstrations. Thus, even where several demonstrations can be formally classified as solo demonstrations, they can be classified as a static demonstration by a group of people on account of the following: if it is sufficiently evident that they have common goals and a common organisation; if they are being held simultaneously and are physically close to each other; if their participants use means of campaigning that are similar or identical, and if they put forward common claims or calls. - The above findings must be made by a court, following an impartial and independent assessment, which gives an adequate level of protection to the constitutional right to hold a solo demonstration.", "The court should ascertain that there was no random coincidence of unrelated demonstrations, and should avoid classifying a solo demonstration as a single public event where the event merely attracts normal attention on the part of those who happened to show interest in it. Furthermore, there must be a presumption of lawfulness regarding the actions of a person exercising his or her right to hold a solo demonstration. Thus, the burden of proof in respect of the common design and organisation of a demonstration rests with the officials or authorities initiating the relevant civil, criminal or administrative proceedings. The opposite approach would encroach excessively upon the constitutional freedom of peaceful assembly. - Overall, the court declared section 7(1.1) of the Act compatible with the Russian Constitution.", "Judge Kazantsev expressed a separate opinion that can be summarised as follows. Being the least challenging in terms of security/safety and entailing no movement or use of loud-speaker devices, a solo static demonstration does not pose any real threat to public safety or State security. Nor does it create any serious danger to health, property or morals. It does not encroach upon one’s freedom of movement. Therefore, it is not subject to a notification requirement, which is related to the fact that the mere presence of a relatively large number of people in the same place, in itself, carries certain risks and thus the organiser of a public event should receive assistance for such an event.", "The authorities have the statutory aims of ensuring, together with the event’s organiser, public safety and security of people present, and providing urgent medical assistance. The observance of a fifty-metre distance between solo demonstrators excludes, in all cases, a possible lack of balance between the freedom of peaceful assembly and the freedom of movement, even where solo demonstrators have common goals and organisation. Judicial assessment is an important safeguard. However, the current statutory framework does not prevent the arrest of a person who is not a member of an organisation and carries out a solo demonstration that happens to be close to another demonstration that is wholly unrelated to him. The ensuing judicial review can only confirm the absence of any common design and prevent any further violation of freedom of expression and freedom of assembly.", "However, such a review cannot make up for the damage suffered on account of the disruption of a demonstration, arrest and court proceedings. Overall, the statutory provision under review is aimed at impeding solo demonstrations. 59. The regional statutes specifying the distance between solo demonstrators vary. For instance: In the Rostov Region, regional law no.", "146-3C of 27 September 2004 complements the federal regulations on public gatherings. In December 2012 that law was amended to provide that the distance between solo demonstrations should be no less than fifty metres (section 2 of the law). Since January 2013 a similar law in Moscow (law no. 10 of 4 April 2007) has provided for the same distance and specifies that simultaneous demonstrations should be treated as solo demonstrations provided that they do not have a common goal and organisation (section 2.3). In the Tatarstan Republic, law no.", "91-ZRT of 25 December 2012 provides that the relevant distance should be no less than thirty metres (section 8). In the Sverdlovsk Region, law no. 102-FZ of 7 December 2012 provides that the distance should attain or exceed forty metres (section 5). In the Astrakhan Region, law no. 80/2012-FZ of 27 November 2012 sets the relevant distance at no less than twenty metres (section 4).", "B. Liability for violation of the rules on public events 1. Termination of a public event 60. The organiser of a public event must put an end to it where the event’s participants have committed unlawful actions (section 5 of the Public Assemblies Act). A designated official of an executive authority or a municipal authority is empowered to take a decision to stop the public event (section 13).", "A designated law-enforcement officer is empowered to bar access to the event where the maximum capacity of the venue has been exceeded; or to order the event organiser or its participants to comply with the rules for holding public events (section 14). 61. If the event participants breached the regulations (правопорядок) while causing no threat to life or limb, the designated executive or municipal official may require the event organiser to remedy the violation (section 15). If that requirement is not complied with, the executive or municipal official may suspend the event pending the remedying of the violation. If the violation is not remedied, the event should be ended.", "The grounds for ending a public event are as follows: a real threat to life, limb or property; unlawful acts committed by the event participants; and the organiser’s wilful violation of the regulations concerning the running of a public event (section 16). 62. The procedure for putting an end to a public event is as follows: the designated executive or municipal official orders the organiser to stop the event, providing the reasons for stopping the event; the official sets a time-limit for complying with the order to end the event; if the organiser does not comply, the official himself or herself announces the end of the event and affords time to disperse (section 17). Where the order to stop the event has not been complied with, the police should take the necessary measures to stop the event. Failure to comply with lawful orders of the police or disobedience (that is, resistance) on the part of the event participants entails liability under other provisions of Russian law.", "2. Prosecution for an administrative offence 63. Article 3.1 of the CAO defines an administrative penalty as a measure of responsibility for an administrative offence, with the purpose of preventing new offences by the offender or others. 64. Chapter 20 of the CAO lists administrative offences that impinge upon public order and public safety (общественный порядок и общественная безопасность).", "(a) Before 2012 65. Before June 2012 a breach of the statutory procedure for organising a public event by its organiser was punishable by a fine of up to twenty minimum wages (Article 20.2 § 1 of the CAO), RUB 2,000. 66. A breach of the statutory procedure for the running of a public event was punishable by a fine of up to twenty minimum wages for organisers and up to ten minimum wages (RUB 1,000) for participants (Article 20.2 § 2 of the CAO). (b) Since 2012 67.", "Since June 2012, Article 3.5 of the CAO has provided that an individual could not be fined more than RUB 5,000, except for an offence under Articles 5.38, 20.2, 20.2.2, 20.18 and 20.25, for which the fine could be up to RUB 300,000. 68. On 8 June 2012 Article 20.2 of the CAO was redrafted as follows: - A breach of the procedure for organising or running a public event by an organiser became punishable by a fine of between RUB 10,000 and RUB 20,000 or up to forty hours of community work (Article 20.2 § 1). - The organisation or running of a public event without notifying the competent public authority became punishable by a fine of between RUB 20,000 and RUB 30,000 or up to fifty hours of community work (Article 20.2 § 2). - Stricter penalties were introduced for the above actions or inaction where they obstructed pedestrians or traffic, or caused damage to health or property (Article 20.2 §§ 3 and 4).", "Separate offences concerned violations by an event participant of the procedure for running the event (§ 5) and where such violations caused damage to health or property (§ 6). 69. In its ruling no. 4-P of 14 February 2013 the Constitutional Court declared the minimum statutory fines unconstitutional (in particular under Article 20.2 of the CAO) in so far as the relevant provisions of the CAO did not allow the imposition of a fine below the minimum amount. The court held that any fine should take into account the nature of the offence, the financial situation of the person concerned or other factors relating to the individualisation of the penalty and to the requirements of proportionality and fairness.", "The Constitutional Court required the legislator to amend the CAO accordingly. Until that time, the courts were instructed to consider the possibility of imposing a fine below the minimum statutory fine. C. Other relevant legislation 70. A person can be absolved from prosecution for an administrative offence by way of receiving an oral warning only, in view of the low negative impact (малозначительность) of the offence (Article 2.9 of the CAO). 71.", "Refusal to obey a lawful order or request from a police officer is punishable by an administrative fine of RUB 500 to RUB 1,000, or up to fifteen days’ administrative detention (Article 19.3 of the CAO). 72. Non-payment of an administrative fine constitutes an administrative offence punishable by a doubled fine or up to fifteen days’ administrative detention (Article 20.25 of the CAO). 73. When legislating on the issue of responsibility for an administrative offence consisting in a violation of regulations prescribed by statutes or other general legal provisions, the legislator has discretion to decide, with due regard to the essence of the public relations to protect, whether responsibility arises solely on account of non-observance of the relevant regulation or also on account of any actual damage or (real) threat of such damage to the protected object, for instance life or limb, or to property (Constitutional Court, ruling no.", "12-P of 18 May 2012, paragraph 4.1, assessing the legislation as it was before the amendments adopted in June 2012). Under Article 20.2 § 2 of the CAO, responsibility is not conditional on actual damage or consequences: the mere fact of failing to notify the competent public authority of a public event constitutes an unlawful and punishable omission (ibid. ; see also decision no. 485-O of 4 April 2013, paragraph 2.1). This omission creates a risk of a violation of others’ rights and freedoms, because it makes it more difficult for the authorities to take adequate measures to prevent or put an end to violations of public order and public safety (decision no.", "485-O). 74. Minor hooliganism (violations of public order consisting in actions displaying a manifest disregard to society, accompanied by foul language (нецензурная брань) in a public place, harassing others or by damaging property) is punishable by a fine or up to fifteen days’ detention (Article 20.1 of the CAO). Assessing a similar provision under the old CAO, the Constitutional Court considered that it aimed at protecting human dignity and personal inviolability against unlawful affronts from another person (decision no. 70-O of 19 April 2001).", "D. Fairness and procedural guarantees in cases concerning administrative offences 75. Article 1.5 of the CAO provides for the presumption of innocence. An official or court dealing with an administrative-offence case should establish whether the person concerned is guilty or innocent (ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia). 76.", "The Constitutional Court stated that Articles 118 § 2 and 123 § 3 of the Russian Constitution provided that the principles of equality of arms and adversarial procedure should apply in court proceedings, including under the CAO. Although those constitutional guarantees applied in cases examined (directly) by the courts, they did not apply in cases examined by non-judicial authorities or officials (decision no. 630-O of 23 April 2013 of the Russian Constitutional Court). However, the person concerned may seek judicial review of their decisions; such review proceedings should provide for equality of arms and adversarial procedure (ibid.). 77.", "Article 25.1 § 4 of the CAO provides that a person prosecuted under the CAO is entitled to study the case-file material, make submissions, adduce evidence, lodge motions and challenges, and have legal assistance. The Constitutional Court considered that those guarantees enabled the person concerned to refute, in the course of court proceedings, the information contained in the case file, for instance in the offence record (протокол об административном правонарушении), thereby exercising his or her right to judicial protection based on the principle of adversarial procedure (decision no. 925-O-O of 17 June 2010). 78. On the other hand, the Constitutional Court held in relation to the Code of Criminal Procedure that requiring or allowing a court to take over the functions normally attributed to a prosecuting authority contradicted Article 123 of the Constitution and impeded independent and impartial administration of justice (see, among others, ruling no.", "16-P of 2 July 2013). 79. Article 30.6 of the CAO provides for appeal against a first-instance judgment. The appeal court is required to examine the existing and new evidence in the case file, and to provide a full review of the case. E. Escorting a person to the police station, arrest and other coercive or preventive measures 1.", "Police powers 80. Under the old Police Act (Federal Law no. 1036-I of 18 April 1991) the police were empowered to carry out administrative arrests. 81. Under the current Police Act (Federal Law no.", "3-FZ of 7 February 2011) the police are empowered to check an individual’s identity documents where there are reasons to suspect the person of a criminal offence or if his or her name is on a wanted persons list, where there is a reason for prosecuting him or her for an administrative offence, or where there are other grounds, prescribed by federal law, for arresting the person (section 13 of the Act). The police are also empowered to take the person to the police station in order to decide whether he or she should be arrested if it cannot be done on the spot. The police are empowered to take fingerprints, to take photographs or make video recordings of an arrestee suspected of a criminal offence or where it was not possible to properly identify the arrestee during the arrest (section 13 of the Act). 2. Administrative escorting and administrative arrest 82.", "Article 27.1 of the CAO provides a number of measures, including administrative escorting (административное доставление) and administrative arrest (административный арест), which may be used for the purpose of putting an end to an administrative offence, to establish the offender’s identity, to compile the administrative offence record if this cannot be done on the spot, or for the purpose of timely and correct examination of the case and enforcement of a decision taken in it. 83. Article 27.2 defines “administrative escorting” as a procedure by which an offender is compelled to follow the competent officer for the purposes of compiling an administrative offence record when it cannot be done on the spot. The Constitutional Court has held that this measure of compulsion, which amounts to temporary restriction of a person’s freedom of movement, should be applied only when it is necessary and within short timeframes. Referring to the notion of “deprivation of liberty” under Article 5 of the Convention, the Constitutional Court has ruled that the relevant criteria relating to Article 5 of the Convention are “fully applicable” to the measure (Decision no.", "149-O-O of 17 January 2012). 84. In exceptional circumstances relating to the need for a proper and expedient examination of an administrative case, the person concerned may be placed under “administrative arrest”. The arrestee should be informed of his rights and obligations; this notification should be mentioned in the arrest record. The duration of such administrative arrest must not normally exceed three hours.", "Administrative arrest for a longer period, not exceeding forty‑eight hours, is permissible only for persons subject to administrative proceedings concerning an offence punishable by administrative detention or offences involving unlawful crossing of the Russian border. This term starts to run as soon as the person has been escorted to the police station in accordance with Article 27.2 of the Code (Article 27.5 of the Code). The Constitutional Court has ruled that such arrest amounts to “deprivation of liberty” as it is understood by the European Court within the meaning of Article 5 §1(c) of the Convention (Ruling no. 9-P of 16 June 2009). III.", "OTHER RELEVANT MATERIAL 85. The 2014 Report compiled by the Human Rights Ombudsman of the Russian Federation contains the following section concerning proceedings under the CAO: “Legislative guarantees relating to adversarial proceedings in CAO cases have until now been lacking. The Russian Constitution safeguards the principle of equality of arms and the principle of adversarial procedure as the basis of adjudication, without any exception. This means it is absolutely necessary to provide for adversarial proceedings, including in CAO cases. Adversarial proceedings require that the institution of prosecution, the drafting of accusations and their presentation before a court should be carried out by the authorities or officials, as specified in the statute.", "However, the CAO indicates that a court hearing may be held without any public official who would be empowered in some way to present the administrative offence charge and to prove it. A prosecutor’s participation in the case is not mandatory. As a rule, the participants in the proceedings are the judge, the defendant and his counsel. As a matter of fact, the defence is not opposed to a prosecuting party but to the court itself. This does not exclude the presence of some de facto functions of prosecution with the judge.", "The overwhelming majority of CAO cases include examination, as evidence, of public officials’ reports, while these officials act, de facto, as initiators of the proceedings and as accusers. Their written explanations and their oral testimonies in court are also treated as evidence. Thus, the “bulk of evidence” consists of copying all the information which was provided by the person who initiated the proceedings. Established judicial practice indicates that accusatory testimonies by public officials are treated as more trustworthy than exculpatory evidence which is submitted by the defence ... An administrative offence record has the same status as a bill of indictment and thus represents the opinion of one of the parties. The merits of this opinion should be established at a court hearing.", "It is against the right to a fair hearing (on the basis of equality of arms and adversarial procedure) to use in evidence documents which contain accusations and opinion on evidence. In such a situation, the opinion of one party is treated as evidence in the case. Opinion on the defence’s testimonies is not treated as proper evidence. If the defendant is not in a position to adduce objective evidence proving his innocence, his explanations or testimonies by witnesses on his behalf are declared, as a rule, to be untruthful. The above lacunae in the legislation render examinations of CAO cases partial ...", "The contents of the complaints lodged with the Ombudsman confirm the existence of a systemic problem, which calls for additional legislative response. In our view, the burden of proving the offence cannot be on the official who compiled the administrative offence record. But it should be on the public official who has powers to put forward the accusation. The judge should determine the scope of issues to be proven, provide assistance in collecting evidence, and assess the evidence adduced by the parties. Observance of the above conditions can secure an impartial examination of this type of case ...” 86.", "Opinion no. 686/2012 by the European Commission for Democracy through Law (Venice Commission) on Federal Law no. 65-FZ of 8 June 2012 amending Federal Law no. 54-FZ of 19 June 2004 on Assemblies, Meetings, Demonstrations, Marches and Picketing and the Code of Administrative Offences stated as follows: “30. Pickets by one single person under the Assembly Act are exempt from notification (indeed an assembly is made up of more than two persons).", "New Article 7 para. 1.1 specifies that there must be a distance to be determined but of no more than 50 metres between single picketers. The possibility is given to the courts to declare (retrospectively) that the sum of the single picketers “united by a single concept and overall organisation” constituted a public event. The consequences of such a decision would be that the public event has not met the applicable legal regulations, and the organisers and the participants are exposed to administrative liability. 31.", "The Venice Commission notes in the first place that this provision makes the administrative offence dependent on the subjective assessment carried out a posteriori by a court of the unity of the concept and the common arrangement. This makes it impossible for a picketer to anticipate whether his or her a priori lawful conduct ‑ picketing without prior notice – will lead to an administrative offence, which is incompatible with the requirement of legality of any interference with the right to freedom of free expression as well as of assembly. 32. In addition, the Venice Commission is of the opinion that, as the ECtHR has said, state authorities are entitled to require that the reasonable and lawful regulations on public events be respected and to impose sanctions for failure to respect such regulations. When rules are deliberately circumvented, it is reasonable to expect the authorities to react.", "The Commission however recalls the important principle stated by the Constitutional Court of the Russian Federation in 2012 that administrative responsibility may not arise only out of the non-respect of the rules, but must be dependent on an actual threat to public order and safety. Where sporadic and scattered picketers do not represent any such threat, they should not be sanctioned even though they did not follow the rules. The fact alone that they do not adhere to the norm does not pose a threat in itself. The Venice Commission welcomes the statement by the Constitutional Court (CDL-REF(2013)012, page 22) that the rules concerning single pickets “... are intended to prevent abuses of the right not to notify the public authorities of the holding of a one-person picket, [but] they do not rebut the presumption of lawfulness of the actions of a citizen observing the established procedure for holding a one-person picket, and they intend the sum total of picketing actions carried out by a single participant to be declared as a public event only on the basis of a court decision and only where it is established by the court that these picketing actions were from the outset united by a single concept and overall organisation and do not amount to a coincidental coming together of actions of individual pickets” ... 47. The impact of the amendments of the Federal Law on Assemblies on the freedom of Assembly is further increased by the amendments of the Code of administrative offences introduced by the Law of 8 June 2012 ... 50.", "In their joint guidelines on freedom of assembly, the OSCE/ODIHR and the Venice Commission have argued that “the imposition of sanctions (such as prosecution) after an event may sometimes be more appropriate than the imposition of restrictions prior to, or during, an assembly”. They have added that “as with prior restraints, the principle of proportionality also applies to liability arising after the event. Any penalties specified in the law should therefore allow for the imposition of minor sanctions where the offence concerned is of a minor nature.”... 54. Even though their actual implementation depends ultimately on the courts, the June 2012 amendments impose penalties (both pecuniary sanctions and community service) which are excessive for administrative offences with no violence involved and would be disproportionate. These amounts will undoubtedly have a considerable chilling effect on potential organisers and participants in peaceful public events.", "In addition, the different and more severe treatment which is reserved to violations of the Assembly Act as compared to any other administrative offence does not appear to be prima facie justified.” 87. The Compilation of the Venice Commission Opinions concerning the freedom of assembly (revised in July 2014) contains the following relevant information: “Freedom of assembly – as elaborated in human rights case law – is viewed as a fundamental democratic right, which should not be interpreted restrictively and which covers all types of peaceful expressive gathering, whether public or private ... A definition of the term “public assembly” should ... usefully focus on traditional criteria such as a certain number of individuals with a local connection and a common expressive purpose ...” 88. The 2010 OSCE-ODIHR – Venice Commission Guidelines on freedom of peaceful assembly (2nd edition) contain the following relevant information: “For the purposes of the Guidelines, an assembly means the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose. This definition recognises that although particular forms of assembly may raise specific regulatory issues, all types of peaceful assembly – both static and moving assemblies, and those which take place on publicly or privately owned premises or enclosed structures – deserve protection. ... 16.", "An assembly, by definition, requires the presence of at least two persons. Nonetheless, an individual protester exercising his or her right to freedom of expression, where their physical presence is an integral part of that expression, should also be afforded the same protections as those who gather together as part of an assembly. ... 115. It is good practice to require notification only when a substantial number of participants are expected, or not to require prior notification at all for certain types of assembly. Some jurisdictions do not impose a notice requirement for small assemblies ..., or where no significant disruption of others is reasonably anticipated by the organiser (such as might require the redirection of traffic).", "Furthermore, individual demonstrators should not be required to provide advance notification to the authorities of their intention to demonstrate. Where a lone demonstrator is joined by another or others, then the event should be treated as a spontaneous assembly (see paragraphs 126-131 below). ... 127. While the term ‘spontaneous’ does not preclude the existence of an organiser, spontaneous assemblies may also include gatherings with no identifiable organiser. Such assemblies are coincidental, and occur for instance, when a crowd gathers at a particular location with no prior advertising or invitation.", "They often result because of commonly held knowledge, or knowledge disseminated via the internet, about a particular event. Numbers may be swelled by passers-by who choose to join the assembly, although it is also possible that once a crowd begins to gather, mobilisation can be achieved by various forms of instantaneous communication (phone, text message, word of mouth, internet etc). Such communication should not, of itself, be interpreted as evidence of prior organisation. Where a lone demonstrator is joined by another or others, the gathering should be treated similarly to a spontaneous assembly.” THE LAW I. JOINDER OF THE APPLICATIONS 89. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their factual and legal similarities.", "It considers that joining these applications will highlight the recurring nature of the issues raised in the cases at hand and underscore the general nature of the Court’s findings as set out below. II. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION 90. The applicants complained that the authorities’ actions in respect of them constituted a violation of Articles 10 and/or 11 of the Convention. 91.", "The Court notes that the applicants argued that the impugned actions on the part of the authorities related to their solo demonstrations rather than any peaceful assembly with others. While some of the applicants may be understood as ascertaining the existence of and alleging interference with a right not to be associated with somebody else’s “expressive conduct”/demonstration (see, mutatis mutandis, Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 54, ECHR 2006‑I), the Court finds it appropriate to examine the present case under Article 10 of the Convention (see, mutatis mutandis, Tatár and Fáber v. Hungary, no. 26005/08 and 26160/08, § 29, 12 June 2012, and Açık and Others v. Turkey, no. 31451/03, §§ 35-36 and 40, 13 January 2009), taking into account, where appropriate, the general principles it has established in the context of Article 11 of the Convention (see, in particular, paragraphs 162‑168 below in relation to Ms Novikova, Mr Kirpichev and Mr Romakhin; see also Fáber v. Hungary, no.", "40721/08, § 19, 24 July 2012, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, §§ 33 and 52, ECHR 2011). 92. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression.", "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 93. The Government argued that the authority form in respect of Mr Yershov had not been enclosed with the application form in respect of Ms Novikova (application no.", "25501/07) and that the application was therefore incompatible ratione personae. The Court observes that the application form lodged on 27 April 2007 was duly signed by the applicant. Therefore, the Government’s argument is dismissed. 94. Moreover, as regards each of the applicants, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The Government 95.", "The Government argued that freedom of expression and freedom of peaceful assembly were both constitutional values. However, their exercise was legitimately subject to statutory regulation, in particular under the Public Assemblies Act. Such regulation was aimed, on one hand, at providing a framework for exercising individual freedoms and, on the other, at securing public order and safety to avoid any harm to morals and the health of other citizens. The regulation sought to strike a fair balance between the interests of the organisers and participants of public events, on the one hand, and the need to secure the protection of other persons’ rights and freedoms, on the other. This was done, inter alia, by putting in place adequate measures to prevent breaches of public order and safety, and procedures to ensure legal responsibility for such breaches.", "96. The requirement of prior notification of public events was aimed at securing public order and national security, and consisted in a procedure in which the event organisers and the competent public authority negotiated (согласование) the place and time of the event. 97. The Government submitted that Ms Novikova had taken part in a public event together with other people. As the event was held in breach of the prior notification requirement, her participation constituted an administrative offence under Article 20.2 of the Code of Administrative Offences.", "Her guilt had been proven and her allegation that she had taken part in a solo demonstration had been refuted by the evidence in the case (namely, the administrative offence record, the administrative arrest record and officer G.’s report). Several other people were also taken to the police station and then convicted under Article 20.2 of the CAO in relation to the same event. While at the time there was no specific regulation concerning the distance to be observed between simultaneous solo demonstrations, the domestic courts rightly considered that the presence of several people in one place at the same time could be classified as a sole group event requiring the observance of the prior notification rule. In 2012 the Public Assemblies Act was amended to clarify that where several people’s actions had a common goal and logistical unity, a court could conclude that it was one and the same public event. The applicant’s sentence was based on a thorough assessment of the mitigating and aggravating circumstances and was proportionate to the violation found.", "The taking of the applicant to the police station was a lawful measure of deprivation of liberty and pursued the statutory goals as provided for under Articles 27.1-27.3 of the CAO. 98. The Government argued that the domestic authorities had acknowledged the unlawfulness of the actions concerning stopping Mr Matsnev’s demonstration, taking him to the police station and holding him there for some time. He had been awarded reasonable compensation and thus was not a victim of the alleged violations under the Convention. 99.", "The Government submitted that Mr Savchenko had been taken to the police station because he had breached public order by using foul language in a public place, thus committing an administrative offence under Article 20.1 of the CAO. The authorities’ action had no connection with the exercise of his freedoms under Articles 10 and 11 of the Convention. The measure of escorting him to the police station was lawful and pursued the requisite statutory aims. 100. The Government submitted that it had been necessary to take Mr Kirpichev to the police station because he had had no identity document on him and in order to put an end to his violation of the Public Assemblies Act (and to the administrative offence).", "The evidence in the case (the administrative offence record and reports by five police officers) confirmed that the applicant had been participating in a public event that required prior notification to the competent authority. He had called passers-by to approach and discuss with him the topic of the demonstration. He was not deprived of his liberty. The amount he had been fined took account of the circumstances of the case, including his financial situation and the fact that he had previously committed a similar offence. He had been afforded an opportunity to pay the fine in three instalments.", "101. The Government submitted that the police had been right to consider that the demonstrations held by Mr Romakhin and A. had had a common goal and had been organised jointly, as they had been held in close proximity. The police lawfully applied the escort procedure in order to put an end to the offence and because the applicant had no identity document on him. He was released as soon as he had made a statement and an administrative offence record had been drawn up. (b) The applicants 102.", "Ms Novikova argued that she had been engaged in a peaceful solo demonstration on an important topic of public interest, without causing any damage to property, endangering public safety or obstructing the traffic. She had taken care to position herself at a distance from other people who were present before the State Duma. The authorities’ response (consisting in stopping her demonstration, arresting her and convicting her of an administrative offence) was disproportionate and lacked the requisite degree of tolerance. The requirement of prior notification did not apply to solo demonstrations. In any event, nothing had prevented the police from drawing up an administrative offence record on the spot.", "Her arrest and retention in the police station for several hours had not pursued any of the legitimate aims of the procedure under Article 27.3 of the CAO. Indeed, the statutory requirement had not been complied with, as there were no “exceptional circumstances” justifying taking her to the police station. Her conviction had been based merely on the evidence gathered by the police, who instituted the proceedings against her. The first-instance court heard neither the applicant nor the other people who had allegedly participated in the public event, and the administrative offence record contained no such testimonies. The domestic law at the time contained no guidelines for distinguishing between simultaneous solo demonstrations and a group event.", "103. Mr Kirpichev argued, first, that it was a logical and predictable consequence that his solo demonstration had received attention from some passers-by, thus prompting some five people to gather around him. The domestic courts interpreted and applied the Public Assemblies Act in an unpredictable manner. Secondly, the interference (the termination of the event, taking him to the police station, his prosecution and a high fine for the administrative offence) had not pursued any legitimate aims. None of the possible legitimate aims within the meaning of Article 11 of the Convention was applicable.", "For example, the aim of protecting the rights of others, in particular the right to move around freely, without restrictions, in a public place could not be applied in the circumstances of the case. The applicant claimed that he had been alone and that the national authorities had not taken that fact into account. It had been unnecessary to take him to the police station, especially as he had had an identity document on him. 104. Mr Romakhin argued that both the courts and the Government had wrongly underestimated the relevance of the actual distance of around fifty metres between the applicant and A.", "Given that the statutory distance had been respected, the courts should not have proceeded to apply the “common design and organisation” criterion for classifying his solo demonstration as an assembly with A. The domestic law was not sufficiently foreseeable, as it was unclear whether the criteria were to be applied cumulatively. Referring to the separate opinion by Judge Kazantsev (see paragraph 58 above), the applicant argued that it was disproportionate to apply the “common design and organisation” criterion to simultaneous solo demonstrations at distances as long as fifty metres or less as prescribed by regional statutes. 105. Mr Matsnev and Mr Savchenko maintained their complaints.", "2. The Court’s assessment (a) Applications of Ms Novikova, Mr Kirpichev and Mr Romakhin (i) Existence and scope of the interference 106. The Court reiterates that in order to fall within the scope of Article 10 or 11 of the Convention, “interference” with the exercise of the freedom of peaceful assembly or the freedom of expression does not need to amount to an outright ban but can consist in various other measures taken by the authorities. The terms “formalities, conditions, restrictions [and] penalties” in Article 10 § 2 must be interpreted as including, for instance, measures taken before or during an assembly and those, such as punitive measures, taken afterwards (see, mutatis mutandis, Ezelin v. France, 26 April 1991, § 39, Series A no. 202).", "107. The Court observes that the applicants delimited the scope of the impugned “interference” to the authorities’ actions resulting in the cessation of the demonstrations, their being taken to the police stations and retained there for some time, and their prosecution for an administrative offence resulting in a fine. They also made submissions concerning the provisions of the CAO and the Public Assemblies Act regarding solo demonstrations and their interpretation and application by the domestic courts, including the Russian Constitutional Court. 108. The Court notes that in alleging an “interference” with their solo demonstrations and their related right to freedom of expression falling within the scope of Article 10 of the Convention, the applicants did not claim that the domestic legislation relating to the requirement of prior notification for public events lacked foreseeability or had other defects.", "They accepted that prior notification was required for group events, possibly followed by a negotiation procedure if the authorities opposed the event organiser’s choice of venue and timing. 109. Furthermore, it is noted that the “interference” in question concerned the form and manner of the applicants’ conduct rather than the content of the message they were seeking to convey (see, by way of comparison, Primov and Others v. Russia, no. 17391/06, §§ 131-36, 12 June 2014). 110.", "The impugned measures entail a violation of Article 10 of the Convention unless they are prescribed by law, pursued at least one of the legitimate aims mentioned in Article 10 § 2 and were necessary in a democratic society. 111. The Court will proceed to ascertain whether that lawfulness, legitimate aim and pressing social need justifying the interference were present throughout all the stages of the interference. (ii) Whether the interference was “prescribed by law” (α) Termination of a demonstration 112. The Court notes that the Public Assemblies Act set out the grounds and the procedure for the termination of a public event, including the possibility for a law-enforcement officer to take the necessary measures for that purpose (see paragraphs 60-62 above).", "113. If the participants of a public event have behaved unlawfully, the event organiser must end the event (section 5 of the Public Assemblies Act). A designated official of an executive authority or a municipal authority is empowered to take a decision to stop the public event (section 13 of the Act). A designated law-enforcement officer is empowered to bar access to the event where the maximum capacity of the venue has been exceeded and to order the event organiser or its participants to comply with the rules for holding public events (section 14 of the Act). 114.", "If the participants of an event have breached the regulations (правопорядок) while causing no threat to life or limb, the designated executive or municipal official may require the event organiser to remedy the violation (section 15). If this requirement has not been met, the executive or municipal official may suspend the event until the violation has been remedied. If the violation has not been remedied, the event should be ended. A public event may be terminated if there is a real threat to life, limb or property, or if the participants have violated the law and the organiser has wilfully breached the regulations concerning the running of a public event (section 16). 115.", "The procedure for putting an end to a public event is as follows: the designated executive or municipal official orders the organiser to stop the event, providing the reasons for stopping the event; the official sets a time‑limit for complying with the order to end the event; where the organiser has not complied, the official himself or herself announces the end of the event and allows the participants time to disperse (section 17). If the order to stop the event is not complied with, the police should take the necessary measures to stop the event. Failure to comply with lawful orders from the police or disobedience (resistance) on the part of the event participants entails liability under other provisions of Russian law. 116. The above-mentioned legal provisions do not clearly state that a law-enforcement officer was empowered to stop a demonstration in the absence of a refusal to comply with a similar order issued earlier by a designated executive or municipal official.", "117. It remains to be ascertained whether the application of the relevant legal provisions was foreseeable as regards the grounds for putting an end to a demonstration in circumstances where there was no prior notification. 118. The Court notes that the grounds for stopping a demonstration include the organiser’s wilful violation of the regulations concerning the running of a public event. An assembly could also be stopped in the event of “unlawful actions” on the part of the participants.", "The applicants have not contested the foreseeability of those grounds for the termination of a public event. 119. Given the Court’s conclusions concerning the insufficient foreseeability of the relevant legislation before 2012 (Ms Novikova’s case) (see paragraphs 127-131 below), the question may arise whether the authorities could legitimately consider that a demonstrator’s conduct was unlawful, thus requiring her to put an end to such conduct by way of terminating the demonstration. However, the Court will leave this matter open in this case. 120.", "The Court notes in this connection that the main thrust of the applicants’ arguments relates to the proportionality assessment. In the absence of specific arguments and submissions from the parties on this aspect, the Court will proceed on the assumption that (i) the authorities had a legal basis, in section 16 of the Act, for putting an end to what they perceived as a non-notified public event; (ii) the staging of a non-notified event, per se, constituted a “wilful violation” of the regulations or participation in such an event, per se, constituted “unlawful actions” on the part of the participants. (β) Taking of the applicants to police stations 121. The Court observes that the taking of the applicants to police stations had a legal basis in Articles 27.1-27.3 of the CAO and in the Police Act. The CAO provided for a possibility to escort a person to a police station.", "It also provided for a possibility to then apply an arrest procedure while confining its use to “exceptional circumstances relating to the need for a proper and expedient examination of an administrative case”. The above measures could also be used for the purpose of putting an end to an administrative offence or to establish the offender’s identity. 122. The Court takes note of the argument submitted by some of the applicants that there had been nothing to prevent the police from compiling the administrative offence record on the spot, without escorting them to the police stations, and that the cases had not constituted “exceptional circumstances”, which were required for an administrative arrest to be lawful. The Court prefers to take up the relevant factual and legal issues in the proportionality analysis below.", "(γ) Prosecution for an administrative offence 123. The Court notes that the applicants were convicted under Article 20.2 of the CAO before and after the 2012 amendments (see paragraphs 66 and 68 above). It provided that violations of the regulations concerning public events were punishable. The relevant regulations were set out in the Public Assemblies Act. The applicants were prosecuted for organising or participating in public events without giving prior notification to the competent public authorities, thus breaching section 7 of the Act.", "124. There is no doubt that the above provisions were accessible to the applicants. It remains to be ascertained whether their application was sufficiently foreseeable. 125. The Court reiterates at this juncture that it is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force (see Oya Ataman v. Turkey, no.", "74552/01, § 38, ECHR 2006‑XIII, and Barraco v. France, no. 31684/05, § 44, 5 March 2009). The principle of discretionary prosecution leaves States considerable room for manoeuvre in deciding whether or not to institute proceedings against someone thought to have committed an offence (see Pentikäinen v. Finland [GC], no. 11882/10, § 110, ECHR 2015, and, for comparison, Dudgeon v. the United Kingdom, 22 October 1981, §§ 43‑62, Series A no. 45).", "In addition, where the relevant regulations serve as a basis for prosecuting for a “criminal offence” and/or imposing a “penalty”, within the meanings of Articles 6 and 7 of the Convention, in relation to the exercise of one’s rights under Article 10 or 11 (see Kasparov and Others v. Russia, no. 21613/07, §§ 39-45, 3 October 2013), the relevant offences and penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him “criminally” liable and what penalty he faces on that account (see Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996‑V). 126. Turning to the circumstances of the applicants’ cases, the Court notes that there is a fundamental disagreement between the parties concerning the factual circumstances and related legal assessments made in respect of Ms Novikova, Mr Romakhin and Mr Kirpichev as to whether they were holding a solo demonstration, simultaneous solo demonstrations or an assembly of two or more people.", "127. The Court observes that before 2012 section 7 of the Public Assemblies Act clearly stated that the requirement of prior notification did not apply to solo static demonstrations. The Act contained no specific rules relating to that type of public event. In June 2012 subsection 1.1 was added, introducing a requirement that a certain distance be observed between unrelated solo demonstrators. Although it left the specific distances to be enacted by the regions, it stipulated that they were not to exceed fifty metres.", "It also empowered the courts to decide whether a public event was an assembly or a solo static demonstration. 128. As can be inferred from the relevant constitutional ruling, at the time there was a perceived need at the domestic level to deal with the issue of group events being disguised as solo demonstrations and to prevent organisers of such group events from evading their duty to notify the relevant public authority (see paragraph 58 above). 129. Thus, the Court considers that the legislative changes at the federal and regional levels in 2012 may be taken as an indication of a possible lacunae or insufficient regulation relating to difficulties of differentiation between simultaneous solo demonstrations and a public event by two or more people requiring notification.", "130. The respondent Government have not submitted to the Court any examples of domestic judicial practice which would palliate the legislative lacunae at the time. 131. In view of the above, the Court accepts the submission that before the legislative changes and the Constitutional Court’s interpretative findings (see paragraph 58 above) the legislation in force was not sufficiently foreseeable as to what conduct or omission could be classified as an offence on account of a breach of the notification requirement under the Public Assemblies Act, where there was a doubt as to whether the event in question was a group event (in the form of a meeting or a static demonstration), simultaneous solo demonstrations or merely one solo demonstration (see, for comparison, Vyerentsov v. Ukraine, no. 20372/11, § 54, 11 April 2013).", "(ε) Conclusion on lawfulness 132. In the present case, despite certain reservations, the Court will proceed on the assumption that the termination of the demonstrations and the taking of the applicants to police stations had a basis in domestic law. 133. The Court concludes that the legal provisions serving as the basis for prosecuting Ms Novikova under Article 20.2 of the CAO were not sufficiently foreseeable. The Court will deal with any other questions regarding the foreseeability of the regulatory framework as amended in 2012 and the relevant procedures in its proportionality assessment below.", "(iii) Whether the interference pursued a legitimate aim 134. The Court will now consider what specific legitimate aims the authorities sought to achieve by taking the impugned measures in respect of the applicants. (α) Termination of the demonstrations 135. First, there is nothing to suggest that any considerations relating to national security were pertinent in the context of the applicants’ demonstrations (see, by contrast, Rai and Evans v. the United Kingdom (dec.), nos. 26258/07 and 26255/07, 17 November 2009).", "Similarly, the specific circumstances of the peaceful demonstrations (in which only one person was involved – or, as argued by the Government, several people) clearly did not raise the matter of the protection of the “rights of others” under Article 10 § 2. Nor did they affect the “rights and freedoms of others” as it is put in Article 11 § 2, for instance physical integrity, the right to “peaceful possessions” or other pecuniary interests, or freedom of movement (see, by contrast, Oya Ataman v. Turkey, no. 74552/01, § 32, ECHR 2006‑XIII). 136. As regards the “prevention of disorder”, the Court reiterates its position that this legitimate interest normally relates to situations of riots or other forms of public disturbance (see Perinçek v. Switzerland [GC], no.", "27510/08, §§ 146-151 in fine, 15 October 2015). The Court is mindful that the applicants’ demonstrations were stopped solely because they had not observed the notification requirement. Under Russian law, no potential or actual damage (to health or property, or obstruction of pedestrians or traffic) was necessarily required for constituting the relevant offence and, by implication, for justifying related measures such as termination of a non-notified public event. In the present case, in order to rely on the aim of “prevention of disorder”, it was incumbent on the respondent Government to demonstrate that either the applicants’ omission to notify the public event or their participation in such a non-notified event was, per se, capable of leading or actually led to disorder – for instance, in the form of public disturbance – and that in “interfering” with the applicants’ demonstrations, the Russian authorities had that in mind (see Perinçek, cited above, § 152). 137.", "The assessment of the legitimate interest at stake should be done in concreto, while bearing in mind the rationale of the relevant legislation. The Court finds it unsatisfactory that the decisions to terminate the demonstrations were not subject to review at the domestic level, in particular as regards the presence and legitimacy of any public interests pursued. 138. In view of the above considerations, the Court is not inclined to proceed on the assumption that the interest of “prevention of disorder” was relevant (see Bukta and Others v. Hungary, no. 25691/04, §§ 22, 29-30 and 37, ECHR 2007‑III, and Cisse v. France, no.", "51346/99, § 46, ECHR 2002‑III). 139. Furthermore, the Government may be understood as suggesting (see paragraphs 100 and 101 above) that the demonstrations – or some of the applicants’ participation in them – were terminated in order to put an end to unlawful conduct, such as holding or participating in what the authorities perceived to be a public event, for which the statutory requirement of prior notification had not been observed. 140. The Court accepts that the aim of “prevention of crime” in the sense of putting an end to punishable unlawful conduct, might be relevant when the police decides to terminate a demonstration, in so far as such unlawful conduct constitutes a criminal offence or, as in the present case, an administrative offence under Russian law (see Kasparov and Others v. Russia, no.", "21613/07, §§ 41-445, 3 October 2013, concerning the applicability of Article 6 of the Convention under its criminal limb to this type of cases). Admittedly, both types of offences correspond to the “crime” mentioned in Articles 10 § 2 and 11 § 2 of the Convention. However, as presented below, it has not been proven that the applicants organised an assembly or participated in one without prior notification, or, in other words, that they committed an offence. (β) Taking of the applicants to police stations 141. As to the taking of the applicants to police stations, the Court observes that the statutory aim was for “the purpose of compiling an administrative offence record” (for the “administrative escorting”) and “the need for a proper and expedient examination of an administrative case” (for administrative arrest).", "Those measures could also be used for the purpose of putting an end to an administrative offence or to establish the offender’s identity. 142. In the absence of any assessment of the impugned measures by the domestic courts, the Court does not discern what legitimate aim listed in Article 10 § 2 of the Convention, beyond considerations of convenience, the authorities sought to achieve by taking the applicants to police stations after putting an end to their peaceful demonstrations. 143. The Court doubts whether any of the legitimate aims listed under Article 10 § 2 of the Convention was pursued in the specific circumstances of the applicants’ demonstrations.", "However, for the sake of argument and with the same reservations as in paragraph 140 above, the Court will proceed on the assumption that the applicants were taken to police stations for the purpose of “prevention of crime”. (γ) Prosecution for an administrative offence 144. The Court notes that the offence under Article 20.2 belongs to the chapter of the CAO concerning public order and public safety offences. It is relevant to discern the aims underlying the prosecution for the relevant administrative offence, as well as the aims underlying the regulations, the non-observance of which constitutes corpus delicti of the relevant offence. 145.", "As declared by the Government, the Public Assemblies Act, including its requirement of prior notification, concerns the protection of public order and public safety to avoid any harm to the health and “morals” of other citizens; the need to secure protection of other people’s rights and freedoms, inter alia, by way of putting in place adequate measures for preventing breaches of public order and public safety and measures of legal responsibility for such breaches. 146. As stated by the Constitutional Court, the prior notification requirement was aimed at enabling the public authorities to take timely and adequate measures in order to ensure public safety, the rights of event participants and the rights of others. The Court is aware of the position taken by the Russian Constitutional Court concerning the constitutional aspect of the differentiation between offences that include or do not include the notion of actual damage or a (real) risk of (serious) damage as an essential element of the offence. 147.", "In the Court’s view, nothing in the circumstances of the applicants’ demonstrations discloses that their prosecution was aimed at protecting “health or morals”, national security or even public safety. However, the Court accepts that prosecution for organising or participating in a demonstration for which no prior notification was made could be aimed at prevention of disorder (see Ziliberberg v. Moldova (dec.), no. 61821/00, 4 May 2004). (ε) Conclusion on legitimate aims 148. The Court concludes, with the reservations expressed in paragraphs 140 and 143 above, that the aim of “prevention of crime” should be taken into consideration for the purpose of the necessity and proportionality analysis below in respect of the “interference” consisting in the termination of the applicants’ demonstration and the taking of the applicants to the police stations.", "The aim of “prevention of disorder” is relevant in respect of the applicants’ prosecution for administrative offences. (iv) Whether the interference was “necessary in a democratic society” (α) General principles 149. The general principles concerning the necessity of an interference with freedom of expression are as follows (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013 (extracts)): “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.", "Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation.", "This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’.... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ....” 150. The protection of Article 10 of the Convention extends not only to the substance of the opinions, ideas and information expressed but also to the form in which they are conveyed, for instance on account of the way in which a protest was carried out (Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 28, ECHR 1999‑VIII, and Gough v. the United Kingdom, no. 49327/11, § 149, 28 October 2014).", "151. The expression “necessary in a democratic society” in Article 10 § 2 or Article 11 § 2 of the Convention implies in particular that the interference is proportionate to the legitimate aim pursued. The Court also notes at this juncture that, although the adjective “necessary”, within the meaning of Articles 10 § 2 or 11 § 2, is not synonymous with “indispensable”, it remains for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of “necessity” in this context (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24). 152.", "As to the Court’s scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review, under Articles 10 or 11 of the Convention, the decisions that they delivered. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a “legitimate aim”, whether the interference was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 or 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998‑I). (β) Application of the above principles to the present case 153. At this juncture, the Court finds it useful to summarise the common features of the cases examined in this judgment.", "154. As submitted by the applicants, all their events were planned as solo static demonstrations, because that was the only form of public event not subject to comprehensive regulation under the Public Assemblies Act, first and foremost as regards the requirement of prior notification to the competent authority (see, among others, Berladir and Others v. Russia, no. 34202/06, §§ 26-62, 10 July 2012; Malofeyeva v. Russia, no. 36673/04, §§ 121-43, 30 May 2013; and Primov and Others, cited above, §§ 122-28). 155.", "According to the domestic definition, a static demonstration (a “picket”) was a form of public expression of opinion that did not involve movement or the use of loudspeaker equipment, where one or more citizens with placards, posters and other means of visual expression assembled near the target object of the picketing. A common feature of the applicants’ demonstrations was that they chose to express their views and opinions by displaying posters containing slogans or other visual representations. It also appears that at least one of the applicants expressed himself verbally on the topic of the event. Furthermore, all the events were intended to be and actually were peaceful. There was no violence and no obstruction of traffic.", "156. The demonstrations concerned a variety of matters: the use of public funds for various needs; the dissolution of a university; and a local planning-and-construction project. It is common ground between the parties that they concerned matters of public interest. For the Court, the applicants’ demonstrations amounted to a form of political expression (see, by comparison, Tatár and Fáber, cited above, § 36). 157.", "As to the venues of the events, the demonstrations were held in front of the lower chamber of the federal Parliament, in front of a university building and near a bus stop. 158. In all the cases, the police immediately ended the demonstrations and took the applicants to police stations. 159. The measures carried out in respect of the applicants concerned the interpretation and application of the prior notification requirement for public events under the Public Assemblies Act.", "The applicants were convicted of administrative offences and received fines ranging from RUB 1,000 to RUB 20,000. 160. The Court will now examine the proportionality of the elements of the “interference” as defined in paragraph 107 above. ‑ Proportionality: swift termination of the demonstrations 161. One of the common features of the applicants’ cases is the swift termination of the demonstrations before the applicants could express their views.", "On the facts of the present case, the termination of the events was followed by the applicants being taken to police stations. For the Court, these are two interrelated and focal points for the assessment of the proportionality between the authorities’ reaction and the applicants’ exercise of their right to freedom of expression (see also paragraph 184 below). 162. While the applicants chose solo demonstrations as a form of their expression, the Russian authorities dealt with the situations arising from these demonstrations as matters falling within the ambit of the regulations concerning public events requiring prior notification and one’s exercise of the right to freedom of peaceful assembly. In June 2012 the Public Assemblies Act was amended, introducing a requirement that a certain distance be observed between unrelated solo demonstrators.", "It also empowered the courts to decide whether a public event was a group event or a solo static demonstration. Therefore, the Court finds it particularly pertinent to refer to the principles that it has established in the context of Article 11 of the Convention. 163. While rules governing public assemblies, such as the system of prior notification, may be essential for the smooth conduct of public demonstrations, in so far as they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself (see Oya Ataman, cited above, § 42). The Court reiterates its constant position, albeit in the context of Article 11 of the Convention, that a situation of unlawfulness, such as one arising under Russian law from the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly (see Cisse, cited above, § 50, and, recently, Kudrevičius and Others v. Lithuania [GC], no.", "37553/05, § 150, ECHR 2015). In other words, the absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities consider to be an assembly, do not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remains restricted by the proportionality and necessity requirements of Article 11 of the Convention (see Primov and Others, cited above, § 119). 164. Where demonstrators do not engage in acts of violence it is important for the public authorities to show a degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Oya Ataman, cited above, § 42). 165.", "The appropriate “degree of tolerance” cannot be defined in abstracto: the Court must look at the particular circumstances of the case and particularly the extent of the “disruption of ordinary life”. In this connection, it is understood that any large-scale gathering in a public place inevitably creates inconvenience for the population or some disruption to ordinary life, including disruption of traffic. 166. The actual degree of such tolerance and its specific manifestations vary on account of the particular circumstances of each case, for instance where dispersal of the event is envisaged with recourse to physical force (see Oya Ataman, § 42, and Primov and Others, §§ 156-63, both cited above) or where it concerns an event which was not notified in advance to the authorities but was an urgent reaction to an ongoing political event (see Bukta and Others, cited above, §§ 36-38). 167.", "In the Court’s view, the principles summarised in the preceding paragraphs are applicable in the present case. 168. Therefore, while dealing with a complaint under Article 10 of the Convention, the Court’s task in the present case is to assess the actions and decisions taken by the authorities in relation to the demonstrations and the degree of the “disruption of ordinary life” (see, mutatis mutandis, Primov and Others, cited above, § 145). 169. The Court would emphasise that it remains in the first place within the purview of the national authorities’ discretion, having direct contact with those involved, to determine how to react to a public event.", "170. It is common ground between the parties that, in the absence of prior notification, a public assembly and participation in it would be in breach of Russian law. The parties have submitted no documents or court decisions presenting and assessing the grounds and reasons for the swift termination of the demonstrations. The Court is not satisfied that relevant and sufficient reasons were adduced at the domestic level. 171.", "In the Court’s view, given the number of participants (ranging from two people, in Mr Romakhin’s case, to six people, in Mr Kirpichev’s and Ms Novikova’s cases, if the Government’s approach is to be followed), notification would not have served the purpose of enabling the authorities to take necessary measures in order to minimise any disruption to traffic or other security measures such as providing first-aid services at the site of the demonstrations, in order to guarantee the smooth conduct of the events. 172. It is common ground between the parties that, having been informed of the police’s position on the unlawful nature of the event and having been ordered to disperse, the applicants complied or were ready to comply with the police order. 173. Importantly, the police order adversely affected the peaceful exercise of the applicant’s fundamental right to freedom of expression.", "174. In the Court’s view, the considerations in the preceding paragraphs indicate that the authorities should have showed a degree of tolerance. The above finding stands, even where the police had prima facie valid reasons for assessing the demonstrations as “assemblies” that were unlawful because of the absence of prior notification (see Cisse, cited above, § 50). 175. Given that only one person was involved – or, as submitted by the Government for some of the events, several people were involved – the expected “tolerance” could have consisted, for instance, in allowing the applicants to complete their demonstrations.", "Where appropriate, a measure such as a reasonable fine could have been imposed on the spot or later on. ‑ Proportionality: taking of the applicants to police stations 176. The Court notes that after stopping the applicants’ demonstrations, the authorities chose to take them to police stations. 177. The Court finds it conceivable that in certain circumstances the authorities may have legitimate reasons to apply such measures.", "For instance, someone may be taken to the police station in order to put an end to prima facie unlawful conduct where he or she has refused to comply with a lawful order to cease such conduct, or on other grounds, which may be found, for example, in Article 5 § 1 of the Convention (see, mutatis mutandis, Pentikäinen [GC], §§ 102-05 and 114-15; and Primov and Others, §§ 164-65, both cited above). What matters in the context of an Article 10 complaint concerning freedom of expression is whether there was a “pressing social need” requiring such a measure in the specific circumstances of the case, taken as a whole. 178. It is clear that each applicant was taken to the police station in relation to the ongoing public event, rather than for another extraneous reason (see, by way of comparison, Primov and Others, cited above, § 102). 179.", "The Court notes in this connection the Government’s submission that Mr Romakhin and Mr Kirpichev were taken to the police stations because the administrative offence record could not be compiled on the spot since they had no identity documents on them. That assertion was first made in the proceedings before the Court and has not been supported by any evidence. The available submissions and material do not allow the Court to establish the relevant facts in this respect, for instance whether under domestic law the applicants were obliged to be in possession of an identity document and whether they refused to confirm their identities by appropriate means (see, for comparison, Emin Huseynov v. Azerbaijan, no. 59135/09, § 87, 7 May 2015). Be that as it may, the main, if not the only, reason given by the police for taking the applicants to the police station was the police’s position that they had committed an administrative offence by violating the notification requirement for a public event.", "180. As regards Ms Novikova, it is common ground between the parties that she was taken to the police station as a direct consequence of the authorities’ position that she was taking part in an unlawful public event. 181. Secondly, as the Court has already noted, the present case concerns events involving one person or a small gathering, as argued by the Government. Nothing suggests that the authorities had any additional reasons to consider that the situation gave or was likely to give rise to particular security or public safety concerns, which would have justified taking the applicants away from the venues of the demonstrations to police stations.", "182. Indeed, the events consisted of static demonstrations or a meeting, which did not involve obstructing pedestrians or road traffic. The Court observes in this connection that there was no allegation or proof of any calls for violence, nor any actual violent behaviour, on the part of the applicants. Nor did they refuse to cease their prima facie unlawful conduct. In the Court’s view, nothing in the present case has shown that administrative offence records could not have been compiled on the spot.", "183. Hence, there were no compelling reasons to take the applicants to police stations in order to achieve any of the legitimate aims (see paragraph 142 above; see also, by way of comparison, Lütfiye Zengin and Others v. Turkey, no. 36443/06, §§ 55-56, 14 April 2015, and Navalnyy and Yashin v. Russia, no. 76204/11, §§ 64 and 68-69, 4 December 2014). 184.", "For the Court, the above findings concerning the termination of the events and the taking of the applicants to police stations constitute a strong indication of disproportionate interference in the exercise of their right to freedom of expression. 185. However, the Court finds it pertinent to complete the analysis by assessing the remaining aspect concerning the authorities’ reaction to the applicants’ demonstrations, that is their prosecution for an administrative offence. ‑ Proportionality: prosecution for an administrative offence 186. The Court observes that in addition to the unjustified swift termination of the demonstrations and the unjustified taking of the applicants to police stations, the applicants were prosecuted for an administrative offence.", "This prosecution was not related to the content of their protests but was rather related to the manner in which they were protesting, which was classified as a public event held without prior notification to the competent authority. 187. The Court reiterates again that the principle of discretionary prosecution leaves States considerable room for manoeuvre in deciding whether or not to institute proceedings against someone thought to have committed an offence (for instance, in relation to non-compliance with the rules concerning public assemblies) and, more generally, whether a certain action or omission should be subject to prosecution by way of criminal or other proceedings (see the cases cited in paragraph 125 above). With due regard to the above considerations, clear and reasonable procedural requirements to be observed in relation to a public event and penalties for breaching those requirements are both capable of being in conformity with the requirements of necessity and proportionality under Articles 10 or 11 of the Convention (see, for this approach, Kudrevičius and Others [GC], cited above, §§ 147-49). 188.", "Turning to the circumstances of the present case and having examined the domestic decisions, the Court is not satisfied that the applicants’ right to exercise their freedom of expression was properly taken into consideration during the examination of the administrative-offence charges against them. The Court has doubts as to whether the administrative-offence procedure was conceptualised, or at least applied, in such a way as to allow the freedom-of-expression arguments to have any weight and to accommodate a proportionality analysis or, at least, an assessment leading to a result which would be proportionate in the particular circumstances of a given case (see, however, paragraph 70 above; see, for comparison, Alim v. Russia, no. 39417/07, § 95, 27 September 2011). 189. As regards the applicable legislation before 2012, the Court has already found that it did not comply with the “quality-of-law” requirement, as it was insufficiently foreseeable in so far as its application entailed prosecution for an administrative offence (see paragraph 131 above).", "Such a state of affairs was conducive to creating a “chilling effect” on legitimate recourse to expression in the form of a solo demonstration (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 116, ECHR 2004‑XI, and, by contrast, Pentikäinen [GC], cited above, § 113). The considerations in the preceding paragraph are applicable in Ms Novikova’s case. The Court notes that the documents submitted by the Government in respect of Ms Novikova’s application might have lent some substantiation to the argument that a single group event had taken place and that the applicant had taken part in it (see paragraph 8 above). However, it remains unclear whether those documents were adduced and examined during the applicant’s trial or on appeal.", "In any event, the domestic judgments do not adequately assess the relevant circumstances with due regard to the presumption of innocence that was applicable in the case. 190. As regards the applicable regulatory framework after the adoption of the 2012 amendments and the authoritative interpretation given to the new rules by the Russian Constitutional Court, the Court would make the following four general observations. 191. Firstly, the rationale for the distance requirement is to avoid public assemblies being disguised as solo demonstrations and to prevent an assembly organiser from evading his duty to notify the relevant authority.", "However, the primary consideration is the same as for the notification requirement: if an organiser evades his or her duty to notify, the public authorities are impeded in taking timely and adequate measures to ensure the requisite order for running a given civic initiative and to secure public safety and protection of the rights of the event participants and other people (see paragraph 58 above). 192. The Court has doubts about the applicability of the distance requirement. For instance, a “picket” is usually staged in the immediate vicinity of the object being picketed. Such a form of protest is understandable, but becomes impracticable if a second demonstrator or further solo demonstrators have to stage their “picket” at a considerable distance from the picketed building, for instance, because the first unrelated demonstrator happened to be already in place there.", "193. Secondly, as non-observation of the distance requirement was not directly at stake in the present case, the Court will focus on section 7(1.1) of the Public Assemblies Act, which empowers a court to classify an event as an “assembly” post facto. This allows the relevant authority to insist on the observance of the prior notification requirement and to punish its non‑observance. In this connection, the Court has taken note of the Constitutional Court’s position that the “reclassification rule” could be enforced even where the statutory distance between demonstrators has been observed. 194.", "The Court reiterates that in order to determine the proportionality of a general measure, it must primarily assess the legislative choices underlying it. The quality of parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (see Animal Defenders International [GC], cited above, § 108). It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the State to assess. The more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case (ibid., § 109). 195.", "As can be inferred from the relevant constitutional ruling, at the time there was a perceived need at the domestic level to deal with the issue of avoiding the situation of public assemblies being disguised as solo demonstrations and to prevent assembly organisers from evading their duty to notify the public authority (see paragraph 58 above). Furthermore, the Court is mindful of the position taken by the Constitutional Court concerning the constitutional aspect of differentiating between offences that include the notion of actual damage or a (real) risk of (serious) damage as an essential element of the offence (see paragraphs 68 and 73 above) and those that do not include that notion. In other words, under Russian law a conviction for lack of prior notification did not require proof of potential or actual damage. 196. While reiterating the State’s wide margin of appreciation when it comes to deciding whether or not to institute proceedings against someone thought to have committed an offence, the Court considers that the legislative choice to make conduct or omission a criminal or other assimilated offence should not run counter to the very essence of a fundamental Convention right or freedom, such as freedom of expression in the present case.", "197. The Constitutional Court makes it clear that the rationale for imposing a notification requirement rule is to provide the authorities with an opportunity to comply with their constitutional obligation to respect and protect individual rights and freedoms, and to take the necessary measures aimed at ensuring that participants in an event and other people are safe (see paragraph 55 above). In this Court’s view, prosecution for failure to notify a public event which was subject to the “reclassification rule” should correspond to the need to achieve the above-mentioned aims. 198. In the Court’s view, the intended primary purposes specified in paragraphs 191 and 197 above would, normally, be fully attainable through the reasonable application of the distance requirement, without any “pressing social need” for the “reclassification rule” under section 7(1.1) of the Public Assemblies Act and for bringing into play the notification requirement, thus impinging upon the freedom of expression exercised by solo demonstrators.", "199. Therefore, the Court cannot see what legitimate aim, in terms of Article 10 of the Convention, the authorities genuinely sought to achieve. It fails to discern sufficient reasons constituting a “pressing social need” for convicting for non-observance of the notification requirement, where they were merely standing in a peaceful and non-disruptive manner at a distance of some fifty metres from each other. Indeed, no compelling consideration relating to public safety, prevention of disorder or protection of the rights of others was at stake. The only relevant consideration was the need to punish unlawful conduct.", "This is not a sufficient consideration in this context, in terms of Article 10 of the Convention, in the absence of any aggravating elements. 200. The above findings can be demonstrated by the circumstances that obtained in Mr Romakhin’s case. The Court notes that the specific distance to be observed between solo demonstrators was not set at regional level until December 2012, that is after Mr Romakhin’s demonstration. At the relevant time, the federal legislation provided only guidance, stating that the distance to be specified at regional level could not be more than fifty metres.", "Leaving aside this element of uncertainty and insufficient foreseeability, the Court notes that the applicant’s conviction was rather based on the finding that the common design of the event was that of a public assembly rather than two unrelated simultaneous solo demonstrations (see paragraph 45 above). 201. As already mentioned, the prior notification rule for a public assembly (including, as in Russia, a requirement to submit information about the expected number of participants, the timing and the place of the planned event) may be intended to afford the authorities reasonable time in advance of the planned event to ponder various public safety, security or other risks and, where appropriate, to make arrangements to avert such risks. Undoubtedly, no such considerations were at stake before or during Mr Romakhin’s demonstration. 202.", "Moreover, the domestic courts’ findings of concerted actions on the part of Mr Romakhin and Mr A. are not sufficiently substantiated. The fact that their simultaneous demonstrations concerned the same topic did not suffice to confirm that their actions were of a concerted and premeditated nature. Be that as it may, the Court considers that the applicant’s prosecution, taken together with the unjustified swift termination of his demonstration and his unjustified taking to the police station, constituted a disproportionate reaction given the low gravity of a violation of the notification requirement in the specific circumstances of the case. 203. In other words, the Court considers that the manner in which section 7(1.1) of the Act was interpreted and applied in Mr Romakhin’s case led to a result that was incompatible with Article 10 of the Convention.", "204. Thirdly, the Court agrees with the Russian Constitutional Court’s finding that a solo demonstration should not be classified as an assembly merely because it has attracted attention from the public (see paragraph 58 above). For its part, the Court considers that such a form of expression as a solo demonstration displaying a poster, accompanied or not by vocal expression, is by its nature capable of and is aimed at attracting some attention from passers-by. For the Court, the mere presence of two or more people in the same place at the same time is not sufficient for classifying the situation as an “assembly”, as it is understood under Article 11 of the Convention, with a view to connecting the holding of this assembly to the observance of the requirement of prior notification (see, in this connection, the domestic definition of a “public event” in paragraphs 49-50 above and paragraphs 87-88 above). 205.", "The courts adopted a formalistic approach in Mr Kirpichev’s case in finding that he had held a public “meeting” (and not participated in it, as affirmed by the Government). Although the applicant’s exact behaviour was of relevance (see, mutatis mutandis, Kokkinakis v. Greece, 25 May 1993, §§ 47-49, Series A no. 260‑A), in view of the insufficient domestic assessment and bearing in mind the presumption of innocence, the Court is inclined to accept that the applicant’s behaviour did not go beyond that of a solo demonstrator delivering a message that happened to receive some interest from passers-by. In any event, it is difficult for the Court to conceive that such an event could have generated a significant gathering warranting specific measures from the authorities. 206.", "Nor is there anything to suggest that the applicant ab initio conceived his event as an assembly and thus should have complied with the notification requirement. With due regard to the presumption of innocence, where the authorities suspect intentional actions aimed at evading the notification requirement, they should bear the burden of proving the relevant factual and legal elements. This requirement was underlined by the Russian Constitutional Court in its ruling of 14 February 2013 where it set out the various criteria to be applied (see paragraph 58 above). 207. By qualifying the applicant’s interaction with passers-by as a group event, the authorities brought the notification requirement into play.", "In the Court’s view, there was no need for coordination to ensure public safety and prevent disorder in the present case, since there was nothing to indicate that either public order or the rights of others might be affected. The authorities’ approach to the concept of an assembly did not correspond to the rationale of the notification rule (see, in the same vein, Tatár and Fáber, cited above, § 40). Indeed, the application of that rule to expressions – rather than only to assemblies – would create a situation which is incompatible with the free communication of ideas and might undermine freedom of expression (ibid.). 208. Moreover, even accepting that the applicant did call passers-by to approach and to engage in discussion with him, the Court remains unconvinced that the authorities’ reaction to the event in imposing a fine on him was proportionate (see below).", "209. Fourthly, the Court has taken note of the severity of the penalty imposed, since it is among the factors to be taken into consideration, by the domestic courts and eventually the Court, when assessing the proportionality of the interference under Article 10 § 2 (see Cumpǎnǎ and Mazǎre [GC], cited above, § 111, and Tešić v. Serbia, nos. 4678/07 and 50591/12, § 63, 11 February 2014). 210. The Court notes the ten-fold increase of fines in 2012 for an offence under Article 20.2 of the CAO (along with several other offences), whereas most other offences remained punishable by a fine of up to RUB 5,000 for physical persons (the equivalent of some EUR 125).", "Admittedly, this reflected the legislator’s perception of the increased danger posed by the specific offences, even where the reprehensible conduct consisted only in organising or participating in a non-notified assembly, or/and because the existing legislative framework was initially inadequate. 211. In the Court’s view, the high level of fines was conducive to creating a “chilling effect” on legitimate recourse to protests and such form of expression as a solo demonstration (see, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 95, ECHR 2008, and Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996‑II). 212.", "The Court notes in this connection that Mr Kirpichev received a fine equivalent at the time to EUR 505, which was, however, the minimum statutory amount for an offence under Article 20.2 § 2 of the CAO. Even assuming that Mr Kirpichev was legitimately convicted of organising a public event without giving prior notice to the authorities, the Court considers that the amount of the fine was, in the circumstances, a disproportionate penalty vis-à-vis the applicant’s right to freedom of expression. When assessing the proportionality of this penalty, it is relevant to note that the failure to notify the event in question did not cause any damage whatsoever. The Government’s argument that the event had started on the road (thus, arguably, obstructing the traffic) has not been substantiated and was not part of the domestic assessment. Importantly, this Court notes that the Russian Constitutional Court found it necessary in 2013 to afford the courts a possibility to impose fines below the statutory minimum amount in order to take proper account of the circumstances of the case.", "This allowed the courts to impose individualised sentences that were fair and proportionate (see also paragraphs 69, 73 and 86 above). However, this possibility was not properly implemented in Mr Kirpichev’s case. (v) Conclusion 213. The Court considers that, in the absence of aggravating factors, the swift termination of the events followed by the taking of the applicants to police stations and the prosecution for an administrative offence consisting solely in organising or participating in a non-notified public event, constituted a disproportionate interference with the applicants’ freedom of expression. 214.", "The Court concludes that there has been a violation of Article 10 of the Convention in respect of Ms Novikova, Mr Kirpichev and Mr Romakhin. 215. In view of the above considerations, there is no need to make any separate findings under Article 11 of the Convention. (b) Regarding Mr Matsnev 216. The Government argued that the domestic authorities had acknowledged the unlawful actions concerning stopping the applicant’s demonstration, taking him to the police station and holding him there for some time.", "In the Government’s view, the applicant had been awarded reasonable compensation and thus was not a victim of the alleged violations under the Convention. 217. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim”, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. Redress so afforded must be appropriate and sufficient, failing which a party can continue to claim to be a victim of the violation (see Scordino v. Italy (no. 1) [GC], no.", "36813/97, § 181, ECHR 2006‑V, and Cocchiarella v. Italy [GC], no. 64886/01, § 72, ECHR 2006‑V). The Court does not overlook the fact that Mr Matsnev claimed and received compensation at the domestic level before lodging an application before the Court. 218. Although the domestic courts accepted that there was no need to escort Mr Matsnev to the police station, they did not acknowledge the violation relating to the exercise of his freedom of expression.", "Even assuming that the domestic court’s finding of unlawfulness regarding the taking of the applicant to the police station from the place of his solo demonstration constituted, in substance, an acknowledgment of the violation of his freedom of expression, the Court is not satisfied that the award of EUR 149 constituted adequate and sufficient redress in respect of the interference, which was both unlawful and disproportionate. The award was by no means comparable to what could be awarded under Article 41 of the Convention (see, for the approach, Scordino (no. 1), cited above, §§ 181 and 202, and Rakhimberdiyev v. Russia, no. 47837/06, § 42, 18 September 2014 in a comparable situation, albeit in the context of Article 5 of the Convention only; see also paragraph 231 below). Thus, the applicant was a victim of the alleged violation when he lodged the application before the Court.", "219. For its part, the Court does not discern any compelling circumstances that justified terminating the applicant’s solo demonstration and taking him to the police station. 220. The Court concludes that Mr Matsnev was a victim of unlawful and disproportionate interference with his freedom of expression on account of his demonstration being stopped and his being taken to the police station. 221.", "There has accordingly been a violation of Article 10 of the Convention in respect of Mr Matsnev. (c) Regarding Mr Savchenko 222. Mr Savchenko was prosecuted under Article 20.1 of the CAO for minor hooliganism consisting of the use of “foul language”. It has not been argued, and the Court does not consider, that the applicant is not a victim for the purpose of the Article 10 complaint, on account of the discontinuation of the prosecution following the expiry of the statutory period. At the same time, the fact that the prosecution did not result in a conviction and imposition of a sentence bears significantly in assessing the proportionality of the “interference”.", "Thus, it remains to be ascertained whether the other aspects of the “interference” by the authorities with the applicant’s solo demonstration were proportionate. 223. The Government argued that the taking of Mr Savchenko to the police station and, indirectly, the termination of his solo demonstration were related to his use of foul language in a public place rather than to the fact that he was holding a demonstration. While the applicant has not argued that use of foul language was protected under Article 10 of the Convention, he has contested that during his demonstration he used any utterances that could be perceived as foul language. Indeed, it remains unclear what exact words were allegedly uttered by and held against the applicant.", "The domestic decisions, in particular those issued by the courts, do not contain an adequate assessment as to whether the words concerned could be reasonably classified as “foul language”. 224. The Court considers, with due regard to the presumption of innocence, that the applicant did not use foul language to the extent or in a way that constituted an administrative offence which might justify his being taken to the police station and the termination of his demonstration. The domestic courts (see paragraph 28 above) failed to make a specific assessment of the factual and legal issues pertaining to the lawfulness and necessity of taking the applicant to the police station and the adverse effect it had on the exercise of his freedom of expression. In this context, leaving aside the lawfulness issue, the Court cannot but conclude that the termination of the demonstration and the taking of the applicant to the police station were not justified.", "225. There has therefore been a violation of Article 10 of the Convention on account of the authorities’ disproportionate reaction to Mr Savchenko’s demonstration. III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION 226.", "Some of the applicants complained that their taking to the police station had lacked reasons or had been arbitrary. One of the applicants also complained that the compensation awarded to him had been derisory (application no. 57569/11). 227. Having regard to the finding relating to Article 10 of the Convention above, the Court considers that it is not necessary to examine whether, in the applicants’ cases, Article 5 of the Convention or Article 2 of Protocol No.", "4 to the Convention was applicable and whether any of these provisions was violated. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 228. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 229.", "Mr Matsnev’s lawyer made no claim for just satisfaction within the indicated time-limit. The Court therefore makes no award. 230. Ms Novikova claimed 35,000 euros (EUR) in respect of non‑pecuniary damage. The Government contested her claim as excessive.", "Having regard to the nature of the violation found, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 231. Mr Savchenko claimed EUR 500 in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. The Government argued that the pecuniary claim was not specific and did not relate to the violation; the non-pecuniary claim was excessive. The Court dismisses the pecuniary claim because the applicant has not specified what it relates to.", "Having regard to the nature and scope of the violation found, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 232. Mr Kirpichev claimed EUR 10,000 in respect of non-pecuniary damage and EUR 120 in respect of pecuniary damage (a part of the paid fine). The Government contested the sums as excessive and properly paid, respectively. The Court considers that there is a direct causal link between the violation found and the part of the fine the applicant had paid following his conviction for the administrative offence.", "The Court awards the applicant EUR 7,500 and EUR 120 in respect of non-pecuniary damage and pecuniary damage respectively, plus any tax that may be chargeable. 233. Mr Romakhin claimed EUR 9,000 in respect of non-pecuniary damage. The Court awards him EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 234. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 235. Ms Novikova claimed EUR 1,500 for legal representation costs incurred before the Court. The Government argued that the applicant had submitted no documentary proof (a contract, for instance) that she had a legally enforceable obligation to pay for the lawyer’s services or that she had in fact paid them.", "The Court agrees with the Government and dismisses the claim. 236. Mr Kirpichev and Mr Romakhin claimed EUR 6,500 and EUR 3,500 respectively for legal representation before the Court by Mr K. Terekhov. The Government contested the amounts as excessive and unnecessarily incurred because the same representative had submitted observations on similar complaints on behalf of other applicants. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award each applicant a sum of EUR 3,000, plus any tax that may be chargeable to the applicants.", "The resulting amount of EUR 6,000 should be payable as requested directly to Mr K. Terekhov. C. Default interest 237. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares the complaints under Article 10 of the Convention admissible; 3. Holds that there has been a violation of Article 10 of the Convention in respect of each applicant; 4. Holds that there is no need to examine the complaints under Article 5 of the Convention and Article 2 of Protocol No. 4 to the Convention and to make separate findings under Article 11 of the Convention; 5. Holds (a) that the respondent State is to pay, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the following applicants: Ms Novikova, Mr Kirpichev and Mr Romakhin; EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to Mr Savchenko; (ii) EUR 120 (one hundred and twenty euros), plus any tax that may be chargeable, in respect of pecuniary damage to Mr Kirpichev; (iii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to Mr Kirpichev or Mr Romakhin, in respect of costs and expenses, to be paid directly to Mr K. Terekhov; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 26 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pastor Vilanova is annexed to this judgment. L.L.G.J.S.P. CONCURRING OPINION OF JUDGE PASTOR VILANOVA (Translation) I voted in favour of finding a violation of Article 10 of the Convention in the present case, but on the basis of different reasoning from that of the other judges in the Chamber.", "I wish to set out briefly the reasons why I disagree with their approach. It is well known that it is for the State to demonstrate the lawfulness of grounds justifying any interference with the exercise of a person’s right to freedom of expression or freedom of assembly. Those grounds constitute a numerus clausus to be interpreted strictly (see, inter alia, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013). The Government argued that the interference was lawful and could be justified by grounds relating to the protection of public order and national security or public safety (see paragraphs 95, 96 and 145 of the judgment).", "It so happens that the judgment has attributed a different legal characterisation to the interference. After some hesitation, the Court decided to analyse the decision of the Russian authorities to put an end to the applicants’ peaceful demonstrations as being based on considerations related to the “prevention of crime” (paragraphs 140, 143 and 148). However, no crime had been committed; nor had the possibility of a crime being committed even been envisaged. The wrongdoing for which the applicants were officially reproached consisted, essentially, in a failure to give prior notice to the administrative authorities that a demonstration was taking place. An administrative offence cannot, in my view, be treated as a “crime” for the purposes of Articles 10 § 2 or 11 § 2 of the Convention.", "The inclusion of administrative sanctions within the scope of Article 6 § 1, in view of the autonomous notion of criminal charge, stems from a completely different logic, based in particular on a concern to improve the protection of fundamental rights. Consequently, I am of the view that the failure to carry out the formality in question could not be assimilated to a criminal offence, unless the permitted limitations to freedom of expression or freedom of assembly were to be given an extensive interpretation. I would point out that the demonstration was a peaceful one and was limited to a single individual. In the present case, I consider, unlike the other judges, that the only reasonable ground that could have been relied on to justify the interference with the applicants’ right to freedom of expression or freedom of assembly was the classical concept of the “prevention of disorder”, as the respondent State itself had indeed claimed. Given that, according to the precedent of Perinçek v. Switzerland ([GC], no.", "27510/08, §§ 146 and 153, ECHR 2015), the “prevention of disorder” concerns the risk of “riots” or “clashes”, it could have been rapidly concluded that the premature termination of the demonstration constituted a disproportionate measure." ]

[ "FIRST SECTION CASE OF BULDASHEV v. RUSSIA (Application no. 46793/06) JUDGMENT STRASBOURG 18 October 2011 FINAL 18/01/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Buldashev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 27 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "46793/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Mikhaylovich Buldashev (“the applicant”), on 6 October 2006. 2. The applicant was represented by Ms O. Ogur, a lawyer practising in Chelyabinsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that he had been detained in inhuman and degrading conditions; that he had been subjected to ill‑treatment while in custody; that the length of the criminal proceedings against him had exceeded the reasonable time requirement; that he had not had an effective remedy in respect of those violations and that his pre-trial detention had been unreasonably long. 4. On 10 September 2009 the Court declared the application partly inadmissible and decided to give notice to the Government of the complaints concerning (1) the conditions of the applicant’s detention, (2) ill‑treatment in custody, (3) the length of the criminal proceedings against the applicant, (4) the lack of effective domestic remedies in respect of the alleged violations, and (5) length of the applicant’s pre-trial detention, and to grant priority treatment to the application under Rule 41. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1952 and is serving a prison sentence in the Chelyabinsk Region. A. The applicant’s arrest and detention pending investigation 6. On 12 March 2004 the applicant was charged with three counts of fraud, two counts of murder and unlawful dealings in firearms.", "According to the Government he made an undertaking not to leave his place of residence pending investigation. On several occasions he failed to appear for questioning and on 30 June 2005 his name was put on the wanted persons’ list. 7. On 18 July 2006 the applicant was arrested and remanded in custody. On 20 July 2006 the Tsentralniy District Court of Chelyabinsk authorised the applicant’s detention.", "In particular, the court noted as follows: “Having regard to the materials submitted, [the court] considers that [the applicant] is charged with a particularly serious criminal offence that entails a custodial sentence, that he absconded in the past, that his name was put on the wanted persons’ list, that he does not reside at his registered place of residence. It can be inferred from these facts taken together that the applicant might abscond, continue his criminal activities, interfere with the investigation...” 8. On 15 September 2006 the District Court further extended the applicant’s detention until 14 December 2006. Referring to his health, unsatisfactory conditions of detention, lack of a criminal record and his minor child, the applicant argued that the court might use any other preventive measure, including bail, rather than detention. Dismissing the applicant’s arguments, the court noted as follows: “[The applicant] is charged with serious offences and his name has been on the federal wanted persons list for over a year.", "It follows that, if released, [the applicant] might abscond or re-offend ... The defence has not furnished any medical documentation to substantiate the allegations that [the applicant] is unfit for detention. The court has also taken into account the material concerning [the applicant’s] character when deciding on the matter.” 9. On 26 September 2006 the Chelyabinsk Regional Court upheld the decision of 15 September 2006 on appeal. 10.", "On 12 December 2006 the District Court extended the applicant’s detention until 14 March 2007. The applicant asked the court to release him on bail. He noted that his detention had been unreasonably long; that the prosecutor’s office had been procrastinating with the investigation; and that he had a permanent residence, a job and family ties. The court reasoned as follows: “[The applicant] is charged with serious offences... [In the past the applicant] absconded ... and his name was put on the local and federal wanted persons lists. In such circumstances the court considers that, if released, [the applicant] might abscond.” 11.", "On 12 March 2007 the District Court extended the applicant’s detention until 14 June 2007. In particular, the court noted as follows: “[The applicant] is charged with a particularly serious offence, he absconded for over a year which, in the court’s opinion, indicates that, if released, [the applicant] might abscond, continue his criminal activities, or interfere with the establishment of the truth in the case.” 12. On 5 April 2007 the Regional Court upheld the decision of 12 March 2007 on appeal. 13. On 13 June 2007 the District Court extended the applicant’s detention until 19 July 2007 noting as follows: “Regard being had to the gravity of the charges, information concerning the [applicant’s] character, including the fact that his name was put on the federal wanted persons’ list, the court finds substantiated the prosecutor’s arguments that, if released, [the applicant] might abscond [or] interfere with the establishment of the truth.” B.", "Trial and ensuing proceedings 14. On 13 July 2007 the Regional Court opened the trial in respect of the applicant and two other defendants and scheduled the first hearing for 19 July 2007. The case file submitted by the prosecution comprised twenty‑three volumes. 15. On 19 July 2007 the Regional Court ruled that the preventive measure imposed on the applicant and two other defendants should remain unchanged pending their trial.", "The court found as follows: “Regard being had to the gravity of the charges and information concerning the defendants’ character, the court does not discern grounds to lift or change the preventive measure imposed on the [defendants] and considers it necessary to continue to detain them.” 16. On 27 September 2007 the Supreme Court of Russia upheld the decision of 19 July 2007 on appeal. 17. On 28 November 2007 the jury found the applicant guilty of two counts of murder, fraud and misappropriation of funds. 18.", "On 3 December 2007 the Chelyabinsk Regional Court sentenced the applicant to twenty-two years’ imprisonment. On 25 September 2008 the Supreme Court of Russia upheld the verdict on appeal. The applicant’s lawyer was not present at the hearing. 19. On 11 March 2009 the Presidium of the Supreme Court of Russia quashed the appeal judgment of 25 September 2008 by way of supervisory review and remitted the matter for fresh consideration owing to the appeal court’s failure to ensure the presence of the applicant’s lawyer at the hearing.", "The court further noted that the applicant should remain in custody until 11 June 2009. In this regard the court indicated as follows: “... given that [the applicant] has been found guilty of a very serious offence and that he might abscond and interfere with the prompt consideration of his case by the appeal court ..., the Presidium of the Supreme Court of Russia considers it necessary that [he] remain in custody.” 20. On 3 June 2009 the Supreme Court of Russia upheld the applicant’s conviction on appeal. Both the applicant and his lawyer were present. C. Conditions of detention 21.", "On 19 July 2006 the applicant was placed in remand prison no. 74/1 in Chelyabinsk where he was held until 30 June 2009. 1. The description provided by the Government 22. The Government submitted extracts from the remand prison’s register of inmates.", "They indicated the cell numbers where the applicant was detained without specifying the period of detention in each case: Cell no. Surface area (in square metres) Number of inmates Number of beds 22 4.1 0-1 1 47 22.5 0-11 12 49 31.8 10-11 14 54 16.2 8 9 60 25.1 4-11 13 (8 after 15 April 2009) 68 8.1 0-4 4 73 8.1 3-4 4 86 35.1 10-14 14 95 8.1 2-4 4 97 8.1 2-4 4 98 8.1 2-4 4 99 8.1 2-4 4 102 8.1 2-4 4 103 8.5 2-4 4 106 8.5 2-4 4 107 8.1 2-4 4 121 14.9 2-8 8 138 19.1 5-6 6 233 41.7 3-12 12 23. The applicant was not confined to his cell for the whole of the day. He left the cell to meet his lawyer, relatives and the prison administration. He was entitled to one hour’s exercise in the prison courtyard and had the right to use the shower at least once a week for at least fifteen minutes.", "The size and the organisation of the courtyard did not prevent the applicant from doing physical exercises. 24. All the cells in the remand prison were equipped with natural and piped ventilation, which was in good working order. The average temperature in the cells was 180C to 200C. 25.", "At all times the applicant was provided with an individual sleeping place and bedding. The cells were disinfected regularly. The lavatory was located at a considerable distance from the beds and the dining table and separated by a 1.5-m brick wall and a door. 2. The description provided by the applicant 26.", "According to the applicant, all the cells in which he was held were overcrowded and the inmates had to take turns to sleep. In particular, he submitted the following information on the issue: Period of detention Cell no. Surface area (in square metres) Number of inmates Number of beds 102 8.5 4-6 4 from 31 October 2006 to 25 January 2007 47 19.7 12-17 8 49 30 17-21 10 54 15.3 up to 12 6 from 25 January 2007 to 18 April 2008 95 8.5 up to 5 4 from 25 April 2008 to 30 June 2009 60 25.6 11 8 27. The radiators in the cells hardly worked. The walls and the ceiling were covered with mould.", "The cells had no piped ventilation, except for cell no. 233, where the applicant spent one day. It was stiflingly hot in the summer and very cold and damp in the winter. Most of the windows were completely covered with metal sheets. The majority of the inmates smoked and the applicant, a non-smoker, was exposed to their tobacco smoke.", "He was allowed a daily walk outside, which did not exceed 40-50 minutes. There was no opportunity to do physical exercises. 28. The toilet offered no privacy and the person using it could potentially be seen by both the inmates and the guards watching the inmates through the peep-hole in the door. 29.", "The cells were lit with dim electric lights. There was no access to daylight in cell no. 95. 30. The cells were infested with cockroaches, bugs, ants and rats.", "Disinfection was not performed, nor was any detergent distributed. The meals provided often contained flies, bugs, cockroaches and rats’ feet. The food was of a very poor quality and not in compliance with the quality standards established by law. Fish and meat were rarely served. Eggs, milk or fruit drinks were never offered.", "The quality of the food improved only on days when inspections were held. The food products the inmates could buy in the prison shop were of a very low quality. 31. Hot water was not supplied, except for cell no. 233, where the applicant spent one day.", "From April to October each year the inmates were allowed to take only cold showers. From 6 September to 29 November 2008 the applicant did not have a single opportunity to take a shower. 32. On several occasions HIV-infected inmates and inmates diagnosed with tuberculosis were placed in the cells where the applicant was detained. 33.", "On 25 January 2007 the applicant’s lawyer complained to the local prosecutor about the conditions of the applicant’s detention. On 21 February 2007 the prosecutor responded that the conditions of detention were in compliance with the applicable rules. 34. On 25 December 2007 the applicant’s tableware was confiscated and he had to share plates and spoons with other inmates. D. Alleged inhuman and degrading treatment in custody 1.", "The applicant’s account of the events 35. According to the applicant, on several occasions he was subjected to humiliating and degrading treatment and beatings while in detention. 36. In December 2007 the applicant was beaten by one of the prison guards. The applicant’s request to see a doctor was refused.", "37. On 2 March 2008 the applicant was woken up by the guards. They took him and one of his cellmates to the corridor where they were stripped naked and subjected to a body search in the presence of female guards. 38. On 12 August 2008 the prison administration allegedly refused to dispatch the applicant’s complaint concerning the ill-treatment.", "39. On 4 September 2008 one of the SWAT officers kicked the applicant twice in the rear and in the crotch during another search. Then the applicant was stripped naked and ordered to do numerous sit-ups. He provided statements from two inmates who had witnessed the incident. 2.", "The authorities’ inquiry into the applicant’s complaints as accounted for by the Government 40. The Government provided the following information with regard to the authorities’ inquiry in response to the applicant’s complaints about ill‑treatment in custody. 41. On 25 July 2008 the Chelyabinsk Region prosecutor’s office received a complaint lodged by a number of inmates detained at remand prison no. 74/1 about unlawful actions by prison guards in the course of searches.", "42. The prosecutor’s office forwarded the complaint to the regional department of custodial facilities and the latter carried out an inquiry which disclosed no instances of unlawful acts or negligence on the part of the remand prison administration. On 29 August 2008 the complainants were informed accordingly. 43. The applicant’s subsequent complaint about the incidents that took place in December 2007, March and September 2008 reached the regional prosecutor’s office on 29 September 2009.", "The prosecutor’s office carried out an inquiry and dismissed the applicant’s complaint as unsubstantiated. 44. The relevant decision was quashed on 17 December 2009 for failure by the investigator to carry out a complete inquiry and the case file was returned to the latter for further action. According to the Government, the inquiry is still pending. II.", "RELEVANT DOMESTIC LAW A. Conditions of pre-trial detention 45. 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. According to Section 23, 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 four square metres of personal space in his or her cell. B. Investigation of criminal offences 46. In response to a complaint alleging a criminal offence, the investigator is under an obligation to verify the complainant’s allegations (Article 144 of the new CCrP).", "47. Should there be sufficient grounds to believe that a crime has been committed, the investigator initiates a criminal investigation (Article 145 of the new CCrP). C. Remedies in respect of a violation of the right to trial within a reasonable time 48. Federal Law No. 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time, the person concerned is entitled to seek compensation in respect of the non-pecuniary damage.", "Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes to the Russian legislation. 49. Section 6.2 of the Federal Law No. 68-ФЗ provides that everyone who has an application pending before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to submit that complaint to the domestic courts. THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF CONDITIONS OF DETENTION 50. The applicant complained that he had been detained in appalling conditions in contravention of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” He also claimed that he did not have at his disposal an effective remedy in respect of the conditions of his pre-trial detention as required under Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority...” A. Submissions by the parties 1. The Government 51. In the Government’s view, it was open to the applicant to bring his grievances to the attention of domestic judicial authorities by lodging an action for damages arising out of the unsatisfactory conditions of his pre‑trial detention. However, he chose not to pursue his claims.", "The Government referred to the case of Kokoshkina (Kokoshkina v. Russia, no. 2052/08, § 49, 28 May 2009), asserting that in relation to that application they had cited a number of examples to illustrate the availability of an effective domestic remedy in respect of complaints about conditions of detention. Lastly they noted that at no time had the applicant been detained in overcrowded cells. His grievances had not, therefore, concerned a structural problem and it was incumbent on him to exhaust the domestic remedies before having recourse to the Court. 52.", "Relying on extracts from the remand prison’s registers of inmates, the photographs of the cells and certificates issued by the remand prison administration in December 2009, the Government submitted that the conditions of the applicant’s detention had been in compliance with the standards set forth in Article 3 of the Convention and applicable domestic laws. At all times the applicant had been provided with an individual bed and bedding and the personal space afforded to him had not fallen short of the domestic statutory requirements. In any event, he had not been confined to the cell for twenty-four hours a day. He had spent a considerable amount of time outside the cell when meeting his lawyer and family. He had been able to take at least one hour’s daily exercise and have showers.", "2. The applicant 53. The applicant maintained his complaints. He disputed the accuracy of the Government’s submissions. In particular, he claimed that the photographs presented were not of the cells where he had been detained.", "The number of windows and the arrangement of the cells did not correspond to the reality. In any event, the cells had been refurbished after he had lodged his application with the Court. The documents submitted by the Government allegedly confirming that he had been provided with bedding had been tampered with. His signatures had been forged. Lastly, he submitted that his numerous complaints about the conditions of his pre-trial detention in the remand prison brought before the domestic authorities had been to no avail.", "B. The Court’s assessment 1. Admissibility 54. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the complaint that the applicant did not have at his disposal an effective remedy by which to complain about inhuman and degrading conditions during his detention. The Court therefore finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention.", "55. The Court further notes that the complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Article 13 of the Convention 56.", "The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). 57. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention.", "Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law. 58. As regards the Government’s contention that the applicant should have brought his grievances in respect of the allegedly inhuman and degrading conditions of his detention to the attention of the prosecutor’s office or the court, the Court observes that it has previously found that the opportunity to make such an application cannot be regarded as an effective domestic remedy (see, among other authorities, Benediktov v. Russia, no. 106/02, §§ 27-30, 10 May 2007, and Kokoshkina, cited above, § 52). Having regard to the material submitted by the Government, the Court notes that they have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.", "59. Accordingly, the Court rejects the Government’s argument as to the exhaustion of domestic remedies and concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law enabling the applicant to complain about the general conditions of his detention. (b) Article 3 of the Convention 60. The Court reiterates that Article 3 enshrines one of the fundamental values of a democratic society. The Convention prohibits torture or inhuman or degrading treatment or punishment in absolute terms, irrespective of the circumstances or the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no.", "26772/95, § 119, ECHR 2000-IV). The Court has consistently stressed that in order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering and humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Although measures depriving a person of his liberty may often involve such an element, under Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła, cited above, §§ 92-94). 61. Turning to the facts of the instant case, the Court notes that the parties disagreed as to most aspects of the conditions of the applicant’s detention.", "However, there is no need for the Court to establish the veracity of each and every allegation. It can find a violation of Article 3, even on the assumption that the information provided by the Government is correct. 62. The Court observes, based on the extracts from the remand prison register of inmates submitted by the Government, that on average the inmates in the remand prison were afforded no more than 2 to 3 sq. m of personal space, which falls short of the domestic statutory requirements (see paragraph 45 above).", "This fact alone is sufficient for the Court to find that the problem of overcrowding had not been alleviated by the authorities. 63. The Court further notes that apart from an hour’s daily exercise, the applicant was confined to the cell for the rest of the time. The Court does not consider that the occasional meetings the applicant had with his lawyer or family outside the cell, or a fifteen-minute weekly use of the shower facilities, significantly altered the conditions of his detention. In any event, the Government did not provide any specific details as to the number and duration of such meetings.", "64. The Court reiterates that, irrespective of the reasons for the overcrowding, it is incumbent on the respondent Government to organise their custodial system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006, and Benediktov, cited above, § 37). 65. The Court has frequently found a violation of Article 3 of the Convention on account of a lack of personal space afforded to detainees (see, among other authorities, Belevitskiy v. Russia, no.", "72967/01, §§ 75 et seq., 1 March 2007; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X; Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; and Novoselov v. Russia, no.", "66460/01, §§ 41 et seq., 2 June 2005). 66. Having regard to its case-law on the subject and the materials in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 67. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in remand prison no.", "IZ-74/1 in Chelyabinsk between 19 July 2006 and 30 June 2009, which it considers were inhuman and degrading within the meaning of this provision. 68. In view of the above finding, the Court does not consider it necessary to examine the remainder of the parties’ submissions concerning other aspects of the conditions of the applicant’s detention in remand prison no. 74/1 in Chelyabinsk. II.", "ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF INHUMAN AND DEGRADING TREATMENT IN CUSTODY BETWEEN DECEMBER 2007 AND SEPTEMBER 2008 69. The applicant complained that on several occasions between December 2007 and September 2008 he had been subjected to humiliating and degrading treatment by prison guards and SWAT officers. He relied on Articles 3 and 13 of the Convention. 70. The Government contested the applicant’s allegations.", "They submitted that, in response to the applicant’s complaint about the beatings in December 2007 and September 2008 and a strip search in May 2008, the prosecutor’s office had carried out an inquiry and dismissed the applicant’s allegations as unsubstantiated. The relevant decision was quashed on 17 December 2009 and the case file had been forwarded to an investigator for further enquiries, which were still pending. In this connection the Government noted that the applicant’s complaint should be dismissed by the Court as premature. 71. The applicant did not comment.", "A. Article 3 1. Admissibility 72. The Court considers that the question whether this complaint is, as the Government asserted, premature in view of the pending enquiries, is closely linked to the general question whether the investigation into his allegations of ill-treatment has been effective. However, these issues relate to the merits of the applicant’s complaint under Article 3 of the Convention.", "The Court therefore decides to join these issues to the merits. 73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) Effectiveness of investigation 74. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102-103, Reports of Judgments and Decisions 1998-VIII). 75. Questions under the procedural limb of Article 3 arise particularly when the authorities have failed to react effectively to the complaints about the ill-treatment at the relevant time (see, mutatis mutandis, Khashiyev and Akayeva v. Russia, nos.", "57942/00 and 57945/00, § 178, 24 February 2005). 76. The Court observes that the applicant’s detailed submissions on the matter, coupled with the supporting statements made by the inmates detained with him and the fact that the authorities have been conducting an inquiry into his allegations since 2008, give rise to a reasonable suspicion that he was subjected to treatment contrary to Article 3 (see Labita, cited above, § 130, and Kazım Gündoğan v. Turkey, no. 29/02, § 24, 30 January 2007). 77.", "The Court notes that the applicant indeed lodged two complaints about the strip searches and beatings before the national authorities. The first complaint was made on 25 July 2008 and the second one reached the prosecutor’s office on 29 September 2009. According to the Government, which provided no documents on the matter, the first complaint was dismissed as unsubstantiated and the inquiry initiated in response to the second has been pending ever since. 78. The Court further notes that the Government did not provide any document to report on the scope of that inquiry or the progress made by the authorities in an attempt to elucidate the facts complained of by the applicant.", "Nor did they furnish an explanation as to why the inquiry had not been yet completed. 79. In these circumstances, the Court considers that the authorities did not fulfil their obligation to carry out an effective investigation into the applicant’s allegations of ill-treatment, as required by Article 3 of the Convention. Accordingly, the Court rejects the Government’s argument as to the exhaustion of domestic remedies and concludes that there has been a violation of Article 3 of the Convention under its procedural limb. (b) Alleged ill-treatment 80.", "As the Court has stated on many occasions, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Labita, cited above, § 120). Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see V. v. the United Kingdom [GC], no.", "24888/94, § 71, ECHR 1999-IX). 81. In the context of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities have a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006-XV; Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; and Mouisel v. France, no.", "67263/01, § 40, ECHR 2002-IX). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006; Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).", "82. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “ beyond reasonable doubt ” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25). Furthermore, where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny (see Ribitsch, cited above, § 32).", "83. Turning to the circumstances of the present case, the Court observes that the applicant provided a clear account of the events (see paragraphs 35‑39). His allegations of ill-treatment in custody were sufficiently serious for the authorities to open a formal inquiry. Before the Court the applicant also produced two witness statements which directly corroborated his submissions relating to the incident of 4 September 2008. 84.", "Against this background, and having regard to the fact that the applicant had been for all that time in the State’s custody, the Court considers that the applicant made out a prima facie case of ill-treatment. The burden therefore rests on the Government to provide a satisfactory and convincing explanation as to the events in question. 85. The Court notes that the Government did no more than inform the Court that the investigation into the applicant’s allegations was still pending. No documents or further details were provided.", "In such circumstances, the Court considers that the Government failed to provide a satisfactory and convincing explanation as to the applicant’s complaint and accepts his version of the events. 86. The Court further notes that the beatings and strip searches to which the applicant was subjected on several occasions in 2007-2008 demonstrate the lack of due respect for human dignity and had no legitimate purpose. The Court concludes, therefore, that they amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. 87.", "Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. B. Article 13 88. The Court observes that this complaint concerns the same issues as those examined in paragraphs 74-79) above under the procedural limb of Article 3 of the Convention. Therefore, the complaint should be declared admissible.", "However, having regard to its conclusion above under Article 3 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 89. The applicant complained about the excessive length of his pre-trial detention. He referred to Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.", "Release may be conditioned by guarantees to appear for trial.” 90. The Government contested that argument. They observed that the length of the applicant’s pre-trial detention had been reasonable and justified. The domestic courts had taken into account all the relevant circumstances when deciding to detain the applicant pending investigation and trial. The applicant had been charged with several serious offences and had absconded after being released on an undertaking not to leave his place of residence.", "The risk that, if released, he might abscond again had been serious. 91. The applicant maintained his complaint. He claimed that he had not absconded pending investigation and that the authorities had put his name on the wanted persons’ list without good reason. A. Admissibility 92.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "Period to be taken into consideration 93. According to the Court’s well-established case-law, in determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, among many other authorities, Belevitskiy, cited above, § 99). Furthermore, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Panchenko v. Russia, no. 45100/98, §§ 91 and 93, 8 February 2005, with further references). 94.", "Accordingly, in the present case the period to be taken into consideration started on 18 July 2006 when the applicant was arrested and remanded in custody and ended on 3 December 2007 when the applicant was convicted by the court at the first level of jurisdiction. It amounted accordingly to one year and four and a half months. 2. Whether there were relevant and sufficient reasons to justify the applicant’s detention 95. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto.", "Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its particular features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, § 30, Series A no. 254-A, and Pantano v. Italy, no. 60851/00, § 66, 6 November 2003). 96.", "The Court notes that the domestic courts advanced two principal reasons for keeping the applicant in detention pending investigation and trial, namely that he was charged with serious offences and that he might abscond if released. 97. As regards the domestic authorities’ reliance on the gravity of the charges as the decisive element, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention (see Panchenko, cited above, § 102). This is particularly true in the Russian legal system where the characterisation in law of the facts – and thus the sentence faced by the applicant – is determined by the prosecution without judicial review of the issue whether the evidence that has been obtained supports a reasonable suspicion that the applicant has committed the alleged offence (see Khudoyorov, cited above, § 180). 98.", "As regards the danger of the applicant’s absconding, the Court observes that the possibility of a severe sentence alone is not sufficient after a certain lapse of time to justify continued detention based on the danger of flight (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7, and B. v. Austria, 28 March 1990, § 44, Series A no. 175). In the instant case, however, the domestic courts also relied on other relevant circumstances, noting that the applicant had absconded in the past. In particular, the applicant failed to appear for questioning and his name was put on the wanted persons’ list.", "He spent more than a year in hiding. 99. The Court is therefore satisfied that, in the particular circumstances of the case, a substantial risk of the applicant’s absconding persisted throughout his detention, and it accepts the domestic courts’ finding that no other measures to secure his presence would have been appropriate. 100. The Court concludes that there were relevant and sufficient grounds for the applicant’s continued detention.", "Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. 101. The Court notes that, following the applicant’s placement in custody on 18 July 2006, the investigation was completed within thirteen months and the District Court opened the trial, which took three and a half months. There is nothing in the materials submitted to the Court to show any significant period of inactivity on the part of the prosecution or the court. In such circumstances, the competent domestic authorities cannot be said to have displayed a lack of special diligence in handling the applicant’s case.", "102. There has accordingly been no violation of Article 5 § 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 103. The applicant complained that the length of the criminal proceedings in his case had been excessive.", "He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 104. The Government submitted that the length of the proceedings had been reasonable, having regard to the complexity of the case which concerned two murders, three counts of fraud and misappropriation of funds. The proceedings had been conducted in respect of three defendants. The investigator had had to examine about a hundred witnesses and the court had heard evidence from forty-eight of them. 105.", "The applicant contested the Government’s arguments, maintaining that, even taking into account the complexity of the case, the overall period of the criminal proceedings in his case remained excessive. It had taken the prosecutor’s office more than six years and four and a half months to complete the investigation in respect of the charges. A. Admissibility 106. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Period under consideration 107. The Court observes that the criminal proceedings against the applicant were opened on 12 March 2004 and ended on 3 June 2009, when his conviction was upheld on appeal and became final.", "The Court notes that from 30 June 2005 to 18 July 2006 the applicant was unlawfully at large. That period should be excluded from the overall length of the proceedings (see Girolami v. Italy, 19 February 1991, § 13, Series A no. 196‑E). The Court further notes that the period from 25 September 2008, when the applicant’s conviction became final and no proceedings were pending, to 11 March 2009, when the appeal judgment was quashed by way of supervisory review and the case was remitted to the appeal court for fresh consideration, should not be taken into account (see, for example, Brovchenko v. Russia, no. 1603/02, § 97, 18 December 2008).", "Accordingly, the criminal proceedings against the applicant lasted for approximately three years and eight and a half months. This period spanned the investigation stage and that of the judicial proceedings, when the case was reviewed by the trial court and twice by the appeal court, the first appeal judgment having been quashed by way of supervisory review and the case having been remitted for a fresh examination to the appeal court. 2. Reasonableness of the length of the proceedings 108. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no.", "25444/94, § 67, ECHR 1999-II). 109. The Court accepts the Government’s argument that the proceedings against the applicant were complex. The investigation was opened in respect of three defendants, including the applicant, who were charged with two counts of murder, three counts of fraud and misappropriation of funds. The case file comprised twenty-three volumes and the authorities had to examine numerous witnesses.", "110. As regards the applicant’s conduct, the Court accepts that he did not contribute to the length of the proceedings. 111. As to the conduct of the authorities, the Court notes that they demonstrated sufficient diligence in handling the proceedings. Admittedly, the investigation into the matter lasted for more than two years and four months.", "However, the Court accepts that, in the circumstances of the case, such a duration was justified. The judicial proceedings lasted for approximately one year and four months. There is nothing in the materials submitted to the Court to suggest that there were any unreasonable delays or adjournments. 112. Making an overall assessment of the complexity of the case, the conduct of the parties and the total length of the proceedings, the Court considers that the latter did not go beyond what may be considered reasonable in this particular case.", "113. There has accordingly been no violation of Article 6 § 1 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN RESPECT OF THE COMPLAINT OF AN UNREASONABLE LENGTH OF PROCEEDINGS 114. The applicant further complained that he had not had an effective remedy in respect of the allegedly unreasonable length of the proceedings in his case. He relied on Article 13 of the Convention.", "115. The Government considered that it had been open to the applicant to bring his grievances to the attention of a prosecutor or a court. 116. The applicant maintained his complaint. A. Admissibility 117.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 118.", "The Court considers the complaint under Article 13 in respect of the length of the proceedings arguable, even though it has not found a violation of the applicant’s right to a trial within a reasonable time. 119. The Court takes cognisance of the existence of a new remedy introduced by federal laws no. 68-ФЗ and no. 69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no.", "2) (no. 33509/04, ECHR 2009-...). These statutes, which entered into force on 4 May 2010, have set up a new remedy which enables those concerned to seek compensation for the damage sustained as a result of an unreasonable length of proceedings (see paragraph 48 above). 120. The Court observes that in the present case the parties’ observations in respect of Article 13 arrived before 4 May 2010 and did not contain any references to the new legislative development.", "However, it accepts that as from 4 May 2010 and until 4 November 2010 the applicant had a right to use the new remedy (see paragraph 49 above), which he, however, did not pursue. 121. The Court observes that, in the pilot judgment cited above, it stated that it would be unfair to request applicants, whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring their claims again before domestic tribunals (see Burdov (no. 2), cited above, § 144). In line with that principle, the Court decided to examine the complaint about the length of the proceedings on its merits and found no violation of the substantive provision of the Convention.", "122. However, the fact of examining the present case on its merits should in no way be interpreted as prejudging the Court’s assessment of the quality of the new remedy. It will examine this question in other cases that are more suitable for such analysis. It does not see fit to do so in the present case, particularly as the parties’ observations were made in relation to the situation that had existed before the introduction of the new remedy. 123.", "Having regard to these special circumstances, the Court does not consider it necessary to pursue a separate examination of the complaint under Article 13 in the present case. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 124. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 125.", "The applicant claimed 26,250 euros (EUR) in respect of pecuniary damage as compensation for (1) the loss of earnings he had allegedly sustained while in detention, and (2) his expenses for food that he had had to buy, given that the food served in the remand prison had been inedible. He further claimed EUR 125,000 in respect of non-pecuniary damage. 126. The Government considered the applicant’s claims for pecuniary damage unsubstantiated and unreasonable. They further submitted that, given that the applicant’s rights under the Convention had not been infringed, his claims in respect of damage should be rejected in full.", "Alternatively, they proposed that a finding of a violation would constitute sufficient just satisfaction. In any event, the Government considered the applicant’s claims excessive. 127. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 128.", "The Court further notes that it has found a combination of serious violations in the present case. The applicant spent almost three years in inhuman and degrading conditions of detention. He did not have an effective remedy in respect of his grievances in this respect. He was subjected to inhuman and degrading treatment in custody, while the ensuing investigation in respect of his complaint was not effective. In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation.", "Making its assessment on an equitable basis, it awards him EUR 20,000 in respect of non-pecuniary damage. B. Costs and expenses 129. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.", "C. Default interest 130. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s objection as to the non-exhaustion of domestic remedies in respect of the complaints brought under Article 3 of the Convention and rejects it; 2. Declares the complaints under Articles 3, 5, 6 and 13 admissible; 3.", "Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy under domestic law enabling the applicant to complain about the conditions of his detention; 4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in remand prison no. 77/1 in Chelyabinsk from 19 July 2006 to 30 June 2009; 5. Holds that there has been a violation of Article 3 of the Convention under its procedural limb on account of the lack of an effective investigation into the applicant’s complaint about ill-treatment in custody; 6. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in respect of the applicant’s allegations of ill‑treatment in custody; 7.", "Holds that there is no need to examine the complaint under Article 13 of the Convention in respect of the lack of an effective remedy under domestic law for the applicant’s allegations of ill-treatment; 8. Holds that there has been no violation of Article 5 § 3 of the Convention on account of the length of the applicant’s pre-trial detention; 9. Holds that there has been no violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings against the applicant; 10. Holds that there is no need for a separate examination of the complaint under Article 13 of the Convention in respect of the applicant’s complaint about the length of the criminal proceedings against him; 11. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 12.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "FIFTH SECTION CASE OF OROŽIM v. SLOVENIA (Application no. 49323/06) JUDGMENT This version was rectified on 5 July 2013 under Rule 81 of the Rules of Court. STRASBOURG 18 April 2013 FINAL 18/07/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Orožim v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ganna Yudkivska,André Potocki,Paul Lemmens,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 19 March 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 49323/06) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Štefanija Orožim (“the applicant”), on 13 November 2006. 2. The Slovenian Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged, inter alia, under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which she was a party was excessive. She also complained under Article 13 of the Convention of the lack of an effective domestic remedy in this respect. 4. On 14 January 2011 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1939 and lives in Lesce. 6. In 1993 the company DOMPLAN Kranj instituted enforcement proceedings against the applicant before the Kranj Basic Court. The enforcement order was issued on 20 April 1993.", "7. On 28 June 1994 the Convention came into force in respect of Slovenia. 8. On 28 July 1994 the case was reassigned to the Radovljica District Court. 9.", "On 23 December 1994 the enforcement order was served on the applicant. She lodged an objection. 10. On 13 September 1995 the enforcement order was annulled and the case was to be adjudicated in the framework of contentious proceedings. 11.", "On 3 October 1995 the creditor lodged another request for enforcement against the applicant. The enforcement order was issued on 23 October 1995. 12. On 26 January 1999 the Radovljica District Court issued a decision joining the two cases. 13.", "On 23 April 2001 the first-instance court held a hearing. 14. On 9 July 2001 the first-instance court rendered a judgment, upholding the creditor’s requests. The applicant appealed. 15.", "On 24 April 2002 the Ljubljana Higher Court rejected the appeal. 16. On 7 October 2002 the creditor lodged a request for enforcement based on the judgment of 9 July 2001. 17. On 14 October 2002 the Radovljica District Court issued an enforcement order.", "18. On 30 October 2002 the applicant lodged an objection to the order and at the same time a request for postponement of the enforcement expressing willingness to reach a settlement. The applicant’s objection was sent to the creditor on 12 September 2003. The creditor responded on 5 March 2004. 19.", "On 25 May 2006 the first-instance court held a hearing and issued a decision regarding the objection against the enforcement order. The creditor appealed. 20. On 8 March 2007 the creditor requested the proceedings to be terminated following an out-of-court settlement reached between the parties. The decision on termination of proceedings was issued on 16 March 2007.", "II. RELEVANT DOMESTIC LAW 21. For relevant domestic law see Nezirović v. Slovenia ((dec.) no. 16400/06, 25 November 2008). THE LAW I.", "ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF THE CONVENTION 22. The applicant complained that the proceedings to which she was a party had been excessively long. She relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 23. In substance, the applicant further complained that the remedies available for excessively long proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 24.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds (see Maksimovič v. Slovenia, no. 28662/05, §§ 21–24, 22 June 2010 and Korelc v. Slovenia, no. 28456/03, §§ 59-63, 12 May 2009). It must therefore be declared admissible.", "B. Merits 1. Article 6 25. The Government argued that for the purposes of calculation of the duration of proceedings the enforcement proceedings and the contentious proceedings should be considered separately, since they are proceedings governed by different rules and conducted independently one from another. 26.", "The Court observes that the proceedings comprised of three stages. They began as enforcement proceedings instituted by the creditor, which later continued as contentious proceedings ending on 9 July 2001, when the first-instance judgment was issued. Based on this final judgment the creditor again instituted enforcement proceedings, which ended on 16 March 2007. 27. The Court reiterates its case-law on the subject, where it stated that the execution of a judgment given by any court is to be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40).", "This principle has been found applicable in cases concerning the length of proceedings (see, for example, the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-1384, §§ 20-24, and pp. 1410-1411, §§ 16-20, respectively) and is therefore also applicable in the present case. 28. Having regard to the above, the period to be taken into consideration began on 28 June 1994, the day the Convention came into force in respect of Slovenia, and ended on 16 March 2007, the day the decision on termination of proceedings was issued.", "It therefore lasted twelve years and nine months. The case was considered first as enforcement proceedings at one instance and in contentious proceedings on two instances (see paragraphs 14, 15 and 19 above). 29. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "30. In this connection the Court observes that longest period of inactivity attributable to the State lasted between October 1995 and June 2001 (see paragraphs 11-13 above). The applicant’s contribution to the delays on the other hand amounts to approximately two years, namely from October 2002 and May 2006 (see paragraphs 18-19 above), when she requested the postponement of the enforcement and failed to promptly settle her debt. 31. Having examined all the material submitted to it, and having regard to its case-law on the subject (see, Simončič v. Slovenia, no.", "7351/04, §§ 23‑26, 18 January 2011, Ovniček v. Slovenia, no. 33561/02, §§ 17-19, 27 April 2006; Soleša v. Slovenia, no. 21464/02, §§ 17-19, 13 April 2006), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. 32. There has accordingly been a breach of Article 6 § 1.", "2. Article 13 33. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). In view of its findings in the case Maksimovič v. Slovenia (cited above, §§ 29–30), the Court finds that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. Lastly, the applicant complained under Articles 6 and 14 of the Convention that the proceedings were unfair and the domestic courts were clearly on the creditor’s side, completely ignoring her submissions and evidence. She further complained that she was discriminated against by everyone, including her attorney. 35.", "The Court notes that the applicant did not lodge a constitutional complaint. The above complaints must therefore be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 37. The applicant claimed 17,609.45 euros (EUR) in respect of pecuniary and non-pecuniary damage. 38. The Government contested these claims. 39.", "The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,400 in respect of non-pecuniary damage. B. Costs and expenses 40. The applicant also claimed EUR 842,02 for the costs and expenses incurred before the domestic courts and EUR 41,08 for those incurred before the Court.", "41. The Government contested the claim for reimbursement of costs and expenses incurred before the domestic courts. 42. Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 50 for the proceedings before the Court. C. Default interest 43.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Declares by a majority the complaint concerning the excessive length of the proceedings and lack of an effective remedy admissible; 2. Declares unanimously the remainder of the application inadmissible; 3. Holds by six votes to one that there has been a violation of Article 6 § 1 and Article 13 of the Convention; 4.", "Holds by six votes to one (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,[1] the following amounts: (i) EUR 6,400 (six thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 50 (fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pejchal is annexed to this judgment. M.V.C.W.", "DISSENTING OPINION OF JUDGE PEJCHAL I disagree with the majority’s finding of a violation of the applicant’s right to a fair trial within “a reasonable time” for the reasons given already in my separate opinion in the case Podbelšek Bračič v. Slovenia, no. 42224/04. [1] Rectified on 5 July 2013: “from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,” has been inserted." ]

[ "FIRST SECTION CASE OF LEKHANOVA v. RUSSIA (Application no. 43372/06) JUDGMENT STRASBOURG 22 December 2009 FINAL 22/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lekhanova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 3 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43372/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Anna Grigoryevna Lekhanova (“the applicant”), on 14 August 2006. 2. The applicant was represented by Mr P. Finogenov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 25 November 2008 the President of the First Section decided to grant priority treatment to the application and to give notice of it to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1930 and lives in the town of Voronezh.", "A. Civil proceedings 1. First round of proceedings 5. The applicant was a member of a housing cooperative. Having paid a sum of money, she expected to receive a certain flat from the cooperative in a newly built block of flats.", "However, the applicant was then expelled from the cooperative. The flat was given to Mr L instead. The latter sold the flat to Mr Ch. 6. On 16 March 1998 the applicant brought proceedings against the housing cooperative in the Kominternovskiy District Court of Voronezh.", "She sought the annulment of the cooperative's decision to expel her and give the flat to L. She also sought compensation in respect of non-pecuniary damage and recognition of her title to the flat. 7. In the meantime, Mr Ch resold the flat to Ms K. On 7 May 1998 the judge issued a charging order in respect of the flat. 8. In September 1998 the applicant amended her claims, seeking the annulment of the purchase contracts by Ch and K and recognition of her right to live in the flat in question.", "9. According to the Government, several hearings between September and November 1998 had to be adjourned in order to take account of the applicant's amended claims and enable the parties to collect evidence in support of their claims. 10. According to the Government, in 1999 one hearing was adjourned because of the defendants; another one was adjourned on account of their and the lay judges' failure to attend; and two further hearings were adjourned to enable the applicant to submit amended claims. 11.", "By a judgment of 6 September 1999, the District Court rejected her claims. The applicant appealed. After complying with the court's instructions concerning court fees, on 20 April 2000 the Voronezh Regional Court examined her appeal and upheld the above judgment as regards the rejection of the non-pecuniary claim but ordered a fresh hearing in respect of the remaining claims. 2. Second round of proceedings 12.", "Upon the applicant's complaint about the length of proceedings before the District Court, a judge of the Regional Court carried out a preliminary inquiry and concluded on 31 January 2001 that a further inquiry would be appropriate. Its outcome remains unclear. 13. In the meantime, having re-examined the remaining claims, on 27 June 2001 the District Court upheld most of the claims against the defendant, including the applicant's claim for title to the flat in question. On 15 August 2001 the District Court issued an additional judgment amending the earlier one and ordering Ms K's eviction.", "On 11 October 2001 the Regional Court upheld the judgment of 27 June 2001. 14. On an unspecified date the applicant applied for registration of her title to the flat. On 18 January 2002 the State Property Registry refused to issue a title certificate to the applicant because there was a valid charging order in respect of the flat. However, on 29 January 2002 the applicant was provided with the title certificate.", "3. Supervisory review 15. On 5 February 2002 the President of the Regional Court lodged a request for supervisory review of the judgment of 15 August 2001. On 11 February 2002 the Presidium of the Regional Court quashed the judgment on the ground that the defendant had not been informed of the hearing. 16.", "Upon a request of the Acting President of the Regional Court, on 14 October 2002 the Presidium court quashed the judgments of 27 June and 11 October 2001 in part and ordered a re-examination of the relevant claims. 17. It appears that, on an unspecified date, the title registration in respect of the flat at issue was revoked in view of the annulment of the court decisions on which it had been based. 4. Third round of proceedings 18.", "In view of her advancing age and declining health, the applicant was represented by her daughter, Ms P, at most hearings throughout the proceedings. 19. According to the Government, in 2004 at least six hearings were listed and adjourned because the parties had failed to appear. One hearing was adjourned because the judge was on sick leave, and another one because the defendants failed to attend. Each adjournment resulted in delays of up to two months.", "20. In 2005 at least three hearings were listed but adjourned because the parties failed to attend or sought to adduce evidence or appoint new representatives. On 3 August 2005 the applicant submitted amended claims. 21. By a judgment of 5 October 2005 the District Court ruled on the merits of the applicant's claims as amended.", "With reference to the judgment of 27 June 2001 in its valid part, the court reconfirmed the unlawfulness of the cooperative's decisions to expel the applicant and give the flat to L. The court accepted that the applicant had honoured her contract with the cooperative and had thus acquired a claim to a particular flat, the one which was given to L. Referring to a 2003 ruling by the Constitutional Court, the court refused to annul the flat purchases by Ch. and then K. because they were protected “purchasers in good faith” within the meaning of Article 167 of the Civil Code; the court indicated, however, that a claim under Article 302 of the Code would be a proper course of action (see paragraphs 29 and 30 below). The court also observed that any of the above claims could be brought by an “owner”. The court reiterated that only an official certificate from the State register could prove ownership title (see paragraph 31 below). Accordingly, the court refused to accept the applicant's membership card as valid proof of her title to the flat at issue (see, however, paragraphs 14 and 17 above).", "The court also rejected the applicant's eviction claim against Ms K, because only the proven owner could seek eviction. However, the court awarded the applicant 3,000 Russian roubles (RUB) in respect of non-pecuniary damage and RUB 2,000 in litigation costs (lawyer's fees, photocopying fees, compensation for loss of time). The court refused to award the applicant's representative P's travel expenses between her residence town (Moscow) and Voronezh. 22. The applicant appealed, contending that the 2003 ruling of the Constitutional Court could not be applied to events in the 1990s.", "On 16 February 2006 the Regional Court set aside the judgment in the part concerning compensation in respect of non-pecuniary damage and upheld it in the remaining part. The appeal court held that the Constitutional Court had only determined the constitutional meaning of the relevant provisions of the Civil Code in force at the material time. 5. Subsequent proceedings 23. In May 2006 Ms K obtained an official certificate confirming her title to the flat.", "It appears that she sold it to another person in the same month. 24. By an order of 6 September 2006, the District Court lifted the charging order in respect of the flat in question. The applicant appealed. On 16 January 2007 the Regional Court upheld this order.", "25. On an unspecified date the applicant applied to the Bailiffs' Service for enforcement of the judgment of 5 October 2005. On 19 April 2007 the Bailiffs' Service indicated that the judgment could not be enforced against the housing cooperative because it had ceased its activity in January 2007. 26. On 20 April 2007 the Regional Court refused leave for supervisory review of the judgments of 5 October 2005 and 16 February 2006.", "B. Other proceedings 27. In reply to the applicant's complaint concerning the above civil dispute, by a letter of 12 February 2007 the Prosecutor General's Office advised her to sue the housing cooperative for damages in view of their failure to honour their contractual obligations. 28. In separate proceedings, on an unspecified date, the authorities opened a criminal investigation into the applicant's allegations that the private company's acts had deprived her of her flat.", "In August 2008 the case was discontinued because the statutory time-limit for criminal prosecution had expired. II. RELEVANT DOMESTIC LAW AND PRACTICE 29. Under Article 167 of the Civil Code 1994, a voided transaction does not give rise to any legal consequences beyond those related to its annulment, and is void ab initio. In a voided transaction the parties should return to each other what was received or, if not practicable, they should pay compensation.", "Under Article 302 of the Civil Code, the first owner can claim property back from a purchaser in good faith who has acquired it from an unauthorised seller without knowing or being in a position to know that the seller was unauthorised. However, such a claim can only arise if the property was lost, stolen or otherwise taken out of the first owner's control. 30. By a ruling of 21 April 2003, the Constitutional Court interpreted Article 167 of the Code as not allowing the first owner to reclaim his property from a purchaser in good faith unless there is a special legislative provision to this effect. Instead, a claim vindicating prior rights (виндикационный иск) could be lodged under Article 302 of the Code.", "31. Under Article 219 of the Civil Code, ownership title to a building or other newly built premises requiring State registration, arises from the time of such registration. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32. The applicant complained that the length of the civil proceedings had exceeded a “reasonable time” in breach of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Submissions by the parties 33.", "The Government submitted that the case was complex, involving issues of property rights, eviction claims and requests for annulment of a contract. The case concerned several parties and had been examined at three levels of jurisdiction on seven occasions. The applicant amended her claims on a number of occasions and lodged various requests, thus causing delays of around six months. She failed to attend a number of hearings, thus causing delays of eleven months and seventeen days. The applicant's appeals caused further delays.", "Other delays were attributable to the defendants. At the same time, the State could not be held liable for any significant delays; hearings were scheduled at regular intervals. In any event, adjournments were intended to enable the parties to be present at hearings. 34. The applicant contested the Government's submissions, noting that the latter adduced no evidence in support of their argument.", "The applicant argued that the case was not particularly complex and that she had amended her claims only twice – in 1998 and 2005 – because the relevant factual circumstances had evolved. Only one hearing was held in 2000; no full hearing was held between October 2002 and January 2004. While more than twenty adjournments were due to the defendants' or third persons' failure to appear before the court, the authorities had taken no measures to discipline the defaulting persons. Certain adjournments unnecessarily spanned over several months. As a result, the applicant or her representative had to appear before the court on fifty-nine occasions only to see most of the hearings adjourned.", "B. The Court's assessment 1. Admissibility 35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits (a) Period under consideration 36. The Court notes that the domestic proceedings started in March 1998. However, the Court's competence ratione temporis is limited to the proceedings pending after 5 May 1998, the Convention having entered into force in respect of Russia on that date.", "In assessing the reasonableness of the time that elapsed after that date, the Court may, however, take account of the state of proceedings at the time. 37. As to the date when the proceedings ended, the Court considers it unnecessary to decide, in the absence of the parties' submissions, whether the 2007 proceedings concerning the charging order (see paragraph 24 above and, mutatis mutandis, Robins v. the United Kingdom, 23 September 1997, §§ 28 and 29, Reports of Judgments and Decisions 1997‑V) or the enforcement proceedings in the applicant's favour (see paragraph 25 above and Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II) should be taken into account. Thus, it is accepted that the proceedings ended on 16 February 2006, when the appeal court issued its decision. 38.", "For the same reasons, the Court considers that the period from 11 October 2001 to 5 February 2002 should not be taken into account because no court or enforcement proceedings were pending. 39. Thus, the proceedings lasted seven years and nearly seven months, of which a period of seven years and nearly five months (at two levels of jurisdiction) was within the Court's competence ratione temporis. (b) Reasonableness of the period 40. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000‑VII). 41. The Court considers that the case was relatively complex. While admitting that the task of the courts was rendered more difficult by this factor, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of those proceedings (see Mattila v. Finland, no. 77138/01, § 15, 23 May 2006).", "42. As to the applicant's conduct, the Court reiterates that the person concerned is required only to show diligence in carrying out the procedural steps relating to her and to refrain from using delaying tactics (see Unión Alimentaria Sanders S.A. v. Spain, 7 July 1989, § 35, Series A no. 157). There is no reason to criticise the applicant for having used the remedies available under Russian law in the defence of her interests (see, among other authorities, Rokhlina v. Russia, no. 54071/00, § 88, 7 April 2005).", "It has not been alleged by the Government that the applicant went beyond the limits of legitimate defence by lodging frivolous petitions or unsubstantiated requests (see Komarova v. Russia, no. 19126/02, § 50, 2 November 2006). Having examined the parties' submissions and the available material, the Court considers, however, that some delays in 1998, late 1999 and 2004 are at least in part attributable to the applicant and that no other significant delay is attributable to her. 43. As regards the conduct of the judicial authorities, the Court reiterates that respondent States have a duty to organise their legal systems in such a way that their courts can meet the obligation to hear cases within a reasonable time (see Sürmeli v. Germany [GC], no.", "75529/01, § 129, 8 June 2006). The Court notes in that connection that the length of the proceedings was due, inter alia, to the fact that the civil case was re-examined several times, including once following a reopening by way of supervisory review. The Court does not lose sight of the fact that the procedure for reopening proceedings in 2002 was set in motion by the President of the Regional Court. Besides, while the Convention allows the resumption of national proceedings in the circumstances of a substantial and compelling character outweighing the principle of legal certainty (see Protsenko v. Russia, no. 13151/04, §§ 30-34, 31 July 2008, and Lenskaya v. Russia, no.", "28730/03, §§ 40 and 41, 29 January 2009), once such a reopening is allowed, the ensuing proceedings should be completed within a “reasonable time”, regard being had to all pertinent factors (see, mutatis mutandis, Oblov v. Russia, no. 22674/02, § 27, 15 January 2009). However, in the present case, no full hearing was held after the resumption of the trial proceedings in 2000 and 2002. Nor was such a hearing held in 2003. 44.", "Moreover, numerous adjournments throughout the proceedings resulted on each occasion in delays exceeding two or three months at times. The Government provided no reasons to justify such repetitive periods of inactivity. 45. The Court further observes that although there were no other significant periods of inactivity directly attributable to the domestic courts, they did not take any measures to discipline the defaulting parties, thus allowing the proceedings to drag on for years (see Salmanov v. Russia, no. 3522/04, § 87, 31 July 2008, with further references).", "It is also true that Article 6 commands that judicial proceedings be expeditious, but it also lays down the more general principle of the proper administration of justice (see Boddaert v. Belgium, 12 October 1992, § 39, Series A no. 235-D). However, in the circumstances of the case, the Court is not satisfied that the authorities succeeded in maintaining the fair balance between various aspects of this fundamental requirement. 46. Having regard to the above, in particular to the fact that the proceedings within the Court's competence ratione temporis lasted over seven years at two levels of jurisdiction, the Court considers that the length of the proceedings did not satisfy the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 47. The applicant also complained under Article 6 of the Convention about the quashing of the judgments of 27 June and 15 August 2001 by way of supervisory review. The Court observes that the supervisory review took place on 14 October and 11 February 2002 respectively, while the above complaint was first raised before the Court in 2009.", "It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 48. Lastly, the applicant complained in general terms about the outcome of the court proceedings and the findings made by the court. She also contended that as a result of the proceedings she had been deprived of her “possessions” in breach of Article 1 of Protocol No. 1.", "49. The Court has examined the remaining complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. 52.", "The Government considered that the claim was excessive and unfounded. 53. Making an assessment on an equitable basis, the Court awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. B. Costs and expenses 54.", "The applicant submitted a detailed list of claims totalling EUR 780 for the costs and expenses incurred before the domestic courts, consisting in the major part of lawyers' fees and the travel expenses of her representative Ms P, and before the European Court (postage, photocopying and translation). 55. The Government considered that the claim was unrelated to the proceedings before the Court. 56. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "The Court first observes that certain litigation costs were granted by the national court (see paragraph 21 above). Regard being had to the information in its possession and the above criteria, and in so far as related to the violation found, the Court considers it reasonable to award the sum of EUR 480 covering costs under all heads. C. Default interest 57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the length of proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros) in respect of non-pecuniary damage, and EUR 480 (four hundred and eighty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, both sums to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 22 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenNina VajićRegistrarPresident" ]

[ "THIRD SECTION CASE OF ZAUSHKIN AND OTHERS v. RUSSIA (Applications nos. 25697/13, 48185/13 and 62442/13) JUDGMENT STRASBOURG 18 October 2016 This judgment is final but it may be subject to editorial revision. In the case of Zaushkin and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 27 September 2016, Delivers the following judgment, which was adopted on that date. PROCEDURE 1. The case originated in three applications (nos.", "25697/13, 48185/13 and 62442/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Aleksandr Vladimirovich Zaushkin, Mr Oleg Ivanovich Kornev and Mr Stanislav Vikorovich Butenko (“the applicants”), on 1 April, 8 July and 16 September 2013, respectively. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights. 3. On 2 December 2014 and 21 September 2015 the applications were communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant Mr Zaushkin was held in custody without a judicial order from 5 November 2012 when the detention order of 17 May had expired, and until 19 November when a new detention order was issued. 5. In case of the applicant Mr Kornev, the 25 April 2013 the court had ordered his transfer from the remand prison under house arrest but he was not transferred until 16 May. 6.", "The applicant Mr Butenko remained in custody after the court had ordered his release on 25 April 2013 until a higher court overturned the release order on 11 July. THE LAW I. JOINDER OF THE APPLICATIONS 7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 8.", "The applicants complained about the periods in which their detention had not been covered by a judicial order. The Court will examine this complaint under Article 5 § 1 of the Convention which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save ... in accordance with a procedure prescribed by law ...” A. The Government’s request for the case to be struck out under Article 37 of the Convention 9.", "The Government submitted unilateral declarations inviting the Court to strike the cases out of its list. They acknowledged that the periods of the detention which the applicants complained about had been in breach of the requirements of Article 5 of the Convention and offered to pay a sum of money. 10. The applicants did not accept the Government’s offer. 11.", "Having studied the terms of the Government’s declarations, the Court is satisfied that the Government have acknowledged a breach of the applicants’ right to liberty and security. However, the amount of compensation appears to be substantially lower than what the Court generally awards in cases featuring complaints about unlawful detention (see, for recent examples, Pletmentsev v. Russia, no. 4157/04, 27 June 2013; Sergey Chebotarev v. Russia, no. 61510/09, 7 May 2014; Starokadomskiy v. Russia (no. 2), no.", "27455/06, 13 March 2014; Eduard Shabalin v. Russia, no. 1937/05, 16 October 2014). Without prejudging its decision on the admissibility and merits of the case, the Court considers that the declarations do not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case. 12. For the above reasons, the Court rejects the Government’s request to strike the case out of its list under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the complaint.", "B. Admissibility 13. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 14.", "The Court notes that the applicants were detained without a judicial order or any other legal basis in the following periods: (a)Mr Zaushkin from 5 to 19 November 2012; (b)Mr Kornev from 25 April to 16 May 2013; (c)Mr Butenko from 25 April to 11 July 2013. 15. There has accordingly been a violation of Article 5 § 1 of the Convention on account of the applicants’ detention in the above periods. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 17. Regard being had to the documents in its possession and to its case‑law in similar cases (cited in paragraph 11 above), the Court considers it reasonable to award each applicant 7,500 euros (EUR) in respect of non‑pecuniary damage, plus any tax that may be chargeable. 18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Rejects the Government’s request to strike the applications out of its list of cases under Article 37 of the Convention; 3. Declares the applications admissible; 4. Holds that there has been a violation of Article 5 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay each applicant, within three months, EUR 7,500 (seven thousand five hundred euros) in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 18 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident" ]

[ "GRAND CHAMBER CASE OF X v. LATVIA (Application no. 27853/09) JUDGMENT STRASBOURG 26 November 2013 In the case of X v. Latvia, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President,Nicolas Bratza,Guido Raimondi,Ineta Ziemele,Mark Villiger,Nina Vajić,Khanlar Hajiyev,Danutė Jočienė,Ján Šikuta,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Nebojša Vučinić,Angelika Nußberger,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos, judges,and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 10 October 2012 and 25 September 2013, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 27853/09) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Ms X (“the applicant”), on 8 May 2009. The President of the Grand Chamber authorised, of his own motion, the non-disclosure of the applicant’s identity (Rule 47 § 3 of the Rules of Court).", "2. The applicant was represented by Mr R. Strauss, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3. The applicant alleged that, on account of the decision by the Latvian courts to order her daughter’s return to Australia, in application of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, she had been the victim of an infringement of her right to respect for her family life within the meaning of Article 8 of the Convention.", "4. The application was assigned to the Third Section of the Court (Rule 52 § 1). On 15 November 2011 a Chamber of that Section, composed of Josep Casadevall, President, Corneliu Bîrsan, Alvina Gyulumyan, Egbert Myjer, Ineta Ziemele, Luis López Guerra and Kristina Pardalos, judges, and Santiago Quesada, Section Registrar, declared it admissible and adopted a judgment. By a majority, it found that there had been a violation of Article 8 of the Convention. A dissenting opinion by Judges Myjer and López Guerra was annexed to the judgment, delivered on 13 December 2011.", "5. On 13 March 2012 the Government requested that the case be referred to the Grand Chamber, in accordance with Article 43 of the Convention. This request was accepted by the panel of the Grand Chamber on 4 June 2012. 6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.", "At the final deliberations, Nicolas Bratza and Nina Vajić continued to sit following the expiry of their terms of office, in accordance with Article 23 § 3 of the Convention and Rule 24 § 4. 7. The applicant and the Government filed additional observations (Rule 59 § 1). In addition, third-party comments were also received from the Finnish and Czech Governments, and from the non-governmental organisation Reunite International Child Abduction Centre, the President having authorised them to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 8.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 10 October 2012 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsK. Līce, Agent,MsI. Reine, Counsel,MsA. Rutka-Kriškalne, Adviser; (b) for the applicantMrR.", "Strauss, Counsel. The Court heard addresses by Ms Līce and Mr Strauss. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1974 and now resides in Australia.", "She is a Latvian national, who, in 2007, also acquired Australian nationality. 10. After meeting T. and beginning a relationship with him at the beginning of 2004, she moved into his flat at the end of that year, although she was still married to another man, R.L., whom she divorced on 24 November 2005. 11. On 9 February 2005 the applicant gave birth to a daughter, E. The child’s birth certificate does not give the father’s name, and no paternity test was carried out.", "The applicant, who was still living with T., subsequently received single-parent benefits. In spite of the deterioration in their relationship, the applicant continued to live with T. as a tenant. 12. On 17 July 2008 the applicant left Australia for Latvia with her daughter, then aged three years and five months. A.", "The proceedings in Australia 13. On 19 August 2008 T. submitted an application to the Family Court in Australia to establish his parental rights in respect of the child. In support of his claim, he testified in a sworn affidavit that he had been in a relationship with the applicant since 2004 and the latter had always indicated that he was the father of the child, the rental agreement with the applicant for the flat was a sham and had been a mutual decision, and he had made false statements to the social security services in order to enable the applicant to receive single-parent benefit. T. asserted that the applicant had left Australia with the child without his consent, in violation of Article 3 of the Hague Convention, and had gone to an unknown place of residence in Latvia. In support of his claim, he submitted e-mail correspondence with members of his family.", "14. The applicant, although apparently invited by various means to attend the hearing or follow it by telephone, was not present. 15. By a judgment of 6 November 2008, the Australian Family Court recognised T.’s paternity in respect of E. and held that the applicant and T. had had joint parental responsibility for their child since her birth. The judge added that examination of the case would be continued once the child had been returned to Australia, while stating as follows: “... however, it is not of course for me to say whether the child’s presence in Latvia is the consequence of a wrongful removal or retention.", "With all due respect, it is for the Latvian judge to rule on that question.” 16. The applicant did not appeal against that decision. B. The proceedings in Latvia 17. On 22 September 2008 the Ministry of Children and Family Affairs, which was the Latvian Central Authority responsible for implementing the Hague Convention, received from their Australian counterpart a request from T. seeking the child’s return to Australia on the basis of that Convention.", "The return request was accompanied by a sworn affidavit setting out the applicable Australian law and certifying, without prejudice to the issue of paternity, that on the date on which the child had been removed from Australia T. had exercised joint parental authority over her within the meaning of Article 5 of the Hague Convention. 18. On 19 November 2008 the Riga City Zemgale District Court (“the District Court”) examined the request in the presence of both T. and the applicant. 19. At the hearing the applicant contested T.’s request.", "She explained that he had no grounds for being recognised as the father, since she had still been married to another man at the time of the child’s birth and T. had never expressed a wish to have his paternity recognised prior to her departure from Australia. She alleged that as T. had become hostile and sometimes aggressive towards her she had requested that persons who had visited her in Australia be called as witnesses. The applicant also submitted that T. had initiated the proceedings only in order to benefit from them in criminal proceedings that had allegedly been brought against him in Australia. 20. The representative of the Bāriņtiesa, a guardianship and curatorship institution established by Riga City Council, called for T.’s request to be dismissed, arguing, on the one hand, that the applicant had been a single mother when the child was removed from Australia and, on the other, that the child had developed ties with Latvia.", "21. By a judgment of 19 November 2008, the District Court granted T.’s request and ordered that the child be returned to Australia immediately and, in any event, not later than six weeks after its decision. In its reasoning, noting that the Australian courts had established that the applicant and T. exercised joint parental responsibility, the court held, firstly, that the Latvian courts could neither reverse that decision, nor interpret and apply the Australian law. It further held that, in application of Articles 1 and 14 of the Hague Convention, the Latvian courts did not have jurisdiction to rule on T.’s parental responsibility for the child, but only on the child’s departure from Australia and her possible return. It considered that the child’s removal had been wrongful and had been carried out without T.’s consent.", "As to the application of Article 13 of the Hague Convention, it held, in the light of photographs and copies of e-mails between the applicant and T.’s relatives, that he had cared for the child prior to her departure for Latvia. While noting that witness statements referred to arguments between the parties and to the fact that T. had behaved irascibly towards the applicant and the child, it held that this did not enable it to conclude that T. had not taken care of the child. Lastly, the court dismissed as unfounded the allegation that the child’s return posed a risk of psychological harm. 22. The applicant lodged an appeal, arguing that when they had left Australia she had been the child’s sole guardian in law and in practice and, further, that her daughter’s return to Australia would expose the child to psychological harm.", "In support of the latter point, she submitted a certificate prepared by a psychologist at her request after the first-instance court’s judgment. This certificate, based on an examination of E. on 16 December 2008, stated: “Although it is clear from the examination that her development is adequate in terms of knowledge and language, the child is unable, on account of her age, to say which place of residence she prefers ... Bearing in mind the child’s age and her close emotional ties to her mother, which is normal for her age, her emotional well-being is primarily based on and closely linked to [the applicant’s] psychological balance ... The child needs the daily presence of her mother and to live with her permanently in the same place. Given her age – three years and ten months – an immediate separation from her mother is to be ruled out, otherwise the child is likely to suffer psychological trauma, in that her sense of security and self-confidence could be affected.” 23.", "The applicant also maintained on appeal that Latvian was the child’s mother tongue, that she had attended pre-school activities in Latvia, that she had no ties in Australia and that she needed her mother’s presence. She alleged that T. had never helped them financially and had ill-treated them. In addition, she criticised the lower court for refusing to request information from the Australian authorities about T.’s criminal profile, previous convictions and the charges of corruption allegedly brought against him. She also contended that, were she to return to Australia, she would be unemployed and would have no income, and criticised the District Court for failing to provide for protection measures in the event of return. 24.", "On 6 January 2009, on an application by the applicant, the District Court ordered a stay of execution of the decision of 19 November 2008 ordering the child’s return pending completion of the appeal proceedings. Relying on the Preamble to the Hague Convention, it held that the child’s best interests had to take priority over an immediate return, that the child was attached to her mother and that, according to the psychological report submitted by the applicant, a sudden interruption of contact with her mother would traumatise her. 25. On 26 January 2009, after a hearing in the presence of both the applicant and T., the Riga Regional Court (Rīgas Apgabaltiesa) upheld the first-instance judgment. It held that T.’s request had complied with the Hague Convention, noting the short time-limits set out in it and observing that no formality or analysis was necessary in order to recognise the Australian court’s decision.", "In addition, it held that the lower court had correctly found, on the basis of all the relevant evidence, especially the letters and photographs that had been submitted, that T. had cared for the child. With regard to the argument by the applicant and the representative of the Bāriņtiesa concerning the alleged lack of information about the child’s situation in the event of her return to Australia, it considered that “there are no grounds for doubting the quality of welfare and social protection provided to children in Australia, given that, according to the [sworn affidavit], Australian legislation provides, inter alia, for the security of children and [their] protection against ill-treatment within the family”. 26. With regard to the applicant’s allegations, it held as follows: “[The Court] dismisses ... the allegation that [T.] ill-treated [the applicant] and the child, as well as [the allegation] that he was liable to a prison sentence for [criminal charges brought against him] as no evidence has been submitted which could, even indirectly, support the allegations. Neither can the conclusion of the [psychological assessment] of 16 December 2008 serve as evidence against returning the child to the requesting State.", "Although the conclusion stated that the child was in need of her mother and that immediate termination of contact between the mother and the child should be ruled out, the issue raised before this Court does not concern custody rights ... Pursuant to Article 19 of the Hague Convention, a decision under this Convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue. [The Court] considers that ... [the child] ... has not reached an age or level of maturity which would allow her to formulate an opinion concerning a return to Australia.” 27. On 5 February 2009 a bailiff instructed the applicant to comply with the decision ordering her to return the child by 19 February 2009 at the latest. The applicant refused to do so. 28.", "On an unspecified date a bailiff lodged an application with the District Court for execution of the order to return the child. At the same time the District Court, having received a request from the applicant for a stay of execution of the return order for a period of six to twelve months, scheduled a hearing on 16 April 2009. 29. On 6 March 2009, at T.’s request, the Latvian Central Authority asked the Bāriņtiesa to verify the child’s living conditions and to inform the applicant of T.’s request to see the child. 30.", "On 14 March 2009 T. met the applicant and E. unexpectedly near a shopping centre. Taking advantage of this situation, he took E. and drove her to Tallinn (Estonia), then began the return journey to Australia. On 16 March 2009 the Latvian Central Authority, in response to a request from its Estonian counterpart and with a view to authorising T. to take a flight to Helsinki, supplied information concerning T.’s right to return to Australia with his daughter. 31. A complaint subsequently filed by the applicant for abduction was dismissed, as was a disciplinary appeal against the Latvian Central Authority; the applicant’s request for a stay of execution of the return order became devoid of purpose.", "C. The situation in Australia since the child’s return 32. In September 2009 the Australian Family Court set aside all prior decisions relating to the parents’ rights and ruled that T. had sole parental responsibility for the child. While prohibiting the applicant from making any public statement about matters concerning the child or T., it authorised her to visit her daughter under the supervision of a social worker. The court also prohibited her from speaking to the child in Latvian and ruled that, until the child reached the age of eleven, the applicant was restrained from visiting or communicating by any means with any childcare facility, pre-school or school attended by her daughter, or with a parent of any other child attending the same institution. 33.", "Before the Grand Chamber, the Government, referring to an article published in the Latvian press in October 2011 which contained, in particular, statements by the applicant’s sister, indicated that the applicant had returned to live in Australia, had found accommodation and was working in a State welfare institution. They also noted that she was in regular contact with her daughter, meeting her twice a week in a welfare centre, and that she had been able to see her without a social worker being present. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 34.", "The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction state as follows: “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions – ... Article 1 The objects of the present Convention are – a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... Article 3 The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.", "Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Convention – a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. ... Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.", "If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ... Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.", "Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ...", "Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Article 17 The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. ... Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.", "...” 35. The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, seeks to throw into relief the principles which form the basis of the 1980 Convention and to supply to those who must apply the Convention a detailed commentary on its provisions. It appears from this report that, in order to discourage the possibility for the abducting parent to have his or her action recognised as lawful in the State to which the child has been taken, the Convention enshrines, in addition to its preventive aspect, the restoration of the status quo, by an order for immediate return of the child, which would make it possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with custody rights is almost entirely absent from the scope of this Convention, as this matter is to be discussed before the relevant courts in the State of the child’s habitual residence prior to removal. The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests.", "Accordingly, the objective of prevention and immediate return corresponds to a specific conception of “the child’s best interests”. However, as the child’s removal may be justified for objective reasons which have to do either with his or her person, or with the environment with which he or she is most closely connected, the Convention allows for certain exceptions to the general obligations on the States to ensure an immediate return (§ 25). Since the return of the child is the basic principle of the Convention, the exceptions to the general duty to secure it form an important element in understanding the exact extent of this duty, and it is possible to distinguish exceptions which derive their justification from three different principles (§ 27). Firstly, the authorities of the requested State are not bound to order the return of the child if the person requesting the return was not actually exercising custody rights or where his or her behaviour shows acceptance of the new situation (§ 28). Secondly, the first paragraph, (b), and second paragraph of Article 13 contain exceptions which clearly derive from a consideration of the interests of the child, to which the Convention gives a definite content.", "Thus, the interest of the child in not being removed from his or her habitual residence without sufficient guarantees of stability in the new environment gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation (§ 29). Lastly, there is no obligation to return a child when, in terms of Article 20, his or her return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” (§ 31). The explanatory report, which sets out those exceptions, also emphasises the margin of appreciation inherent in the judicial function. 36. In 2003 the HCCH published Part II of the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.", "Although primarily intended for the new Contracting States and without binding effect, especially in respect of the judicial authorities, this document seeks to facilitate the Convention’s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention, known as the Pérez-Vera Report, in helping to interpret coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In particular, it emphasises that the judicial and administrative authorities are under an obligation, inter alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious procedures”). Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4 “Case management”). The Guide to Good Practice specifies that delays in enforcement of return orders, or their non-enforcement, in certain Contracting States are matters of serious concern, and recommends that States Parties ensure that there are simple and effective mechanisms to enforce orders for the return of children within their domestic systems, noting that the return must actually be effected and not just ordered (point 6.7 “Enforcement”).", "B. The Convention on the Rights of the Child 37. The relevant provisions of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, read as follows: Preamble “The States Parties to the present Convention, ... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Have agreed as follows: ... Article 7 1.", "The child shall be registered immediately after birth and shall have the right from birth... to know and be cared for by his or her parents. ... Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ... Article 14 1.", "States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. ... Article 18 1.", "States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” 38. The concept of the child’s best interests, derived from the second principle of the Declaration on the Rights of the Child of 20 November 1959, was reproduced in 1989 in Article 3 § 1 of the Convention on the Rights of the Child: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 39.", "In its General Comment No. 7 (2005) on Implementing child rights in early childhood, the Committee on the Rights of the Child wished to encourage recognition by States Parties that young children are holders of all rights enshrined in this Convention and that early childhood is a critical period for the realisation of these rights. The best interests of the child are examined, in particular, in section 13, which is worded as follows: “13. Best interests of the child. Article 3 sets out the principle that the best interests of the child are a primary consideration in all actions concerning children.", "By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well-being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have day-to-day responsibility for realizing children’s rights: (a) Best interests of individual children. All decision-making concerning a child’s care, health, education, etc. must take account of the best interests principle, including decisions by parents, professionals and others responsible for children.", "States parties are urged to make provisions for young children to be represented independently in all legal proceedings by someone who acts for the child’s interests, and for children to be heard in all cases where they are capable of expressing their opinions or preferences; ...” 40. For a more in-depth discussion, see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 49-55, ECHR 2010. C. European Union law 41. The relevant provisions of the Charter of Fundamental Rights of the European Union provide: Article 7Respect for private and family life “Everyone has the right to respect for his or her private and family life, home and communications.", "Article 24The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2.", "In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” 42. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “the Brussels II bis Regulation”) reads, in particular, as follows: “... (12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.", "(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court. ...” D. Relevant Latvian law 1. The Constitution 43. The relevant provisions of the Constitution read as follows: Article 89 “The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia.” Article 110 “The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child.", "The State shall provide special support to disabled children, children left without parental care or who have suffered from violence.” 2. The Latvian Civil Procedure Act 44. Section 64419 of the Latvian Civil Procedure Act, as in force at the material time, regulates matters concerning the unlawful removal of children across borders into Latvia. It provides that the courts are to rule on any application of this type after a court hearing in which the parties participate and to which a representative of the Bāriņtiesa has been invited. In addition, the courts are to ascertain the point of view of the child if he or she is capable of formulating it.", "45. In ruling on the application, the court may take any evidence of its own motion. It may use the most appropriate procedural means and the most rapid methods of establishing the facts, so that a decision can be reached within a period of six weeks after the submission of the application. 46. Where the court determines that the child has been unlawfully removed to or retained in Latvia and where one of the following conditions is met, the court orders the return of the child to the country of his or her residence: (a) the period following the unlawful removal of the child to Latvia or detention in Latvia does not exceed one year from the time the relevant person or institution discovered the whereabouts of the child; or (b) the period following the unlawful removal of the child to Latvia or detention in Latvia does exceed one year but the child has not adapted to life in Latvia.", "47. Where the court determines that the child has been unlawfully removed to or retained in Latvia and where one of the following circumstances exists, it may decide not to permit the return of the child to the country of his or her residence: (a) more than one year has passed since the relevant person or institution has discovered or had the practical possibility of discovering the whereabouts of the child, but during this period neither has brought proceedings before the relevant institution to seek the return of the child to the country of his or her residence; (b) the child has adapted to life in Latvia and his or her return is not in the best interests of the child. 48. The above-mentioned paragraphs are applicable in so far as they comply with the Hague Convention and Regulation (EC) No 2201/2003 of the Council of the European Union. E. Family Law Act 1975 of the Commonwealth of Australia 49.", "Section 61B defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. 50. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child. It has effect subject to court orders. 51.", "Section 111B(4) provides as follows: “For the purposes of the [Hague] Convention: (a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and (b) subject to any order of a court for the time being in force, a person: (i) with whom a child is to live under a parenting order; or (ii) who has parental responsibility for a child under a parenting order; should be regarded as having rights of custody in respect of the child; and (c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and (d) subject to any order of a court for the time being in force, a person: (i) with whom a child is to spend time under a parenting order; or (ii) with whom a child is to communicate under a parenting order; should be regarded as having a right of access to the child.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. Before the Grand Chamber, the applicant claimed to have been a victim, on account of the decision by the Latvian courts to order the return of her daughter to Australia, of an infringement of her right to respect for her family life within the meaning of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Applicability of Article 8 53. The Grand Chamber notes that the Government expressly indicated in the proceedings before it that they did not contest that the decisions by the Latvian courts ordering the applicant to send E. back to Australia amounted to interference with her right to respect for her family life as protected by Article 8 of the Convention. 54. The interference with the applicant’s right to respect for her private and family life found above is in breach of Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether the interference was “in accordance with the law”, pursued one or more legitimate aims as defined in that paragraph and was “necessary in a democratic society” to achieve them.", "B. Whether the interference was justified 1. Legal basis (a) The Chamber judgment 55. The Chamber held that the provisions of the domestic law and the Hague Convention indicated in a sufficiently clear manner that, in ascertaining whether the removal was wrongful within the meaning of Article 3 of the Hague Convention, the Latvian courts had had to decide whether it had been carried out in breach of the custody rights as attributed under Australian law, Australia being the State in which the child was habitually resident immediately prior to her removal. While noting that the Australian authorities had ruled on T.’s parental responsibility after the child’s removal, it observed that it had merely been confirmed, and not established, that the applicant and T. had enjoyed joint parental responsibility from her birth by virtue of the Australian Family Law Act.", "The Chamber further noted that the applicant had not been prevented from participating in the proceedings in Australia leading to the above-mentioned ruling or from submitting an appeal and, in addition, that she had not challenged before the national courts the evidence adduced to demonstrate that T. was the child’s father. The Chamber assumed that the Latvian court’s decision of 19 November 2008 ordering the child’s return to Australia, which had become enforceable on 26 January 2009, had been in accordance with the law within the meaning of Article 8 of the Convention. (b) The parties’ submissions (i) The applicant 56. Before the Chamber, the applicant maintained that the domestic courts had had no grounds for applying the provisions of the Hague Convention, since she had been raising her daughter as a single parent at the time of her departure for Latvia. She made no submissions to the Grand Chamber on this question.", "(ii) The Government 57. The Government considered that the interference was indisputably “in accordance with the law”, given that it was based on the Hague Convention on the Civil Aspects of International Child Abduction. (c) The Court’s assessment 58. According to the Court’s settled case-law, the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000‑II; Slivenko v. Latvia [GC], no.", "48321/99, § 100, ECHR 2003‑X; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 341, ECHR 2012). 59. The Court observes that the decision to return the child to Australia was taken by the Riga Regional Court on the basis of the Hague Convention of 1980, a text signed and ratified by Latvia in 1982. Furthermore, the Latvian Civil Procedure Act, section 644 of which governs matters regarding the unlawful removal of children across borders into Latvia, makes its application conditional on express compliance with the Hague Convention, the Brussels II bis Regulation and the European Convention on Human Rights.", "60. The applicant alleged that at the time of her departure from Australia she had been alone in exercising parental responsibility for her daughter. 61. The Court notes, however, that that issue was expressly examined by the Latvian courts dealing with the application for the child’s return. Those courts, while stating that they could neither interpret nor alter it, applied the Australian Family Court’s decision of 6 November 2008, which confirmed T.’s paternity and the existence of joint parental responsibility for the child from her birth.", "In consequence, both the District Court and the Riga Regional Court found that T.’s application complied with the Hague Convention in this respect. 62. Moreover, the Court considers that it is not for it to decide whether the international removal of a child was or was not “unlawful” within the meaning of Article 3 of the Hague Convention. Indeed, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I): it is for the domestic courts to resolve problems of interpretation and application of domestic legislation, and of rules of general international law and international treaties (see Maumousseau and Washington v. France, no.", "39388/05, § 79, 6 December 2007, and Neulinger and Shuruk, cited above, § 100). In the instant case, the applicant, in addition to failing to exercise the available remedies to challenge the Australian decision confirming T.’s paternity and the existence of joint parental responsibility for the child at the time of her departure from Australia, which was a direct precondition for application of the Hague Convention, has not shown either that it was impossible for her to challenge the Australian decision or how the domestic courts had erred in that respect. 63. In conclusion, the Court considers that the impugned interference was in accordance with the law within the meaning of Article 8 of the Convention. 2.", "Legitimate aim (a) The Chamber judgment 64. The Chamber considered that the interference was intended to protect the rights of T. and of the child, which was a legitimate aim for the purposes of Article 8 § 2 of the Convention. (b) The parties’ arguments (i) The applicant 65. The applicant did not express a view on this point. (ii) The Government 66.", "According to the Government, the interference pursued a legitimate aim, namely, the protection of the rights and freedoms of T. and of his daughter. (c) The Court’s assessment 67. The Grand Chamber shares the Chamber’s opinion that the decision to order the child’s return had the legitimate aim of protecting the rights and freedoms of T. and of E., which, moreover, has not been challenged by the parties in these proceedings. 3. Necessity of the interference in a democratic society (a) The Chamber judgment 68.", "With regard to whether the interference was “necessary in a democratic society”, the Chamber considered, while noting that it was not its task to take the place of the domestic authorities in determining the existence of a grave risk within the meaning of Article 13 (b), that it had to ascertain whether, in applying and interpreting the Hague Convention, the courts had complied with the requirements of Article 8, particularly in the light of the principles established by the Court in Neulinger and Shuruk (cited above). Turning its attention firstly to the psychologist’s report, drawn up at the mother’s request following the first-instance judgment, the Chamber found that the Regional Court had dismissed it, on the ground that it concerned the question of custody of the child and that the latter would be protected in accordance with the Australian legislation. In the Chamber’s opinion, although the failure to question the child did not raise an issue, given her age, the Regional Court ought nonetheless to have examined the conclusions of the psychological assessment and the objections raised by the Bāriņtiesa; moreover, there had been nothing to prevent the court from ordering a psychological report of its own motion. 69. The Chamber further indicated that the courts should also have assessed whether there were other sufficient safeguards to ensure that the return took place in the best possible conditions for the child, particularly with regard to her material well-being in Australia, and the possibility for the applicant to follow her daughter and to maintain contact with her.", "70. While observing that the Latvian courts’ decision in this case contrasted with the approach taken in other Hague Convention proceedings in Latvia (see Šneersone and Kampanella v. Italy, no. 14737/09, § 94, 12 July 2011), and having both dismissed the Government’s argument that the applicant had failed to cooperate and noted the traumatic manner in which the decision had been executed, the Chamber concluded that an in-depth examination of the entire family situation and of a whole series of factors had been absent from the Latvian courts’ approach, therefore rendering the interference disproportionate within the meaning of Article 8. (b) The parties’ submissions (i) The applicant 71. The applicant considered the Chamber judgment as an exemplary text for assisting domestic authorities in ascertaining the best interests of the child.", "She noted that, while the Government had expressed regret in their request for referral to the Grand Chamber that the Chamber had not had available to it all the documents in the case file as examined by the domestic courts, it had been their responsibility to submit those documents. She argued that the best interests of the child had not been the goal of the domestic authorities, and considered that psychological reports were the only method of determining the child’s best interests; in this case, however, the domestic courts had refused to examine the psychological report submitted by her, thus violating Article 12 of the International Convention on the Rights of the Child (hearing of the child, either directly or through a representative or appropriate body). She emphasised that in determining the “best interests”, consideration was generally given to a number of factors related to the child’s circumstances and to the circumstances and capacity of the child’s potential carers, with the child’s safety and well-being as the paramount concern. 72. The applicant added that, in applying to the Court, her main goal was to challenge the domestic courts’ position in various cases relating to the Hague Convention and to demonstrate the necessity of ensuring the best interests of the child.", "(ii) The Government 73. The Government noted that the Court imposed a number of obligations on the domestic authorities, and in particular: ensuring that the parents were involved in the decision-making process to a degree sufficient to provide them with protection of their interests (Iosub Caras v. Romania, no. 7198/04, § 41, 27 July 2006); preventing further harm to the child or prejudice to the interested parties, as stipulated by Article 7 of the Hague Convention (ibid., § 34, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000-I); ensuring urgent handling of proceedings relating to the return of an abducted child, including enforcement of the decisions taken (see Carlson v. Switzerland, no. 49492/06, § 69, 6 November 2008); and providing redress to the requesting parent in the event of failure to comply with the six-week deadline provided for in Article 11 of the Hague Convention (ibid., § 55).", "74. They considered that these principles should be applied in a manner that would ensure to the maximum extent a balance between the rights of each parent and of the child. Nonetheless, they noted the difficulty of the domestic authorities’ task when faced with the international abduction of a child, which did not always allow for protection of the best interests of all parties, and especially those of the child, each party having a different, if not contradictory, definition from that of the others. They further insisted on the clear distinction to be drawn between return proceedings and custody proceedings. 75.", "The Government considered that the domestic authorities enjoyed a margin of appreciation in applying those principles to the circumstances of each case. The Court’s task was not to analyse every detail of the domestic proceedings, but to review whether the decision-making process, seen as a whole, had provided the individuals concerned with the requisite protection of his or her interests (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 187, 27 September 2011), since the Court was not a court of fourth instance. Consequently, it could only be otherwise if the shortcomings observed had been decisive for the outcome of the case (see Broka v. Latvia, no. 70926/01, §§ 25-26, 28 June 2007).", "76. In the instant case, they were of the opinion that the domestic authorities had complied with the above principles and had conducted an “in-depth examination of the entire family situation and of a whole series of factors” (see Neulinger and Shuruk, cited above, § 139), but that the examination of the overall family situation had to differ depending on the case, depending on the existence or not of prima facie concerns or at least of reasonable doubts. Moreover, the risk provided for in Article 13 (b) had to be “grave”, in addition to the fact that the child’s best interests also required expeditious proceedings. 77. The Government stated that the request submitted by the Australian authorities to the Latvian authorities on 15 September 2008 certified that T. had joint parental authority for the child and that, contrary to the applicant’s submissions, the decision of 6 November 2008 did not confer this right on him, but confirmed its existence at the time of his daughter’s departure from Australia.", "Both the Australian and Latvian courts had established that T. effectively exercised his parental responsibilities, that there were sufficient grounds to presume that T. was the child’s biological father, and that the applicant, for her part, had made false statements to the authorities in order to obtain advantages. 78. They pointed out that the psychological report had been drawn up on a private basis at the applicant’s request, and that the Bāriņtiesa was not a judicial institution. Notwithstanding the dismissal of the psychologist’s report and the observations from the Bāriņtiesa, the courts had examined the family situation in the light of the evidence available to them, which was an inherent part of their jurisdiction, there being nothing in the Court’s case-law to call into question that power. The Latvian courts had found that the applicant’s departure from Australia with her daughter had been motivated solely by her personal disagreements with T. and that there was no apparent risk of harm to the child in the event of return; it followed that the Latvian authorities had not applied the Hague Convention automatically or mechanically, in disregard of the principles established by Article 8 of the Convention.", "79. The Government emphasised that “the understanding and cooperation of all concerned are always important ingredients” in evaluating the individual circumstances of a case (see Maumousseau and Washington, cited above, § 83, and Neulinger and Shuruk, cited above, § 140). They considered, however, that the applicant had demonstrated a lack of cooperation with the Australian and Latvian authorities by ignoring the invitation to take part in the proceedings before the Australian court, by preventing the representatives of the Bāriņtiesa from assessing her living conditions with her daughter in Latvia, by hindering contacts between T. and his daughter, and by her extremely aggressive conduct towards T. during the proceedings. 80. They also considered that the courts had been correct in dismissing the question of the child’s integration into her new environment, given that she had spent only a few months in Latvia.", "81. They noted that the courts had not ordered the child’s return to her father, but to Australia, thus drawing a clear distinction between the return of the child and the issue of her custody, an approach that had been endorsed by the Court (see M.R. and L.R. v. Estonia (dec.), no. 13420/12, §§ 47-48, 15 May 2012, and Tarkhova v. Ukraine (dec.), no.", "8984/11, 6 September 2011). In any event, T.’s financial situation was not such as to prevent him from caring for his daughter. 82. The Government emphasised the need to distinguish the issue of the applicant’s relationship with the child, and the risk of this relationship being weakened in the event of return, from the question of a risk to the child’s fundamental interests within the meaning of Article 13 (b) of the Hague Convention. As an Australian citizen, the applicant was not faced by insurmountable difficulties if she returned to Australia, since she enjoyed the full spectrum of fundamental rights, in contrast to the applicants in Neulinger and Shuruk (cited above).", "In the present case, both the child and the mother had Australian citizenship; moreover, the mother had access to the labour-market, given that she had found a job since her return, and could have access to social security benefits. There was no history of family violence or abuse of authority on the part of T., whereas the applicant had demonstrated a lack of cooperation and an aggressive attitude. Lastly, the Government drew the Court’s attention to the fact that they could not be held responsible for the decisions taken by the Australian authorities (they referred to M.R. and L.R. v. Estonia, cited above).", "(c) Third-party interveners (i) The Finnish Government 83. The Finnish Government noted that the 1980 Hague Convention was based on the best interests of the child and was aimed at protecting the child from the detrimental effects of the abduction, while laying down a number of grounds for refusing a return. They emphasised that Article 11 of the Brussels II bis Regulation, applicable within the European Union, narrowed down even further the exceptions to the child’s return, and reflected the view of the European Union member States that the effectiveness of the Hague Convention served the best interests of children and families. They further referred to the United Nations Convention on the Rights of the Child. 84.", "With regard to the instant case, they considered, in particular, that the obligation on the domestic courts deciding on a child’s return to conduct an “in-depth examination of the entire family situation”, as the Chamber required in its judgment, contradicted the Hague Convention, which provided that matters concerning custody or residence of the child came under the jurisdiction of the courts of the child’s place of habitual residence. 85. Moreover, they considered that the domestic courts were best placed to assess the child’s best interests: the Court ought not to take their place, but merely verify whether the requirements of Article 8 had been satisfied. Requiring such an in-depth examination would ultimately level out the differences between the procedure for return and custody proceedings, which would frustrate the meaning of the Hague Convention. They emphasised that the latter text provided for exceptions to the return of the child in Articles 12, 13 and 20.", "86. With regard to the psychological report to which the domestic courts had not, according to the Chamber judgment, attached sufficient importance, the Finnish Government noted that it had been submitted by the mother to demonstrate the existence of a grave risk in the event of return within the meaning of Article 13 of the Hague Convention. In finding those allegations unfounded, the appeal court had dismissed them under Article 13 of the Hague Convention, within the margin of discretion permitted by and in line with the objective pursued by the Hague Convention. In the light of these arguments, and referring also to the dissenting opinion of Judges Myjer and López Guerra annexed to the Chamber judgment, the Finnish Government were of the view that there had not been a violation of Article 8 of the Convention in this case. (ii) The Czech Government 87.", "The Czech Government considered that the Grand Chamber’s forthcoming decision would be of considerable importance not only for the respondent State and the Convention system, but also for the operation of the Hague Convention and for countries outside the European continent. They considered that the Hague Convention provided an appropriate procedure, given the serious consequences of abduction for both the child and the parent complaining of the abduction. In order to preclude the harmful effects of abduction, rapid proceedings and a prompt return were required, the Hague Convention being based on the assumption that the restoration of the status quo that existed prior to the unlawful removal was the best starting-point to ensure protection of the rights in question. They also referred, in a similar vein, to the Brussels II bis Regulation, applicable within the European Union. 88.", "The Czech Government further stated that the Hague Convention had explicitly left the issue of custody to the courts of the country of the child’s habitual residence and that refusal of the child’s return was provided for in cases of a grave risk to the child. They considered that the development of the Court’s case-law in this field, the main points of which they set out, undermined the principle of subsidiarity and ran contrary to the aim pursued by the Hague Convention. An “in-depth examination of the entire family situation” amounted to examining the issue of custody itself, and thus slowing down the proceedings, even though the passage of time could play a significant role where the child was heard in the proceedings. In addition, basic fairness should mean that the abducting parent, who was required to prove in a short period of time the existence of a grave threat in the event of the child’s return, was deprived of any procedural advantage rather than having access to the courts of the country of his or her choice to determine the merits of a custody dispute. 89.", "The Czech Government noted, in particular, a conflict between the requirement of speed laid down in the Hague Convention and the high standard of proof set out in the Court’s recent case-law. Assessment of the best interests of the child differed significantly depending on whether it was carried out in the course of return proceedings before a court in the country to which the child had been taken or whether it took place in the context of custody proceedings by another court in the child’s country of habitual residence. As those States who were party to both the Convention and the Hague Convention were required to comply with their obligations in respect of both of these texts, they required consistent interpretation and application which reconciled them, it being noted that the Brussels II bis Regulation was even stricter than the Hague Convention. The database created by the Permanent Bureau of the Hague Conference on Private International Law (INCADAT) showed that national courts tended to impose strict application of the Hague Convention, in compliance with its purpose. The Czech Government, arguing for a return to the principle of subsidiarity, invited the Grand Chamber to overturn the Chamber judgment and to set limits on the examination of the family situation by the court deciding on an application for a child’s return.", "(iii) Reunite International Child Abduction Centre (“Reunite”) 90. Reunite noted that the Hague Convention had been designed to facilitate the protection of children who had been subjected to a wrongful cross-border abduction, on the basis of the assumption that, with certain exceptions, the child’s prompt return was in his or her best interests. Reunite entirely endorsed the Court’s summary of the aims and objectives of the Hague Convention in its judgment in Maumousseau and Washington (cited above, § 69). It noted in particular that the Hague Convention, which is enormously successful in combating international child abduction, aimed to protect not adults but children. It provided for a limited number of exceptions to the child’s prompt return, leaving the issues of the child’s long-term welfare to the courts in the child’s country of habitual residence.", "The latter thus had the task of conducting an in-depth examination of the situation, in the child’s interests, unlike the courts in the State to which the child had been abducted, which, when examining an application for return, were required to make a decision following an examination limited to the framework laid down in the Hague Convention. 91. While observing that the Court, in its case-law, had identified a number of factors central to the proper functioning of the Hague Convention, Reunite noted that recent developments suggested that courts were being required to conduct a fuller examination when determining the exceptions to the child’s return. It therefore invited the Grand Chamber to clarify the question of the requirement for an in-depth examination of the entire family situation in the context of the Hague Convention, and to make it clear that this concerned only the compatibility of a return with the Convention and did not call into question the exclusive jurisdiction of the courts in the country of habitual residence to rule on the merits. (d) The Court’s assessment (i) General principles 92.", "The Court considers it appropriate to reiterate at the outset certain principles which must guide it in its examination of the case, and to which it drew attention in its recent judgment in Nada v. Switzerland ([GC], no. 10593/08, § 167, ECHR 2012), in the following terms: “168. According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention (see Bosphorus [Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, no. 45036/98], § 153[, ECHR 2005-VI], and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports [of Judgments and Decisions] 1998-I).", "Treaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may thus engage its responsibility for Convention purposes (see Al‑Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus, cited above, § 154, and the cases cited therein). 169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of ‘any relevant rules of international law applicable in the relations between the parties’, and in particular the rules concerning the international protection of human rights (see, for example, Neulinger and Shuruk[, cited above], § 131 ...; Al‑Adsani v. the United Kingdom [GC], no.", "35763/97, § 55, ECHR 2001-XI; and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18). 170. When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them.", "Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al‑Saadoon and Mufdhi, cited above, § 126; Al‑Adsani, cited above, § 55; and [Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99], §§ 55-57[, ECHR 2001-XII]; see also the references cited in the International Law Commission study group’s report entitled ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’ ...).” 93. As regards, more specifically, the question of the relationship between the Convention and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, the Court reiterates that in the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention (see Ignaccolo-Zenide, cited above, § 95; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003‑V; and Maumousseau and Washington, cited above, § 60) and those of the Convention on the Rights of the Child of 20 November 1989 (see Maire v. Portugal, no.", "48206/99, § 72, ECHR 2003-VII; Maumousseau and Washington, cited above; and Neulinger and Shuruk, cited above, § 132), and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008). 94. This approach involves a combined and harmonious application of the international instruments, and in particular in the instant case of the Convention and the Hague Convention, regard being had to its purpose and its impact on the protection of the rights of children and parents. Such consideration of international provisions should not result in conflict or opposition between the different treaties, provided that the Court is able to perform its task in full, namely “to ensure the observance of the engagements undertaken by the High Contracting Parties” to the Convention (see, among other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 93, Series A no.", "310), by interpreting and applying the Convention’s provisions in a manner that renders its guarantees practical and effective (see, in particular, Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Nada, cited above, § 182). 95. The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” (see paragraph 35 above). 96.", "The Court reiterates that there is a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see paragraphs 37-39 above). 97. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b)). The Court further notes that the European Union subscribes to the same philosophy, in the framework of a system involving only European Union member States and based on a principle of mutual trust. The Brussels II bis Regulation, whose rules on child abduction supplement those already laid down in the Hague Convention, likewise refers in its Preamble to the best interests of the child (see paragraph 42 above), while Article 24 § 2 of the Charter of Fundamental Rights emphasises that in all actions relating to children the child’s best interests must be a primary consideration (see paragraph 41 above).", "98. Thus, it follows directly not only from Article 8 of the Convention but also from the Hague Convention itself, given the exceptions expressly enshrined therein to the principle of the child’s prompt return to his or her country of habitual residence, that such a return cannot be ordered automatically or mechanically (see Maumousseau and Washington, cited above, § 72, and Neulinger and Shuruk, cited above, § 138). 99. As the Court reiterated in Neulinger and Shuruk (cited above, § 140), the obligations incumbent on States in this connection were defined in Maumousseau and Washington (cited above, § 83). 100.", "The child’s best interests do not coincide with those of the father or the mother, except in so far as they necessarily have in common various assessment criteria related to the child’s individual personality, background and specific situation. Nonetheless, they cannot be understood in an identical manner irrespective of whether the court is examining a request for a child’s return in pursuance of the Hague Convention or ruling on the merits of an application for custody or parental authority, the latter proceedings being, in principle, unconnected to the purpose of the Hague Convention (Articles 16, 17 and 19; see also paragraph 35 above). 101. Thus, in the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a “grave risk” (Article 13 (b)), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties.", "In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation, which, however, remains subject to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A; and also Maumousseau and Washington, cited above, § 62, and Neulinger and Shuruk, cited above, § 141). 102. Specifically, in the context of this examination, the Court reiterates that it does not propose to substitute its own assessment for that of the domestic courts (see, for example, Hokkanen, cited above, and K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001‑VII).", "Nevertheless, it must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005‑XIII; Maumousseau and Washington, cited above; and Neulinger and Shuruk, cited above, § 139). 103. In this connection, the Government considered, in particular, that the overall family situation had to be examined according to the circumstances of each case (see paragraph 75 above). For their part, the third-party interveners either considered that the requirement of an “in-depth examination of the entire family situation” (see Neulinger and Shuruk, cited above) conflicted with the Hague Convention (see paragraphs 84 and 88 above), or asked the Court to clarify this question (see paragraph 91 above) and to set limits on the examination of the family situation by the court deciding on an application for a child’s return (see paragraph 89 above).", "104. On this point, the Court observes that the Grand Chamber judgment in Neulinger and Shuruk (cited above, § 139) to which a number of subsequent judgments refer (see, inter alia, Raban v. Romania, no. 25437/08, § 28, 26 October 2010; Šneersone and Kampanella, cited above, § 85; and, more recently, the decision in M.R. and L.R. v. Estonia, cited above, § 37) may and has indeed been read as suggesting that the domestic courts were required to conduct an in-depth examination of the entire family situation and of a whole series of factors.", "That wording had already been used by a Chamber in Maumousseau and Washington (cited above, § 74), such an in-depth examination having, in fact, been carried out by the national courts. 105. Against this background the Court considers it opportune to clarify that its finding in paragraph 139 of Neulinger and Shuruk does not in itself set out any principle for the application of the Hague Convention by the domestic courts. 106. The Court considers that a harmonious interpretation of the European Convention and the Hague Convention (see paragraph 94 above) can be achieved provided that the following two conditions are observed.", "Firstly, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk, cited above, § 133). 107. In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case.", "Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it. 108. Furthermore, as the Preamble to the Hague Convention provides for children’s return “to the State of their habitual residence”, the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place.", "(ii) Application of these principles to the present case 109. The Court, which must make its assessment in the light of the situation existing at the time of the impugned measure (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 91, ECHR 2008), notes firstly that, unlike in Neulinger and Shuruk (cited above), the circumstances of which were in any event particularly unusual, especially on account of the very considerable passage of time involved, only a short period had elapsed in this case by the time the Latvian authorities received the application under the Hague Convention. The child had spent the first years of her life in Australia and arrived in Latvia aged three years and five months. The application for return was submitted to the central authority two months after the departure from Australia, and the judgments of the District Court and of the Riga Regional Court were delivered four and six months respectively after the applicant and her daughter had arrived in Latvia.", "Finally, T. encountered E. and began the return journey with her to Australia on 14 March 2009. It follows that not only the submission of the return application to the Latvian authorities, but also the domestic proceedings and the child’s return took place within the period of less than one year referred to in the first paragraph of Article 12 of the Hague Convention, which provides for an immediate return in such cases. 110. Moreover, the Court notes that the domestic courts, at first instance and on appeal, were unanimous as to the response to be given to the application for return submitted by T. By a judgment of 19 November 2008, the District Court, which ruled after a hearing attended by both parents, held that the Hague Convention was applicable and granted T.’s application, ordering the child’s immediate return to Australia. On 26 January 2009, after a hearing which was also held in the presence of both parents, the Riga Regional Court upheld that judgment.", "111. With regard more specifically to the reasoning given by the Latvian courts, the Court notes that at first instance the court dismissed, in a reasoned manner, the applicant’s objections to the child’s return on the basis of Article 13 of the Hague Convention, notably after examining the evidence submitted by the parties, including the photographs and copies of e-mails between the applicant and T.’s relatives, as well as witness statements submitted by the applicant. The court, having refused however to request information from the Australian authorities about T.’s previous convictions and the charges allegedly brought against him, ultimately dismissed the allegation of a risk of psychological harm to the child in the event of her return, finding that the applicant had failed to substantiate it (see paragraph 21 above). 112. The Court observes that the situation was subsequently presented differently before the Riga Regional Court, the applicant having submitted, in the context of her appeal, a certificate prepared at her request by a psychologist on 16 December 2008, that is, after the first-instance judgment.", "This document indicated that, while the child’s young age prevented her from expressing a preference as to her place of residence, an immediate separation from her mother was to be ruled out on account of the likelihood of psychological trauma (see paragraph 22 above). 113. Yet, while the District Court, examining the request for a stay of execution of the return order, took account of that certificate in ordering, in the child’s interests, a stay of execution of the return order pending the outcome of the appeal proceedings (see paragraph 24 above), the Regional Court refused to take it into consideration. 114. The Court notes that the appeal court considered that the findings of the psychological report concerned the merits of the custody issue and could not therefore serve as evidence in ruling on the question of the child’s return that was before it.", "In so doing, and in view of this reasoning, the Riga Regional Court refused to examine the conclusions of the psychological report in the light of the provisions of Article 13 (b) of the Hague Convention, even though it was directly linked to the best interests of the child in that it drew attention to a risk of psychological trauma in the event of immediate separation from her mother (see, conversely, Maumousseau and Washington, cited above, § 63). 115. Article 8 of the Convention imposed a procedural obligation on the Latvian authorities, requiring that an arguable allegation of “grave risk” to the child in the event of return be effectively examined by the courts and their findings set out in a reasoned court decision (see paragraph 107 above). 116. Under Article 13, first paragraph, (b) of the Hague Convention, the courts examining the return request are not obliged to grant it “if the person, institution or other body which opposes its return establishes that ... there is a grave risk”.", "It is the parent who opposes the return who must, in the first place, adduce sufficient evidence to this effect. In the instant case, it was therefore for the applicant to provide sufficient evidence to substantiate her allegations, which, moreover, had to concern the existence of a risk specifically described as “grave” by Article 13, first paragraph, (b). Furthermore, the Court notes that while the latter provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13, first paragraph, (b) concerns only the situations which go beyond what a child might reasonably bear. The applicant fulfilled her obligation by submitting a psychologist’s certificate concluding that there existed a risk of trauma for the child in the event of immediate separation from her mother. Furthermore, she had also submitted that T. had criminal convictions and referred to instances of ill-treatment by him.", "It was therefore for the Latvian courts to carry out meaningful checks, enabling them to either confirm or exclude the existence of a “grave risk” (see B. v. Belgium, no. 4320/11, §§ 70-72, 10 July 2012). 117. The Court accordingly considers that the refusal to take into account such an allegation, substantiated by the applicant in that it was based on a certificate issued by a professional, the conclusions of which could disclose the possible existence of a grave risk within the meaning of Article 13, first paragraph, (b) of the Hague Convention, was contrary to the requirements of Article 8 of the Convention. The non-adversarial nature of the psychological report did not suffice to absolve the courts from their obligation to examine it effectively, especially as the Regional Court’s judicial powers would have enabled it to submit the document for cross-examination by the parties, or even to order a second expert report of its own motion, as permitted by Latvian law (see paragraph 45 above).", "The issue of whether it was possible for the mother to follow her daughter to Australia and to maintain contact with her should also have been dealt with. The Court further emphasises that, in any event, since the rights safeguarded by Article 8 of the Convention, which is part of Latvian law and directly applicable, represent “fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” within the meaning of Article 20 of the Hague Convention, the Regional Court could not dispense with such a review in the circumstances of this case. 118. As to the need to comply with the short time-limits laid down by the Hague Convention and referred to by the Riga Regional Court in its reasoning (see paragraph 25 above), the Court reiterates that while Article 11 of the Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case. 119.", "In the light of the foregoing, the Court considers that the applicant suffered a disproportionate interference with her right to respect for her family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention, the Riga Regional Court having failed to carry out an effective examination of the applicant’s allegations under Article 13 (b) of the Hague Convention. 120. It follows that there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 121.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 122. As the applicant has made no claim in respect of pecuniary or non-pecuniary damage, the Court considers that no award should be made under this head. B. Costs and expenses 123.", "The applicant claimed 1,996.91 Latvian lati (2,858.84 euros (EUR)) for the costs and expenses incurred before the Grand Chamber and submitted a number of documents in support of that claim. 124. The Government considered that the applicant’s claims were neither justified nor reasonable, with the exception of a sum of EUR 485.19 which related to costs arising from the journey by the applicant’s representative to take part in the hearing before the Court. 125. The Court reiterates that an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum.", "In the present case, and having regard to the information in its possession and to its case-law, the Court considers it reasonable to award the applicant the sum of EUR 2,000 in respect of the costs and expenses incurred in the proceedings before it. C. Default interest 126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1. Holds, by nine votes to eight, that there has been a violation of Article 8 of the Convention; 2.", "Holds, by ten votes to seven, (a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into Latvian lati at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 November 2013. Michael O’BoyleDean Spielmann Deputy Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Pinto de Albuquerque; (b) joint dissenting opinion of Judges Bratza, Vajić, Hajiyev, Šikuta, Hirvelä, Nicolaou, Raimondi and Nußberger. D.S.M.O’B.", "CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE International parental child abduction is again on the agenda of the Grand Chamber. Three years after having laid down its own standard in Neulinger and Shuruk[1], the Grand Chamber has been called upon to review it, in the context of the same sources of international family law and international human rights law. In other words, the major question put to this Grand Chamber is the theoretical and practical sustainability of its own very recent case-law. I agree with the finding of a violation of Article 8 of the Convention, but disagree with the equivocal principles set out by the majority in paragraphs 105-08 and its insufficient assessment of the facts of the case. My opinion is divided into three parts.", "The first part will address the assessment required under the European Convention on Human Rights of return orders in international child-abduction cases and the much-proclaimed need for a review of the Neulinger and Shuruk standard. The second part will examine the nature of the mechanism established by the Hague Convention on the Civil Aspects of International Civil Abduction and its articulation with the Convention. Finally, in the third part the Convention standard will be applied to the facts of this case, taking into special consideration the inchoate nature of the alleged “right to custody” of the left-behind parent at the moment of removal[2]. Return orders in international parental child-abduction cases under the Convention Article 8 of the Convention imposes positive obligations on the Contracting Parties to reunite a parent with his or her child, when the latter has been wrongfully removed to or retained in a foreign country by the other parent, and namely to take effective action to enforce a return order in respect of the abducted child to his or her country of habitual residence[3], to grant a return order[4] or even to bring a return action on behalf of the left-behind parent in the country of habitual residence[5]. These positive obligations must be interpreted in the light of the Hague Convention, all the more so where the respondent State is also a party to that instrument[6].", "Thus, the Court has committed itself to the Hague Convention’s philosophy of restoring the child’s situation as it existed before the abduction took place[7]. Accordingly, the court in the host country must order the child’s return to his or her country of habitual residence, except when one of the grounds for refusal of return provided for in Articles 13 and 20 of the Hague Convention exists, whilst the court in the country of habitual residence has sole competence in deciding on the merits of the custody dispute. Although return proceedings are urgent and return orders are to be rapidly enforced, the granting of return orders in international child-abduction cases requires a detailed or in-depth assessment of the entire family situation by the court in the host country in the specific context of the return application[8]. When the decision-making process of the court in the host country or the resulting assessment is deficient, the granting of a return order under the Hague Convention may violate the Convention, since the interference with the child’s right to family life with the abducting parent may not be necessary in a democratic society[9]. That being said, the detailed examination of the child’s situation clearly does not replace custody proceedings in the State from which the child was abducted, since the court in the host country is not supposed to proceed to an ex officio, free-standing evaluation of the overall merits of the case, based on the assessment of the situation of the child and his or her family and the present and future social and cultural environment.", "Only those issues directly related to the child’s abduction raised by the return application may be addressed by the court in the host country, and then only in so far as they relate to the urgent and provisional decision on the child’s immediate future. This was and remains the Neulinger and Shuruk test. No less, no more. The detailed examination by the court in the host country does not imply any change of jurisdiction over parental responsibility, which remains in the State of the child’s habitual residence. Hence, Neulinger and Shuruk did not level the basic difference, enshrined in Article 19 of the Hague Convention, between Hague return proceedings and custody proceedings.", "The articulation between the Convention and the Hague Convention The Hague Convention aims at combating international child abduction by the father or the mother through a mixed mechanism of intergovernmental and judicial cooperation. Whenever a child under the age of 16 is unlawfully removed from his or her country of habitual residence by one of the parents, the Hague mechanism purports to restore, as soon as possible, the status quo prior to the removal[10]. Three objective conditions are required to establish the unlawfulness of the removal: (1) the existence of custodial rights in respect of the left-behind parent immediately prior to the removal; (2) the effective exercise of these rights prior to the removal; and (3) the determination of the child’s habitual residence at the time of removal. No additional subjective element, such as the mens rea of the abducting parent, is required[11]. In these circumstances, the child’s return to the country of habitual residence is to be ordered by the court in the host country.", "The return application may be rejected if one of the three conditions referred to above for application of the Hague Convention is not met[12]. The application may also be rejected if the left-behind parent consented to removal or subsequently acquiesces to the removal, or if certain circumstances related to the child’s welfare exist, namely if (1) there is a grave risk that the child’s return would expose him or her to physical or psychological danger[13] or otherwise place the child in an intolerable situation[14]; (2) a child who has attained a certain degree of maturity objects; (3) the child has settled in the host country and a year has elapsed between the removal and the commencement of the judicial return proceedings[15]; or (4) the fundamental principles of the requested State relating to the protection of the child’s human rights would not permit it[16]. Since the Hague Convention terminology is to be interpreted with regard to its autonomous nature and in the light of its objectives, custodial rights may include rights referred to by the national legislation of the country of habitual residence under a different terminology, and do not necessarily equate to rights referred to as “custody rights” by the law of any particular country[17]. For instance, an unmarried parent who in fact takes care of the child may nonetheless be denied custodial rights[18]. The evaluation of legal and factual issues, such as rights of custody and habitual residence or allegations of grave risk of harm, is a matter for the court or other competent authority deciding upon the return application[19].", "Other than as provided for by Article 30 of the Hague Convention, each Contracting Party to the Hague Convention determines its own rules of evidence in return proceedings. The burden of proof in the case in chief for return is on the left-behind parent and in respect of the defences to return it is on the abducting parent; in some countries, however, different burdens of proof are required depending upon the defence proffered[20]. Although the evidence admitted in return proceedings is not bound by strict criteria, the taking and admission of evidence should be governed by the necessity for speed and the importance of limiting the enquiry to the matters in dispute which are directly relevant to the issue of return[21]. In view of the lack of any precise regulations on the enforcement procedure in the Hague Convention, the child’s return may be ordered to the courts, the central authority or other authorities of the country of habitual residence, or even to the left-behind parent or a third person, the child sometimes being still accompanied by and under the care and control of the abducting parent until the authorities of that State rule otherwise[22]. The return order may be made in conjunction with some protective measures, such as stipulations, conditions or undertakings, as long as they are limited in scope (that is to say, do not intrude on custody issues to be determined by the courts of the State of habitual residence) and duration (that is to say, they remain in effect only until such time as a court in the country of habitual residence has taken any measures required by the situation)[23].", "Hence, the Hague Convention is basically a jurisdiction-selection treaty, but it is not blind to substantive welfare issues concerning the individual child involved, since it imposes an assessment of that child’s best interests in Article 13 and of his or her human rights in Article 20[24]. Only an over-simplistic view of the Hague Convention’s general public-order purposes and tangible effects on the life of the individual abducted child and his or her parents could support the assertion that this is a merely procedural text. The opposite conclusion is also imposed by the almost universal ratification of the United Nations Convention on the Rights of the Child, which reflects the international consensus on the principle of the paramountcy of the child’s interest in all proceedings concerning him or her and on the perspective that every child should be viewed as a subject of rights and not merely as an object of rights[25]. Moreover, the sociological shift from a non-custodial abductor to a custodial abductor, who is usually the primary caregiver, warrants a more individualised, fact-sensitive determination of these cases in the light of a purposive and evolutive approach to the Hague defence clauses[26]. Against this background, the question of the articulation between the Hague Convention and the Convention becomes crucial.", "The human rights protection mechanisms established by these two international treaties clearly overlap, at least with regard to the defences foreseen in Articles 13 and 20 of the Hague Convention. Ultimately, both Conventions provide for the restoration of the status quo in international abduction cases, in harmony with the child’s best interests and human rights. The problem lies mainly with the alleged “exceptional nature” of the Hague Convention provisions regarding the defences to return and their restrictive interpretation[27]. Between the Scylla of a minimalist and automatic application of the Hague defences to return, which would render them void of any substantive content, and the Charybdis of creating a new, free-standing defence of the child’s best interests, overlapping the merits of the custody dispute, the Court has resisted both dangers and chosen the middle solution, which is that the Hague Convention defences to return exhaustively determine what is in the best interests of the child. However, these defences do include the human rights of the child.", "And they are to be taken seriously. In assessing return orders in international child-abduction cases, the Court’s remit is limited to the child’s welfare-based defences to return in the Hague Convention. The detailed, in-depth examination under the Convention may not, and need not, be wider. It suffices that the available defences to return be interpreted in the light of present-day social conditions, and namely of the sociological trends ascertained in recent years. That was the Grand Chamber’s purpose three years ago: Neulinger and Shuruk was a call for an evolutive and purposive interpretation of the Hague Convention.", "Hence, the Court must confine itself to examining whether the courts in the host country acted in conformity with the Convention, but it may also enter into the question of whether the Hague Convention was properly interpreted and applied, especially when its interpretation ignores present-day social conditions and its application empties the text of much of its useful effect or even prejudices its ultimate purposes[28]. Under the Convention, the abduction of a child triggers the application of a rebuttable presumption that it is in the best interests of the child to be returned as soon as possible to the country of habitual residence. That presumption must be applied unless there are reasonable grounds to believe that the human rights of the child, including his or her Article 8 rights, would be endangered in the event of return. In order to rebut the said presumption, the applicant must have alleged and proved that giving effect to the presumption would conflict with the child’s human rights, namely with his or her right to family life, and the court of the host country must be satisfied that this is the case[29]. While it is axiomatic that “restrictions” to human rights must be interpreted narrowly[30], defences to return are not, technically speaking, “restrictions” to any specific human right.", "Such defences are, in the light of the Convention, mere grounds for rebuttal of a presumption, and they are not necessarily subject to a restrictive interpretation[31]. Thus, in the event of contradictory evaluations of the child’s situation, resulting from the confrontation between a restrictive interpretation of the Hague Convention and a purposive and evolutive interpretation of the same text in the light of the Convention, the latter should prevail over the former. Although in virtually all cases the Convention and the Hague Convention march hand in hand, when they do not, it is up to the Convention to guide the way[32]. The practical effect of this line of reasoning is that, ultimately, the Court has the final word on the assessment of the best interests and the human rights of the abducted child in Europe, be this prior to the execution of the return order or even after its execution. This line of reasoning also impacts on the remit of the courts in the host country in assessing return applications, in so far as they must examine the situation of the child and the family in accordance with the Convention.", "In Europe, the judge in the host country has to interpret Articles 12, 13 and 20 of the Hague Convention in the light of the Convention and the Court’s case-law. Such analysis is particularly important in cases of return to States which are not under the jurisdiction of the Court, where the parties will be unable subsequently to bring complaints to the Court if their rights in the country of habitual residence are breached[33]. In an international mechanism that has no oversight body to ensure the uniformity of the interpretation and implementation of the Contracting Parties’ obligations and to sanction recalcitrant States accordingly, there is a real risk that the legislation implementing the Hague Convention and the case-law of domestic courts applying it are very different from one Contracting Party to another. Reality has proved this risk to be very real. The bitter consequence of this institutional weakness is clear to see: there is little room for progress where such wide discrepancies occur in the functioning of the international mechanism and national authorities are free to give foreign precedent little weight, or no weight at all, for the purpose of interpreting the Hague Convention.", "In the absence of any meaningful supranational review of the way in which the Contracting States implement, interpret and apply the Hague Convention, courts of Contracting States do as they please, sometimes ostensibly and one-sidedly ruling in favour of the national party. This inherent weakness in the Hague mechanism is magnified by the ambiguous and undefined legal terminology utilised in the Hague Convention and the lack of procedural rules on the conduct of judicial return proceedings, such as on evidentiary hearing, discovery, burden of proof, appeals, stay of orders pending appeals and interim measures. The damaging effect of differing, contradictory and confusing national case-law is further amplified by the fact that the enforcement stage of the return order is not regulated at all in the Hague Convention, and more specifically no legal basis is provided for stipulations, conditions or undertakings imposed on the parties or a system of judicial cooperation for the implementation of “mirror orders”[34]. In this context, the fact that the Court is competent to ascertain whether in applying the Hague Convention the domestic courts secured the human rights set forth in the Convention diminishes the risk of divergent case-law[35]. Moreover, the temptation of forum shopping is excluded in a system of human rights protection where all national courts are subject to scrutiny by an international court, which ensures that there is no unjustified interpretation in favour of the abducting parent.", "Thus, progress in the protection of the child’s rights, comity among States and cooperation in cross-border child abduction is furthered by the uniform application of the Hague Convention obligations interpreted in the light of the Convention, at least among the Contracting Parties to the Convention[36]. In spite of some systemic shortcomings, the Hague Convention has proved to be a crucial instrument in helping to resolve the drama of cross-border parental child abduction. Its positive legacy is undeniable and should be preserved and fostered. Nevertheless, both the universal acknowledgment of the paramountcy of the child’s best interests as a principle of international customary and treaty law, and not a mere “social paradigm”, and the consolidation of a new sociological pattern of the abducting parent now call for a purposive and evolutive interpretation of the Hague Convention, which is first and foremost mirrored in the construction of the defences to return in the light of the child’s real situation and his or her immediate future. A restrictive reading of the defences, based on an outdated, unilateral and over-simplistic assumption in favour of the left-behind parent and which ignores the real situation of the child and his or her family and envisages a mere “punitive” approach to the abducting parent’s conduct, would defeat the ultimate purposes of the Hague Convention, especially in the case of abduction by the child’s primary caregiver.", "Such a construction of the Hague Convention would be at odds with the human rights and especially the Article 8 rights of the abducted child in Hague return proceedings, respect for which undeniably merges into the best interests of the child, without evidently ignoring the urgent, summary and provisional nature of the Hague remedy[37]. The application of the European standard to the facts of the case It is established that the Latvian courts omitted to consider properly the psychological situation of the child, the child’s welfare situation in Australia, and the future relationship between the mother and the child were the child to be returned to Australia[38]. In the light of Neulinger and Shuruk, these deficiencies in the national proceedings alone would have sufficed to find a violation under Article 8, since they did not comply with the “in-depth” or, in the Grand Chamber’s new jargon, “effective” examination required by Article 8. In practical terms, the Grand Chamber applied once again the Neulinger and Shuruk test[39]. The Latvian courts’ superficial, hands-off handling of the child’s situation was rightly criticised by the Grand Chamber.", "Having on the one hand taken into consideration the psychologist’s report presented by the mother for the purpose of having execution of the return order stayed pending the appeal, but having on the other hand ignored that same report in rendering the appeal judgment, the domestic courts not only contradicted themselves, but failed to consider effectively the report’s conclusions as to the serious risks associated with the child’s return, and this on the basis of the wrongful argument that the psychologist’s report could not serve as evidence to rule out the child’s return[40]. The traumatising manner in which the Riga Regional Court’s decision was executed and the far-reaching limitations imposed on the mother’s access to her daughter by the clearly punitive decision of the Australian family court were additional and regrettable consequences of the Latvian courts’ inadequate handling of the case, which failed to prepare the child’s physical return and to examine whether effective safeguards of the child’s rights were in place in Australia and if the mother was in a position to maintain contact with her child in the event of a return, and, if appropriate, to make such a return contingent upon adequate undertakings, stipulations or orders with a view to not hindering or significantly restricting the mother’s contact with the child[41]. Worse still, the Latvian courts accepted a decision by the Australian court establishing joint parental responsibility of the applicant and T. with effect from E.’s birth, in spite of the fact that the applicant and T. were not married to each other, the child’s birth certificate did not name the father and the child was born while the mother was still married to another man. The Australian decision was taken after the removal of the child from Australian territory and with retroactive effect. It appears from the case file that the Australian decision was based on photographs, e-mail printouts and the sole testimony of T. No paternity tests were performed[42].", "No witnesses heard. In other words, the Latvian domestic courts did not even consider if the conditions for the application of the Hague Convention had been met, namely if they were dealing with a child abduction in the sense of the Hague Convention[43]. In reality, it is obvious that the facts of the case at hand do not amount to a child abduction, since T. had no parental rights whatsoever, let alone custodial rights, “immediately before the removal” of the child from Australia, as Article 3 a) of the Hague Convention requires. Officially the applicant was a single mother and the child had no registered father when they both left Australia on 17 July 2008. From the very day of the child’s birth until the day she left Australia, T. not only failed to officially recognise his fatherhood, but even denied his paternity before the Australian public authorities.", "T. only applied for, and gained, “custodial rights” after the removal of the child, which means that at the time of the removal the mother was de jure the sole person with parental responsibility, including custodial rights, over the child. The Australian court’s decision of 6 November 2008 could not be construed in such a way as to circumvent the time requirement of Article 3 a) of the Hague Convention and to substantiate ex post facto an otherwise unfounded return claim[44]. Conclusion Taking human rights seriously requires that the Hague Convention operates not only in the best interests of children and the long-term, general objective of preventing international child abduction, but also in the short-term, best interests of each individual child who is subject to Hague return proceedings. Justice for children, even summary and provisional justice, can only be done with a view to the entirety of the very tangible case at hand, that is to say, of the actual circumstances of each child involved. Only an in-depth or “effective” evaluation of the child’s situation in the specific context of the return application can provide such justice.", "In layman’s terms, Neulinger and Shuruk is alive and well. It was and remains a decision laying down valid legal principles, not an ephemeral and capricious act of “judicial compassion”. In the specific case at hand, the domestic courts not only forwent an in-depth or “effective” evaluation of the child’s situation, but even failed to check the conditions of applicability of the Hague Convention in the first place. There was simply no legal basis for the interference with the applicant’s right to family life with her child, the removal of the child from Latvia being the only unlawful abduction in this case. Therefore, I find a violation of Article 8 of the Convention.", "JOINT DISSENTING OPINION OF JUDGES BRATZA, VAJIĆ, HAJIYEV, ŠIKUTA, HIRVELÄ, NICOLAOU, RAIMONDI AND NUSSBERGER 1. We regret that we are unable to agree with the view of the majority of the Court that the applicant’s rights under Article 8 of the Convention were violated in the present case. 2. We should make it clear at the outset that our difference of opinion with the majority relates not to the general principles to be applied in cases of child abduction covered by the Hague Convention, on which we are in full agreement with the other judges of the Court. In particular, we agree that, despite the undeniable impact that return of the child may have on the rights of the child and parents, Article 8 does not call for an in-depth examination by the judicial or other authorities of the requested State of the entire family situation of the child in question.", "We further agree that the Article nevertheless imposes on the national authorities of that State, when examining a case under Article 13 (b) of the Hague Convention, to consider arguable claims of a “grave risk” for the child in the event of his or her return and, where such a claim is found not to be established, to make a ruling giving sufficient reasons for rejecting it. 3. Where we part company with the majority is on the question whether, in rejecting the applicant’s claim in the present case and ordering the return of her child to Australia, the national courts of Latvia sufficiently complied with those procedural requirements. 4. We note that the Latvian courts, at first instance and on appeal, were unanimous as to the response to be given to the application for return of the child lodged by the child’s father.", "In a reasoned judgment of 19 November 2008, the District Court, after a hearing attended by both parents, held that the Hague Convention was applicable and granted T.’s application, ordering the child’s immediate return to Australia. The court rejected the applicant’s claim under Article 13 of the Hague Convention, holding, on the basis of photographs and copies of e-mails between the applicant and T.’s relatives, that T. had cared for the child prior to her departure for Latvia. While noting that witness statements referred to arguments between the parties and to the fact that T. had behaved irascibly towards the applicant and the child, it held that this did not enable it to conclude that T. had not taken care of the child. The court dismissed the applicant’s claim that the child’s return posed a risk of psychological harm to E. as unsubstantiated and as being based on an unfounded assumption. 5.", "On 26 January 2009 the Riga Regional Court upheld that decision, after a hearing at which both parents were again present and legally represented. In support of her claim that her daughter’s return to Australia would expose her to psychological harm, the applicant submitted for the first time a certificate, prepared at her request by a psychologist, which stated, inter alia, that, given the child’s young age, an immediate separation from her mother was to be ruled out, “otherwise the child [was] likely to suffer psychological trauma, in that her sense of security and self-confidence could be affected”. She further claimed that T. had ill-treated her and the child and that he was liable to a prison sentence in Australia in respect of criminal charges brought against him. 6. Central to the majority’s view that the Regional Court was in breach of its procedural obligations under Article 8 is the contention that the court refused to take into account the applicant’s claim, which is said to have been supported by the certificate and by the witness statements, that the child’s return to Australia would expose her to a “grave risk” of harm.", "7. We are unable to accept this view, which does not in our opinion do justice to the decision or reasoning of the national courts. As to the certificate, we note that the opinion of the psychologist was confined to the harm to the child which would flow from an immediate separation from her mother. The certificate did not directly address the question of the child’s return or suggest that it would be in any way harmful if E. were to return to Australia accompanied by her mother. The Regional Court did not refuse or fail to take the certificate into account.", "On the contrary, it emphasised that the certificate concerned only the issue of the separation of mother and child, which was a matter relating to custody rights which fell to be determined not by the Latvian courts as the courts of the requested State, but exclusively by the Australian courts. Having regard to the certificate’s contents, we see no justification for the view expressed in the judgment that the Regional Court should have gone further by submitting the document for cross-examination, still less that it should have ordered a second expert opinion of its own motion. 8. As to the allegations made by the applicant against T., the Regional Court expressly examined the applicant’s claims but dismissed them on the grounds that “no evidence [had] been submitted which could, even indirectly, support the allegations”. 9.", "It is argued in the judgment that the Regional Court should have done more to examine whether it was feasible for the applicant to return to Australia with the child or whether the return of the child would inevitably have resulted in her separation from her mother. We do not share this view. There was clearly no legal impediment to the return of the applicant; she had not only lived in Australia for several years but had acquired Australian citizenship in 2007. Further, there was nothing in the Regional Court’s judgment which affected her right to retain custody of the child and to accompany her back to Australia. Moreover, it does not appear that she argued before the Regional Court that, for reasons of personal safety or otherwise, she could not under any circumstances contemplate returning to Australia.", "Certainly, she had alleged that T. had ill-treated her and the child but, as noted above, this allegation was rejected by the court as wholly unsubstantiated. Moreover, the court went on to observe that there were no grounds for doubting the quality of the welfare and social protection provided to children in Australia, given that, according to a sworn affidavit, Australian legislation provided for the security of children and their protection against ill-treatment within the family. We note, in conclusion, that despite her claim before the Regional Court that she had no ties in Australia and that were she to return there she would be unemployed and would have no income, it appears that the applicant has in fact returned to live in Australia, where she has found accommodation and is in employment. 10. We are similarly unpersuaded by the argument implicit in the judgment that the Latvian courts should have taken the initiative by requesting further information from the Australian authorities about T.’s criminal profile, previous convictions and the charges of corruption allegedly brought against him.", "In proceedings under Article 13 of the Hague Convention, the burden lies on the party to adduce evidence to substantiate a claim of “grave risk” if the child were to be returned. As found by the Latvian courts, the applicant failed to adduce any evidence to support such a claim, even indirectly. 11. While the reasons given by the Latvian courts for ordering the return of E. were succinctly expressed, we consider, contrary to the view of the majority, that they adequately responded to the applicant’s arguments and that the examination of the claims made by the applicant satisfied the procedural requirements imposed on them by Article 8 of the Convention. 12.", "In view of this conclusion, all but Judge Bratza would have refused an award of costs; having regard to the fact that the applicant’s claim was in the event successful, Judge Bratza voted in favour of the grant of her costs. [1]. Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010. [2].", "Any reference in this opinion to “the Convention” is to the European Convention on Human Rights, “the Hague Convention” is to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the “EU Regulation” is to Council Regulation (EC) No 2201/2003 of 27 November 2003, “the Court” is to the European Court of Human Rights and the “Special Commission” is to the Special Commission on the practical operation of the Hague Convention. Furthermore, I will refer to the parent unlawfully deprived of his or her custodial rights as the “left-behind parent” and to the parent who unlawfully removed or retained the child as the “abducting parent”. The country to which the child is unlawfully removed or where he or she is unlawfully retained will be referred to as the “host country” and the country from which the child has been unlawfully removed or from which he or she has been unlawfully retained as the “country of habitual residence”. [3]. The leading case is Ignaccolo-Zenide v. Romania, no.", "31679/96, ECHR 2000-I. [4]. The leading case is Monory v. Romania and Hungary, no. 71099/01, 5 April 2005. [5].", "The leading case is Iglesias Gil and A.U.I. v. Spain, no. 56673/90, §§ 57-59, ECHR 2003-V. [6]. Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties. See, among other authorities, Ignaccolo-Zenide, cited above, § 95; Monory, cited above, § 81; and Iglesias Gil and A.U.I., cited above, § 61.", "However, the positive obligation to act when faced with child abduction also applies to non-Contracting States of the Hague Convention (see Bajrami v. Albania, no. 35853/04, ECHR 2006-XIV, and Hansen v. Turkey, no. 36141/97, 23 September 2003). [7]. Maumousseau and Washington v. France, no.", "39388/05, § 69, 6 December 2007. [8]. Neulinger and Shuruk, cited above, § 139. [9]. The leading case is, evidently, Neulinger and Shuruk, cited above, which was followed by Šneersone and Kampanella v. Italy, no.", "14737/09, 12 July 2011, and B. v. Belgium, no. 4320/11, 10 July 2012. Nonetheless, it is important to note that since Neulinger and Shuruk the Court has found most similar complaints inadmissible (see Van den Berg and Sarrì v. the Netherlands (dec.), no. 7239/08, 2 November 2010; Lipkowsky and McCormack v. Germany (dec.), no. 26755/10, 18 January 2011; Tarkhova v. Ukraine (dec.), no.", "8984/11, 6 September 2011; M.R. and L.R. v. Estonia (dec.), no. 13420/12, 15 May 2012; and Chernat and Others v. Romania (dec.), no. 13212/09, 3 July 2012).", "In brief, the prudent implementation of Neulinger and Shuruk did not open the door to a flood of similar judgments. The much-proclaimed risk of imminent demolition of the Hague mechanism after that judgment has proved unfounded. [10]. International child abduction involves either the child’s unlawful removal from one country to another or the unlawful retention of the child within a foreign country. In view of the facts of the case, this opinion will deal only with the first aspect and will refer to the left-behind parent as the paradigmatic example of the person, institution or other body envisaged by Article 3 a) of the Hague Convention.", "The two underlying premises of the Hague Convention are, firstly, that the court of habitual residence is best placed (forum conveniens) to resolve the merits of the custody dispute, since the bulk of the relevant evidence is available in that location and, secondly, that abduction is detrimental to the child’s development, because the child is forced to leave behind the primary caregiver parent, family relatives and the known social and cultural environment. In fact, when the Hague Convention was prepared, the sociological stereotype of the abducting parent was that of a foreign, non-custodial father who was not willing to accept the mother’s existing custody over the child, and unlawfully removed the child from his or her country of habitual residence. Since the 1990s this has no longer been true, the majority of cases nowadays being the foreign, custodial mother who leaves, for multiple reasons, the family’s country of habitual residence after the termination of her relationship with the child’s father. Consequently, if the evidentiary premise still holds true today, the substantive one does not. [11].", "See Thomson v. Thomson [1994] 3 SCR 551, which held that the mother’s knowledge of an order preventing a child’s removal from Scotland was not essential. In fact, the Hague Convention does not distinguish between intentional and negligent removal of a child (see Mattenklott v. Germany (dec.), no. 41092/06, 11 December 2006). [12]. Some courts have entertained other “procedural” defences, such as “fugitive disentitlement”, waiver and “unclean hands” (for a summary, see Federal Judicial Center, International Litigation Guide, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, 2012, pp.", "91-98). [13]. National courts have discussed whether return would expose the child to such a danger in cases of return to a war zone, civil unrest, generalised violence, hunger, disease, pollution, adjustment problems, difficult living conditions, a situation of child neglect, abuse, post-traumatic stress disorder and separation trauma (see, among others, French Court of Cassation judgments nos. 11-28.424 of 13 February 2013, and 10-19905 of 26 October 2011; Italian Court of Cassation judgments nos. 22962 of 31 October 2007, and 10577 of 4 July 2003; and Simcox v. Simcox, 511 F.3d 594 (6th Cir.", "2007); Blondin v. Dubois, 238 F.3d 153 (2nd Cir. 2001); and Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996)). [14]. A problematic strict construction of Article 11 §§ 4 and 8 of the EU Regulation has rendered the defences meaningless and thus practically eliminated all checks in the host country (ECJ, Rinau, case C-195/08PPU, judgment of 11 July 2008; Detiček, case C‑403/09PPU, judgment of 23 December 2009; Povse, case C-211/10, judgment of 1 July 2010; and Zarraga, case C-491/10PPU, judgment of 22 December 2010).", "[15]. National courts have considered such factors as duration and stability of residence in the new environment, participation in school and extracurricular activities and language fluency (see Friedrich v. Friedrich, cited above, and Lops v. Lops, 140 F.3d 927 (11th Cir. 1998). [16]. Although not literally restricted to the child’s human rights, this defence has been interpreted as providing only for these, since Article 20 was intended to enact a “very strictly qualified form of ordre public” (Conclusions on the main points discussed by the Special Commission, 1989, § 38), some arguing that Article 20 is already covered by the earlier grounds for refusing to return a child, listed under Article 13 (Report of the second Special Commission meeting, 1993, response to question 30 of Part III).", "[17]. It was stressed in the Special Commission that the term “habitual residence” as well as the term “rights of custody” should normally be interpreted in an international way and not by reference to a specific national law (Conclusions on the main points discussed by the Special Commission, 1989, § 9, Report of the second Special Commission meeting, 1993, response to question 5 of Part III, Recommendation 4.1 of the fourth meeting of the Special Commission, Report on the fifth meeting of the Special Commission, 2006, § 155, and Conclusions of the Special Commission, 2012, § 44). As the US Supreme Court has noted, custody rights must be determined by “following the [Hague] Convention’s text and structure ... This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage ...” (Abbott v. Abbott, 130 S. Ct. 1983, 1990 (2010)).", "[18]. Report of the third Special Commission meeting, 1997, § 13. So-called “inchoate custody rights” have been accepted by some jurisdictions, such as England (Re B. (A Minor) (Abduction), (1994) 2 FLR 249, Re O. (Child Abduction: Custody Rights), (1997) 2 FLR 702, and Re G. (Abduction: Rights of Custody) (2002) 2 FLR 703) and New Zealand (Anderson v. Paterson [2002] NZFLR 641), but rejected by others, such as Ireland (H.I.", "v. M.G. (1999) 2 ILRM 1) and Northern Ireland (VK and AK v. CC [2013] NIFam 6). As shall be demonstrated below, the concept of “inchoate custody rights” cannot be reconciled with the Court’s, the European Court of Justice’s and the House of Lords’ case-law. [19]. Conclusions and Recommendations of the Special Commission, 2012, §§ 13, 36 and 80.", "[20]. Report and conclusions of the Special Commission, 2002, § 64. [21]. Recommendation 3.7 of the fourth meeting of the Special Commission, 2001; Guide to good practice under the Hague Convention, Part II – Implementing Measures, 2003, § 6.5. [22].", "Report of the second Special Commission meeting, 1993, response to question 1 of Part III. A court, when making a return order, should make it as detailed and specific as possible, including practical details of the return and the coercive measures to be applied if necessary (Guide to good practice under the Hague Convention, Part IV – Enforcement, 2010, §§ 4.1 and 4.2 of the executive summary). [23]. In some jurisdictions, mostly common-law countries, these stipulations may range from non-enforceable undertakings assumed by the left-behind parent to the possibility to secure a “mirror order”, that is to say an order made by the court in the country of habitual residence that is identical or similar to a previous order made in the host country (Recommendations 1.8.2 and 5.1 of the fourth meeting of the Special Commission, Report on the fifth meeting of the Special Commission, 2006, §§ 228-29; and Recommendations 1.8.1 of the fifth meeting of the Special Commission; Guide to good practice under the Hague Convention, Part I – Central Authority Practice, 2003, § 4.22). [24].", "See the Pérez-Vera Report, § 25: “these exceptions are only concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the guiding criterion in this area.” This statement must be read in conjunction with the view that the principle of the best interests of the child resembles “more closely a sociological paradigm than a concrete juridical standard” (§ 21). [25]. Article 3 § 1 of the United Nations Convention on the Rights of the Child (1989) acknowledges a principle of customary international law which had already been reflected in the Preamble of the Hague Convention: “Firmly convinced that the interests of children are of paramount importance in matters relating to their custody ...”. This is also in accordance with Principle III B 2 of the Committee of Ministers’ Guidelines on child-friendly justice, 2010, Articles 4 and 29 (a) of the African Charter on the Rights and Welfare of the Child, 1990, and the United Nations High Commissioner for Refugees’ Guidelines on Determining the Best Interests of the Child, 2008. [26].", "See, in this direction, the House of Lords in re M (FC) and another (FC) (Children) (FC), [2007] UKHL 55, and Re D (Abduction: Rights of Custody) [2006] UKHL 51; French Court of Cassation judgment no. 04-16.942 of 14 June 2005; Italian Court of Cassation judgment no. 10577 of 4 April 2003; High Court of Australia, DP v. Commonwealth Central Authority [2001] HCA 39; Supreme Court of New Zealand, Secretary for Justice v. HK, judgment of 16 November 2006; and Conclusions of the Special Commission of 2012, § 42. [27]. The Pérez-Vera Report, §§ 25, 34 and 116; Recommendation 4.3 of the 2001 meeting of the Special Commission; Recommendation 1.4.2 of the fifth meeting of the Special Commission; Report on the fifth meeting of the Special Commission, 2006, §§ 155 and 165; and Recommendation 4.3 of the fourth meeting of the Special Commission; and 42 USC § 11601(a)(4) (“narrow exceptions”), the US Department of State, Hague International Child Abduction Convention, Text and Legal Analysis, at 10,510, and the Federal Judicial Center, International Litigation Guide, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, 2012, p. 64.", "[28]. When national authorities apply international treaties, the Court’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999‑I, and Korbely v. Hungary [GC], no. 9174/02, § 72, ECHR 2008). The same applies to the Hague Convention (see Neulinger and Shuruk, cited above, § 133; Šneersone and Kampanella, cited above, § 85; and B v. Belgium, cited above, § 60).", "Sometimes the Court not only criticises the interpretation of the relevant legal framework (see Monory, cited above, § 81, and Carlson v. Switzerland, no. 49492/06, § 77, 6 November 2008), but also the inadequacy of the legislation itself (see Iglesias Gil and A.U.I., cited above, § 61). [29]. The court of the host country does not necessarily have to be satisfied beyond any reasonable doubt on both the return requirements and the defences to return, since nothing suggests that the required standard of proof is anything other than the ordinary balance of probabilities (see M.R. and L.R.", "v. Estonia, cited above, § 46, and Re E (Children) (Abduction: Custody Appeal), (2011) UKSC 27). Indeed, the provisional and summary nature of return proceedings speaks in favour of this lighter standard of proof. [30]. Klass and Others v. Germany, 6 September 1978, § 42, Series A no. 28, and Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no.", "216. [31]. As the High Court of Australia in D.P. v. Commonwealth Central Authority [2001] HCA 39, the South African Supreme Court in Sonderup v. Tondelli 2001 (1) SA 1171 CC, and the United Kingdom Supreme Court in Re E. (Children) (Abduction: Custody Appeal) [2011] UKSC 27 rightly concluded, there is no need for the defence provisions to be narrowly construed. Nor is there any need for an additional test of exceptionality to be added to the defence provisions (Re M. (Children) (Abduction: Rights of Custody), [2007] UKHL 55).", "[32]. This is not an oddity of the European human rights protection system (see Article 34 of the Inter-American Convention on the International Return of Children, 1989). [33]. The clearly disproportionate decision of the Australian Family Court of September 2009 to prohibit the mother to converse with her own daughter in Latvian speaks for itself! A child’s Article 8 rights may be severely damaged after return to States not bound by the Convention, without any practical legal avenue for the applicant before the Court.", "[34]. The need for an additional protocol to the Hague Convention which would codify basic guarantees and obligations in the enforcement stage of the return order, enshrine a binding mechanism of uniform interpretation of the Hague Convention, and oversee the States Parties’ compliance with their obligations is patent. The lessons learned with the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, 1980, and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, 1996, could provide some guidance. [35]. The same applies obviously in the Inter-American human rights system, where the Inter-American Commission has already found that the making of a return order pending an appeal does not breach the American Convention on Human Rights and thus reviewed the Argentine court’s decision in return proceedings under a supranational standard (report no.", "71/00, X and Z v. Argentina, 3 October 2000, §§ 38, 51 and 56). [36]. It is also not irrelevant to refer to the persuasive force of the Court’s case-law, which may play a role in the way non-European countries apply the Hague Convention. Conversely, the case-law of the Inter-American and African human rights systems could also influence the way in which the European courts and the Court apply the Hague Convention. A rich dialogue could emerge among international courts, which would promote the development of universal legal standards and further the progress of children’s rights.", "[37]. I am not ready to accept the easy critique that we cannot have our cake and eat it, meaning that an “in-depth” investigation in urgent and expeditious proceedings is almost equivalent to squaring the circle. Firstly, as already explained, the subject matter of the investigation is limited by Neulinger and Shuruk to the specific context of the return application. Secondly, having had the benefit of intervening in many family-law cases, including Hague Convention cases, I am convinced that a thorough, limited and expeditious investigation is perfectly feasible if judges strictly control its timetable. An “in-depth” judicial enquiry does not have to be obtuse, ill-defined and self-indulgent.", "[38]. In the X and Z v. Argentina case, cited above, § 60, the Inter-American Commission found that the evaluations of the child conducted by a psychologist and a court-appointed social worker, who interviewed both parents and the child, did not breach the right to fair, impartial and rapid proceedings. [39]. At first sight, it appears that the majority distances itself from the principles of Neulinger and Shuruk (see paragraph 107 of the judgment). But this is an illusory impression.", "The majority also calls for an “effective examination of allegations made by a party” (see paragraph 118). The replacement of the adjective “in-depth” by the adjective “effective” does not change much, especially if one takes into account that the Grand Chamber still understands that the Court’s remit includes the assessment of the substantive aspect of the child’s “human rights” when evaluating return orders (see paragraph 117). In other words, the present judgment does not really change the Neulinger and Shuruk standard. [40]. Similar omissions were censured in B. v. Belgium, cited above, § 72, and Šneersone and Kampanella, cited above, § 95.", "[41]. As occurred in Sylvester v. Austria, nos. 36812/97 and 40104/98, 24 April 2003, and in Mattenklott, cited above. [42]. In Mattenklott, cited above, the return order was based on a paternity test taken by the unmarried father and the presumption of exercise of custody rights at the time of removal, resulting from the father’s occasional access to the child prior to that moment.", "[43]. So-called inchoate child custody rights have been the subject matter of two cases before the Court. In Balbontin v. the United Kingdom ((dec.), no. 39067/97, 14 September 1999), the Court confirmed the domestic courts’ interpretation to the effect that even were they to grant the unmarried applicant parental responsibility after the removal of the child from the United Kingdom, this would not make the removal of the child unlawful ex post facto. In Guichard v. France ((dec.), no.", "56838/90, ECHR 2003-X), the Court found inadmissible the application made by an unmarried father who did not have custody rights when the child was removed from France, although he had officially recognised his son prior to birth. Based on this case-law, the Court of Justice of the European Union adjudicated a similar case in which an unmarried father did not take steps to obtain custody rights prior to the child’s removal from the country of habitual residence. The child’s removal to another country represented “the legitimate exercise, by the mother with custody of the child, of her own right of freedom of movement, established in Article 20(2)(a) TFEU and Article 21(1) TFEU, and of her right to determine the child’s place of residence” (J. McB. v. L. E., C-400/10 PPU, judgment of 5 October 2010, § 58). Finally, in In Re J.", "(A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, the House of Lords held that de facto custody is not sufficient to amount to rights of custody for the purposes of the Hague Convention. Since at the time of the removal the mother had sole custody of the child, the subsequent attribution of custody rights to the registered father could not render the removal wrongful. The United Kingdom courts were not bound by the finding of the Australian court in this regard. In Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, Baroness Hale clearly endorsed In Re J. as the governing authority in this area. [44].", "This finding is not invalidated by the Australian Central Authority’s declaration that at the time of the child’s removal from Australia T. had joint parental responsibility over E. Firstly, that declaration was not binding for the Latvian authorities. Secondly, since the concept of “custody rights” has an autonomous meaning in the Hague Convention, the Australian declaration cannot, in the unique circumstances of the case and in the light of the Convention, ascribe “custody rights” to T. for the purpose of triggering the mechanism of the Hague Convention." ]

[ "FIFTH SECTION CASE OF GEORGIEV AND OTHERS v. BULGARIA (Application no. 4551/05) JUDGMENT STRASBOURG 24 February 2011 This judgment is final but it may be subject to editorial revision. In the case of Georgiev and Others v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mirjana Lazarova Trajkovska, President,Zdravka Kalaydjieva,Julia Laffranque, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 31 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4551/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Bulgarian nationals Mr Georgi Ivanov Georgiev, Mr Lyubcho Petrov Tsochev, and Mr Kiril Kostadinov Studenkov (“the applicants”), on 21 January 2005.", "2. The applicants were represented by Ms S. Stefanova and Mr A. Atanasov, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. On 15 June 2009 the President of the Fifth Section decided to give notice of the application to the Government.", "In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1961, 1950 and 1971 respectively. The first applicant lives in Lisets and the second and the third applicants live in Plovdiv.", "5. On 29 August 1995 the applicants were questioned by the police and gave written statements admitting their involvement in a theft of car spare parts and boxes of beer from a warehouse. On the next day the investigator opened criminal proceedings against them. A witness was questioned on 14 September 1995, after which the case remained dormant until February 2002, when seven other witnesses were questioned. 6.", "Theft charges were brought against the applicants on 17 July, 26 June and 14 October 2002 respectively. In the period from March to October 2003 the investigator questioned the applicants and several witnesses. In December 2003 the public prosecutor filed an indictment against the applicants. 7. On 25 May and 2 December 2004 the Plovdiv District Court held two hearings and on the latter date approved a plea bargain agreement between the applicants and the public prosecutor and discontinued the proceedings.", "The first and the second applicants were punished by six months’ imprisonment, and the third applicant by three months’ imprisonment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 8. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 9. The Government argued that for the purposes of Article 6 of the Convention the criminal proceedings against the applicants commenced on 17 July, 26 June and 14 October 2002 respectively, when the applicants were charged.", "Thus, the Government contended that the proceedings had lasted for about two years and a half. Accordingly, they considered that the applicants’ complaints should be rejected as being manifestly ill-founded. A. Period to be taken into consideration 10. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is “charged”.", "According to the Court’s case-law, the word “charge” in Article 6 § 1 must be interpreted as having an autonomous meaning in the context of the Convention and not on the basis of its meaning in domestic law. Thus, whilst “charge”, for the purposes of Article 6 § 1 may in general be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect (see among many others, Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; and Corigliano v. Italy, 10 December 1982, § 34, Series A no. 57).", "11. In the present case the applicants were questioned in connection with a theft and confessed to taking part in its commission on 29 August 1995. Criminal proceedings were opened against them on the following day (see paragraph 5 above). 12. Having regard to these facts and applying the principles set out above, the Court finds that in the present case the applicants’ situation was “substantially affected” and they could be considered as subject to a “charge” from the moment when they were questioned by the police and confessed to the theft (see, with further reference, Yankov and Manchev v. Bulgaria, nos.", "27207/04 and 15614/05, §§ 17-18 and §§ 23-24, 22 October 2009). Accordingly, the beginning of the period to be taken into consideration is 29 August 1995. 13. The period ended on 2 December 2004, when the applicants concluded a plea bargain agreement. It thus lasted nine years three months and three days for a preliminary investigation and one level of jurisdiction.", "B. Admissibility 14. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 15.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 16. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among many others, Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, § 30, 23 September 2004 and Yankov and Manchev v. Bulgaira, cited above §§ 17-26).", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the Court notes that the major source of delay in the present case was the lack of sufficient activity from September 1995 to February 2002 when the case was effectively dormant (see paragraph 5 above). 17. In view of the above and having regard to its case-law on the subject and the global length of the proceedings, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 18.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 19. The applicants further complained of the lack of an effective remedy in respect the excessive length of the proceedings against them. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 20.", "The Government did not comment. 21. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 22. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no.", "30210/96, § 156, ECHR 2000-XI). It notes that it has frequently found violations of Article 13 of the Convention in cases raising issues similar to the one in the present case (see, with further references, Myashev v. Bulgaria, no. 43428/02, §§ 22 and 23, 8 January 2009, and Yankov and Manchev, cited above, §§ 32-34). It sees no reason to reach a different conclusion in the present case. 23.", "There has therefore been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 24. The applicants claimed a total of 39,000 euros (EUR), EUR 13,000 per person, in respect of non-pecuniary damage.", "25. The Government contested these claims. 26. The Court observes that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards EUR 2,000 to each applicant under this head.", "B. Costs and expenses 27. The applicants also claimed EUR 3,150 in lawyer’s fees for the proceedings before the Court, EUR 45 for postage and EUR 30 for office materials. In support of this claim they presented an agreement with their lawyers and a time sheet for forty five hours at the hourly rate of EUR 70. The applicants requested that the amount awarded for costs and expenses under this head be paid directly to their lawyers, Mrs S. Stefanova and Mr A. Atanasov.", "28. The Government contested these claims as excessive. 29. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 600, covering costs under all heads, payable directly into the bank account of the applicants’ legal representatives.", "C. Default interest 30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings; 3.", "Holds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the proceedings; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) to Mr Georgiev, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (ii) to Mr Tsochev, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (iii) to Mr Studenkov, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (iv) jointly to the applicants, EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account of their legal representatives, Ms S. Stefanova and Mr A. Atanasov; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 24 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsMirjana Lazarova TrajkovskaDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF UNITED CIVIL AVIATION TRADE UNION AND CSORBA v. HUNGARY (Application no. 27585/13) JUDGMENT STRASBOURG 22 May 2018 FINAL 22/08/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of United Civil Aviation Trade Union and Csorba v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Vincent A. De Gaetano,Faris Vehabović,Egidijus Kūris,Carlo Ranzoni,Georges Ravarani,Péter Paczolay, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 27 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 27585/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the United Civil Aviation Trade Union (Légiközlekedési Egyesült Szakszervezet), and its president, Mr Attila Csorba (“the applicants”), on 16 April 2013. 2. The applicants were represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.", "3. The applicants alleged that the ban imposed on a demonstration planned by them had infringed their rights under Article 11 of the Convention. 4. On 9 February 2017 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The United Civil Aviation Trade Union (“the first applicant”) is a trade union registered in Budapest. Mr A. Csorba (“the second applicant”) is a Hungarian national who was born in 1970 and lives in Vecsés. He is the President of the United Civil Aviation Trade Union. 6.", "On 12 October 2012 the second applicant applied to the Budapest police department for authorisation to hold a demonstration on the road leading to Budapest Ferenc Liszt International Airport. He stated that the demonstration would be held on the hard shoulder of the road, which was not ordinarily used for traffic. The declared objectives of the demonstration were, inter alia, to draw the public’s attention to the precarious financial situation in which the employees of the airport would find themselves if salary cuts envisaged by the company managing the airport were carried out. The event was scheduled to be held between 3 p.m. and 5 p.m. on 17 October 2012. The second applicant also specified that it was expected that about fifty to 100 persons would participate in the event and that it was intended that speeches would be given and that an open letter would be read out.", "7. On 14 October 2012 the Budapest police department registered the application and informed the second applicant that, in order to clarify details regarding the programme of the demonstration and the number of police officers that would be required to secure the event, it was necessary to schedule a meeting with the organisers. 8. The second applicant and the Vice-President of the United Civil Aviation Trade Union met with the representatives of the Monor police department on the same day. The representative of the police department suggested that the demonstration be held at another location, since the planned venue would endanger traffic.", "The second applicant assured the police that the demonstrators would respect traffic rules, would only occupy the part of the road not used for traffic and would distribute flyers to car passengers, and that the organisers would call off or halt the demonstration if it was not in compliance with the relevant legal provisions. 9. On 14 October 2012 the Monor police department forbade the demonstration. It was of the view that the planned demonstration would endanger traffic and would render the airport inaccessible, infringing passengers’ right to leave the country. In any event, the demonstration would breach the traffic code, since those parts of the road not used for traffic were not supposed to be accessed by pedestrians or be used for parking.", "10. On 17 October 2012 the applicants requested judicial review of the decision, relying on their right to freedom of expression and to freedom of assembly. They argued that a demonstration could only be forbidden on the grounds of a need to ensure traffic safety if there were no alternative means of access to the airport. In their view the demonstration would not constitute any greater hindrance to traffic than would roadworks. 11.", "By a decision of 19 October 2012 the Budapest Surroundings High Court (Budapest Környéki Törvényszék) dismissed their complaint, endorsing in essence the police department’s reasoning (see paragraph 9 above). II. RELEVANT DOMESTIC LAW 12. The relevant provisions of Act no. III of 1989 on the Right to Assembly (“the Assembly Act”) read as follows: Section 8 “(1) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts, or results in a disproportionate hindrance of the circulation of traffic, the police may ban the holding of the event at the place or time indicated in the notification, within 48 hours from the receipt of the notification by the authority.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 13. The applicants complained that the ban on organising a demonstration on the road leading to the airport had resulted in a disproportionate interference with their right to freedom of assembly. 14. They invoked Article 11 of the Convention, which provides as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility 15. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. Arguments of the parties (a) The applicants 16. The applicants argued that the interference complained of had not been lawful, since the authorities had interpreted in an overarching manner the relevant provision of the Assembly Act so as to be able to ban the event.", "Nor had the interference pursued any legitimate aim, since the reasons underlying the ban had been purely political. 17. The applicants argued that the right to freedom of assembly also covered the choosing of the place, time and practical arrangements in respect of the demonstration, and that the ban on using the road leading to the airport had therefore constituted an interference under Article 11 of the Convention. 18. As regards the necessity of the interference, the applicants submitted that the demonstrators’ interest in exercising their right to freedom of assembly had outweighed air passengers’ right to unhindered access to the airport.", "They maintained that the potential disturbance to traffic had not justified a complete ban on a demonstration; almost every assembly by its very nature disrupted to a certain extent road traffic, and the public authorities were bound to show a certain degree of tolerance towards peaceful gatherings. They emphasised in this respect that since the demonstration had been planned in order to address the concerns of the employees at the airport, it had been important to organise the event close to the airport itself. 19. Had the demonstration been authorised, it would not have caused any disproportionate obstruction to traffic and it would not have made it impossible for passengers to reach the airport, since it would have been held for no longer than two hours. The organisers had planned to hold the event on the hard shoulder of the road, which was not used ordinarily for traffic and was wide enough to accommodate the anticipated number of participants (some fifty to 100 persons).", "The applicants also contested the argument that the demonstration would have caused danger to both drivers and the demonstrators, emphasising that in any event a reduced speed limit applied to the road leading to the airport. They also challenged the Government’s claim that in the event of an emergency the airport could not have been reached, pointing to a number of alternative routes. (b) The Government 20. The Government submitted that the interference had been prescribed by law, namely by the relevant provisions of Act no. III of 1989 on the Right to Assembly.", "Furthermore, it had pursued the legitimate aim of securing the rights of others – that is to say those of other road users. 21. As to its necessity, the Government maintained that the domestic authorities had had to balance the right to assembly and the right to free movement. They stressed that although it had been planned to hold the demonstration on the hard shoulder of the road, it would have necessarily impacted the use of the other lanes of the road and would have hindered or even blocked access to the airport. There were no alternative routes to the terminals of the airport and the demonstration would have also blocked the airport in the event of an emergency.", "Furthermore, organising an assembly on a road with heavy traffic would have also created a danger to the demonstrators’ physical integrity. 2. The Court’s assessment 22. The Court notes that the Government did not dispute that the applicant could rely on the guarantees contained in Article 11; nor did they deny that the ban on the demonstration had interfered with the exercise of their rights under that provision. It sees no reason to hold otherwise.", "23. The Court observes that the ban was based on section 8(1) of the Assembly Act (see paragraph 12 above) and considers that it was thus prescribed by law. Moreover, the Court is satisfied that the measure complained of pursued the legitimate aims of preventing disorder and protecting the rights of others. 24. It remains to be ascertained whether the interference complained of was “necessary in a democratic society”.", "In this respect the Court refers at the outset to the principles set out in paragraphs 142 to 160 of the judgment Kudrevičius and Others v. Lithuania ([GC], no. 37553/05, ECHR 2015, see also Körtvélyessy v. Hungary, no. 7871/10, §§ 24-27, 5 April 2016). 25. The Court observes that in the domestic court decision dealing with the case, the basis for upholding the ban on the assembly related exclusively to traffic issues (see paragraphs 9 and 11 above).", "The Government’s submissions were, in essence, confined to the affirmation that the demonstration would have seriously hampered the free flow of traffic in the area (see paragraph 21 above). 26. In this connection, the Court reiterates that since overcrowding during a public event is fraught with danger, it is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering (see Primov and Others v. Russia, no. 17391/06, § 130, 12 June 2014). Furthermore, a demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption to traffic.", "However, where demonstrators do not engage in acts of violence, it is important for public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 is not to be deprived of all substance (see Nurettin Aldemir and Others v. Turkey, nos. 32124/02 and 6 others, § 43, 18 December 2007, and Budaházy v. Hungary, no. 41479/10, § 34, 15 December 2015). The appropriate “degree of tolerance” cannot be defined in abstracto: the Court must look at the particular circumstances of the case and particularly at the extent of the “disruption to ordinary life”. This being so, it is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force (see Kudrevičius and Others, cited above, § 155).", "27. Turning to the circumstances of the present case, the Court finds that the Government have not demonstrated that the national authorities based their decisions on an acceptable assessment of the relevant facts. It sees no reason to doubt the domestic courts’ findings to the effect that the demonstration held next to the road leading to the airport would have affected the flow of traffic leading to the airport. However, the Court also notes that the organisers of the demonstration had undertaken not to provoke a major disruption to traffic or significant inconvenience for road-users, explaining that the number of demonstrators would be limited to fifty to 100 persons and they would only use the hard shoulder of the road, that the event would not last longer than two hours, and that it would be called off immediately if the demonstrators started to act unlawfully or if it exceeded the scope of the permit issued by the authorities (see paragraphs 6 and 8 above). 28.", "The Court is therefore not convinced by the Government’s explanation to the effect that the hard shoulder of the road could not have accommodated the demonstration without jeopardising access to the airport. Moreover, the Government’s contention that the demonstration could have endangered a rescue operation in the event of an emergency is largely a matter of speculation. Furthermore, no disruption to ordinary life and traffic was intended by the organisers and it would have constituted only a side-effect of a demonstration held in a public place (compare and contrast, Kudrevičius and Others, cited above, § 170). 29. Furthermore, the Court observes that the site where the applicants had intended to hold their demonstration had a symbolic importance for the employees of the airport, and it is for this reason that they insisted on organising the demonstration there.", "The Court considers that in the present case it was the authorities’ duty to reflect on possible alternative solutions and propose other arrangements to the organisers (see Primov and Others, cited above, § 131). The domestic authorities nonetheless did not embark on an assessment of whether the employees of the airport had at their disposal alternative means of protecting their interest. Instead of considering measures which could have allowed the assembly to proceed in a manner that did not cause undue disturbance to road traffic in the proximity of the airport, the authorities imposed a ban on it. They resorted to the most radical measure of denying the applicants the possibility of exercising their right to freedom of assembly. 30.", "Thus, a fair balance between the legitimate aim and the means for attaining it was not attained. Accordingly, the Court does not consider that disruption to the traffic in the direction of the airport was sufficient reason for a total ban on the demonstration. 31. Accordingly, there has been a violation of Article 11 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 33. The applicants jointly claimed 5,000 euros (EUR) in respect of non‑pecuniary damage. 34.", "The Government contested the claim. 35. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage the applicants may have suffered (see, mutatis mutandis, Körtvélyessy v. Hungary (no. 3), no. 58274/15, § 26, 3 October 2017; Sáska v. Hungary, no.", "58050/08, § 27, 27 November 2012; and Patyi and Others v. Hungary, no. 5529/05, § 53, 7 October 2008). B. Costs and expenses 36. The applicants also jointly claimed EUR 8,000, plus VAT, for the costs and expenses incurred before the Court.", "This amount corresponded to forty hours of legal work billed by their lawyer at an hourly rate of EUR 200 plus VAT. 37. The Government contested this claim. 38. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award to the applicants jointly EUR 2,000 for the proceedings before the Court. C. Default interest 39. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, 1. Declares, unanimously, the application admissible; 2.", "Holds, by four votes to three, that there has been a violation of Article 11 of the Convention; 3. Holds, by five votes to two, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants; 4. Holds, by four votes to three, (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses, by five votes to two, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliGanna YudkivskaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) joint partly dissenting opinion of Judges Yudkivska, Ranzoni and Ravarani; (b) joint partly dissenting opinion of Judges Vehabović and Kūris. G.Y.M.T. JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, RANZONI AND RAVARANI I.Introduction II.General principles In the context of demonstrations the Court has held that the domestic authorities were best placed to evaluate the security risks and those of disturbance as well as the appropriate measures dictated by the risk assumption (see Fáber v. Hungary, no. 40721/08, § 42, 24 July 2012), and that the Court could not question the national courts’ assessment, unless it was manifestly unreasonable or there was clear evidence of arbitrariness (see Budaházy v. Hungary, no. 41479/10, § 40, 15 December 2015, with reference to Sisojeva and Others v. Latvia (striking out) [GC], no.", "60654/00, § 89, ECHR 2007‑I). III.Assessment of the present case We fail to see on what basis the majority waves aside the authorities’ argument with this rather “sloppy” reasoning. The domestic court shared the police authority’s position that there were no alternative routes to specific areas of the airport. The Court lacks any elements, let alone cogent elements, which could lead it to depart from these and other findings of fact by the national authorities and courts, whose assessment does not show any appearance of arbitrariness. In this regard, the States’ positive obligations under Articles 1 and 3 of the Convention need to be taken into account.", "States are required to take measures designed to ensure that individuals within their jurisdiction are not subjected to treatment contrary to Article 3 (see, for example, A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998-VI). The corresponding duty to ensure not only the safety of the demonstrators, but also the safety of other road users, in particular people in passing vehicles, and, in the case of an emergency situation, people within the airport area, must be weighed against the applicants’ rights under Article 11 of the Convention. In this balancing exercise national authorities are, in principle, better placed than an international court, and that is exactly the reason why member States enjoy a margin of appreciation (see paragraph 6 above). Apart from these paramount safety considerations, it is worth mentioning that access to an airport is also a sensitive area for passengers who would risk missing their flights due to a major hold-up of traffic at the prospective demonstration venue (given the planned duration of the event) and in the absence of alternative roads. Be that as it may, in the instant case the Hungarian authorities did actually suggest that the demonstration be held at another location (see paragraph 8 of the judgment) and thereby fulfilled the said requirement.", "The majority either overlooked this fact or deliberately put it aside without giving any explanation. Anyway, the argumentation in paragraph 29 of the judgment is untenable. IV.Conclusion JOINT PARTLY DISSENTING OPINION OF JUDGES VEHABOVIĆ AND KŪRIS 1. In Bukta and Others v. Hungary (no. 25691/04, § 45, 17 July 2007), Patyi and Others v. Hungary, no.", "5529/05, § 53, 7 October 2008), Sáska v. Hungary (no. 58050/08, § 27, 27 November 2012), Körtvélyessy v. Hungary (no. 7871/10, § 36, 5 April 2016), Körtvélyessy v. Hungary (no. 2) (no. 58271/15, § 27, 18 July 2017) and Körtvélyessy v. Hungary (no.", "3) (no. 58274/15, § 26, 3 October 2017) the Court considered that the finding of a violation of Article 11 of the Convention constituted sufficient just satisfaction for any non-pecuniary damage the applicants might have suffered. Some of these cases are rightly mentioned in paragraph 35 of the judgment. 2. While not challenging ex post facto the said considerations in these particular cases (after all, one of us was a member of the Chamber in certain of them), we think that this pattern should not be followed in the instant case.", "Perhaps it should even be abandoned. The State should not be able to evade its responsibility so easily, with nothing more tangible than a sheer declaration that there has been a violation, in circumstances where certain violations of the Convention appear to have become routine and repetitive. Article 41 explicitly states that, “if necessary”, just satisfaction is awarded to the injured party if the internal law of the State concerned allows only partial reparation to be made. In the instant case no reparation can be envisaged at the domestic level – not even “partial”. Does this not compel the Court to conclude that an award of just satisfaction to the applicants is “necessary”?", "Or, if the Court considers that such an award is not “necessary”, to provide at least some reasons for this consideration, as required by Article 45? A blunt statement that the Court “considers” amounts to saying virtually nothing, because pronouncing that the Court “considers” something is a fiat, but by no means a consideration or reasoning. The references to Patyi and Others, Sáska or Körtvélyessy (no. 3) (all cited above) do not help at all, they only disguise the absence of reasoning, because reasons are also not provided in any of these judgments – only fiats (sometimes with references to earlier fiats). 3.", "The coin has two sides. There exists another approach to dealing with applicants’ claims under Article 41 in cases similar to the instant one, in that they all involve an advance ban on demonstrations. In Patyi v. Hungary (no. 35127/08, § 31, 17 January 2012) the Court held that “the applicant must have suffered some non‑pecuniary damage and award[ed] him, on the basis of equity, EUR 2,400”. The same goes for Szerdahelyi v. Hungary (no.", "30385/07, § 39, 17 January 2012). It would not be easy to discern any difference between these two cases and the instant one which would be relevant for the purposes of Article 41. 4. We have limited ourselves to cases involving advance bans as a result of which demonstrations did not take place, and only against one and the same State, Hungary. The list, however, could be extended so as to include cases against other States.", "See, for example, Barankevich v. Russia (no. 10519/03, § 44, 26 July 2007) or Hyde Park and Others v. Moldova (no. 2) (no. 45094/06, § 33, 31 March 2009). Some consistency between the “Hungarian” case-law and its “extra-Hungarian” counterparts, let alone “internal” consonance, would perhaps do no harm." ]

[ "FIRST SECTION CASE OF KHRISTOFOROV v. RUSSIA (Application no. 11336/06) JUDGMENT STRASBOURG 29 April 2010 FINAL 29/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khristoforov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 30 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "11336/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Nikolayevich Khristoforov (“the applicant”), on 23 February 2006. 2. The applicant, who had been granted legal aid, was represented by Ms O. Druzhkova and Ms K. Moskalenko, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged that he had been detained pending investigation and trial in inhuman and degrading conditions. 4. On 22 May 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5.", "The Government objected to a joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1961 and is serving a prison sentence in the Magadan Region.", "7. On 3 January 2005 the applicant was arrested on suspicion of manslaughter and placed in a temporary detention facility at the Severo-Evensk District police station in the Magadan Region (ИВС Северо-Эвенского РУВД). According to the applicant, he was kept in a windowless cell without any other access to fresh air or daylight. It was dim and stuffy. There was no ventilation.", "The cell was not equipped with a toilet. During the day time, if requested, the guards took the applicant to a bathroom in the hallway. At night, if the applicant wished to go to toilet, he had to use a plastic bucket. There was no outdoor exercise area at the police station, so the applicant had to stay indoors all the time. His daily one-hour walk took place in a room which measured thirty-seven square metres and had two windows covered with metal bars.", "8. The supervising prosecutor visited the applicant every week. The applicant complained to him about the conditions of his detention. On 25 March 2005 the applicant asked in writing for a transfer to a remand centre in Magadan. The prosecutor dismissed his request, referring to the distance between Severo-Evensk and Magadan and a lack of funds.", "9. The applicant repeated his complaints in written applications to the prosecutor and the courts. All of them were to no avail. 10. On 5 July 2005 the applicant was found guilty of manslaughter.", "On 23 August 2005 he was transferred to a remand prison in Magadan. 11. On 7 July 2006 the Magadan Regional Police Department conducted an inquiry in response to the Government's request in connection with the present application pending at the time before the Court. In particular, Colonel S. in charge of the inquiry stated the following in his report: “The inquiry confirms the truthfulness of the [applicant's] allegations about the lack of proper living conditions in the temporary detention facility at the [police station] in the Severo-Evensk District. According to the technical passport, in March 1999 the [police station] and the temporary detention facility were deployed at the former premises of a [local] newspaper.", "No funds, either from the federal or local budget, had been allocated for the construction and equipping of the temporary detention facility, so all the work had to be carried out by [police station] personnel. ... ... Until 2006, no finance had been obtained for the repair and reconstruction of the [police station]. Accordingly, at the temporary detention facility, it had been impossible to comply with the standards set forth in the [federal legislation]. There are four cells at the temporary detention facility. The cells have no windows.", "There is no water supply or sewage system. Nor is there an outdoor exercise area or surrounding fence. From 3 to 17 January and from 11 February to 23 March 2005 [the applicant] was detained in cell no. 1, which measured 7.2 square metres. From 17 January to 11 February and from 23 March to 23 August 2005, he was detained in cell no.", "2, which measured 10.9 square metres. All the cells at the temporary detention facility are equipped with individual sleeping places. The detainees are provided with bed linen, plates, janitorial supplies, soap, detergent and drinking water tanks. The cells are connected to the municipal central-heating system. The lighting is provided by electricity.", "At the time of the applicant's detention, cell no. 2 was equipped with a fan... installed above the door. Furthermore, the cells are ventilated daily through the hatches in the doors. The hallway... is equipped with extractor fans. As there is no designated area for outdoor exercise, the detainees (including [the applicant]) have a one-hour walk in a room measuring thirty-seven square metres.", "In that room, there are two big windows covered with metal bars. During the exercise break, the window hatches are kept open. The temporary detention facility has one lavatory. The detainees are always taken there once in the morning and once in the evening. Throughout the rest of the day, they may use the lavatory, if they so request.", "At night, that is, between 10 p.m. and 6 a.m., they use plastic buckets provided in each cell.” II. RELEVANT DOMESTIC LAW 12. The Federal Law on Detention of Suspects and Defendants charged with Criminal Offences, in effect, as amended, since 21 June 1995, provides that suspects and defendants detained pending investigation and trial are held in remand prisons (Article 8). They may be transferred to temporary detention facilities if so required for the purposes of investigation or trial and if transportation between a remand prison and a police station or courthouse is not feasible because of the distance between them. Such detention at a temporary detention facility may not exceed ten days per month (Article 13).", "Temporary detention facilities at police stations are designated for the detention of persons arrested on suspicion of a criminal offence (Article 9). 13. According to the Internal Regulations of Temporary Detention Facilities, approved by Order No. 41 of the Ministry of the Interior of the Russian Federation on 26 January 1996, as amended (in force at the time of the applicant's detention), the living space per detainee should be four square metres (para. 3.3 of the Regulations).", "It also made provision for cells in a temporary detention facility to be equipped with a table, toilet, tap water faucet, shelf for toiletries, drinking water tank, radio and refuse bin (para. 3.2 of the Regulations). Furthermore, the Regulations made provision for the detainees' right to outdoor exercise of at least one hour per day in a designated exercise area (para. 6.1, 6.40, and 6.43 of the Regulations). III.", "RELEVANT INTERNATIONAL DOCUMENTS 14. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) reads as follows: “42. Custody by the police is in principle of relatively short duration ...However, certain elementary material requirements should be met. All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light.", "Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets. Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day.", "43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.” The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 15. The applicant complained that he had been detained in appalling conditions in a temporary detention facility at the Severo-Evensk District police station in the Magadan Region in contravention of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 16. The Government considered that the application should be dismissed because the applicant had failed to exhaust domestic remedies. He had not appealed against the decision of the district prosecutor to dismiss his complaint.", "In particular, on 25 March 2005 the district prosecutor had received the applicant's complaint about the conditions of his detention. In response, the prosecutor had admitted that the applicant's allegations were true and had advised the applicant that the right existed to appeal against the decision to dismiss the complaint. However, the applicant had not done so. The Government further argued that the applicant had also had the opportunity to bring a compensation action for non-pecuniary damage resulting from the unsatisfactory conditions of detention. Lastly, the applicant, who had had an opportunity to meet regularly with his lawyer, could have complained to the latter that the conditions of his detention were poor.", "They provided a relevant statement signed by K., the court-appointed lawyer who had represented the applicant at the time. As regards the postal receipts submitted by the applicant as proof that his complaints about the conditions of his detention had been dispatched to the domestic authorities, the Government noted that those letters had been addressed to the judicial qualifications' board and had nothing to do with the applicant's grievances concerning the conditions of his detention. 17. The applicant submitted that he had complained repeatedly to the prosecutor and the court about the conditions of his detention. However, all his complaints had been to no avail.", "The district prosecutor had informed him that it had been impossible to transfer him to a remand prison because of a lack of funds or plane tickets. The regional prosecutor and the district court had remitted his complaints to the district prosecutor's office. The regional court had sent the complaint to the district court which, in its turn, remitted it to the district prosecutor. As regards K.'s statement submitted by the Government, the applicant considered it irrelevant. The purpose of the lawyer's visits had been to discuss his client's defence.", "Moreover, the attempts by the Government to make the lawyer divulge confidential information concerning meetings with his client had been a flagrant breach of attorney-client privilege. 18. The Court notes that the Government have already raised the same arguments in respect of the issue of exhaustion of domestic remedies in a number of cases concerning conditions of detention in Russia. The Court has examined and dismissed them, finding the remedies ineffective (see, for example, Aleksandr Makarov v. Russia, no. 15217/07, §§ 84-91, 12 March 2009).", "The Court discerns nothing in the Government's submissions to depart from its earlier findings. It follows that the Government's objection must be dismissed. 19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties' submissions 20. The Government acknowledged that the conditions of the applicant's detention at the temporary detention facility had not been in compliance with the standards set forth in Article 3 of the Convention.", "The premises had not been suitable for long-term detention. Nor had there been any funds allocated from the federal budget for their reconstruction until 2006. In 2006, as part of ongoing reconstruction work, the temporary detention facility had been equipped with an outdoor exercise area. Meanwhile, a ventilation system, a water supply system and toilets had started to be installed before the applicant had lodged his complaint with the Court. 21.", "The applicant maintained his complaint and noted that his allegations had been confirmed by the inquiry conducted by the authorities on 7 July 2006. He further contended that the lack of finance could not have justified the appalling conditions in the temporary detention facility. As regards the measures implemented by the authorities to upgrade the temporary detention facility, they had been taken only after he had lodged his complaints with the Court. Lastly, he considered that his detention had amounted to torture and resulted in the deterioration of his health. 2.", "The Court's assessment 22. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim's behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "The Court has consistently stressed that the suffering and humiliation involved must, for a violation to be found, go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 23.", "The Court reiterates that it has on many occasions considered that the mere fact of holding an applicant in custody in a cell designed only for short-term detention disclosed a violation of Article 3 (see, for example, Kaja v. Greece, no. 32927/03, §§ 49-50, 27 July 2006, where the applicant was held for three months in detention without an opportunity to enjoy outdoor exercise, radio, television or free meals, and Shchebet v. Russia, no. 16074/07, §§ 84-96, 12 June 2008, where, for a month, the applicant was confined to a cell without a proper door (the cell had a sparse metal grille instead), window, toilet or sink and in the absence of any opportunity for outdoor exercise). 24. The Government did not dispute that the applicant had been detained pending investigation and trial at the police station in a cell designed only for short-term detention.", "Nor did they challenge the applicant's account of the conditions of his detention. They also conceded that those conditions had fallen short of the standards set forth in Article 3 of the Convention. 25. On the facts, the Court notes that the applicant could not be transferred to a remand prison because the nearest prison was located too far from Evensk and because the domestic authorities did not have the funds to pay for his transportation (see paragraph 8 above). This resulted in his detention taking place in premises which, from the legal and practical standpoint, were inappropriate for long-term detention (compare Shchebet, cited above, § 88).", "26. The cell in which the applicant was held for over seven and a half months had been designed for short-term detention not exceeding ten days. Accordingly, it lacked the basic amenities indispensable for extended detention. The cell did not have a window and offered no access to natural light or air. There was no toilet or sink.", "At night, if the applicant wished to go to toilet, he had to use a bucket. Lastly, throughout that time the applicant was confined to his cell for practically twenty-four hours a day without any possibility to pursue physical and other out-of-cell activities. 27. In the Court's opinion, such conditions of detention must have caused him considerable mental and physical suffering diminishing his human dignity, which amounted to degrading treatment within the meaning of Article 3 of the Convention. 28.", "The Court further notes that there is no evidence in the present case of any positive intention to humiliate or debase the applicant. However, the absence of any such intention cannot exclude a finding of a violation of Article 3 of the Convention. Even if there had been no fault on the part of the administration of the temporary detention facility, it should be emphasised that the Governments are answerable under the Convention for the acts of any State agency, since what is in issue in all cases before the Court is the international responsibility of the State (see, among other authorities, Novoselov v. Russia, no. 66460/01, § 45, 2 June 2005). 29.", "There has accordingly been a violation of Article 3 of the Convention on account of the degrading conditions of the applicant's detention in the temporary detention facility at the Severo-Evensk District police station in the Magadan Region. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 31.", "The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage. 32. The Government considered the applicant's claims excessive and suggested that the acknowledgment of a violation would constitute adequate just satisfaction. 33. The Court observes that the applicant spent seven and a half months in inhuman and degrading conditions.", "In these circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards him EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 34. The applicant also claimed compensation, without specifying the amount, for the legal costs incurred in the proceedings before the Court.", "35. The Government submitted that the applicant had failed to demonstrate that he had actually and necessarily incurred any costs and expenses in the proceedings before the Court. 36. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the amount of EUR 850 has already been paid to the applicant by way of legal aid.", "In such circumstances, the Court does not consider it necessary to make an award under this head. C. Default interest 37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 29 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachNina VajićDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF VALERIU AND NICOLAE ROŞCA v. MOLDOVA (Application no. 41704/02) JUDGMENT STRASBOURG 20 October 2009 FINAL 20/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Valeriu and Nicolae Roşca v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 29 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "41704/02) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Valeriu Roşca and Mr Nicolae Roşca (“the applicants”), on 6 and 28 November 2002. 2. The applicants were represented by Mr F. Nagacevschi, from Lawyers for Human Rights, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3.", "The applicants alleged, in particular, that they had been ill-treated while in police detention in order to compel them to make self-incriminating statements; that there had been delays in the examination of their complaints of ill-treatment; that they had been subjected to inhuman and degrading conditions of detention; that they had had no access to a lawyer of their choice during their initial detention; and that they had not had an effective remedy in respect of their complaints concerning ill-treatment. 4. The application was allocated to the Fourth Section of the Court. On 16 May 2008 the President of that Section decided to communicate the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, Mr Valeriu Roşca (V.R.) and Mr Nicolae Roşca (N.R. ), are Moldovan nationals who were born in 1960 and 1978 respectively and live in Cotiujenii-Mari.", "6. The facts of the case, as submitted by the parties, may be summarised as follows. A. The applicants' arrest and alleged ill-treatment 7. On 1 August 2000 I.C.", "complained to the Ialoveni police that he had been abducted and robbed by unidentified assailants. 1. The applicants' alleged ill-treatment on 11 May 2001 8. On 11 May 2001 both applicants were arrested by officers from the Centru District Police Station in Chişinău. According to the applicants, no reasons were given for their arrest, during which they both were beaten by the arresting officers.", "9. The applicants claim that at the police station they again received blows and kicks over a period of several hours. They were later taken to the General Police Directorate in Chişinău, where they were pressured to confess to crimes they had not committed. Following their refusal, they were each beaten, then handcuffed on the floor, where they received truncheon blows to the soles of their feet and electric shocks. 10.", "As a result of the ill-treatment, N.R. wrote a self-incriminatory statement, but did not sign it, as a form of protest. The applicants were subsequently moved back to the Centru District Police Station, where the investigator offered them documents to sign under threat of further ill-treatment. 2. The applicants' alleged ill-treatment on 13 June 2001 11.", "On 13 June 2001 the applicants were taken to Ialoveni Police Station. As was later explained by the Ialoveni police officers, this was necessary in order to verify the applicants' possible involvement in the crime against I.C. described above. On the same day the CPT delegation visited the police station. N.R.", "informed the CPT about ill-treatment at the Centru District Police Station and the General Police Directorate. 12. The applicants state that after the departure of the CPT delegation, they were taken to an office and ill-treated for hours on end, with truncheon blows to the soles of their feet and to their heads, in order to make them confess to crimes they had not committed. 13. On 14 June 2001 the CPT delegation returned to Ialoveni Police Station and saw N.R., who had complained of ill-treatment the day before.", "14. On 15 June 2001 three officers from the Ministry of Internal Affairs visited N.R., who repeated his complaints of ill-treatment at the Centru District Police Station, the General Police Directorate, and Ialoveni Police Station. Both applicants were then taken to the Centru District Police Station and later to the General Police Directorate. 15. The applicants claim that as a result of their ill-treatment they partly lost their hearing and have frequent headaches and pain.", "16. The applicants complained of ill-treatment in all three establishments in which they had been detained, but the prosecution refused to initiate criminal investigations in respect of all but one of the complaints, that relating to ill-treatment at Ialoveni Police Station. None of the police officers was suspended and some allegedly put pressure on the applicants and their families to withdraw their complaints. 17. On 15 June 2001 a police inspector, Colonel P.D., submitted a report to the Minister of Internal Affairs, describing the visit of the CPT to Ialoveni Police Station and the findings made on 14 June 2001, namely that the conditions of detention and medical care there were inadequate and that a person detained there, identified as Mr Roşca, had been found to have suffered serious bodily harm.", "P.D. proposed that the person concerned be transferred as a matter of urgency to a secure location and offered access to a lawyer and that a report be drawn up in compliance with the recommendations. 18. On 18 June 2001 the applicants were taken, in the absence of their lawyers, to a doctor to determine the degree of damage to their health. The doctor found injuries to various parts of their bodies, including haematomas ranging from 6 cm x 2 cm to 12 cm x 3 cm, which were characterised by the doctor as “slight injuries”.", "19. Also on 18 June 2001 P.D. reported to the Minister of Internal Affairs on “the results of examining information regarding the torture of detainees at [Ialoveni Police Station]”. The report stated that the applicants had complained to the CPT of ill-treatment by officers from Ialoveni Police Station. The preliminary investigation established the names of three police officers who had dealt with the applicants' case there and those of another six officers involved in the case at the Centru District Police Station in Chişinău.", "On questioning, all the officers had denied ill-treating the applicants. Since medical reports showed slight injuries to both applicants and since the inconsistencies between the various pieces of evidence could only be explained after a full investigation, P.D. recommended the initiation of criminal proceedings against all nine police officers and investigators involved. 20. On 20 June 2001 the Deputy Minister of Internal Affairs asked the Prosecutor General's Office to initiate a criminal investigation into the case.", "21. In a report to the Minister of Internal Affairs on an unknown date, the commanding officer at Ialoveni Police Station denied any ill-treatment of the applicants. He mentioned that they had made no request for access to a lawyer. 3. The investigation and criminal proceedings regarding the alleged ill-treatment on 13 June 2001 22.", "On 20 July 2001 the Prosecutor General's Office initiated a criminal investigation into the applicants' alleged ill-treatment. On the same day another investigation was initiated into the alleged negligence of the commanding officer at Ialoveni Police Station. The cases were later joined. On 23 October 2001 the investigation into the applicants' ill-treatment on 11 May 2001 in the Centru District Police Station was discontinued for lack of evidence. In response to the applicants' complaint, on 24 March 2002 the Prosecutor General's Office reiterated the decision of 23 October 2001.", "It appears that the applicants did not challenge either decision in court. 23. On 20 August 2001 a further medical report was issued after a fresh examination of N.R. The expert was asked whether the injuries which N.R. had sustained could have been caused by falling, or hitting objects in the cell.", "The report did not exclude this as an alternative explanation for the injuries. 24. On 2 November 2001 the prosecution submitted the case against the police officers from Ialoveni police station for examination by the trial court. 25. A certificate issued on 3 December 2002 by the governor of Prison no.", "13 in Chişinău, where V.R. was detained, confirmed that V.R. was being treated for the consequences of brain damage and asthenic-depressive syndrome and mentioned an injury he had allegedly received to his head in 1999. 26. On 23 June 2003 the Centru District Court acquitted three officers accused of abuse of power for unlawfully beating the applicants.", "The court noted the CPT report, which stated that the delegates had examined the applicants and “found certain bodily injuries”. However, it found that it could not rely on the CPT report because, under procedural rules, only medical reports by specialist doctors could serve as a basis for a criminal conviction. Since the CPT report had not been made during the criminal investigation but was annexed to the file by the victims, it could not be relied on. The same could be said of the reports by P.D. (see above).", "The court did not comment on the medical reports dated 18 June 2001. 27. Two of the officers were convicted of negligence for failing properly to register I.C. 's complaint in 2000 and attempting to solve the alleged offence beyond the ambit of a proper criminal investigation. The applicants' claims for compensation for pecuniary and non-pecuniary damage sustained as a result of ill-treatment were rejected as unfounded.", "28. In his appeal of 18 July 2003 N.R. complained, inter alia, of the court's failure to convict the officers of torture. He also pointed out that both he and V.R. had identified the police officers at an identity parade as the persons who had tortured them and that none of the officers could explain the origin of the injuries they had sustained while in detention.", "He referred to the statements of several fellow detainees in Ialoveni Police Station who confirmed that they had seen V.R. being taken in good health out of the cell only to return later with clear signs of ill-treatment. These witnesses denied seeing anybody in the cell hurt themselves. N.R. referred to the absence, in the criminal file against both applicants, of any reference to the applicants' participation in procedural steps at Ialoveni Police Station.", "This confirmed, in his view, that they had not been taken to that station for any lawful purpose. He finally referred to the civil action lodged by him and V.R. within the criminal proceedings. He questioned the application of the amnesty law to accused persons who had not compensated the victims of their crime, a state of affairs which he submitted was contrary to the law. V.R.", "lodged a similar appeal. In the prosecutor's appeal it was mentioned that each applicant had been offered photographs of the entire staff of Ialoveni Police Station for identification purposes and both had identified the police officers who had ill-treated them. 29. On 15 January 2004 the Chişinău Court of Appeal partly quashed the judgment given at first instance. It acquitted the two officers who had been convicted of negligence by the lower court, finding that it had not been their duty to register I.C.", "'s complaint. The court upheld the remainder of the lower court's judgment, finding in particular that it had been right to reject the applicants' complaint of ill-treatment. It considered that the statements made by the applicants were untrue because the description of their injuries in the medical reports did not coincide with their own description of the manner in which they had sustained the injuries and because “they could use their statements as a means of defence in the criminal proceedings in which they were accused of serious crimes”. Moreover, the CPT report and other related documents did not prove that the applicants had been ill-treated specifically by the officers accused in the case and thus could not be used as a basis for a conviction. 30.", "The applicants' lawyer lodged an appeal on points of law, relying on the various documents in the file and seeking the conviction of the accused for exceeding their authority through ill-treatment. 31. On 29 June 2004 the Supreme Court of Justice rejected the applicants' appeal on points of law, but allowed an appeal by the prosecutor, in which the latter sought the conviction of the two accused. It ordered the rehearing of the case by the Chişinău Court of Appeal. 32.", "On 26 January 2005 the Chişinău Court of Appeal quashed the district court's judgment in so far as it had acquitted the three officers of ill-treatment. It adopted a new judgment convicting all three officers of manifest abuse of authority (Article 185 (2) of the Criminal Code – see “Relevant domestic law” below). Each officer was sentenced to three years' imprisonment and disqualification from working in a law-enforcement agency for two years. The court also decided to suspend the enforcement of the judgment, with one year's probation, finding that the officers were relatively young, had families, had not been previously convicted and were viewed positively in society. 33.", "On 27 April 2005 the Supreme Court of Justice upheld that judgment. It found that the material in the file, including the CPT report, the witness statements and the medical reports proved beyond doubt that the three officers had ill-treated the applicants. 34. The applicants submitted copies of newspaper interviews with members of the Moldovan branch of Amnesty International and the President of the Moldovan Bar Association asserting that ill-treatment was routinely used in certain law-enforcement agencies, especially the police and investigators, in order to obtain self-incriminating statements and the conviction of innocent persons. B.", "Conditions of detention 35. In a letter to the Court dated 15 September 2003, the applicants submitted that they had been detained in inhuman and degrading conditions both in the General Police Department situated at no. 6 Tighina St. and, from 28 June 2001, in Prison no. 3 in Chişinău (also known as Prison no. 13).", "In respect of the latter place of detention, they referred, in particular, to severe overcrowding (twenty prisoners in a 25 sq. m cell and up to ten prisoners detained for hours in closed 1‑2 sq. m. boxes in courthouses while awaiting court hearings, without food, water or access to a toilet); thick cigarette smoke and strong odours from the open-plan toilet, coupled with a lack of ventilation; a lack of fresh water during most of the day; very limited access to daylight owing to the thick netting on the window; damp; inedible food; and inadequate medical assistance. 36. The applicants also alleged that their correspondence had been censored and their contact with the outside world severely limited while they were in the detention centre at no.", "6 Tighina St. in Chişinău. II. RELEVANT MATERIALS A. Relevant domestic law and practice 37. The relevant provisions of the Criminal Code, applicable at the relevant time, read as follows: Article 36: General principles of sentencing “The court shall pass sentence in strict compliance with the provisions of the General Part of the present Code and within the limits of the Article in the Special Part of the present Code which lays down the penalty for the offence committed.", "In passing sentence, the court shall rely on its legal consciousness and shall take into account the nature and degree of social danger caused by the offence, the defendant's character and any circumstances of the case which mitigate or aggravate responsibility.” Article 37: Mitigating circumstances “When passing sentence the following shall be considered mitigating circumstances: 1. the fact that the offender averted the harmful effects of the crime, provided voluntary compensation for the harm or remedied the damage; 2. the offence resulted from a combination of difficulties of a personal or family order; 3. the offence was committed under threat or coercion, or as a result of economic or work-related difficulties or other forms of dependence; 4. the offence was committed under the influence of a strong emotional reaction provoked by an unlawful act on the part of the victim; 5. the offence was committed in order to fend off a socially dangerous attack, even if the limits of legitimate defence were exceeded; 6. the offence was committed by a minor; 7. the offence was committed by a pregnant woman; 8. sincere repentance or voluntary surrender; 9. active contribution to the solving of the crime. In passing sentence the court may also consider other circumstances to be mitigating circumstances.” Article 38: Aggravating circumstances “In passing sentence, the following shall be considered aggravating circumstances: 1. the offender has previous convictions. Depending on the nature of the previous offence [or offences], the court shall have the power not to consider it an aggravating circumstance; 2. the offence was committed by an organised group; 3. the offence was committed for financial or other base motives; 3/1. the offence was committed on account of [the victim's] national identity, or racial hatred or contempt; 4. the offence had serious consequences; 5. the offence was committed against a minor, or an elderly or vulnerable person; 6. the offence was committed by a person responsible for protecting public order; 7. the instigation of minors to commit or involvement of minors in the commission of an offence; 8. the offence involved particular cruelty or the debasement of the victim; 9. the offence was committed during a natural disaster; 10. the offence caused a generalised danger; 11. the offence was committed through the abuse of another person's financial, work-related or other position of dependence; 12. the offence was committed under the influence of alcohol. The court shall have the power not to consider this an aggravating circumstance, depending on the nature of the offence; 13. the offence was committed by a person who had been released pending trial under a personal guarantee during the period of the guarantee or within a year after its expiry.” Article 43: Conviction with suspended sentence “If, taking into account the circumstances of the case and the character of the convicted person, the court reaches the conclusion that it is not reasonable for him or her to serve the punishment in the form of deprivation of liberty for a certain period, it may order suspension of the sentence, in which event it will indicate in the sentence the reasons for its decision.", "In such cases, the court shall order that the sentence will not be served if, during the probation period set by the court, the convicted person does not commit a new offence and complies with the obligations imposed by the court for the duration of the probation period. The probation period shall be for between one and five years. ...” Article 101/1: Torture “Actions which intentionally cause pain or severe physical or moral suffering to a person, especially with the aim of obtaining from that person or from a third party information or confessions, punishing an act which that person or a third party has committed or is suspected of having committed, or intimidating or putting pressure on such a person or on a third party, or for any other reason based on a form of discrimination, regardless of the ground, when such pain or suffering is caused by an agent of a public authority or by any other person acting in an official capacity or is, expressly or implicitly provoked or condoned by such an agent, with the exception of pain or suffering which results exclusively from lawful sanctions and is inherent in such sanctions or is caused thereby, shall be punished with deprivation of liberty for a period of between three and seven years.” Article 185: Abuse of authority or ultra vires acts “Abuse of authority or ultra vires acts, that is, acts by a public official which manifestly exceed the limits of the rights and powers given by law, shall, if they cause substantial damage to a public interest or to the rights and lawful interests of natural and legal persons, be punished with either deprivation of liberty for a period of up to three years, or a fine of between 30 and 100 times the minimum salary, or with removal from office, in all cases accompanied by disqualification from occupying certain functions or engaging in certain activities for a period of up to five years. Abuse of authority or ultra vires acts, accompanied by acts of violence or the use of a weapon or by acts of torture and which harm the victim's personal dignity, shall be punished with deprivation of liberty for a period of three to ten years, and disqualification from occupying certain functions or engaging in certain activities for a period of up to five years.” 38. The Code of Ethics and Deontology for the Police was adopted on 10 May 2006 (Law no.", "481, in force since 18 May 2006). According to that Code, it is prohibited to ill-treat and to tolerate or encourage ill-treatment and inhuman or degrading treatment or punishment “regardless of the circumstances”. 39. The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in Sarban v. Moldova (no.", "3456/05, § 54, 4 October 2005). 40. In the case of Belicevecen v. the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no. 1545 (1998) only if he or she had been fully acquitted on all the charges against him or her.", "Since Mr Belicevecen had been found guilty in respect of one of the charges brought against him, he could not claim any damages. B. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) 41. The relevant parts of the CPT report concerning its visit to Moldova from 10 to 22 June 2001 read as follows: “24. Particular attention should be paid to the case of a detained person met at Ialoveni EDP.", "During the first interview, this man did not exhibit any lesions or marks. When he was seen at a further interview the following day, a medical examination by one of the delegation's doctors revealed in the left temple area, a 1 cm long wound covered with crusts, and in the left kidney region a 8 x 3 cm bluish red haematoma. Both soles of the feet were very painful on palpation and hard, especially in the heel area. These lesions and signs are consistent with his allegations that in the evening of the previous day, after the delegation's departure, he had been struck several times on the head with a piece of hard rubber by police officers in an EDP office, and that after being forced to kneel on a chair with his wrists handcuffed in front of him, he had been beaten on the soles of his feet and the left kidney region during questioning. Since the person expressed fears that he would suffer further ill-treatment after the delegation's departure, the latter asked the Interior Ministry's liaison officer for immediate steps to be taken to secure his protection and for an inquiry to be undertaken into the treatment of persons in custody in this EDP.", "The individual concerned was transferred to the EDP of the capital and received a forensic medical examination in the presence of his lawyer. The internal investigation carried out during the visit by the Ministry of Internal Affairs also showed that another person held in the same EDP had made allegations of physical ill-treatment before the persons in charge of the investigation. This person also underwent a forensic medical examination. By letter dated 5 November 2001, the Moldovan authorities have indicated that legal proceedings have been initiated by the Prosecution Service under Article 182, paragraph 5 of the Penal Code (abuse of power/abuse of office). An investigation has been opened and the file will shortly be transferred to court.", "The CPT has taken note of this information with interest and would like to be informed in due course of the decision of the court. 25. As indicated in paragraph 13 above, in response to the deterioration in the situation, the delegation invoked Article 8, paragraph 5 of the Convention to request the Moldovan authorities to carry out, without further delay, a thorough and independent inquiry into the methods used by operational police units throughout the country during the questioning of detained persons. In their letter dated 5 November 2001, the Moldovan authorities simply indicate that 'the Ministry of Interior declares that it is not aware of concrete cases of recourse to inhuman methods of interrogation of persons detained by the police' and recalls the procedures in force in case of complaints of ill-treatment. Such a position is, in the view of the Committee, clearly untenable, considering all the information gathered during the 2001 visit.", "With reference to Article 3 of the Convention, the CPT urges the Moldovan authorities to carry out without delay the aforementioned investigation and to inform the Committee, within three months of transmission of the report on the 2001 visit, of the results thereof.” 42. The relevant parts of the response submitted on 26 June 2002 by the Moldovan Government to the 2001 CPT report read as follows: “24. The CPT would like to be informed of the court's decision, following the prosecutor's request, concerning the case mentioned in the relevant paragraph. We inform you that the criminal case (mentioned in paragraph 24 of the 2001 Report), based on Article 185 § 2 of the Criminal Code 'Abuse of authority or ultra vires acts' is still at an investigatory stage. ... 28.", "The CPT would like comments from the Moldovan authorities concerning the development of modern methods of investigation. In this respect, regretfully, no progress has been achieved. 29. The CPT would like to obtain information on the progress achieved in drafting a Code of Deontology for the police. To our great regret, no progress was achieved in this respect.” C. The United Nations Istanbul Protocol 43.", "The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) was submitted to the United Nations High Commissioner for Human Rights on 9 August 1999. The “Istanbul Principles” subsequently received the support of the United Nations through resolutions of the United Nations Commission on Human Rights and the General Assembly. It is the first set of guidelines to have been produced for the investigation of torture. The Protocol contains full practical instructions for assessing persons who claim to have been the victims of torture or ill-treatment, for investigating suspected cases of torture and for reporting the investigation's findings to the relevant authorities. The principles applicable to the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are to be found in Annex 1 of the Manual, the relevant parts of which read as follows: “The purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment (hereafter referred to as torture or other ill-treatment) include the following: clarification of the facts and establishment and acknowledgment of individual and State responsibility for victims and their families, identification of measures needed to prevent recurrence and facilitation of prosecution or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.", "States shall ensure that complaints and reports of torture or ill-treatment shall be promptly and effectively investigated. Even in the absence of an express complaint, an investigation should be undertaken if there are other indications that torture or ill-treatment might have occurred. The investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial. They shall have access to, or be empowered to commission, investigations by impartial medical or other experts. ...", "The investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry. ... Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation. Alleged victims of torture or ill-treatment and their legal representatives shall be informed of, and have access to, any hearing as well as to all information relevant to the investigation and shall be entitled to present other evidence. ... A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. On completion, this report shall be made public.", "It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation, and, as appropriate, indicate steps to be taken in response. Medical experts involved in the investigation of torture or ill-treatment should behave at all times in conformity with the highest ethical standards and in particular shall obtain informed consent before any examination is undertaken. The examination must follow established standards of medical practice. In particular, examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials.", "The medical expert should promptly prepare an accurate written report. This report should include at least the following: (a) The name of the subject and the name and affiliation of those present at the examination; the exact time and date, location, nature and address of the institution (including, where appropriate, the room) where the examination is being conducted (e.g. detention centre, clinic, house); and the circumstances of the subject at the time of the examination (e.g. nature of any restraints on arrival or during the examination, presence of security forces during the examination, demeanour of those accompanying the prisoner, threatening statements to the examiner) and any other relevant factors; (b) A detailed record of the subject's story as given during the interview, including alleged methods of torture or ill-treatment, the time when torture or ill-treatment is alleged to have occurred and all complaints of physical and psychological symptoms; (c) A record of all physical and psychological findings on clinical examination, including appropriate diagnostic tests and, where possible, colour photographs of all injuries; (d) An interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. A recommendation for any necessary medical and psychological treatment and further examination should be given; (e) The report should clearly identify those carrying out the examination and should be signed.", "...” THE LAW 44. The applicants complained under Article 3 of the Convention of ill-treatment by the police and investigators on 11 May 2001 in the Centru District Police Station and of the prosecution's refusal to initiate a criminal investigation into their alleged ill-treatment on that date. They also complained, under the same Article, of ill-treatment on 13 June 2001 in Ialoveni Police Station and of delays in the proceedings regarding their complaints of ill-treatment on that date. Article 3 of the Convention reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 45. The applicants further complained under Articles 3 and 8 of the Convention of inhuman conditions of detention, as well as of censorship of their correspondence.", "The relevant part of Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.” 46. The applicants also complained that they had not been assisted by lawyers at the initial stage of the proceedings and had not had access to a lawyer during the first days of their detention, contrary to Article 6 of the Convention. The relevant part of Article 6 of the Convention reads as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...” 47.", "The applicants further complained under Article 13 of the Convention of the lack of effective remedies in respect of their complaints of ill-treatment and the failure to investigate them. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 48. The applicants lastly complained under Article 17 of the Convention. Article 17 reads as follows: “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” I. ADMISSIBILITY 49. The Government submitted that following the conviction of the three police officers accused of ill-treating the applicants, the latter could no longer be considered victims of a violation of their rights guaranteed under Article 3 of the Convention.", "The applicants disagreed, referring to the leniency of the penalties. 50. The Court considers that this issue is closely related to the merits of that complained under Article 3 of the Convention. It will therefore examine this objection together with the arguments concerning the complaint under Article 3. 51.", "The Government also argued that the applicants had not exhausted the available domestic remedies since they had not brought court actions for damages in respect of the unlawful acts of the law-enforcement authorities, in accordance with Law no. 1545 (1998). 52. The applicants submitted that since they had not been acquitted of the crimes of which they had been accused, that law did not apply to their situation, as was proved by the case of Belicevecen (see paragraph 40 above). 53.", "The Court observes that it has already dismissed a similar objection raised by the Government in Sarban (cited above, § 59), finding that only an acquittal allowed a person to claim damages under that law. The case of Belicevecen (see paragraph 40 above) reinforces that conclusion. The applicants in the present case submitted that they had not been acquitted and the Government did not dispute that. In any event, the Court reiterates that applicants are not required to make use of more than one available remedy, and it is not contested that they claimed damages as aggrieved parties in the criminal proceedings against the police officers, claims which were dismissed by the courts (see paragraph 27 above). It follows that this objection is to be dismissed.", "54. The Court also notes that the applicants complained of their alleged ill-treatment on 11 May 2001 at the Centru Police Station and the General Police Department in Chişinău. However, the materials submitted by the applicants do not contain any evidence of ill-treatment before 13 June 2001. Moreover, the CPT noted in its report that during its visit to Ialoveni Police Station on 13 June 2001 it had found no traces of violence on the person whom it had visited again the following day (see paragraph 41 above). In the light of the report by Colonel P.D.", "(see paragraph 17 above), the Government's reply to the CPT report (see paragraph 42 above) and the reference to that report in the domestic court judgments convicting the three police officers (see paragraphs 26, 29 and 33 above), the Court concludes that paragraphs 24 and 25 of the 2001 CPT report concerned the applicants. Accordingly, the Court concludes that the complaint concerning ill-treatment before 13 June 2001 is manifestly ill-founded and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention. 55. The applicants complained under Article 6 of the Convention that they had not been allowed to see a lawyer during their initial detention at the police stations in Chişinău and Ialoveni, and that this had prevented them from challenging the court order for their detention pending trial. However, the Court notes that the applicants did not show that their case had been prejudiced as a result of the above alleged breaches.", "Accordingly, the complaint under Article 6 of the Convention is manifestly ill-founded and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention. 56. The Court notes, however, that the applicants complained that they had been unable to challenge their detention orders in the absence of advice from a lawyer. It therefore considers that this complaint should be examined under Article 5 § 4 of the Convention. While the applicants did not specify what they considered to be their initial detention, they referred to the events of June 2001 in respect of this complaint.", "The Court observes that the application in the present case was lodged on 6 and 28 November 2002, more than six months from the events of June 2001. It follows that the applicants' implicit complaint under Article 5 § 4 was lodged outside the time-limit set by Article 35 § 1 of the Convention and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention. 57. The Court also notes that the applicants initially complained under Articles 8, 13 and 17 of the Convention, referring essentially to the same issues as those raised under Article 3 of the Convention. In their subsequent observations they did not pursue these complaints.", "The Court will therefore not examine them. 58. The Court considers that the applicant's complaints under Article 3 of the Convention (except for ill-treatment before 13 June 2001) raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible. In accordance with its decision to examine the admissibility and merits together (Article 29 § 3 of the Convention – see paragraph 4 above), the Court will immediately consider the merits of these complaints.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A. The submissions of the parties 1. The applicants' ill-treatment and the authorities' positive obligations under Article 3 of the Convention 59. The applicants submitted that they could still be considered victims of the ill-treatment, despite the conviction of the three police officers.", "Given the intensity and the aim of the ill-treatment to which they had been subjected (namely, to extract confessions), it had to be recognised as torture, within the meaning of Article 3. They argued that the investigation into their ill-treatment had been slow (having lasted for almost four years), contrary to the procedural requirements of Article 3 of the Convention. They also submitted that the authorities had not complied with their positive obligations under Article 3 of the Convention, namely to ensure the preventive effect of legislation prohibiting ill-treatment. In particular, the officers had been sentenced to the minimum penalty provided for by law and even that penalty had been suspended, so that they had never been deprived of their liberty. Moreover, the officers had not been convicted of torture, but of the less stigmatising offence of abuse of power.", "60. The Government submitted that after the conviction of the three police officers the applicants could no longer claim to be victims of a violation of Article 3 of the Convention. They also contended that the investigation into the applicants' ill-treatment had been thorough and prompt, and had resulted in the identification of those responsible and their conviction by the courts. 61. As for ensuring the preventive effect of the prohibition of ill-treatment, the Government submitted that the offence with which the police officers had been charged was classified as one of “medium gravity” under the Criminal Code.", "Only “grave and extremely grave” offences were considered dangerous and, as found by the medical examination, the applicants had suffered only slight injuries, which could not be considered to amount to torture. Finally, Article 185 § 2 of the Criminal Code provided for an additional penalty of disqualification from occupying certain functions or engaging in certain activities for a period of one to five years. The officers had been disqualified for two years, which was thus not the smallest penalty and ensured the necessary preventive effect of the law. 2. Conditions of detention 62.", "The applicants complained that they had been detained in inhuman and degrading conditions in Prison no. 3 (also known as Prison no. 13 – see paragraph 35 above). They referred to various reports by the CPT and domestic authorities, confirming a general lack of funding for the prison system and the resulting insufficiency of food, poor hygiene and other threats to the health of detainees. 63.", "The Government disagreed and submitted that the national norm of 2 sq. m. per person had been observed, as had other norms concerning, for example, food, hygiene, heating, access to natural light and medical assistance. B. The Court's assessment 1. The applicants' ill-treatment and the authorities' obligations under Article 3 of the Convention 64.", "The Court notes that it is not in dispute between the parties that the applicants were ill-treated by officers at the Ialoveni police station on 13 June 2001. It observes that the applicants were subjected, inter alia, to falaka (see paragraph 41 above). The Court recalls that beating a person's soles, or falaka, is a practice which is always intentional and can only be regarded as torture (see Corsacov v. Moldova, no. 18944/02, § 65, 4 April 2006, and Levinţa v. Moldova, no. 17332/03, § 71, 16 December 2008).", "It follows that there was a violation of the applicant's right not to be subjected to ill-treatment, contrary to the substantive requirements of Article 3 of the Convention in the present case. In the light of the fact that the officers responsible for the ill-treatment were eventually convicted and sentenced, it is necessary to determine whether the applicants can still claim to be victims of the violation of Article 3. In verifying this, the Court will determine whether the authorities discharged their obligations under Article 3, notably whether they had carried out an effective investigation into the applicants' ill-treatment and whether by convicting and sentencing the three officers the respondent State satisfied the positive obligations imposed on it by that provision. (a) The investigation of the applicants' ill-treatment 65. The Court observes that in the case of Batı and Others v. Turkey (nos.", "33097/96 and 57834/00, ECHR 2004‑IV (extracts) it held: “133. ... Where an individual has an arguable claim that he has been tortured while in the hands of agents of the State, the notion of an 'effective remedy' entails, in addition to the payment of compensation where appropriate and without prejudice to any other remedy available in domestic law, a thorough and effective investigation. The kind of investigation that will achieve those purposes may vary according to the circumstances. However, whatever the method of investigation, the authorities must act as soon as an official complaint has been lodged. Even when strictly speaking no complaint has been made, an investigation must be started if there are sufficiently clear indications that torture or ill-treatment has been used (see, among other authorities, Özbey v. Turkey (dec.), no.", "31883/96, 8 March 2001; see also the Istanbul Protocol, paragraph [43] above). The authorities must take into account the particularly vulnerable situation of victims of torture and the fact that people who have been subjected to serious ill-treatment will often be less ready or willing to make a complaint (see Aksoy v. Turkey[, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI,] pp. 2286-87, §§ 97-98). ... 136. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context.", "A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001, and Özgür Kılıç v. Turkey (dec.), no. 42591/98, 24 September 2002). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, it may generally be regarded as essential for the authorities to launch an investigation promptly in order to maintain public confidence in their adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 72, ECHR 2002‑II).” 66.", "In respect of the investigation of the applicants' allegations, the Court notes that the authorities became aware of the applicants' ill-treatment on 14 June 2001, when the CPT informed them about it. As a result, on 15 June 2001 the applicants were visited by officers of the Ministry of Internal Affairs (see paragraph 14 above) and Colonel D.P. reported about their ill-treatment on the same day (see paragraph 17 above). 67. The Court notes that despite all these numerous and consistent reports that the applicants had been ill-treated, they were taken to a doctor only on 18 June 2001, on the fourth days after the authorities had become aware of the problem (see paragraph 18 above).", "That delay, as rightly pointed out by the applicants, allowed their wounds to partly heal and resulted in the doctor's finding of only “slight injuries” on their bodies. 68. Furthermore, even after the medical report had confirmed that the applicants had been ill-treated, and following a request, on 21 June 2001, by the Ministry of Internal Affairs to initiate a criminal investigation (see paragraph 20 above), the investigation did not start until a month later, on 21 July 2001. 69. The Court lastly observes that the findings of the CPT, the medical report and the witness statements offered an abundant source of evidence.", "In the light of that initial evidence, and as follows from the domestic judgments, it appears that the courts did not face a very difficult case in terms either of establishing the facts or of solving complex legal issues. This is supported by the fact that by November 2001 the prosecution had already finished the investigation and sent the case for examination by the trial court (see paragraph 24 above). 70. The Court considers that the delay in bringing the applicants to a doctor in order to confirm their ill-treatment, as well as the delay in initiating a criminal investigation did not correspond to the requirement of promptness of an investigation, within the meaning of Article 3 of the Convention. (b) Preventive effect of the prohibition of ill-treatment 71.", "The Court observes that in the case of Okkalı v. Turkey (no. 52067/99, § 65, ECHR 2006‑XII (extracts)it held: “... the procedural requirements of Article 3 go beyond the preliminary investigation stage when ... the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of the prohibition enshrined in Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public's confidence in, and support for, the rule of law and for preventing any appearance of the authorities' tolerance of or collusion in unlawful acts (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004‑XII).” 72.", "The Court notes that in the present case the three officers convicted of ill-treating the applicants were sentenced to three years' imprisonment and disqualification from working in a law-enforcement agency for two years. That term of imprisonment was the minimum penalty allowed by law (see paragraph 37 above). It is for the domestic courts passing sentence to set the penalty which they consider is most appropriate to ensure the educational and preventive effect of the conviction. The courts did so in the present case, and explained the reason for the leniency of the sentence by reference to the accused's relatively young age, lack of previous convictions, and the fact that they had families and were viewed positively in society (see paragraph 32 above). Under the domestic law the courts had to take into account both mitigating and aggravating circumstances.", "However, the courts were silent about a number of apparently applicable aggravating circumstances (expressly mentioned in Article 38 of the Criminal Code – see paragraph 37 above). In particular, none of the officers showed any signs of remorse, having denied throughout the proceedings any ill-treatment on their part. 73. The Court also notes that even the minimum sentence imposed on the officers was suspended with one year's probation, so that the officers did not spend any time in prison. Moreover, they were not suspended from their positions during the investigation (contrary to the recommendations of the Istanbul Protocol – see paragraph 43 above).", "74. Lastly, and equally importantly, the Court believes that the preventive effect of legislation passed specifically in order to address the phenomenon of torture can only be ensured if such legislation is applied whenever the circumstances so require. In the present case, the CPT found (see paragraph 24 of the 2001 CPT report, cited in paragraph 41 above) that the person examined on 14 June 2001 had been beaten on the soles of his feet (falaka), and noted that another person had also been ill-treated there at the same time. The Court already established that those two persons were the applicants (see paragraph 54 above). The Court recalls that beating a person's soles, or falaka, is a practice which is always intentional and can only be regarded as torture (see Corsacov cited above, § 65, and Levinţa cited above, § 71).", "In such circumstances, the failure to initiate criminal proceedings under Article 101/1 of the Criminal Code (torture), without any explanation as to the choice of another type of offence (abuse of power), is insufficient to ensure the preventive effect of the legislation passed specifically to address the problem of ill-treatment. 75. The Court also notes the position adopted by the Ministry of Internal Affairs which, even after it became aware of the applicants' case during the CPT visit, stated that it was “not aware of concrete cases of recourse to inhuman methods of interrogation of persons detained by the police” (see paragraph 41 above). It further observes the acknowledged absence of efforts to develop modern methods of investigation (see paragraph 42 above) and a substantial delay in adopting a Code of Ethics for the police (which was adopted almost four years after the CPT inquired about it, see paragraphs 38 and 41 above). This confirms the failure of the Moldovan authorities to fully denounce the practice of ill-treatment by the law-enforcement agencies and adds to the impression that the legislation adopted to prevent and punish acts of ill-treatment is not given full preventive effect.", "(c) Conclusion concerning the respondent State's obligations in connection with the applicants' ill-treatment 76. The Court concludes that the investigation into the applicants' ill-treatment was not “prompt” within the meaning of Article 3 of the Convention. It also finds that the proceedings against the three police officers, including the leniency of the sentence imposed and the failure to prosecute them under the legal provisions specifically enacted to address the problem of torture, did not ensure a sufficient deterrent effect to prevent such acts in the future (see Okkalı, cited above, § 75). There has thus been a violation of Article 3 of the Convention in the present case. 77.", "In such circumstances, and independently of the dismissal of the applicants' claim for damages (see paragraph 27 above), the Court finds that they can still claim to be victims of a violation of Article 3. Accordingly, the Government's preliminary objection is dismissed. 2. Conditions of detention 78. The Court notes that the applicants' description of their conditions of detention largely corresponds to the findings of the CPT concerning Prison no.", "13 in Chişinău during the period from 2001 to 2004 (findings cited, for instance, in Becciev v. Moldova, no. 9190/03, §§ 31 and 32, 4 October 2005). According to the applicants, and this was not contested by the Government, they were detained in Prison no. 3 until March 2004. The Court notes that the applicants were therefore detained for at least some time in the same conditions as those described in the above-mentioned case of Becciev.", "Moreover, conditions of detention in that prison did not improve significantly, even by 2005 (see, for instance, Modarca v. Moldova, no. 14437/05, §§ 37, 38 and 60-69, 10 May 2007). 79. Since it has found a violation of Article 3 in the above-mentioned cases concerning the same prison and since the applicants' description of conditions is essentially the same, and is partly confirmed by the Government (concerning overcrowding, see paragraph 63 above), the Court finds a violation of Article 3 of the Convention in respect of the conditions of the applicants' detention in the present case. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 81. The applicants claimed EUR 25,000 each for non-pecuniary damage caused to them. They submitted that their case showed a complete disregard for the law and human rights by police officers and a cover-up and complete leniency by the investigators and judges who had examined the case against those officers.", "Moreover, not only had the applicants been tortured, but they had spent several years in inhuman and degrading conditions of detention. 82. The Government disagreed and submitted that in the absence of a violation of any Article of the Convention the applicants could claim no compensation. In any event, the Government argued that the amount claimed by the applicants was exaggerated, as compared with awards made by the Court in similar cases. 83.", "The Court considers that the applicants must have been caused a certain amount of stress and anxiety, notably because they were subjected to torture in order to obtain confessions and then detained in inhuman conditions, while the officers who had ill-treated them were never imprisoned or even suspended during the investigation. The leniency of the penalty applied to the officers must have only added to the applicants' suffering. In the light of the facts of the case, and deciding on an equitable basis, the Court awards EUR 15,000 to each of the applicants. B. Costs and expenses 84.", "The applicants claimed a further EUR 2,125 for legal costs and expenses incurred before the Court. 85. The Government contested the amount and argued that it was excessive. 86. The Court awards the applicants EUR 2,000 jointly for legal costs and expenses.", "C. Default interest 87. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government's preliminary objection concerning the loss of victim status by the applicants; 2. Declares admissible the complaints under Article 3, and the remainder of the application inadmissible; 3.", "Holds that there has been a violation of Article 3 of the Convention in respect of the applicants' ill-treatment and the State's failure both to comply with their procedural obligations to investigate the applicants' ill-treatment and to ensure the imposition of deterrent sentences on those responsible, as well as in respect of the inhuman conditions of detention; 4. Dismisses the Government's preliminary objection; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros) jointly in respect of costs and expenses, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 20 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF ZHBANOV v. BULGARIA (Application no. 45563/99) JUDGMENT STRASBOURG 22 July 2004 FINAL 22/10/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zhbanov v. Bulgaria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrG.", "Bonello,MrsF. Tulkens,MrsN. Vajić,MrsS. Botoucharova,MrA. Kovler,MrV.", "Zagrebelsky, judges,and Mr S. Quesada, Deputy Section Registrar, Having deliberated in private on 1 July 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45563/99) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Vladimir Nikolaevich Zhbanov, a Russian national born in 1950 and living in Kiev, Ukraine, on 24 March 1998. 2. The applicant was not legally represented.", "The Bulgarian Government (“the Government”) were represented by Mr S. Bojikov, Deputy‑Minister of Justice and subsequently by their Agent, Ms M. Dimova, of the Ministry of Justice. The Russian Government, having been informed by the Section Registrar by a letter of 16 September 2003 of their right to intervene (Article 36 § 1 of the Convention and former Rule 61 of the Rules of Court), did not avail themselves of this right. 3. The applicant alleged, in particular, that the criminal proceedings against him had lasted unreasonably long. 4.", "The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the First Section of the Court (Rule 52 § 1).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 13 December 2001 the Court declared the application partly inadmissible. 7. By a decision of 19 June 2003 the Court declared the application partly admissible.", "8. The parties did not file observations on the merits. THE FACTS 9. The applicant was born in 1950 and lives in Kiev, Ukraine. 10.", "On 16 February 1994 the applicant, who was then residing in Bulgaria, was questioned as a suspect in the embezzlement of 20,000 Bulgarian levs (BGL) from a cooperative farm in liquidation whose legal counsel he had been. 11. On 30 March 1994 criminal proceedings were opened against the applicant. 12. On 27 July 1994 he was questioned.", "13. On 29 July 1994 a graphological expert report was drawn up. 14. On 12 December 1994 the applicant was charged with embezzlement, falsification of official documents and false accusation of another. He was ordered to post bail in the amount of BGL 2,000.", "Under the then applicable provisions of the Code of Criminal Procedure (“the CCP”), an accused on bail could leave the country only with the prosecutor’s or the court’s permission. 15. On 23 February 1995 the applicant’s apartment was attached by order of the investigator in charge of the case, apparently as a security for an impending civil claim by the victim of the offences alleged against the applicant. On the same date the applicant was allowed to consult the case file and was questioned. 16.", "On 15 March 1995 the applicant was detained. He was released on 21 March 1995. 17. On 15 March 1995 a technical expert report was drawn up. 18.", "On 27 March 1995 the applicant was questioned. 19. On 30 March 1995 another expert report was drawn up. 20. On 4 April 1995 the applicant was questioned.", "21. On 5 April 1995 the investigator completed his work on the case and recommended that the applicant be indicted. 22. On 4 May 1995 the applicant was questioned. 23.", "On 2 June 1995 a prosecutor of the Popovo District Prosecutor’s Office presented the applicant with amended charges and questioned him. 24. By a decree of 28 March 1996 the Popovo District Prosecutor’s Office, finding that the applicant had not obstructed the criminal proceedings and that there was no danger of him absconding, allowed him to leave Bulgaria for one and a half months to visit his parents in Kiev, Ukraine. 25. The prohibition against the applicant leaving the country without prior permission by the prosecutor or the court was in force at least until 1 January 2000, when the CCP was amended.", "26. On 12 September 2001 a prosecutor of the Popovo District Prosecutor’s Office presented all materials in the case file to the applicant. 27. On 14 September 2001 the Popovo District Prosecutor’s Office, noting that the relevant limitation period had expired, decided to drop the charges of falsification of official documents. On the same date it indicted the applicant for having embezzled BGL 20,000 and having falsely accused another of a serious offence.", "28. On 15 December 2001 the applicant left Bulgaria and went to Ukraine, where he has resided ever since. 29. The first hearing in the applicant’s case, listed by the Popovo District Court for 17 December 2001, was adjourned because the applicant and several witnesses, despite being duly summoned, were absent. 30.", "A hearing fixed for 8 April 2002 was also adjourned because the applicant was not present. 31. A hearing listed for 3 June 2002 was likewise adjourned because of the applicant’s absence. 32. At the time of the latest relevant information from the parties (June 2002) the proceedings were still pending before the Popovo District Court.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 33. The applicant alleged that the criminal proceedings against him had lasted an unreasonable time, in breach of Article 6 § 1 of the Convention. Article 6 § 1 reads, as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Period to be taken into consideration 34.", "The applicant was first questioned as a suspect on 16 February 1994 and the criminal proceedings were formally opened on 30 March 1994 (see paragraphs 10 and 11 above). At the time of the latest information from the parties (June 2002) the proceedings were still pending before the first‑instance court (see paragraph 32 above). The period to be taken into consideration thus lasted at least eight years and four months. B. Reasonableness of the length of the proceedings 1. Arguments of the parties 35.", "The applicant maintained that the length of the criminal proceedings against him had been entirely due to the conduct of the authorities. They had failed to comply with the domestic law provisions on the time-limits for concluding an investigation and had failed to bring the proceedings to an end for more than eight years. Moreover, throughout the proceedings he had been unable to dispose of his apartment. 36. The Government submitted that, despite being duly summoned, the applicant had failed to appear at the hearing listed for 17 December 2001.", "It had been impossible to summon him for the subsequent hearings because he had left Bulgaria in December 2001 and had not returned despite the fact that criminal proceedings were pending against him. This conduct indicated that the applicant’s stance toward the speedy conclusion of the proceedings was dubious. 2. The Court’s assessment 37. The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities.", "On the latter point, what was at stake for the applicant has also to be taken into account (see Portington v. Greece, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VI, p. 2630, § 21; and Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI). 38. As regards the complexity of the case, it does not appear that the proceedings were characterised by any extreme factual or legal difficulty. Concerning what was at stake for the applicant, the Court notes that during the pendency of the proceedings the applicant’s apartment was attached, which has prevented him from disposing of it for more than eight years (see paragraph 15 above).", "The Court also notes that during the period 1994‑99 the applicant was prohibited from travelling abroad without permission from the authorities (see paragraphs 14, 24 and 25 above). 39. Concerning the applicant’s conduct, the Court notes that the only delays attributable to him occurred after December 2001, when three hearings had to be adjourned because he was out of Bulgaria (see paragraphs 28‑31 above). 40. Regarding the conduct of the authorities, the Court notes that no activity occurred in the case between June 1995 and September 2001, i.e.", "for a period of more than six years (see paragraphs 23‑26 above). The Government have not offered any justification for this period of inactivity. 41. Having regard to the criteria established in its case‑law and making an overall assessment, the Court finds that the length of the criminal proceedings against the applicant failed to satisfy the reasonable time requirement of Article 6 § 1 of the Convention. It follows that there has been a violation of that provision.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 43. The applicant claimed 25,000 euros (EUR) in compensation for pecuniary and non‑pecuniary damage.", "He submitted that (i) in 1995 he had been detained for seven days and kept in bad conditions, that (ii) thereafter he had to pay BGL 2,000 in bail, that (iii) he could only leave the country with permission from the authorities, that (iv) his professional skills had suffered as a result of the proceedings, that (v) his apartment had been attached, and that (vi) because of the proceedings he could not obtain Bulgarian citizenship and thus practice as an advocate. 44. The Government submitted that there was no indication that the applicant had intended to apply for Bulgarian citizenship and practice as an advocate. Moreover, from the institution of the criminal proceedings in 1994 until he left Bulgaria 2001 the applicant had worked as an in-house lawyer and liquidator for two companies. They hence invited the Court to dismiss the claim for pecuniary damages.", "Referring to several previous length‑of‑proceedings cases against Bulgaria, the Government maintained that the amount claimed by the applicant as compensation for non‑pecuniary damage was overly elevated and without justification. In their view, the amount awarded by the Court under this head should be commensurate to the principles of justice. 45. The Court notes that the applicant’s detention in 1995 is not related to the length of the proceedings; moreover, the applicant’s complaints relating to this detention were declared inadmissible (see paragraph 6 above and Zhbanov v. Bulgaria (dec.), no. 45563/99, 13 December 2001).", "As regards the restriction on his freedom of movement, the applicant has not shown that he was refused authorisation to leave Bulgaria for the purpose of undertaking a lucrative activity. Also, the applicant was not prevented from exercising his profession during the pendency of the proceedings and there is no indication that he intended to apply for Bulgarian citizenship. Finally, the Court notes that the applicant has not submitted evidence capable of leading to the conclusion that the attachment of his apartment has occasioned him pecuniary damage, stemming from, for example, a missed opportunity to dispose of the apartment. Consequently, no award is made in respect of pecuniary damage. Concerning the claim for compensation for non‑pecuniary damage, the Court accepts that the applicant has suffered distress and frustration relating to the length of the proceedings.", "Having regard to all the circumstances of the case, and deciding on an equitable basis, the Court awards the applicant EUR 3,500. B. Costs and expenses 46. The applicant, who was not legally represented, did not claim costs and expenses. C. Default interest 47.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros) in respect of non‑pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 3. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 22 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaChristos Rozakis Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF MATEI AND TUTUNARU v. MOLDOVA (Application no. 19246/03) JUDGMENT STRASBOURG 27 October 2009 FINAL 27/01/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Matei and Tutunaru v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 October 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "19246/03) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Constantin Matei and Mrs Elena Tutunaru (“the applicants”), on 7 March 2003. 2. The applicants were represented by Ms N. Mardari, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr V. Pârlog. 3.", "The applicants alleged, in particular, that the proceedings in their case had been excessively long and that they had lost their property rights to part of their company as a result of arbitrary domestic judgments, which included the quashing of a final judgment in their favour. 4. On 8 December 2004 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicants were both born in 1951 and live in Ialoveni and Vorniceni respectively. 6. The facts of the case, as submitted by the parties, may be summarised as follows. A.", "The proceedings prior to the request for annulment 7. In July 1987 the applicants and several other persons founded a business association ('the Association'). After other members of the Association left, the two applicants remained its only members. According to the applicants, in 1989 the Association hired three other persons (“the employees”) who were subsequently dismissed in 1992. According to the Government, they had become members of the Association in 1989.", "8. In December 1992 the applicants transformed the Association into a limited liability company. The newly registered company retained its old name – Victoria. 9. On 1 June 1993 one of the employees initiated court proceedings against the applicants claiming that he had been a member of the Association and requesting the annulment of the transformation into a limited liability company.", "He also claimed his part of the assets of the Association. The two other employees initiated identical proceedings on 16 August 1994. The cases were joined. 10. In 1995 the Botanica District Court granted their claims.", "The Supreme Court of Justice upheld that judgment. On 27 November 1995 the Plenary Supreme Court of Justice quashed that judgment and ordered a full rehearing of the case. 11. On 3 October 1997 the Botanica District Court rejected the employees' claims. On 22 January 1998 the Chişinău Regional Court upheld that judgment.", "On 10 September 1998 the Court of Appeal also upheld that judgment, which then became final. B. The proceedings following the request for annulment 12. On an unspecified date the Prosecutor General filed a request for the annulment of all previous judgments and for the claims against the applicants to be granted in full. On 26 January 2000 the Supreme Court of Justice upheld that request and quashed the above-mentioned judgments.", "It ordered a full rehearing of the case. 13. On 27 November 2001 the Buiucani District Court declared null and void the transformation of the Association into a limited liability company. Although the employees had been hired by the Association, the court found that they had taken part in the decision-making process and had made financial contributions to the common assets of the Association. Accordingly, the court considered that the employees should be recognised as having been members of the Association.", "The court ordered “the distribution of the assets of the association 'Victoria', situated at 99 Decebal str. in Chişinău” between the applicants and the employees, each of the two groups obtaining various items (production equipment, cars and office equipment) of common property. The court also specified that “the building of the 'Victoria' market” should remain the applicants' property. 14. On 11 April 2002 the Chişinău Regional Court quashed that judgment and adopted a new one by which it rejected all the claims against the applicants.", "On 12 September 2002 the Court of Appeal quashed the judgment of the Chişinău Regional Court and upheld the judgment of the Buiucani District Court of 27 November 2001 (in favour of the employees). That judgment became final. C. Enforcement proceedings 1. Enforcement of the judgment of 27 November 2007 15. On 21 February 2003 a bailiff received a warrant for the enforcement of the judgment of 27 November 2001.", "On the same day he informed all interested parties that the assets would be distributed on 26 February 2003. On that date the bailiff came to Victoria's premises and proceeded to distribute some of the assets, even though the applicants had failed to appear. The items which the bailiff intended to transmit to the applicants were stored for safekeeping with one of the employees. The applicants challenged the bailiff's actions in court, but on 7 April 2003 the Buiucani District Court rejected their complaint. 16.", "On 23 June 2003 the bailiff informed the parties that the remainder of the assets would be distributed on 8 July 2003. For unknown reasons full enforcement of the warrant was not possible on that date and a new date was set for 23 July 2003. 17. On 23 July 2003 the bailiff reported that one of the applicants refused to take possession of the items distributed to them in accordance with the enforcement warrant, including those items already given to one of the employees for safe-keeping. 18.", "On 24 July 2003 the applicants complained to the bailiff's office about the events of the previous day. They explained that they had objected to the manner in which the judgment had been enforced, in particular to being given possession of specific rooms allocated to them by the bailiff. These consisted of a small room of eight square metres and space under the stairs, which belonged to S., another company. They were not reflected in Victoria's accounting documents and did not belong to it, while other rooms belonging to Victoria had either been distributed to the employees or had not been distributed at all. 19.", "On 16 October 2003 the Decisions Enforcement Department of the Ministry of Justice (“the Department”) asked the Buiucani District Court to order the return of the enforcement warrant to the applicants without enforcement, due to their refusal to receive the relevant property. On 4 November 2003 the court rejected that request as unfounded. The court found that the applicants had not refused to receive the assets to which they were entitled under the judgment of 27 November 2001. 20. On 18 November 2003 the applicants asked the Buiucani District Court to explain how its judgment of 27 November 2001 should be enforced, namely, to specify, with reference to the plan of the building, the address and size of the part of the building which should be attributed to them.", "21. On 3 March 2004 the Buiucani District Court adopted a decision whereby it amended part of its judgment of 27 November 2001, namely, by describing the exact size and address of the part of the building which should be attributed to the applicants. It added that the applicants had the right to register their property rights with the Territorial Cadastral Office (“the TCO”). One of the applicants was not present at the hearing. 22.", "Following a request by the applicants who had not been present at the hearing of 3 March 2004, on 27 April 2004 the decision explaining the judgment of 27 November 2001 was set aside and the case was sent for fresh examination. 23. On 31 May 2004 the Buiucani District Court decided that the judgment of 27 November 2001 was to be enforced exactly as it had been formulated, “in accordance with the documents and the description in the relevant property as registered with the relevant authorities”. That decision was upheld by the Chişinău Court of Appeal on 18 November 2004. 2.", "Registration of the applicants' property rights with the TCO 24. On 18 June 2004 the Department asked the TCO to issue one of the applicants with copies of documents concerning Victoria's building situated at 99 Decebal str. in Chişinău. It appears that no such documents were issued. 25.", "On 3 August 2004 the applicants asked the TCO to register their property rights to Victoria's building situated at 99 Decebal str. in Chişinău, pursuant to the judgment of 27 November 2001 and the decision of 31 May 2004. On the same date the TCO refused the applicants' request and explained that the file did not contain all the necessary documents. In particular there was no exact description of the size and address of the rooms to be registered in the applicants' names, while a number of other buildings were situated at 99 Decebal str. in Chişinău.", "26. On 7 September 2004 the Department asked the Buiucani District Court to explain which exact address, including the specific room in the building, should be attributed to the applicants in accordance with the judgment of 27 November 2001. On 21 February 2005 the court answered that it had already given all the necessary explanations on 31 May 2004. The court added that the judgment was to be enforced as formulated, and that specifying the exact address and specific room to be attributed to the applicants implied an unlawful amendment of the judgment of 27 November 2001. 27.", "The applicants challenged the TCO's decision of 3 August 2004 in court. On 19 May 2005 the Chişinău Court of Appeal granted their request and set aside that decision, ordering the TCO to register the relevant property in the applicants' names. 28. On 21 September 2005 the Supreme Court of Justice quashed the lower court's decision as unfounded and ordered a rehearing by the Chişinău Court of Appeal. The court noted that the applicants were present at the hearing and that it had examined the materials of the file before reaching its decision.", "29. On 22 December 2005 the Chişinău Court of Appeal ordered an expert report to be made. An expert was asked to determine whether there had been any kind of registration of Victoria in the relevant land register, and, if so, in whose name. The expert was also asked to determine, if such a registration existed, the exact address and what rooms (their surface and other details), were included. 30.", "On 21 June 2007 the Chişinău Court of Appeal found that even though the applicants had paid for the services of the expert and the TCO had made available the relevant register, no expert report had been made. On 26 April 2007 the National Judicial Expert Report Centre (“the Centre”) returned the case file to the court with an explanation that its expert had not been allowed onto the premises of the Victoria market. The court found the reason for the failure to carry out the expert report to have been “manifestly invented” since there was no evidence that the expert had been prevented from accessing the building and since on 2 April 2007 the Centre had informed the applicants that, due to a high workload, the relevant report would not be made until May 2007. The court again ordered the Centre, which is a State institution, to make the report in which it was asked to answer essentially the same questions as those raised in 2005. The court also asked the Centre, if Victoria was not registered in the relevant documents, to give a description of the market as actually visible at its location at 99 Decebal str.", "in Chişinău. The court noted that a representative of the third party S. was also to be present. 31. On 21 April 2008 the Centre submitted its decision, according to which it had been impossible to reply to the court's questions. The reason for that was that Victoria was not registered in the land register, either in the applicants' names or in anybody else's name.", "32. On 13 June 2008 the Chişinău Court of Appeal annulled the TCO's decision of 3 August 2004. It found that Victoria was not registered in the land register and had no technical description as required by law. It therefore ordered the TCO to register the market in the applicants' names. 33.", "On 26 November 2008 the Supreme Court of Justice quashed that judgment. It found that S.'s property rights to the building situated at 99 Decebal str. in Chişinău were registered in the land register. The court concluded that the applicants “asked for registration of their property to real estate which does not exist, since the existence [of a piece of real estate] is confirmed only when the relevant entry is made in the land register”. D. Access to the case file 34.", "On 18 July 2005 Ms N. Mardari became the applicants' representative in their case before the Court. On the same day she attempted to obtain access to the case file but was unable to find it at the Buiucani District Court. 35. According to the applicants' lawyer, on 20 July 2005 she was informed by a person from the registry of the Buiucani District Court that the case file had been sent to the Government Agent's Office on 14 January 2005. The case file was returned to the Buiucani District Court on 9 March 2005.", "36. On 22 July 2005 she asked the Supreme Council of the Judiciary for assistance in removing obstacles she had encountered at the Buiucani District Court, namely, that she had not been given access to the case file. 37. On 23 July 2005 the Buiucani District Court informed the applicants' lawyer that the case file was nowhere to be found. 38.", "According to the applicants' lawyer, she obtained access to the case file on 19 October 2005. THE LAW 39. The applicants complained, under Article 6 § 1 of the Convention, that the length of proceedings was excessive and about the annulment of a final judgment in their favour. The relevant part of Article 6 reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 40. They also contended that they had been forced into a business association with persons with whom they did not want to associate, contrary to Article 11 of the Convention.", "Article 11 reads as follows: “1. Everyone has the right to ... freedom of association with others ...” 41. The applicants complained of a violation of their right to respect for their property as guaranteed by Article 1 of Protocol 1 to the Convention, which reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” 42. The applicants finally complained that the failure to give their lawyer access to the file in a timely manner had constituted a violation of Articles 1, 10 and 34 of the Convention.", "Article 1 reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” Article 10 reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. ...” Article 34 reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.", "The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” I. ADMISSIBILITY 43. The applicants complained, under Article 6 of the Convention, of the quashing of the final judgment in their favour (see paragraph 12 above). The Court reiterates that the quashing of a final judgment is an instantaneous act which does not create a continuing situation, even if it entails a reopening of the proceedings (see Frunze v. Moldova (dec.), no. 42308/02, 14 September 2004). The quashing of the final judgment in this case took place on 26 January 2000.", "The six-month period started running from that date, while this application was introduced on 7 March 2003, more than three years later. This complaint has therefore been introduced outside the time-limit set down by Article 35 § 1 of the Convention and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention. 44. The Court notes that in their initial application the applicants complained of a violation of their rights guaranteed under Article 10 of the Convention. However, in their letter of 16 February 2006, they asked the Court not to deal with that complaint.", "The Court will not therefore examine it. 45. The applicants also complained, under Article 11 of the Convention, that they had been forced to become co-owners of their company with persons with whom they did not want to be partners. The Court considers that they failed to substantiate their complaint, given that the domestic courts did not order them to be partners with the employees, but to split the assets of the company, effectively ending any form of cooperation with them. In any event nothing prevented the applicants from leaving the company at any time.", "It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 46. The applicants further complained, under Articles 1 and 34 of the Convention, that their lawyer had been prevented for three months from obtaining access to the case file in order to submit their observations on the case. The Court notes that the lawyer was indeed unable to consult the file for three months. It also notes that the applicants do not argue that the case file was withheld from them on purpose.", "Rather, they see serious deficiencies in the organisation of the domestic courts' filing and archiving systems which allowed the file to be misplaced for a long time. They also mentioned that the Government Agent's Office had been given better treatment since it was sent the file three days after the relevant request had been made. 47. The Court considers that obstacles created for applicants or their lawyers in accessing documents in order to make submissions requested by it may amount to a violation of Article 34 of the Convention. However, where the respondent State is able to show that there were objective impediments to reasonable efforts on the part of the domestic authorities to ensure observance of an applicant's rights under Article 34, the latter provision will not have been breached (see, mutatis mutandis, Paladi v. Moldova [GC], no.", "39806/05, § 92, ECHR 10 March 2009). The Court notes that in the present case the request to access the file was made on 18 July 2005 (see paragraph 34 above). Even though the main proceedings had ended on 12 September 2002 (see paragraph 14 above), the enforcement proceedings, including the issue of registration of the applicants' ownership of Victoria, were still on-going. Moreover, two judgments were adopted just before and after the request for access to the file (see paragraphs 27 and 28 above), which shows clearly that the case file was in active use by various courts during the relevant period. It is unfortunate that the filing systems in the various domestic courts were so confusing that they prevented the staff from quickly determining which court had the file at the time of the applicants' lawyer's request.", "However, the Court also notes that the applicants attended the hearing of the Supreme Court of Justice of 21 September 2005 and that the court had examined the case file (see paragraph 28 above). It follows that the applicants were aware of the whereabouts of the file on 21 September 2005 and there is nothing in the materials before the Court to show that they had asked to see the file at the Supreme Court of Justice on that date. Thus the applicants had missed an opportunity to access their file a month before their lawyer eventually managed to access it. 48. The Court is therefore not convinced that the domestic authorities had acted in a manner incompatible with their obligations under Article 34 of the Convention.", "It follows that the complaints under Article 1 and 34 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 49. The applicants also complained, under Article 1 of Protocol No. 1 to the Convention, of a violation of their right to protection of property as a result of the judgments adopted by the domestic courts. In particular, they referred to the continuing impossibility to use the part of Victoria's building which should have been transferred to them in accordance with the final judgment of 27 November 2001.", "The Court notes that, in its judgment of 26 November 2008, the Supreme Court of Justice mentioned that S. was the registered owner of the disputed building, while the applicants had no registered right (see paragraph 33 above). If the title to the disputed building held by S. is indeed valid, then the applicants cannot complain about a violation of their property rights as a result of the failure to give them such a title in accordance with the judgment of 27 November 2001. In this connection, the Court notes that S. did not participate in the proceedings which resulted in the judgment of 27 November 2001 and that, accordingly, that judgment was not binding on S. 50. In the absence of details as to the circumstances in which S. became the registered owner of the building, the Court will not determine which person or entity is the real owner of that building, since that is for the domestic courts to decide. The applicants did not submit evidence that they challenged in court the title to the building held by S. It follows that the applicants' complaint under Article 1 of Protocol No.", "1 to the Convention is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 51. As to the length of the proceedings complaint, the Court notes that the Government considered that it was incompatible ratione temporis with the Court's jurisdiction, given that the alleged violations took place in 1993, before Moldova joined the Convention on 12 September 1997. The Court notes that the proceedings in the present case lasted at least until 2002, when the final judgment was adopted (see paragraph 14 above). This preliminary objection must therefore be rejected.", "52. The Court considers that the applicants' complaint under Article 6 of the Convention (length of the proceedings) raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No grounds for declaring it inadmissible have been established. The Court therefore declares this complaint admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of this complaint.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. Submissions by the parties 53. The applicants complained that the length of the proceedings had been excessive, lasting from 1993 until the present, given that the judgment of 27 November 2001 had not yet been enforced to date. The relevant period started on 12 September 1997 when Moldova joined the Convention. They considered that the case was not very complex and involved only two parties (the applicants on the one hand and the employees on the other), not five as argued by the Government.", "The applicants submitted that they had acted diligently and had not caused undue delay. At the same time, the courts had allowed lengthy periods of inactivity, despite the case being very important for the livelihoods of the applicants. For instance, only one court hearing had been held in 1999 and only three in 2000. Finally, their refusal to receive some of Victoria's assets had been due to the fact that those items had included massive production equipment of up to four tons in weight which needed space in which to be placed. Yet the judgment in respect of the building had not been enforced and so the applicants had no place in which to store those items.", "54. The Government agreed that the period to be taken into consideration started on 12 September 1997. They submitted that this was one of the most complex cases to have been examined by the domestic courts, involving as it did four plaintiffs and three defendants. Three witnesses had been heard and several expert reports had been made. The case file contained almost a thousand pages.", "In addition, the applicants had been responsible for some of the delays, having, on a number of occasions, requested the postponement of court hearings. Moreover, the applicants' refusal to accept the items proposed to them by the bailiff in enforcement of the judgment of 27 November 2001 had contributed to the length of the proceedings. Finally, the domestic authorities had taken all reasonable steps to ensure a timely examination of the case. B. The Court's assessment 55.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Cravcenco v. Moldova, no. 13012/02, § 44, 15 January 2008). 56. The Court agrees that the period to be taken into consideration started on 12 September 1997 when Moldova joined the Convention.", "As for when that period ends, the following must be noted. The proceedings in the present case ended on 12 September 2002, upholding the judgment of 27 November 2001 (see paragraph 14 cited above). However, the final judgment awarding the applicants, inter alia, a part of Victoria's building, was never enforced. The courts eventually determined that that part of the judgment could not be enforced since S. was the registered owner of the building (see paragraph 33 above). However, it took them six years and two months from the date of the final court judgment to reach that conclusion, despite their obligation to verify the legal basis for awarding property rights already in the original proceedings.", "In this respect the Court refers to the finding of the Supreme Court of Justice that the existence of real estate could be proved only with evidence of registration in the land register (see paragraph 33 cited above). It follows that in the proceedings which ended on 12 September 2002 the courts failed to verify whether the parties had any legal title to the property which they had claimed to belong to Victoria. 57. The Court notes that the final judgment of 10 September 1998 in the applicants' favour required no enforcement, since it rejected the other party's claims against the applicants. As such, no proceedings were pending between the above-mentioned date and 26 January 2000, when the Supreme Court of Justice quashed the final judgment and ordered a retrial (see paragraph 12 cited above).", "Therefore, this period of approximately sixteen months is not to be included in the overall length of the proceedings. 58. The Court considers that if the title held by S. is not valid, then the judgment of 27 November 2001 is to be considered not yet enforced. If the title held by S. is proved to be valid, this will also mean that the original distribution of Victoria's property made on 27 November 2001 was unfair to the applicants, who received fewer assets on account of the part of the building which they were awarded. It follows that, until a final determination of the manner of distributing those assets is made, taking account of the results of any verification of the validity of the title held by S., the original proceedings initiated against the applicants in 1993 must still be considered as pending.", "59. The Court thus concludes that the period to be counted for the purposes of verifying compliance with Article 6 of the Convention lasted from 12 September 1997 until the present. After excluding sixteen months as noted in paragraph 57 above, the relevant period equals approximately ten years and eight months. 1. Complexity of the case 60.", "The Court notes that the domestic courts considered it necessary to order several expert reports in order to determine the ownership of the disputed part of the building, and that the experts were unable to make such a report for lack of relevant documents. As such, the case could be considered somewhat complex. However, such complexity cannot in itself explain the total length of the proceedings, particularly in the light of the fact that the expert took a year and a half to announce before the court that it was impossible to make such a report (see paragraphs 29 and 30 cited above). After the court rejected that reason and ordered a new report to be made, the expert took another ten months before again reporting that it was impossible to make a report (see paragraph 31 cited above). In this latter respect, the Court notes that the principal responsibility for the delay due to waiting for the expert opinions rests ultimately with the State (see Capuano v. Italy, 25 June 1987, § 32, Series A no.", "119). 2. The applicants' conduct 61. The Court notes the Government's submission that the applicants were responsible for some delay in the proceedings (see paragraph 54 above). They submitted evidence of three requests by the applicants to postpone the hearings.", "In all three, the applicants asked the courts to postpone the hearing because they were ill, as proved by medical certificates. The Court considers that these delays were too few and too short to explain the overall length of the proceedings. 62. The Government also considered that, by refusing to receive items offered to them by the bailiff in 2003 (see paragraphs 15 and 17 cited above), the applicants had contributed to the overall length of the proceedings. The Court notes that the applicants focused on what they saw as a distribution of the disputed real estate in a manner not conforming to the final judgment.", "Whether or not they agreed to obtain the remainder of Victoria's assets did not change the fact that the main contentious issue – concerning the building – continued to be examined for many years thereafter. It follows that the refusal to receive the items, in the absence of space in which to put them, did not in any way extend the overall length of the proceedings. 3. Conduct of the authorities 63. As to the conduct of the judicial authorities, the Court reiterates that it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee to everyone the right to a final decision within a reasonable time in the determination of his or her civil rights and obligations (see Frydlender, cited above, § 45).", "The manner in which a State provides for mechanisms to comply with this requirement – whether by way of increasing the numbers of judges, or by automatic time-limits and directions, or by some other method – is for the State to decide. If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay (see Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, § 23, 29 July 2003). 64. The Court notes that there were very long unexplained periods of inactivity by the courts in the present case (see, for instance, paragraphs 26 and 29-31 cited above).", "65. It also notes that the case was first decided by a final court judgment on 10 September 1998. The proceedings were subsequently reopened through an extraordinary procedure of a type that is in itself contrary to Article 6 of the Convention (see, for instance, Brumărescu v. Romania [GC], no. 28342/95, § 65, ECHR 1999‑VII, and Roşca v. Moldova, no. 6267/02, § 29, 22 March 2005).", "The applicants lodged their complaint in this respect outside the six-month period established in Article 35 of the Convention. However, it remains true that, following the reopening of a final court judgment, the judicial authorities need to take particular care to ensure a swift conclusion to the reopened proceedings. The Court assumes that, since a final judgment was adopted in the case, the factual and legal issues had largely been resolved. Unless new important facts are discovered and form the ground for the reopening, the courts do not have difficult issues to examine in any reopened proceedings. However, in the present case, most of the delays occurred after the quashing of the final judgment.", "4. What was at stake for the applicants 66. The Court notes that, when the proceedings started, Victoria was the applicants' main activity. Having been effectively prevented from continuing it, they were consequently deprived of their income. The proceedings thus concerned an important issue for the applicants.", "5. Conclusion 67. The Court considers that the present case was somewhat complex, but that this in itself does not explain the overall length of the proceedings of more than ten years. The applicants could not be reproached for any serious delays, while the authorities and the courts allowed lengthy delays caused by inactivity. Moreover, after the case was resolved by a final court judgment, its reopening called for a swift determination of the outstanding issues, rather than a lengthy fresh examination.", "In the light of the above, the Court concludes that the requirement of a “reasonable time” laid down in Article 6 § 1 of the Convention was not complied with in the present case. There has therefore been a breach of that provision. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 69.", "The applicants sought the return of the disputed building, in accordance with the judgment of 27 November 2001. 70. The Court notes its finding that the complaint about obtaining title to the disputed building was inadmissible as premature (see paragraph 49 above). It therefore rejects the applicants' claim for return of the disputed building. B. Non-pecuniary damage 71.", "The applicants claimed 10,000 euros (EUR) each in compensation for non-pecuniary damage caused to them. They submitted that they had suffered from the excessive length of the proceedings, during which their company had been prevented from working. 72. The Government submitted that the applicants could not claim any compensation, in the absence of any violation of their Convention rights. In any event, the amount claimed was unsubstantiated and excessive in comparison with similar cases.", "73. The Court considers that the applicants must have been caused a certain level of stress and frustration as a result of the excessive length of the proceedings. Considering the total length of the proceedings, and deciding on an equitable basis, the Court awards each applicant EUR 2,000 for non-pecuniary damage. C. Costs and expenses 74. The applicants claimed jointly EUR 556 for costs and expenses, including EUR 450 for legal costs.", "75. The Government considered that the amount claimed for legal costs was excessive. 76. In the light of the materials in the file, the Court allows the applicants' claim in full. C. Default interest 77.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares admissible the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 556 (five hundred and fifty six euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 27 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF NAVUSHTANOV v. BULGARIA (Application no. 57847/00) JUDGMENT STRASBOURG 24 May 2007 FINAL 24/08/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Navushtanov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrR. Maruste,MrJ. Borrego Borrego,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 2 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57847/00) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Ivan Radkov Navushtanov who was born in 1978 and lives in Velingrad (“the applicant”), on 30 December 1999. 2. The applicant was represented by Mr V. Stoyanov and Mrs V. Kelcheva, lawyers practising in Pazardzhik.", "3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice. 4. The applicant alleged that there were numerous violations of his rights under Article 5 of the Convention in respect to his detention from 5 October 1999 to 21 April 2000. In addition, he claimed that he had been subjected to inhuman or degrading treatment as a result of having been detained in allegedly inadequate conditions of detention at the Velingrad Investigation detention facility and the Pazardzhik Prison.", "5. On 5 April 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "The criminal proceedings against the applicant and his detention in the context of these proceedings 6. On 5 October 1999 the Prosecutor's Office, acting on the victim's complaints and after having collected over forty-five pages of evidence, opened a preliminary investigation against the applicant concerning a series of five burglaries. The prosecutor in charge ordered that the applicant be detained on remand in view of the fact that there were another three preliminary investigations and sixteen enquiries pending against him for various other offences. 7. By order of the same day, issued by an investigator and confirmed by a prosecutor, the applicant was charged with the five burglaries and was detained on remand.", "No specific reasons were cited in the order of the investigator for detaining the applicant, but reference was made to the aforesaid order of the prosecutor to detain the applicant. The applicant was presented with the order and at 4:20 p.m. on the same day signed a statement that he had been informed of its content. 8. The applicant was questioned on an unspecified date and confessed to having committed the burglaries. 9.", "The charges against the applicant were amended on 18 October and 15 November 1999. The detention on remand was sustained on both occasions without specific reasons being cited by the authorities. 10. On 29 November 1999 the applicant appealed against his detention and argued, inter alia, that he had a permanent address, was planning to marry his pregnant girlfriend and had been in detention since 5 October 1999. 11.", "In a decision of 2 December 1999 the Velingrad District Court dismissed the appeal. Referring to the serious charges against the applicant, the other three preliminary investigations and the sixteen enquiries pending against him, the court considered that, if released, there was a likelihood that he might abscond or re-offend. 12. On an unspecified date the charges against the applicant were amended and he was charged with another three burglaries. Also on an unspecified date he confessed to having committed these burglaries.", "13. The preliminary investigation was completed on 21 December 1999. 14. On 10 February 2000 an indictment was filed against the applicant with the Velingrad District Court for a series of eight burglaries. 15.", "A hearing was conducted before the Velingrad District Court on 21 March 2000 at which the applicant confessed to the offences he had been charged with. 16. At the next hearing on 19 April 2000 the applicant stated his readiness to endure an appropriate sentence for his offences. 17. By judgment of the same day, 19 April 2000, the Velingrad District Court found the applicant guilty as charged and sentenced him to two years' imprisonment, suspended for a period of five years.", "In determining his sentence, the domestic court took into account, inter alia, that he did not have a criminal record and that he had confessed. According to the minutes, the court also amended the measure for securing the applicant's appearance in court to bail in the amount of 50 Bulgarian levs [BGN : approximately 25 euros (EUR)], payable within three days, and ordered that he be released after provision of the said recognisance. 18. On 20 April 2000 a friend or relative of the applicant deposited the recognizance into the bank account of the Velingrad District Court. It is not clear when the District Court was informed that bail had been provided.", "The applicant was released on 21 April 2000. 19. Neither the applicant nor the prosecution appealed against the judgment and it entered into force. B. The conditions of the applicant's detention 20.", "The applicant contended, which the Government did not challenge, that from 5 October 1999 to 7 February 2000 he was detained at the Velingrad Investigation detention facility. He was then transferred to the Pazardzhik Prison where he remained until his release on 21 April 2000. 21. In the applicant's submission, at both of these detention facilities, (1) there was insufficient fresh air in the cells; (2) there was no exercise or healthy food; (3) hygiene was lacking (presence of parasites and rodents); (4) he was denied access to newspapers, books, radio and television; (5) he could not meet with his attorney in private, and (6) he could not maintain an active correspondence. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Grounds for detention 22. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no.", "39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 23. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the Court's judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no.", "56856/00, §§ 21-24, 10 August 2006). B. Scope of judicial control on pre-trial detention 24. On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).", "25. In June 2002, interpreting the amended provisions on pre-trial detention, the Supreme Court of Cassation stated that when examining an appeal against pre-trial detention the courts' task was not only to verify whether the initial decision on remand in custody had been lawful but also to establish whether continued detention was still lawful and justified. In such proceedings the courts had to examine all available evidence on all relevant aspects, including the amount of the recognisance as the case may be (TR 1‑02 Supreme Court of Cassation). C. Release on bail 26. Article 150 § 5 of the CCP provided at the relevant time: “When the measure for securing [a person's appearance in court] is amended from a more [restrictive] one to bail, the [person] shall be released following provision of recognisance.” D. The State Responsibility for Damage Act 27.", "The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pre‑trial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2). 28. In respect of the regime of detention and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004).", "III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (“THE CPT”) 29. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public. 30.", "The Pazardzhik Prison was visited by the CPT in 1995. The Velingrad Investigation detention facility has never been visited, but there are general observations about the problems in all investigation service establishments in the 1995, 1999 and 2002 reports. A. Relevant findings of the 1995 report (made public in 1997) 1. General observations 31.", "The CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained. 32. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread.", "At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided. 33. The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees' contacts with the outside world were very limited.", "There was no radio or television. 34. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation's assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country's difficult financial circumstances. 35.", "In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc. ), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour's outdoor exercise per day was to be examined as a matter of urgency. 2. Pazardzhik Prison 36.", "In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities. B. Relevant findings of the 1999 report (made public in 2002) 37. The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements.", "38. In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT's 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and out‑of‑cell activities. In some places, the situation had even deteriorated. 39. In the Plovdiv Regional Investigation detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”.", "C. Relevant findings of the 2002 report (made public in 2004) 40. During the 2002 visit some improvements were noted in the country's investigation detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day. 41. Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.", "THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 42. The applicant made several complaints falling under Article 5 of the Convention, the relevant part of which provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2.", "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.", "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Complaint under Article 5 § 3 of the Convention that the applicant was not brought promptly before a judge or other officer authorised by law to exercise judicial power 43. The applicant complained under Article 5 § 3 of the Convention that when he was detained on remand on 5 October 1999 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.", "44. The Government disagreed and argued that the applicant's detention on remand was mandatory at the time given the numerous other criminal proceedings against him. They also referred to the Court's findings in previous cases concerning the system of pre-trial detention in Bulgaria before 1 January 2000, where it had found that neither investigators before whom the accused persons were brought, nor prosecutors who approved detention orders, could be considered as “officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention. However, the Government argued that each case should be considered on its merits and noted that the applicant had been brought promptly before a judge after he had filed an appeal against his detention on 29 November 1999. 1.", "Admissibility 45. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits 46. The Court reiterates, as noted by the Government, that in previous judgments which concerned the system of detention pending trial, as it existed in Bulgaria until 1 January 2000, it found that neither investigators before whom the accused persons were brought, nor prosecutors who approved detention orders, could be considered as “officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3299, §§ 144-50; Nikolova, cited above, §§ 49-53, and Shishkov v. Bulgaria, no. 38822/97, §§ 52-54, ECHR 2003‑I (extracts)). 47. The present case likewise concerns pre-trial detention imposed before 1 January 2000.", "The applicant's pre-trial detention was ordered by an investigator and confirmed by a prosecutor (see paragraph 7 above), in accordance with the provisions of the CCP then in force (see paragraph 22 above). However, neither the investigator nor the prosecutor were sufficiently independent and impartial for the purposes of Article 5 § 3 of the Convention, in view of the practical role they played in the investigation and the prosecution and the prosecutor's potential participation as a party to the criminal proceedings (see paragraph 22 above and the references quoted therein). The Court refers to the analysis of the relevant domestic law contained in its Nikolova judgment (cited above – see paragraphs 28, 29 and 49-53 of that judgment). Moreover, the Government's arguments do not expressly challenge the above findings. 48.", "It follows that there has been a violation of the applicant's right to be brought before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention. B. Complaints under Article 5 § 1 of the Convention regarding the lawfulness of the applicant's detention 49. The applicant complained under Article 5 § 1 of the Convention that he was unlawfully detained. He contended that the evidence against him was not sufficient to lead to the conclusion that he was guilty of an offence, considered that several domestic provisions were breached and that no reasons were given for the need to detain him.", "The applicant also argued that he was detained unlawfully from 19 April 2000, when the courts ordered his release on bail, to 21 April 2000, when he was freed. 50. Referring to the applicant's detention from 19 to 21 April 2000, the Government noted that after the trial court had delivered its judgment it had also amended the measure for securing the applicant's appearance in court to bail of BGN 50. Accordingly, the latter's release was thereafter conditional on the provision of recognizance. The bail amount was deposited by a friend or relative of the applicant only on 20 April 2000 and he was released on the very next day, 21 April 2000.", "Thus, the Government argued that the applicant's detention between 19 and 21 April 2000 was in conformity with domestic legislation and was not in contravention with the Convention. 1. The applicant's detention from 10 October 1999 to 19 April 2000 51. The Court notes that the applicant's detention from 10 October 1999 to 19 April 2000 fell within the ambit of Article 5 § 1 (c) of the Convention, as it was imposed for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence. There is nothing to indicate that the formalities required by domestic law were not observed.", "As regards the alleged lack of reasonable suspicion, the Court reiterates that the standard imposed by Article 5 § 1 (c) of the Convention does not presuppose the existence of sufficient evidence to bring charges, or find guilt, at the time of arrest. Facts which raise a suspicion need not be of the same level as those necessary to bring a charge (see O'Hara v. the United Kingdom, no. 37555/97, § 36, ECHR 2001-X). 52. In the present case, the Court considers that the authorities had sufficient information to ground a “reasonable” suspicion against the applicant as they had amassed a considerable amount of evidence against him (see paragraphs 6 and 7 above).", "53. Consequently, the Court concludes that in respect of this period there is no appearance of a violation of Article 5 § 1 of the Convention. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. The applicant's detention from 19 to 21 April 2000 54.", "The Court observes that the main issue to be determined in the context of this complaint is whether the disputed detention was “lawful”, including whether it complied with “a procedure prescribed by law”. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 of the Convention, namely to protect individuals from arbitrariness (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996‑III, pp. 752-53, § 40). It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 of the Convention failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham, cited above, § 41).", "55. In the present case, the Court notes that immediately after the Velingrad District Court delivered its judgment on 19 April 2000 it amended the measure for securing the applicant's appearance in court to bail, payable within three days, and ordered his release subject to the provision of recognisance (see paragraph 17 above). The Court recognises that the statutory basis for the applicant's detention thereby changed. Thereafter it was the court's order and Article 150 § 5 of the CCP which provided for his continued detention pending the provision of recognizance (see paragraph 26 above). 56.", "The Court further notes that on 20 April 2000 the recognizance was deposited by a friend or relative of the applicant into the bank account of the Velingrad District Court (see paragraph 18 above). However, it observes that the applicant does not claim or argue that on that same day the authorities were informed or became aware of the said payment. The applicant was released on the next day, 21 April 2000 (see paragraph 18 above). Considering the above, the Court finds no indication, and the applicant provides no arguments to that affect, that the authorities did not act immediately upon becoming aware of the payment of the bail amount and that they did not release him promptly thereafter. 57.", "Consequently, the Court concludes that in respect of this period there is also no appearance of a violation of Article 5 § 1 of the Convention. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. C. Complaint under Article 5 § 2 of the Convention that the applicant was not informed promptly of the reasons for his arrest 58. The applicant complained under Article 5 § 2 of the Convention that when he was arrested on 5 October 1999 he was not informed promptly of the reasons for his arrest and of the charges brought against him. 59.", "The Court reiterates that Article 5 § 2 of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 19, § 40 and H.B.", "v. Switzerland, no. 26899/95, § 47, 5 April 2001). 60. The Court observes that in the present case by order of 5 October 1999 the applicant was charged with a series of five burglaries and was detained on remand. Contrary to his contentions, he was presented with the order on the same day and at 4:20 p.m. signed a statement that he had been informed of its content (see paragraph 7 above).", "The applicant does not state or imply that he signed the aforementioned statement under duress or without having had the opportunity to read it. Thus, the Court finds no indications that he was not promptly informed of the reasons for his arrest and of the charges brought against him. 61. Consequently, the Court concludes that there is no appearance of a violation of Article 5 § 2 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "D. Complaint under Article 5 § 3 of the Convention pertaining to the applicant's right to trial within a reasonable time or release pending trial 62. The applicant complained under Article 5 § 3 of the Convention that his detention was unjustified and excessively lengthy. 63. The Government disagreed with the applicant and noted that he had been detained from 5 October 1999 to 21 April 2000. They further noted that the preliminary investigation had been completed on 21 December 1999, the first hearing before the Velingrad District Court had been conducted on 21 March 2000 and that the latter had delivered its judgment on 19 April 2000 which the applicant did not appeal against it.", "The Government therefore argued that the investigation and trial stage of the criminal proceedings had been completed quickly within only six-and-a-half months. Thus, they considered that the applicant's right to be tried within a reasonable time had not been violated. 1. Admissibility 64. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 65. The Court notes that the applicant was in pre-trial detention from 5 October 1999 to 19 April 2000, a period of six months and fourteen days.", "66. The Court further notes that the complaint is similar to those in previous cases against Bulgaria where violations were found (see, for example, Ilijkov, cited above, §§ 67-87 and Shishkov, cited above, §§ 57-67). Likewise, in the decisions of the authorities of 18 October and 15 November 1999 to extend the applicant's detention they failed to cite any reasons and to assess specific facts and evidence about a possible danger of the applicant absconding, re-offending or obstructing the investigation (see paragraph 9 above). In so far as the authorities did not consider it necessary to justify the continuation of the applicant's detention on each and every occasion they seem to have considered his detention mandatory and to have primarily relied on the statutory provisions requiring such detention for serious intentional offences. 67.", "In view of the above, the Court finds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities' failure to justify the applicant's continued detention. E. Complaint under Article 5 § 4 of the Convention regarding the limited scope and nature of the judicial control of lawfulness of the applicant's detention 68. The applicant complained under Article 5 § 4 of the Convention, in conjunction with Article 13, that in its decision of 2 December 1999 the Velingrad District Court did not examine all factors relevant to the lawfulness of his detention and that he had no right of appeal against the aforesaid decision. 69. The Government challenged the assertions of the applicant.", "They alleged that the Velingrad District Court, in its decision of 2 December 1999 for dismissing the applicant's appeal against his detention, had taken into account his prior convictions for serious offences, the existence of other preliminary investigations and enquiries pending against him and the fact that his detention on remand was thus mandatory under the applicable domestic legislation. The Government therefore considered that the domestic court examined all factors relevant to the lawfulness of the applicant's detention when it dismissed his appeal on 2 December 1999. 70. In respect of the applicant's reliance on Article 13 of the Convention, the Court considers that this complaint should be understood as referring to the applicant's alleged inability to effectively challenge his detention under Article 5 § 4 of the Convention. In addition, the Court observes that Article 5 § 4 of the Convention constitutes a lex specialis in relation to the more general requirements of Article 13 (see, among other authorities, Nikolova, cited above, § 69).", "Accordingly, the Court must examine the complaint only under Article 5 § 4 of the Convention. 1. Admissibility 71. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 2. Merits 72. The Court notes at the outset that this complaint is very similar to those in previous cases against Bulgaria where violations were found (see Nikolova, §§ 54‑66 and Ilijkov, §§ 88‑106, both cited above). 73.", "Likewise, the Court finds that the domestic court in the present case, when examining the applicant's appeal against his detention on 2 December 1999, simply relied on the seriousness of the charges against the applicant and the existence of other preliminary investigations pending against him. It failed to take into account the fact that the applicant did not have a criminal record at the time and had confessed to the charges against him. Moreover, it did not cite any specifics facts or evidence about the possible danger of the applicant absconding, re-offending or obstructing the investigation. Thus, it appears that it relied on the statutory provisions requiring mandatory detention for serious intentional offences and the Supreme Court's practice which excluded any examination of the question whether there was a “reasonable suspicion” against the detainee and of facts concerning the likelihood of flight or re-offending (see paragraph 24 above). 74.", "In view of the aforesaid, the Court finds that the Velingrad District Court, in its decision of 2 December 1999 for dismissing the applicant's appeal against his detention, denied him the guarantees provided for in Article 5 § 4 of the Convention on account of the limited scope and nature of the judicial control of lawfulness of the applicant's detention. Thus, there has been a violation of the said provision in that respect. F. Complaint under Article 5 § 5 of the Convention 75. The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5 of the Convention. 76.", "The Government disagreed and claimed that the applicant had available a procedure under the SRDA whereby he could have claimed and obtained compensation for having been unlawfully detained. 1. Admissibility 77. The Court observes at the outset the similarity of the complaint to those in a number of other cases against Bulgaria where violations where found (see, for example, Yankov, cited above, and Belchev v. Bulgaria, no. 39270/98, 8 April 2004).", "78. The Court further observes that it has found that there were violations of the applicant's right to be brought before a judge or other officer authorised by law to exercise judicial power (see paragraph 48 above), that the authorities failed to justify his continued detention (see paragraph 67 above) and that they denied him the guarantees provided for in Article 5 § 4 of the Convention (see paragraph 74 above). Thus, Article 5 § 5 of the Convention is applicable. 79. The Court also notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 80. In view of the above, the Court must establish whether or not Bulgarian law afforded the applicant an enforceable right to compensation for the breaches of Article 5 of the Convention in his case.", "81. The Court notes that by section 2(1) of the SRDA, a person who has been remanded in custody may seek compensation only if the detention order has been set aside “for lack of lawful grounds”, which refers to unlawfulness under domestic law (see paragraphs 27 and 28 above). 82. In the present case, the applicant's detention on remand was considered by the domestic courts as being in full compliance with the requirements of domestic law. Therefore, the applicant did not have a right to compensation under section 2(1) of the SRDA.", "Nor does section 2(2) apply (see paragraphs 27 and 28 above). 83. It follows that in the applicant's case the SRDA did not provide for an enforceable right to compensation. Furthermore, it does not appear that such a right is secured under any other provision of Bulgarian law (see paragraphs 27 and 28 above). 84.", "Thus, the Court finds that Bulgarian law did not afford the applicant an enforceable right to compensation, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 85. The applicant complained under Article 3 of the Convention that he was subjected to inhuman or degrading treatment while being detained at the Velingrad Investigation detention facility and the Pazardzhik Prison.", "Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties' submissions 1. The Government 86. The Government challenged the applicant's submissions. They argued that his grievances in respect of the conditions of his detention were formulated in a very general manner and that they lacked coherent and precise elements supported by evidence of a violation.", "In respect of the applicant's reliance on the reports of the CPT, the Government noted that there had only been a visit to the Pazardzhik Prison in 1995 and that it had not been only critical of the conditions at that facility. 87. To support their arguments in respect of the Pazardzhik Prison the Government presented a report from the prison warden, dated 21 July 2005, detailing the conditions of the applicant's detention at that detention facility, together with a number of supporting documents, orders, schedules, time tables and invoices (the “warden's report”). The information provided therein is summarised below. 88.", "The applicant was held at the Pazardzhik Prison from 8 February to 21 April 2000. He was attached to second prisoners' company and was placed in a cell with other first time offenders. 89. The second prisoners' company was accommodated in five cells with a total living area of 172.86 sq. m, designated for a maximum of twenty-eight detainees.", "The cells ranged in size from 17.72 sq. m to 56.70 sq. m and were intended for two to eight persons, depending on their size. During the year 2000 the average occupancy rate of the cells in the second prisoners' company was twenty-five persons which allowed for more living area for each detainee. 90.", "At the time, the cells did not have sanitary facilities, so communal such facilities were provided which comprised of four separate toilet cabins and two extended sinks with four taps of running water each. Access to these facilities was possible at set periods several times during the day, usually before and after meals and the various other daily activities. As an exception, access to the sanitary facilities was also possible at other times. 91. All the cells had access to direct sunlight from windows which could be opened to allow fresh air to circulate.", "Artificial light was available from 10 p.m. to 6 a.m. 92. Each detainee was provided with clothes, a bed with a mattress and bed linen (sheets, a pillow cover and two blankets), which was changed every two weeks. They were also provided with a locker where they could place their personal belongings. Detainees were required to bathe once a week, if they did not work, and daily, if they did. A washing machine was also available for them to wash their clothes.", "In 1999 boilers were installed in each corridor to provide detainees with easier access to hot water. 93. The detainees were provided free-of-charge with toiletry products and materials to wash and disinfect their clothes and living areas, as evidenced by an order of the prison warden of 20 January 1999. However, it was noted that the level of cleanness depended in part on the detainees who were responsible, under the supervision of the prison authorities, for maintaining their living areas clean. 94.", "The prison authorities entered into a contract on 16 February 2000 with an anti-infestation company to undertake an assessment of the status of contamination of the prison by insects and rodents, and to exterminate them. Thereafter, extermination activities were performed on a regular basis, as evidenced by three invoices for such services dating from later in the same year. 95. The prison kitchen prepared the food for the detainees. The daily menus were set and controlled for quantity and quality by the prison authorities with the aim of providing for a balanced diet.", "As evidence, the menus for the weeks of 7 to 13 February 2000 and 17 to 23 April 2000 were presented to the Court. Thus, it can be observed that during the two weeks in question the detainees were provided with a meat or meat containing dish once a day for six days of each week, on the seventh day they had fish, vegetarian dishes and dairy products were provided daily, while fresh vegetables were given only twice during the period. 96. Detainees were provided with an hour of daily outdoor exercise, which was increased to an hour and forty-five minutes at the beginning of 2000. A sports hall with weightlifting equipment and facilities to play table tennis and badminton was also available for use by the detainees to which they had daily access for fifty minutes.", "97. The detainees from the second prisoners' company had access to the prison library, which had over 8,500 books, for half an hour every day, as evidenced by a schedule approved by the prison warden on 26 April 1999. 98. Newspapers were also available as the prison had taken out a number of such subscriptions, as evidenced by two invoices for the year 2000 dating from 14 December 1999 and 17 January 2000. Individual subscriptions by detainees were also allowed.", "99. In the prison there was also a chapel, a priest and organised religious services, as evidenced by a schedule approved by the warden on 6 April 2000. 100. There was also an equipped cinema hall where films were shown once a week, as evidenced by three invoices from 2000 for renting ninety-five films. In 1999 each cell and dormitory was connected to a cable television network offering over fifty channels.", "Detainees had to provide their own television sets. 101. At the time, the prison also had an internal radio station which transmitted to each cell, and detainees could have their own radios. 102. The correspondence of the detainees with their lawyers, relatives and friends was unrestricted and was not registered.", "There was also no restriction on the number of petitions, appeals or requests they could make. Telephone conversations could also be organised with relatives and lawyers. 103. During working hours, detainees could also meet privately, without restriction or limitation, with their lawyers in a specially designated room. 104.", "In respect of the applicant, the warden's reports noted that when he was transferred to the prison he had declared in writing on 9 February 2000 that he did not want his relatives to be informed of his place of detention. In addition, he had been found to be completely healthy at the medical check-up on the same day, did not make any complaints and until his release did not seek medical attention at the prison's infirmary. 105. Lastly, it was claimed that significant improvements had been undertaken in the prison following the CPT's visit in 1995 and that, as of the date of the report, all cells and dormitories had access to sanitary facilities with running hot water. Separately, the prison switched from electricity to gas in 2002 which improved its central heating and hot-water-provision' capabilities.", "In conclusion, it was claimed that, as of the date of the warden's report, all the prescriptions for improving the conditions at this detention facility had been met with the exception of the overcrowding and the provision of medical services. 2. The applicant 106. The applicant simply reiterated his complaints and contended that the conditions of detention in which he was held at the Velingrad Investigation detention facility and the Pazardzhik Prison were inadequate and amounted to inhuman and degrading treatment under Article 3 of the Convention. He relied, inter alia, on the findings of the CPT in their reports and the declarations of two other detainees at the Velingrad Investigation detention facility, Mr V.G.", "and Mr. D.A., who corroborated his claims. B. Admissibility 107. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. C. Merits 1. General principles 108. The Court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, among others, Kudła v. Poland [GC], no.", "30210/96, § 90, ECHR 2000‑XI and Poltoratskiy v. Ukraine, no. 38812/97, § 130, ECHR 2003‑V). 109. To fall within the scope of Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła, § 91, and Poltoratskiy, § 131, both cited above).", "110. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92). The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3 (see Kalashnikov v. Russia, no. 47095/99, §§ 95 and 101, ECHR 2002‑VI).", "111. The suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention in itself raises an issue under Article 3. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with the respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, § 92-94).", "112. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention (see Kalashnikov, cited above, §§ 95 and 102; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; and Iovchev, cited above, § 127). In particular, the Court must have regard to the state of health of the detained person (see Assenov and Others, cited above, § 135). 113.", "An important factor, together with the material conditions, is the detention regime. In assessing whether a restrictive regime may amount to treatment contrary to Article 3 in a given case, regard must be had to the particular conditions, the stringency of the regime, its duration, the objective pursued and its effects on the person concerned (see Kehayov, § 65 and Iovchev, § 128, both cited above; and, mutatis mutandis, Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003‑II). 2. Application of these principles to the present case (a) Velingrad Investigation detention facility 114.", "The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII and Fedotov v. Russia, no. 5140/02, § 59, 25 October 2005).", "115. The Court notes that the primary account of the conditions of the applicant's detention at the Velingrad Investigation detention facility is that furnished by him (see paragraph 21 above). It also notes that he provided signed declarations by another two detainees at this detention facility (see paragraph 106 above). However, in so far as those individuals also made applications before the Court with identical complaints (Ganchev v. Bulgaria (dec.), no. 57855/00, 30 June 2005 and application no.", "57180/00), it finds that their statements should not be considered objective and that they should not therefore be given any particular weight (see Yordanov, cited above, § 82 and Dobrev, cited above, § 117). 116. In any event, the Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. The failure on a Government's part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations (see Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004 and Fedotov, cited above, § 60).", "117. In the present case, in their observations the Government restricted themselves to responding only to the applicant's complaints in respect of the Pazardzhik Prison (see paragraphs 86-105 above). Moreover, they did not offer any convincing explanation for their failure to submit relevant information regarding the Velingrad Investigation detention facility (see Fedotov, cited above, § 61). 118. In these circumstances, the Court will examine the merits of the applicant's complaint in respect of the conditions of detention at the Velingrad Investigation detention facility solely on the basis of his submissions (see Fedotov, cited above, § 61 and Staykov v. Bulgaria, no.", "49438/99, § 75, 12 October 2006). While not directly relevant, because the Velingrad Investigation detention facility was never itself visited and the reports cover somewhat different periods, the Court considers that the general observations of the CPT in respect of the conditions of detention in all Investigation Service detention facilities during its visits, in so far as relevant, may also inform it in its decision (see paragraphs 29-41 above and, for a similar approach, Iovchev, cited above, § 130 and Staykov v. Bulgaria, no. 49438/99, §§ 75 and 79, 12 October 2006). 119. The Court observes that the applicant was detained on the premises of the Velingrad Investigation detention facility from 5 October 1999 to 7 February 2000 (see paragraph 20 above).", "The period to be taken into account, therefore, is four months and three days. 120. The applicant was detained in a cell, which lacked fresh air and was unhygienic. He also had no possibility for outdoor or out-of-cell activities and communication with the outside world was very limited. Moreover, the food provided at this facility was substandard (see paragraph 21 above).", "121. The Court observes however that the applicant was detained at this facility for a period of not longer than four months and, quite significantly, did not complain of any overcrowding or that his physical or mental health deteriorated during or as a result of his detention there. 122. Thus, while recognising that the applicant may have endured some distress and hardship during the period of his detention at the Velingrad Investigation detention facility, the Court does not find that in the particular circumstances of the present case the treatment complained of went beyond the threshold of severity under Article 3 of the Convention. 123.", "Therefore, there has been no violation of Article 3 of the Convention on account of the applicant's detention at the Velingrad Investigation detention facility. (b) Pazardzhik Prison 124. The Court observes that the applicant was detained on the premises of the Pazardzhik Prison from 7 February to 21 April 2000 (see paragraph 20 above). The period to be taken into account, therefore, is two months and thirteen days. 125.", "The applicant initially complained that he was detained in a cell, which lacked fresh air, was unhygienic and had parasites and rodents. The CPT, during its visit in 1995, found that the Pazardzhik Prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. In addition, it found that the central heating was far from sufficient, inadequate and only some of the dormitories were fitted with sanitary facilities (see paragraph 36 above). The Court takes note, however, of the Government's detailed submissions and the supporting documents they presented (see paragraphs 86-105 above) arguing that the conditions of the applicant's detention were materially different from what the CPT had observed at the Pazardzhik Prison in 1995. Moreover, it notes that none of the Government's claims or arguments were subsequently challenged by the applicant.", "Accordingly, the Court must afford them the required weight when accessing the merits of the applicant's complaint in respect of the Pazardzhik Prison. 126. In view of the above and based on the information provided by the Government (see paragraph 89 above), the Court notes that on average the living area available per detainee in second prisoners' company during the year 2000 was 6.91 sq. m. The CPT, meanwhile, has set 7 sq. m as an approximate, desirable guideline for a single-occupancy police cell [see “The CPT Standards” – CPT/Inf/E (2002) 1 - Rev.", "2006, paragraph 43], but there is no such guideline in respect of prison cells. However, the CPT has in general applied a standard of a minimum of 4 sq. m per prisoner in multiple occupancy cells [see, for example, the CPT reports on the 2002 visit to Bulgaria, CPT/Inf (2004) 21, paragraphs 82 and 87, and on the 2004 visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111], and a minimum of 6 sq. m. per prisoner in single occupancy cells [see, for example, the CPT report on the 2004 visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111]. Separately, the Court notes that during the period of the applicant's detention there were no sanitary facilities in the cells, but that access to such facilities was provided several times daily (see paragraph 90 above).", "There was direct sunlight and the windows in the cells could be opened to allow fresh air to circulate (see paragraph 91 above). Detainees were provided with clothes, a bed with a mattress, bed linen and a locker for personal belongings. The bed linen was changed every fortnight. The detainees had to bathe at least once a week, had access to a washing machine and after 1999 had easier access to hot water on account of the boilers installed in each corridor (see paragraph 92 above). Detainees were provided free-of-charge with toiletry products and materials to wash and disinfect their clothes and living areas (see paragraph 93 above).", "Efforts were also made to exterminate any insects and rodents (see paragraph 94 above). 127. The applicant further complained that the food provided was of insufficient quantity and substandard. However, the Court notes that the Government claimed, which the applicant did not subsequently challenge, that at the time of the applicant's detention the prison's kitchen prepared the food and adhered to menus set and controlled for quantity and quality by the prison authorities providing for a balanced diet. Considering the menus presented by the Government in respect of two of the weeks of the applicant's detention at this facility, the Court does not find that the food during those periods was substandard or inadequate (see paragraph 95 above).", "128. The applicant also complained that there was no possibility for outdoor or out-of-cell activities at this detention facility. The Court notes, however, that the Government claimed, which the applicant did not subsequently challenge, that detainees were provided with an hour of daily outdoor exercise, which was increased to one hour and forty-five minutes at the beginning of 2000. An equipped sports hall was also available for use by detainees to which they had was daily access (see paragraph 96 above). There was also a chapel, a priest and organised religious services (see paragraph 99 above).", "129. The applicant complained that he could not maintain an active correspondence, that he was not allowed to read newspapers or books and that he had no access to a radio or a television. However, the Court notes that the Government claimed, which the applicant did not subsequently challenge, that detainees' correspondence with their lawyers, relatives and friends was not restricted and that telephone conversations could also be organised in certain cases (see paragraph 102 above). It further notes that there was a prison library with a significant number of books and newspapers (see paragraphs 97 and 98 above). Films were screened on a weekly basis and there was the possibility to watch cable television in each cell.", "Radios were also permitted (see paragraphs 100 and 101 above). 130. The applicant also complained that he was denied the right to meet with his attorney in private. The Court notes, however, that the Government claimed, which the applicant did not subsequently challenge, that during working hours, detainees could meet privately, without restriction or limitation, with their lawyers in a specially designated room (see paragraph 103 above). 131.", "The Court notes that the applicant did not complain that his physical or mental health deteriorated during or as a result of his detention at this facility. Accordingly, no considerations in this respect are warranted. 132. Having regard to the regime to which the applicant was subjected and the material conditions in which he was held at the Pazardzhik Prison for a period of two-and-a-half months, the Court concludes that the distress and hardship he endured during the period of his detention at this facility did not exceed the unavoidable level of suffering inherent in detention and that the resulting anguish did not go beyond the threshold of severity under Article 3 of the Convention. 133.", "Therefore, there has been no violation of Article 3 of the Convention on account of the applicant's detention at the Pazardzhik Prison. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 134. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 135. The applicant claimed EUR 10,000 euros as compensation for each of the alleged violations of his rights under the Convention.", "136. The Government did not submit comments on the applicant's claims for damage. 137. Having regard to the specific circumstances of the present case and the violations found (see paragraphs 48, 67, 74 and 84 above), its case-law in similar cases and deciding on an equitable basis, the Court awards EUR 1,000 under this head, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 138. The applicant also claimed EUR 10,000 for 156 hours of legal work by his lawyers in the proceedings before the Court at an effective hourly rate of EUR 64. In addition, he claimed BGN 39.37 (approximately EUR 20) for postal expenses of his lawyer. He submitted a legal fees agreement between him and his lawyers, a timesheet and postal receipts. The applicant requested that the costs and expenses incurred should be paid directly to his lawyers, Mr V. Stoyanov and Mrs V. Kelcheva.", "139. The Government did not submit comments on the applicant's claims for costs and expenses. 140. The Court reiterates that according to its case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the instant case, the Court considers the number of hours claimed excessive given that a number of the applicant's complaints were either declared inadmissible or no violation of the Convention was established (see paragraphs 53, 57, 61 123 and 133 above).", "Moreover, there was a lack of substantive submissions in response to some of the Government's observations (see, for example, paragraph 106 above). Thus, it considers that a significant reduction is necessary on both accounts. Having regard to all relevant factors, the Court considers it reasonable to award the sum of EUR 500 in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 141. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares admissible the complaints concerning (a) the applicant not being promptly brought before a judge or other officer authorised by law to exercise judicial power; (b) the justification of his continued detention; (c) the limited scope and nature of the judicial control of lawfulness of the applicant's detention; (d) the lack of an enforceable right to compensation for being a victim of arrest or detention in breach of the provisions of Article 5 of the Convention; and (e) the applicant's detention in allegedly inadequate conditions of detention at the Velingrad Investigation detention facility and the Pazardzhik Prison; 2. Declares the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the applicant not having been promptly brought before a judge or other officer authorised by law to exercise judicial power; 4. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the authorities' failure to justify the applicant's continued detention; 5.", "Holds that there has been a violation of Article 5 § 4 of the Convention on account of the limited scope and nature of the judicial control of lawfulness of the applicant's detention; 6. Holds that there has been a violation of Article 5 § 5 of the Convention on account of the applicant not having had available an enforceable right to compensation for being a victim of arrest or detention in breach of the provisions of Article 5 of the Convention; 7. Holds that there has been no violation of Article 3 of the Convention on account of the applicant's detention at the Velingrad Investigation detention facility; 8. Holds that there has been no violation of Article 3 of the Convention on account of the applicant's detention at the Pazardzhik Prison; 9. Holds (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement : (i) EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, payable to the applicant himself; (ii) EUR 500 (five hundred euros) in respect of costs and expenses, payable in two equal instalments of EUR 250 (two hundred and fifty euros) into the bank accounts of the applicants' lawyers in Bulgaria, Mr V. Stoyanov and Mrs V. Kelcheva; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 10.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 24 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "SECOND SECTION CASE OF ORMAN AND OTHERS v. TURKEY (Applications nos. 9462/05, 20369/05, 32652/05, 33193/05, 43845/05, 5295/06 and 48090/08) JUDGMENT STRASBOURG 7 December 2010 FINAL 07/03/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. This version was rectified on 21 June 2011 under Rule 81 of the Rules of Court. In the case of Orman and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Ireneu Cabral Barreto, President,[1]Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş,Kristina Pardalos,Guido Raimondi, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 16 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in seven applications (nos. 9462/05, 20369/05, 32652/05, 33193/05, 43845/05, 5295/06 and 48090/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twelve Turkish nationals, Nedim Orman, Ramazan Kayuk, Bülent Orman, Nedim Serihan, Murat Başusta, Tahsin Eriş, Mehmet Vahit Avcı, Doğan Akçiçek, Erkan Tepeli, Oktay Kalaç, Mehmet Ferit Elalmış[2] and İsmail Cengiz Oğurtan born in 1973, 1974, 1982, 1983, 1975, 1968, 1967, 1974, 1978, 1974, 1984 and 1974 respectively. The dates of introduction of the applications and the names of the applicants' representatives are indicated in the appended table. The Turkish Government (“the Government”) were represented by their Agent. 2.", "On 11 May 2009 the Court decided to give notice of the applications to the Government. It also decided to examine the merits of the applications at the same time as their admissibility (former Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 3. The applicants are Turkish nationals who were arrested and subsequently detained pending judicial proceedings.", "They were either released or convicted on various dates. The details of the dates of the arrests, the dates of the orders for the applicants' pre‑trial detention, the dates of the indictments, the dates of the domestic court decisions, the total period of pre-trial detention, the total period of the criminal proceedings where relevant, the dates of release and the grounds for continued detention are set out in the appendix hereto. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Judicial review of pre-trial detention 4.", "A description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure (“the CCP”) (Law no. 5271) on 1 June 2005 may be found in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-31, 30 January 2007). The current practice under the CCP is outlined in Şayık and Others v. Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§ 13-15, 8 December 2009).", "B. Compensation for unlawful detention 5. The relevant domestic law and current practice may be found in Şahap Doğan v. Turkey (no. 29361/07, §§ 18-19, 27 May 2010). THE LAW I. JOINDER 6.", "Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them. II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 7. The applicants complained under Article 5 § 3 of the Convention that the length of their pre-trial detention had been excessive. The applicants in applications nos.", "9462/05, 32652/05, 33193/05 and 48090/08 further complained under Articles 5 § 4 and 13 of the Convention that there had been no effective remedy to challenge the lawfulness of the length of their pre-trial detention. The Court notes that the applicants' complaint under Article 13 should be examined under Article 5 § 4 of the Convention, being the lex specialis in the matter (see Elğay v. Turkey (dec.), no. 18992/03, 11 September 2007). The applicants in applications nos. 43845/05 and 5295/06 further maintained under Article 5 § 5 of the Convention that they had had no right to compensation in domestic law for the alleged violation of Article 5 § 3 of the Convention.", "8. The Government contested these arguments. A. Admissibility 1. As regards the applicant, Mehmet Ferit Elalmış in application no. 48090/08 9.", "The Court notes that the applicant's pre-trial detention ended on 13 June 2003, when the İstanbul State Security Court released the applicant, whereas the application was introduced with the Court on 20 September 2008, that is, more than six months later (see Canevi and Others v. Turkey (dec.), no. 40395/98, 30 May 2000). It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 2. As regards the remaining applicants 10.", "The Government put forward various preliminary objections concerning exhaustion of domestic remedies and asked the Court to dismiss the complaints under Article 5 §§ 3 and 4 of the Convention, as required by Article 35 § 1 of the Convention. 11. The Court notes that it has already examined similar submissions made by the respondent Government in other cases (see, for example, Koşti and Others v. Turkey, no. 74321/01, §§ 19-24, 3 May 2007, and Şayık and Others v. Turkey, cited above, §§ 28-32). 12.", "The Government have not submitted any arguments which could lead the Court to reach a different conclusion in the instant case. Consequently, the Court rejects the Government's preliminary objections. 13. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. Article 5 § 3 of the Convention 14. The Government maintained that the applicants' detention had been based on the existence of reasonable grounds of suspicion of them having committed an offence, and that their detention had been reviewed periodically by a competent authority, with special diligence, in accordance with the requirements laid down by applicable law.", "They pointed out that the offences with which the applicants had been charged had been of a serious nature, and that their continued remand in custody was necessary to prevent crime and to preserve public order. 15. The Court notes that the shortest duration of pre-trial detention in the present case is more than four years and nine months (see appended table). 16. The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Tutar v. Turkey, no.", "11798/03, § 20, 10 October 2006, and Cahit Demirel v. Turkey, no. 18623/03, § 28, 7 July 2009). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject and the length of the applicants' pre-trial detention in the present case (see appended table) the Court finds that in the instant case the length of the applicants' pre-trial detention was excessive. 17.", "There has accordingly been a violation of Article 5 § 3 of the Convention in respect of all applicants except Mehmet Ferit Elalmış in application no. 48090/08. 2. Article 5 § 4 of the Convention 18. In respect of applications nos.", "9462/05, 32652/05, 33193/05 and 48090/08, the Government submitted that the applicants had in fact had the possibility of challenging their pre-trial detention by lodging objections pursuant to Article 267 and following articles of the new CCP. 19. The applicants maintained their allegations. 20. The Court has already examined the possibility of challenging the lawfulness of pre-trial detention in Turkey in other cases and concluded that the Government had failed to show that the remedy they referred to provided for a procedure that was genuinely adversarial for the detainee (see, for example, Yiğitdoğan v. Turkey, no.", "20827/08, §§ 28-31, 16 March 2010). 21. The Court notes that the Government have not put forward any argument or material in the instant case which would require the Court to depart from its previous findings. 22. In the light of the foregoing the Court concludes that there has been a breach of Article 5 § 4 of the Convention in respect of the applicants in applications nos.", "9462/05, 32652/05, 33193/05 and 48090/08. 3. Article 5 § 5 of the Convention 23. In respect of applications nos. 43845/05 and 5296/05, the Government argued that Turkish law afforded the applicants an enforceable right to compensation, contrary to their allegations.", "They maintained in this regard that the applicants could have sought compensation under Article 141 of the new CCP following its entry into force on 1 June 2005. 24. As for the remedy envisaged under Article 141 § 1 (d) of the new CCP, the Court notes that this provision introduces a mechanism whereby a person who has been lawfully detained but whose pre-trial detention exceeds a reasonable time may demand compensation from the State. The Court also notes, however, that according to Article 142 § 1 of the same Code, such demand may only be made after the relevant criminal proceedings have come to an end. This remedy is therefore not available in circumstances where the domestic proceedings are still pending, as in the instant case (see Kürüm v. Turkey, no.", "56493/07, §§ 18-21, 26 January 2010). It follows that the new CCP also fails to provide an enforceable right to compensation for the applicants' deprivation of liberty in breach of Article 5 § 3 of the Convention, as required by Article 5 § 5. 25. The Court therefore concludes that there has been a violation of Article 5 § 5 of the Convention in respect of the applicants in applications nos. 43845/05 and 5295/06.", "III. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION A. Article 6 § 1 of the Convention 26. The applicants in applications nos. 9462/05, 32652/05, 33193/05, 5295/06 and 48090/08 complained that the length of criminal proceedings against them had been incompatible with the reasonable time requirement, laid down in Article 6 § 1 of the Convention.", "The Government disputed this allegation. 27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "28. As regards merits, the Government submitted that the length of the proceedings could not be considered to be unreasonable in view of the complexity of the cases, the number of the accused and the nature of the offences with which the applicants were charged. 29. The Court notes that the shortest duration of the criminal proceedings in the present case is over 6 years and 4 months (see appended table). 30.", "The Court has frequently found violations of Article 6 § 1 of the Convention in applications raising issues similar to the one in the present case (see Bahçeli v. Turkey, no. 35257/04, § 26, 6 October 2009, and Er v. Turkey, no. 21377/04, § 23, 27 October 2009). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court therefore considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1 of the Convention in respect of the applicants in applications nos. 9462/05, 32652/05, 33193/05, 5295/06 and 48090/08. B. Article 13 of the Convention 31. The applicants in applications nos.", "9462/05, 32652/05, 33193/05 and 48090/08 further claimed that there had been no effective remedy in domestic law whereby they could have challenged the excessive length of the proceedings in dispute. They relied on Article 13 of the Convention. 32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. 33. The Court has examined similar complaints in previous applications and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see Daneshpayeh v. Turkey, no. 21086/04, §§ 35-38, 16 July 2009). 34.", "It finds no reason to depart from that conclusion in the present case. There has accordingly been a violation of Article 13 of the Convention in respect of the applicants in applications nos. 9462/05, 32652/05, 33193/05 and 48090/08. IV. OTHER ALLEGED VIOLATION OF THE CONVENTION 35.", "Lastly, the applicants in application no. 9462/05 complained under Article 14 of the Convention that they had been discriminated against since the criminal procedure followed in respect of offences tried by State Security Courts was different from that used for offences tried in other courts. In this respect, they submitted that the State Security Courts had failed to consider the evidence in the case file accurately. 36. The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or a group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no.", "23, p. 29, § 56). In the instant case, the distinction was made not between different groups of people, but between different types of offence, according to the legislature's view of their gravity (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999). The Court, therefore, sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention. 37.", "Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 39. The applicants in application no.", "9462/05 claimed 20,000 euros (EUR) each in respect of non-pecuniary damage. As for pecuniary damage, the applicants Bülent Orman, Nedim Serihan and Ramazan Kayuk claimed EUR 18,000 each, whereas the applicant Nedim Orman claimed EUR 19,714. 40. The applicant in application no. 20369/05 claimed EUR 18,000 in respect of non-pecuniary damage.", "41. The applicant in application no. 32652/05 claimed EUR 33,000 in respect of pecuniary damage and EUR 50,000 in respect of non- pecuniary damage. 42. The applicant in application no.", "33193/05 claimed EUR 45,000 for non-pecuniary damage. As for pecuniary damage, he claimed EUR 25,000. 43. The applicant in application no. 43845/05 claimed EUR 15,000 for non-pecuniary damage.", "44. The applicant in application no. 5295/06 claimed EUR 25,000 for non-pecuniary damage. 45. In application no 48090/08, the applicants Oktay Kalaç and İsmail Cengiz Oğurtan claimed EUR 15,000 each, whereas the applicant Mehmet Ferit Elalmış[3] claimed EUR 3,000 for non-pecuniary damage.", "46. The Government contested these claims. 47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. However, the Court considers that the applicants must have sustained non-pecuniary damage.", "48. In the light of the Court's jurisprudence and ruling on an equitable basis, it makes the following awards under this head in respect of the applicants' non-pecuniary damage: - EUR 9,400 each to the applicants in application no. 9462/05; - EUR 8,500 to the applicant in application no. 20369/05; - EUR 15,800 to the applicant in application no. 32652/05; - EUR 18,000 to the applicant in application no.", "33193/05; - EUR 6,000 to the applicant in application no. 43845/05; - EUR 12,500 to the applicant in application no. 5295/06; - EUR 7,800 each to Oktay Kalaç and to İsmail Cengiz Oğurtan and EUR 3,000 to Mehmet Ferit Elalmış, the applicants in application no. 48090/08. 49.", "Furthermore, according to the information submitted by the parties, the criminal proceedings against the applicants in applications nos. 9462/05, 32652/05 and 5295/06 are still pending. In these circumstances, the Court considers that an appropriate means for putting an end to the violations which it has found would be to conclude the criminal proceedings at issue as speedily as possible, while taking into account the requirements of the proper administration of justice (see Yakışan v. Turkey, no. 11339/03, § 49, 6 March 2007). B.", "Costs and expenses 50. The applicants in application no. 9462/05 claimed EUR 13,875 for legal fees and EUR 2,500 for cost and expenses. 51. The applicant in application no.", "20369/05 claimed 260 Turkish liras (TRY) (approximately EUR 130) for costs and expenses. He also claimed TRY 4,720 (approximately EUR 2,380) in respect of lawyer's fee. In support of his claims he submitted a receipt for the legal fee paid. 52. The applicant in application no.", "32652/05 claimed EUR 8,550 for legal fees and EUR 1,500 for costs and expenses. 53. The applicant in application no. 33193/05 claimed EUR 8,200 for costs and expenses. In support of his claims he submitted a table for costs and expenses.", "54. The applicant in application no. 43845/05 claimed TRY 260 (approximately EUR 130) for costs and expenses. He also claimed TRY 4,800 (approximately EUR 2,400) in respect of lawyer's fee. In support of his claims he submitted a receipt for the legal fee paid.", "55. The applicant in application no. 5295/06 claimed TRY 260 (approximately EUR 130) for costs and expenses. He also claimed TRY 4,800 (approximately EUR 2,400) in respect of lawyer's fee. In support of his claims he submitted a receipt for the legal fee paid.", "56. The applicant in application no. 48090/08 claimed TRY 1,500 (approximately EUR 760) for costs and expenses. He also claimed TRY 8,850 (approximately EUR 4,495) in respect of lawyer's fee. In support of his claims he submitted a legal fee agreement and a table of costs and expenses.", "57. The Government contested these claims. 58. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria the Court makes the following awards under this head: - EUR 1, 000 to the applicant in application no.", "20369/05; - EUR 500 to the applicant in application no. 33193/05; - EUR 1, 000 to the applicant in application no. 43845/05; - EUR 1, 000 to the applicant in application no. 5295/06; and - EUR 1, 000 to the applicants in application no. 48090/08; 59.", "In applications no. 9462/05 and 32652/05 the Court rejects the claim for costs and expenses as the applicants did not produce any document in support of their claims. C. Default interest 60. The Court considers it appropriate that default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join the applications; 2. Declares the complaints concerning the length of pre-trial detention in respect of all applicants except the applicant Mehmet Ferit Elalmış (no. 48090/08); the lack of a remedy to challenge the lawfulness of the pre-trial detention brought by the applicants in applications nos. 9462/05, 32652/05, 33193/05 and 48090/08; the lack of an enforceable right to compensation for an allegedly lengthy pre-trial detention brought by the applicants in applications nos. 43845/05 and 5295/06; the length of the criminal proceedings against the applicants in applications nos.", "9462/05, 32652/05, 33193/05, 5295/06 and 48090/08; the lack of an effective remedy in respect of the length of criminal proceedings brought by the applicants in applications nos. 9462/05, 32652/05, 33193/05 and 5295/06 admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of all applicants except Mehmet Ferit Elalmış in application no. 48090/08; 4. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the applicants in applications nos.", "9462/05, 32652/05, 33193/05 and 48090/08; 5. Holds that there has been a violation of Article 5 § 5 of the Convention in respect of the applicants in applications nos. 43845/05 and 5295/06; 6. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the applicants in applications nos. 9462/05, 32652/05, 33193/05, 5295/06 and 48090/08; 7.", "Holds that there has been a violation of Article 13 of the Convention in respect of the applicants in applications nos. 9462/05, 32652/05, 33193/05, 5295/06 and 48090/08; 8. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicants; (i) EUR 9,400 (nine thousand four hundred euros) to each applicant in application no. 9462/05 for non-pecuniary damage; (ii) EUR 8,500 (eight thousand five hundred euros) for non-pecuniary damage and EUR 1,000 (one thousand euros) for costs and expenses to the applicant in application no. 20369/05; (iii) EUR 15,800 (fifteen thousand eight hundred euros) for non-pecuniary damage to the applicant in application no.", "32652/05; (iv) EUR 18,000 (eighteen thousand euros) for non-pecuniary damage and EUR 500 (five hundred euros) in respect of cost and expenses to the applicant in application no. 33193/05; (v) EUR 6,000 (six thousand euros) for non-pecuniary damage and EUR 1,000 (one thousand euros) for costs and expenses to the applicant in application no. 43845/05; (vi) EUR 12,500 (twelve thousand five hundred euros) for non-pecuniary damage and EUR 1,000 (one thousand euros) for costs and expenses to the applicant in application no. 5295/06; (vii) EUR 7,800 (seven thousand eight hundred euros) each to the applicants, Oktay Kalaç and İsmail Cengiz Oğurtan and EUR 3,000 (three thousand euros) to Mehmet Ferit Elalmış in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) jointly for costs and expenses in application no. 48090/08; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9.", "Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 7 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithDanutė JočienėRegistrarPresident Application no. Applicant Date of arrest Date of the order for the pre-trial detention Date of the bill of indictment Date of the judgments of the first instance court Date of the decisions of the Court of Cassation Date of the release of the applicant where applicable Total period of pre-trial detention (on the basis of the information in the case file) Grounds for continued detention (on the basis of the information in the case file) 1- 9462/05 introduced on 21/01/2005, represented by Mükrime Avcı Nedim ORMAN 19/03/1999 25/03/1999 05/04/1999 1. İstanbul State Security Court (SSC) -25/09/2002 (E: 1999/121, K:2002/249) 2.", "İstanbul Assize Court -07/09/2007 (E: 2003/167, K: 2007/361) 1. 17/04/2003 (E: 2003/285, K: 2003/604) (set aside) 2. Pending 13/10/2004 5 years (pre-trial detention) 11 years and 7 months (proceedings) - the state of evidence- the nature of the offence- the overall period of the pre-trial detention- the content of the case file Ramazan KAYUK 18/03/1999 23/07/2004 4 years and 9 months (pre-trial detention) 11 years and 7 months (proceedings) Bülent ORMAN 20/03/1999 23/07/2004 Same as above Nedim SERİHAN 20/03/1999 23/07/2004 Same as above 2- 20369/05 introduced on 16/05/2005, represented by Mihriban Kırdök Murat BAŞUSTA 08/01/1999 15/01/1999 27/08/1999 Pending before İstanbul Assize Court (E: 1999/328) 21/02/2006 7 years and 1 month (pre-trial detention) - the content of the case file- the state of the evidence- the nature of the offence- having not completed taking the testimony of all the accused 3- 32652/05 introduced on 07/09/2005, represented by Mükrime Avci Tahsin ERİŞ 31/01/1995 15/02/1995 24/04/1995 İstanbul Assize Court -23/10/2008 (E: 1995/143, K: 2008/227) Pending 10/03/ 2005 10 years and 1 month (pre-trial detention) 15 years and 8 months (proceedings) - the nature of the offence- the state of the evidence- the content of the case file 4- 33193/05 introduced on 26/08/2005, represented by Mahsuni Karaman Mehmet Vahit AVCI 17/01/1994 7/02/1994 17/03/1994 1. Diyarbakır SSC -30/07/1997 (E: 1994/225, K:1997/219) 2. Diyarbakır Assize Court - 09/03/2007 (E: 1999/88, K: 2007/76) 1.", "01/03/1999 (E:1998/2880, K:1999/110) (set aside) 2. 07/03/2008 (E: 2007/9401, K: 2008/1363) (upheld) 11 years and 6 months (pre-trial detention) 14 years and 1 month (proceedings) - the nature of the offence- the state of the evidence- persistence of the grounds for continued detention indicated in Article 100 of the CCP 5- 43845/05 introduced on 14/11/2005, represented by Mihriban Kırdök Doğan AKÇİÇEK 05/04/2001 09/04/2001 11/04/2001 Pending before İstanbul Assize Court (E:2001/138) 26/04/2006 5 years (pre-trial detention) - the nature of the offence - the state of the evidence - the overall period of the pre-trial detention - having not collected the evidence yet 6- 5295/06 introduced on 19/01/2006, represented by Mihriban Kırdök Erkan TEPELİ 28/09/1996 08/10/1996 20/12/1996 1. İstanbul State Security Court - 04/11/2002 (E:1996/444, K:2002/256) 2. Pending before İstanbul Assize Court (E: 2004/248) 28/06/2004 - (E: 2004/2171, K: 2004/3425) (set aside) 28/09/2005 7 years and 4 months (pre-trial detention) 14 years (proceedings) - the content of the case file- the state of the evidence- the stage of the trial (dosyanin geldigi asama)- the overall period of the pre-trial detention 7- 48090/08 introduced on 20/09/2008, represented by Mehmet Erbil Oktay KALAÇ 23/02/2003 27/02/2003 11/03/2003 İstanbul Assize Court - 07/03/2008 (E: 2003/82, K: 2008/50) 24/06/2009- (E: 2008/17940, K: 2009/7433) (upheld ) _ 5 years (pre-trial detention) 6 years and 4 months (proceedings) - the nature of the offence- the state of the evidence- the overall period of the pre-trial detention Mehmet Ferit ELALMIŞ 23/02/2003 13/06/2003 3 months (pre-trial detention) 6 years and 4 months (proceedings) İsmail Cengiz OĞURTAN 25/02/2003 _ 5 years (pre-trial detention) 6 years and 4 months (proceedings) [1] On 1st February 2011, Mrs Danutė Jočienė succeeded Mr Ireneu Cabral Barreto as President. [2] Rectified on 21 June 2011.", "The applicant’s family name reading “Elatmış” was changed. [3] Rectified on 21 June 2011. The applicant’s family name reading “Elatmış” was changed." ]

[ "FIFTH SECTION CASE OF SMITH v. GERMANY (Application no. 27801/05) JUDGMENT STRASBOURG 1 April 2010 FINAL 01/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Smith v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 9 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "27801/05) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Dutch national, Mr Hendrik Smith (“the applicant”), on 23 July 2005. 2. The applicant was represented by Mr O. Wallasch, a lawyer practising in Frankfurt. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice. 3.", "On 25 August 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 4. The Government of the Netherlands, having been informed by the Section Registrar of their right to intervene (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise this right. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and lives in Groningen. 6. On 27 July 2001 the Ahrensburg District Court (Amtsgericht) issued a warrant for the applicant's arrest. 7.", "On 30 January 2002 the applicant was arrested in Germany and remanded in custody at Oldenburg Prison. 8. On 22 May 2002 the Lübeck Public Prosecutor issued an indictment against the applicant on several counts of trafficking and importing narcotic substances (cannabis and marihuana). 9. On 20 June 2002 the Lübeck Regional Court (Landgericht) opened the applicant's trial.", "10. On 22 July 2002 the Schleswig-Holstein Court of Appeal quashed the arrest warrant for failure to comply with the obligation to expedite criminal proceedings where an applicant is in detention pending trial. Following his release from detention, the applicant returned to the Netherlands. 11. Following negotiations with the applicant's legal representatives, the Lübeck Public Prosecutor gave the applicant an assurance that the prosecution service would institute proceedings under Article 11 of the Convention on the Transfer of Sentenced Persons (European Treaty Series no.", "112, “the Transfer Convention”) if the applicant returned to Germany for his trial and confessed to the alleged crimes. 12. During the oral hearing before the Lübeck Regional Court, which took place on 16 September 2002, the applicant, who had voluntarily returned from the Netherlands, gave a full confession. The Public Prosecutor gave the following statement, as recorded in the transcript of the hearing: “In this case the current view is that there are no objections to the transfer of the defendant to the Netherlands under the Transfer Convention of 21 March 1983 or against the application of Article 11 of the Transfer Convention.” 13. Following the hearing, the Lübeck Regional Court, on the basis of the applicant's confession, convicted him on twenty-six counts of unlawful importing and unlawful trafficking of narcotic substances, and sentenced him to three and a half years' imprisonment.", "14. The court accepted as mitigating factors the applicant's confession and the fact that he had voluntarily returned from the Netherlands in order to stand trial. It considered that the oral hearing could probably not have taken place without his cooperation. The applicant having waived his right to appeal, the judgment became final on 16 September 2002. 15.", "Following the hearing, the applicant returned to the Netherlands. 16. On 17 September 2002 the applicant applied to the Schleswig-Holstein Ministry of Justice for the institution of transfer proceedings under Article 11 of the Transfer Convention. In his pleadings, the applicant's counsel relied upon the agreement between the defence, the criminal chamber of the Lübeck Regional Court, and the Public Prosecutor's Office at the Lübeck Regional Court. 17.", "On 7 October 2002 the Ministry of Justice forwarded the application to the Head of the Chief Public Prosecutors (Leitender Oberstaatsanwalt) in Lübeck with a request for him to submit a report. 18. On 22 November 2002 the Head of the Chief Public Prosecutors stated that, as a general rule, execution of sentence in the home country was not an option in such serious cases of drug trafficking. However, the special circumstances of this particular case justified lodging an application for execution assistance with the Dutch Justice Ministry. 19.", "On 19 December 2002 the Schleswig Holstein Justice Ministry wrote to the Dutch Justice Ministry enquiring whether it would be possible for it to continue the execution of the German sentence directly under Article 8 § 1 (a) of the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 (“the EC Convention on Enforcement” – see International Treaties below). The German Ministry expressed the opinion that the Transfer Convention was not applicable, as the applicant was not in German custody. 20. On 17 March 2003 the Dutch Justice Ministry declared that in principle there was a willingness to allow the sentence to be executed in the Netherlands. However, in the Netherlands continued enforcement was allowed only in exceptional circumstances, which did not apply in the present case.", "The Dutch Ministry therefore requested its German counterpart to approve the conversion of the prison term imposed on the applicant, under Article 8 § 1 (b) of the EC Convention on Enforcement. 21. On 24 April 2003 the German Ministry requested the Head of the Chief Public Prosecutors to state his position. By a letter dated 1 July 2003 the Head of the Chief Public Prosecutors stated that he was opposed to a formal application for execution assistance because the Netherlands would make the execution dependent on a conversion of the sentence. 22.", "On 21 July 2003 the Ministry of Justice informed the applicant that it would refrain from lodging a formal application with the Netherlands. 23. In September 2003 the applicant was summoned to serve his sentence. His requests for the suspension of the execution of his sentence until a final decision on his transfer request was given were unsuccessful. 24.", "On 18 January 2004 the applicant lodged a constitutional complaint against the Ministry's decision not to institute transfer proceedings under Article 11 of the Transfer Convention. 25. On 10 February 2004 an arrest warrant was issued against the applicant as he had failed to start serving his sentence. 26. On 14 January 2005 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider a constitutional complaint lodged by the applicant.", "According to the Federal Constitutional Court, the applicant had failed to exhaust domestic remedies. With regard to domestic remedies, the Federal Constitutional Court found as follows: “The applicant has no right to a judicial review of the exercise of discretion in so far as the decision is based on general, in particular foreign policy, considerations..., the evaluation of which belongs to the core area of Government. However, the judicial review of discretionary powers in respect of law enforcement remains unaffected thereby, in particular with regard to the statement made on the day of the trial by the Lübeck Public Prosecutor's Office ... It cannot be denied that uncertainties may remain for the person seeking justice in this connection in view of the previously disputed contestability of decisions by the authorising authority, as well as in regard to the possible legal remedies. Sufficient account is taken of the possible uncertainties with regard to the legal remedy on account of the possibility of a binding referral under section 17a § 2 of the Courts Act.", "It is reasonable to expect the applicant to have recourse to a disputed legal remedy.” 27. According to the Federal Constitutional Court, it was for the lower courts to decide which court was competent in the applicant's case. These courts had further to consider whether the impugned act interfered with the applicant's right to a fair trial or with the principle of protection of legitimate confidence. Notwithstanding the possibility of lodging a fresh request, the fact that the relevant time-limits for lodging appeals might in the meantime have expired did not lead to the constitutional complaint being admissible. 28.", "This decision was served on the applicant's counsel on 10 February 2005. 29. On 14 February 2005 the applicant lodged a fresh request with the Justice Ministry that execution of his sentence be taken over under Article 11 of the Transfer Convention. 30. A warrant is still out against the applicant for having failed to start serving his sentence.", "II. RELEVANT DOMESTIC LAW 31. Section 17a § 2 of the Courts Act (Gerichtsverfassungsgesetz) reads as follows: “If the invoked court is not competent to adjudicate the case, the court shall decide this of its own motion after hearing the parties and shall, at the same time, refer the legal dispute to the competent court ... The decision shall be binding ... on the court to which the legal dispute is referred.” Section 23 of the Introductory Act to the Courts Act, in so far as relevant, provides as follows: “(1) Upon request, the ordinary courts shall decide on the lawfulness of directives, orders or other measures taken by the judicial authorities to regulate individual issues in the sphere of the civil law ... and the criminal law. (2) By means of a request for judicial determination an order requiring a judicial or executive authority to take a decision it has omitted or refused to take may also be sought.” In accordance with section 26 of the same Act, the request has to be lodged within one month of communication of the impugned administrative act.", "If a party has been prevented from complying with this time-limit through no fault of their own, they can lodge a request to restore the previous time-limit. However, such a request is inadmissible if it has been lodged more than one year after expiry of the time-limit, with the exception of cases of force majeure (Section 26 § 4). 32. The German Act on International Mutual Assistance in Criminal Matters does not explicitly define the role of the enforcement authority in the transfer proceedings. The Act merely provides that the authorising authority, that is the Federal Ministry of Justice – which can delegate its competence to the Land Ministry – must send a transfer request to the administering State.", "If the decision is taken by a Land Ministry, that Ministry, after consulting the public prosecutor's office, exercises discretion with regard both to foreign policy considerations and law-enforcement issues. III. INTERNATIONAL TREATIES 1. The Convention on the Transfer of Sentenced Persons (ETS 112) 33. The aim of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention” – European Treaty Series no.", "112) is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentence within their own society. Article 9 (“Effect of transfer for administering State”) reads as follows: “1. The competent authorities of the administering State shall: (a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or (b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11. 2.", "The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow. 3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...” Article 10 (“Continued enforcement”) provides: “1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.", "2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.” Article 11 (“Conversion of sentence”) reads as follows: “1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply.", "When converting the sentence, the competent authority: (a) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State; (b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction; (c) shall deduct the full period of deprivation of liberty served by the sentenced person; and (d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed. 2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.” 2. The Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 Article 8 Determination of the custodial penalty “1. Where the transfer or enforcement of a custodial penalty is accepted, the competent authorities of the administering State shall: (a) enforce the penalty imposed in the sentencing State immediately or through a court or administrative order ... or (b) through a judicial or administrative procedure convert the sentence into a decision of the administering State, thereby substituting the penalty imposed in the sentencing State by a penalty laid down by the law of the administering State for the same offence...” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 34. The applicant complained that the proceedings concerning his transfer request violated his right to a fair hearing, as provided for in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 35. The Government contested that argument. A. Admissibility 1. Applicability of Article 6 § 1 of the Convention (a) The Government's submissions 36.", "In the Government's view, Article 6 § 1 of the Convention was not applicable to the proceedings regarding the applicant's transfer request as the matter did not concern the determination of a criminal charge. Referring to the Court's decision in the case of Homann v. Germany (no. 12788/04, 9 May 2007), the Government considered that Article 6 § 1 of the Convention was only applicable in respect of the proceedings concerning the determination of the sentence, which were terminated by the judgment pronounced on 16 September 2002. It did not, however, apply to the proceedings concerning the applicant's transfer requests, as no new charges had been brought against the applicant following the final sentence. According to the Government, in the case of an assurance given in proceedings concerning a criminal charge, Article 6 only applied in so far as that assurance had had an impact on the accused's conduct in the proceedings and could possibly be considered to constitute a violation of the right to a fair trial.", "However, the applicant had not applied to the ordinary courts for a review of the criminal judgment. 37. The Government emphasised that the inapplicability of Article 6 § 1 did not mean that the enforcement of the sentence would be unfair, as the right to a fair trial was guaranteed by the German Constitution. (b) The applicant's submissions 38. According to the applicant, Article 6 § 1 was applicable in the instant case, as the proceedings concerning his transfer request concerned his civil rights, in particular the right to liberty.", "He alleged that the conversion of the sentence by the Dutch courts would have led to his earlier release from prison. (c) The Court's assessment 39. The Court reiterates that in criminal matters the period governed by Article 6 § 1 covers the whole of the proceedings in issue, including appeal proceedings. It is true that the Court has generally held that Article 6 § 1 under its criminal head does not apply to proceedings relating to the execution of a final criminal sentence (see Enea v. Italy [GC], no. 74912/01, § 97, 17 September 2009).", "However, the Court has also held that in the event of conviction, there is no “determination ... of any criminal charge”, within the meaning of Article 6 § 1, as long as the sentence is not definitively fixed (see Eckle v. Germany, 15 July 1982, § 77, Series A no. 51). 40. Turning to the circumstances of the present case, the Court observes that, from a technical point of view, the applicant's conviction became final on 16 September 2002 when he waived his right to appeal against the Lübeck Regional Court's judgment of that date. The Court considers, however, that under the particular circumstances of this case it has to be taken into account that the proceedings relating to the applicant's transfer request were very closely related to the criminal proceedings and to the final determination of the sentence.", "The Court notes, in particular, that the Public Prosecutor, during the proceedings leading to the applicant's conviction, expressly declared that they had no objections to the transfer of the applicant to the Netherlands. It was only in view of this reassurance that the applicant returned to Germany in order to stand trial and gave a full confession leading to his criminal conviction. Although the Lübeck Regional Court imposed a criminal sentence based on the applicant's conviction, this was not to be considered as final having regard to the possibility of converting the sentence following a transfer to the applicant's home country. Finally, the Court notes that according to the express statement of the Lübeck Regional Court the oral hearing – and consequently the applicant's conviction – would probably not have been possible without the applicant's cooperation. 41.", "Having regard to these exceptionally close connections between the criminal proceedings and the proceedings concerning the applicant's transfer request, it would be too formalistic to limit the scope of application of Article 6 under its criminal head to the proceedings which took place before pronouncement of the judgment on 16 September 2002. The Court therefore considers that the transfer proceedings have to be regarded as an integral part of the criminal proceedings in so far as they directly relate to the assurance which was given by the Public Prosecutor during the criminal proceedings. 42. The Court is aware of the fact that the decision taken by the Justice Ministry on the transfer request does not solely depend on the public prosecutor's recommendations and on considerations regarding the execution of sentence, but also on considerations of foreign policy which fall within the core area of public law. It is therefore acceptable if this part of the decision is not subject to judicial review.", "Accordingly, the Court has previously held that Article 6 § 1 was not applicable to proceedings under the Transfer Convention (see Csoszánski v. Sweden (dec.), no. 22318/02, 27 June 2006; Szabo v. Sweden (dec.), no. 28578/03, 27 June 2006; and Veermae v. Finland (dec.), no. 38704/03, 15 March 2005). However, in those cases the Transfer Convention was not prospectively influencing the course of the trial and the fixing of the sentence, because no assurance was given by the public prosecution before or during the criminal proceedings.", "43. It follows that Article 6 § 1 of the Convention under its criminal head is, under the specific circumstances of the present case, applicable to the proceedings concerning the applicant's transfer request in so far as they relate to the assurance given by the public prosecution during the criminal proceedings. 44. It follows that the applicant's complaint under Article 6 of the Convention is not incompatible ratione materiae with the provisions of the Convention. 2.", "Exhaustion of domestic remedies 45. According to the Government, the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. 46. The applicant contested that argument. 47.", "The Court reiterates that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. At the same time, it normally requires that the complaints intended to be made subsequently at the international level should have been aired before the appropriate national courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 69, 17 September 2009). 48.", "However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Scoppola, cited above, § 70). In particular, the only remedies which the Convention requires to be exhausted are those that relate to the breaches alleged and are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998-I). 49. Lastly, Article 35 § 1 of the Convention provides for a distribution of the burden of proof.", "As far as the Government is concerned, where it claims non-exhaustion it must satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II, and Scoppola, cited above, § 71). 50. The Court considers that the Government's objection raises issues concerning the effectiveness of legal remedies which are closely linked to the merits of the applicant's complaint. Thus, it decides to join this objection to the merits of the case.", "3. Conclusion 51. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.", "B. Merits 1. The applicant's submissions 52. The applicant complained under Article 6 § 1 of the Convention about the domestic authorities' refusal to institute transfer proceedings under Article 11 of the Transfer Convention, contrary to the previous assurance given by the Public Prosecutor. He pointed out that he had only agreed to appear before the German criminal court on the strength of that assurance.", "The applicant considered that the Public Prosecutor's assurance had to be regarded as being binding on the Ministry of Justice. 53. The applicant further complained under Article 6 § 1 of the Convention that the Federal Constitutional Court had failed to inform him in good time about the alleged failure to exhaust domestic remedies. According to the applicant, he had not been able to challenge the judgment given by the Lübeck Regional Court on 16 September 2002, as he had waived his right to appeal in view of the assurance given. 54.", "He further pointed out that in parallel proceedings (see Buijen v. Germany, no. 27804/05) the applicant's legal counsel had unsuccessfully lodged an application for judicial review under Section 23 of the Introductory Act to the Courts Act. Having regard to the fact that the domestic courts had declared the application in the above-mentioned proceedings inadmissible, there was no reason to lodge a similar application in the instant proceedings. He was now barred from seeking judicial review. 2.", "The Government's submissions 55. The Government considered that the applicant had failed to make use of the remedies available to him under the domestic law. They pointed out, firstly, that the applicant had not contested the judgment of 16 September 2002. The Government further considered that the applicant had not made use of all remedies available to him in the enforcement proceedings. 56.", "As the Federal Constitutional Court had clarified (Decisions of the Federal Constitutional Court 96, p. 100 et seq.) the decision taken by the law-enforcement authority regarding whether a proposal for a transfer request was to be made represented a legal act which was subject to judicial review, as guaranteed by the Basic Law. While the applicant had no right to judicial review of the exercise of discretion in so far as the decision was based on general – in particular foreign policy – considerations, judicial review of the discretionary powers in respect of law enforcement remained unaffected thereby, in particular with regard to the statement made on the day of the trial by Lübeck Public Prosecutor. However, the applicant had failed to have either the decision of the Public Prosecutor or the decision of the Ministry reviewed by the lower courts but, in respect of the decision of the Ministry, had applied directly to the Federal Constitutional Court. 57.", "The Government further considered that the applicant had not had a legitimate expectation of being transferred under Article 11 of the Transfer Convention. While the Public Prosecutor's endorsement of a transfer under Article 10 of the Transfer Convention might be seen as non-compliance with the assurance originally given to the applicant, this had not had a decisive effect on the outcome of the transfer proceedings, as the Public Prosecutor's statement was not binding on the Justice Ministry. 3. The Court's assessment 58. The Court notes, at the outset, that the German courts did not review the substance of the applicant's complaint about the refusal to institute transfer proceedings under Article 11 of the Transfer Convention.", "It therefore considers that the applicant's complaint primarily falls to be examined under Article 6 § 1 in the light of the right of access to court. The Court reiterates that the right to a court, of which the right of access constitutes one aspect, is not absolute but may be subject to limitations. Nevertheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. The requirement of access to court must be entrenched not only in law but also in practice, failing which the remedy lacks the requisite accessibility and effectiveness (see, among other authorities, Moldovan v. Romania (no. 2), nos.", "41138/98 and 64320/01, § 118, ECHR 2005‑VII (extracts)). 59. Turning to the circumstances of the present case, the Court notes that there is a dispute between the parties as to whether the applicant had at his disposal an effective legal remedy which would have allowed him to contest the Justice Ministry's refusal to instigate transfer proceedings under Article 11 of the Transfer Convention. 60. With regard to the parties' submissions, the Court notes the following: while alleging that the applicant could have contested the refusal before the lower courts, the Government did not indicate precisely which remedy was available to the applicant at the relevant time and to which court the applicant should have addressed himself.", "Neither the Government nor the Federal Constitutional Court cited any case-law of the lower courts as to the admissibility of legal remedies in cases like the applicant's. Furthermore, in the decision given on the applicant's complaint the Federal Constitutional Court conceded that the contestability of the Justice Ministry's decision had been in dispute. Finally, the Court notes that in the Buijen case the applicant lodged a request for review with the civil courts which was declared inadmissible. 61. Consequently, the Court finds that, in the particular circumstances of the present case, it has not been shown that there was a possibility of instituting an effective action for review of the refusal to institute transfer proceedings after a relevant assurance.", "62. The foregoing considerations are sufficient to enable the Court to conclude that the applicant has been denied access to a court with regard to the part of the decision on his transfer request which did not concern considerations of public policy. There has accordingly been a violation of Article 6 § 1 of the Convention. 63. For the reasons set out above, the Court further considers that the applicant has to be regarded as having exhausted domestic remedies as required by Article 35 § 1 of the Convention.", "It follows that the Government's objection is to be rejected. 64. Having regard to the foregoing, the Court does not consider it necessary to examine the remainder of the applicant's complaints under Article 6. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 66. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government's objection as to non-exhaustion of domestic remedies and rejects it; 2.", "Declares the application admissible; 3. Holds that there has been a violation of Article 6 § 1 (right of access to court) of the Convention; 4. Holds that there is no need to examine the application under the other aspects of Article 6 § 1 of the Convention raised by the applicant. Done in English, and notified in writing on 1 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "THIRD SECTION CASE OF E.M.B. v. ROMANIA (Application no. 4488/03) JUDGMENT STRASBOURG 13 November 2012 FINAL 13/02/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of E.M.B.", "v. Romania, The European Court of Human Rights (Chamber), sitting as a Chamber composed of: Josep Casadevall, President,Egbert Myjer,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 16 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4488/03) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mrs E.M.B. (“the applicant”), on 20 December 2002. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).", "2. The applicant was represented by Mr I. Panaitescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea. 3. As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).", "4. The applicant alleged that the criminal proceedings against her had exceeded a reasonable duration, given that no judgment on the merits had been delivered ten years after the commencement of the proceedings. She also claimed that the wording of the domestic courts’ decisions concerning the validity of the arrest warrant issued in her name had breached the presumption of innocence. 5. On 28 September 2010 the Court declared the application partly inadmissible and decided to communicate the complaints raised under Article 6 §§ 1 and 2 of the Convention concerning the length of proceedings and the alleged breach of the presumption of innocence to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1946 and lives in Toronto (Canada). A. Background information 7.", "The applicant retired from her position as director of a private refinery in March 2002. In April 2002 she left Romania for the United States. On 18 and 22 July 2002, while she was away from Romania, summons were sent to her home address, instructing her to present herself at the Police Inspectorate for questioning. 8. As she did not comply with the summons, on 25 July 2002 the prosecutor attached to the Prahova Court of Appeal issued a pre‑trial arrest warrant, valid for thirty days, for abuse of office and incitement to forgery.", "The reasoning in the arrest warrant stated: “the accused is absconding, the sentence provided by law for the alleged crime is a prison sentence of longer than two years and her release would disturb public order.” On 2 August 2002 an international arrest warrant was issued against her. B. The complaints against the pre-trial arrest warrant 9. The applicant remained outside Romania but contested the legality of the arrest warrant through her legal representative. 10.", "On 26 August 2002 her first complaint was lodged. By an interlocutory judgment of 28 August 2002 the Prahova County Court dismissed the complaint, stating in part: “As may be noted, the pre-trial detention of the accused was ordered because of the commission of crimes giving rise to significant public danger, given that the accused had concluded a contract for the sale of oil products at a price that was disadvantageous to the company managed by her and which caused that company a loss of over sixty-three billion lei, actions which created within the public community a sense of indignation and disapproval, as these crimes received extensive media coverage.” 11. On 27 September 2002 the Ploieşti Court of Appeal upheld the above judgment, holding that it was clear from the criminal investigation file that there were strong indications that the accused had committed the crimes which had led to inception of the criminal proceedings and the issue of the arrest warrant. 12. Several other similar complaints were dismissed in 2003.", "13. On 11 November 2003 the Braşov County Court concluded that the arrest warrant had been issued unlawfully. The following reasons were put forward: the accused had left Romania in April 2002, prior to the inception of the criminal proceedings against her in July 2002; at that time, therefore, she had been free to leave the country and the fact that she had exercised her right to freedom of movement could not be interpreted as an intention to abscond. On an appeal by the prosecutor, the Braşov Court of Appeal, by a final decision of 18 November 2003, quashed that judgment and confirmed the legality of the warrant, holding that the applicant had tried to abscond from the proceedings. 14.", "Further complaints by the applicant were dismissed by an interlocutory judgment of 3 February 2004, as confirmed by a final decision of the Braşov Court of Appeal delivered on 13 February 2004, and by a final decision of 17 January 2005. In the interlocutory judgment of 3 February 2004, the Braşov County Court indicated that there were reasonable suspicions that the applicant had committed the alleged offences and the arrest warrant was valid, since, although she was aware of the proceedings against her, the applicant had chosen not to return to Romania. The final decision of 13 February 2004 states: “releasing the applicant would give rise to a real danger to public order, given the method and circumstances in which the acts were committed, the effective contribution of each person and the consequences and social resonance which such acts create among the public.” 15. On 3 May 2005 the Braşov County Court ordered the quashing of all procedural decisions taken in the framework of these investigations, including the contested arrest warrant. Nevertheless, on an appeal by the prosecutor, by a final decision of the Braşov Court of Appeal of 6 March 2006 the validity of the arrest warrant was again confirmed.", "The appellate court held that, given that the applicant had been absconding throughout the proceedings, she could not be treated on an equal basis with the other accused persons in the same proceedings who had already been held in pre-trial detention. 16. On 22 August 2007 the Bucharest County Court allowed the applicant’s request to have the arrest warrant revoked. It considered that the measure was no longer justified, given that it had been ordered five years previously, three months after the applicant had left the country. The county court considered that the state of the proceedings, still under investigation by the prosecutor, and the lack of any evidence regarding any danger the applicant might pose to the public justified revoking the arrest warrant.", "On an appeal by the prosecutor, the Bucharest Court of Appeal (with one dissident opinion), by a final decision of 3 September 2007, reversed that decision and once again confirmed the legality of the warrant. It noted that the warrant had never been executed, given the applicant’s absence, and decided that the reasons which had justified its issue in 2002 were still valid. C. The criminal proceedings on the merits 17. Following the start of the criminal investigation against the applicant and other co-accused on different dates during 2002, on 20 March 2003 the prosecutor attached to the Supreme Court of Justice issued an indictment against twelve persons, including the applicant, for various offences of fraud related to trade in oil products. The file was first registered with the Prahova County Court.", "18. Later the file was assigned to the Bacău County Court and subsequently to the Braşov County Court, by virtue of final decisions of the Supreme Court of Justice of 9 May and 11 September 2003 respectively, in response to requests by the accused for removal of jurisdiction from the competent courts for alleged bias. 19. Following the transfer of the file to Braşov County Court, in various hearings held up to April 2004 statements were taken from all the accused, except the applicant, who was still absent but was represented by a lawyer chosen by her. 20.", "By a decision of 3 May 2005 the county court referred the case back to the prosecutor. It considered that the criminal investigation had been marred by procedural irregularities and that it should be carried out again and completed in compliance with all procedural requirements. The decision was partly upheld by the Braşov Court of Appeal on 6 March 2006, thus dismissing the prosecutor’s appeal against the remittal order. 21. The case was referred to the Directorate for the Investigation of Organised Crime and Terrorism.", "By a decision of 18 April 2006, it relinquished its jurisdiction in favour of the National Anti‑Corruption Directorate. 22. On 4 April 2008 a new bill of indictment was drafted. The applicant was charged with tax evasion, forgery of private documents and the association for the commission of offences. 23.", "The file was registered with the Ploieşti District Court. On 3 March 2009 the court relinquished its jurisdiction in favour of the Braşov District Court. On 19 November 2009 the latter court held that it had no jurisdiction to examine the case. By a judgment of 8 February 2010, the High Court of Cassation and Justice examined the conflict of jurisdiction and concluded that the competent court was the Braşov District Court. 24.", "The proceedings are still pending before the first‑instance court. II. RELEVANT DOMESTIC LAW 25. The relevant provisions of the Romanian Constitution in force at the relevant time are worded: Article 23 “... (8) A person is considered innocent pending a final court conviction.” 26. The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time are worded: Article 66 “(1) The person accused of or charged with a criminal offence does not have to prove his innocence.", "(2) Where evidence is adduced proving a person’s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicant complained of the excessive length of the criminal proceedings instituted against her. She relied on Article 6 § 1 of the Convention, which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 29.", "The applicant complained that the length of the criminal proceedings had been excessive. She contended that the proceedings had lasted more than ten years without a judicial decision on the merits being taken. 30. The Government submitted that there had been no periods of inactivity attributable to the authorities and that the case was somewhat complex. They also claimed that the applicant had substantially contributed to the protraction of the case, either because she had not appeared before the authorities or because her lawyers had asked for the change of venue of the trial.", "2. The Court’s assessment 31. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Foley v. the United Kingdom, no. 39197/98, § 36, 22 October 2002).", "32. Turning to the instant case, the Court notes that the proceedings began on 25 July 2002 and according to the latest applicant’s letter of 15 April 2011, they are still pending. Moreover, in all this time not a single judicial decision has been taken on the merits of the case. The only judicial decisions delivered in these proceedings, on 3 May 2005 and 6 March 2006, established that the criminal investigation by the prosecutor had been marred by breaches of essential procedural rights and the case was therefore referred back to the prosecutor. 33.", "The Court notes that this is a complex case involving many accused. Nevertheless, it observes that all of the procedural steps taken from the start of the proceedings until the referral to the judicial courts had had to be carried out again in view of the procedural irregularities established by the district court. Further, it notes that it took more than two years to establish that the investigation was marred, for reasons that could have been established as early as the first hearings in the case. 34. The Court further observes that no significant developments have taken place, although the proceedings are still pending.", "The proceedings have so far lasted for ten years and four months. 35. The Court has already found that, although it is not in a position to analyse the juridical quality of the case-law of the domestic courts, the remittal of cases for re-examination discloses a serious deficiency in the judicial system, since it is usually ordered as a result of errors committed by prosecutors or lower courts. This deficiency is imputable to the authorities and not to the applicants (see Georgescu v. Romania, no. 25230/03, § 95, 13 May 2008).", "36. The Court notes that the applicant did not take an effective part in the proceedings because she was permanently away from Romania during this period. Although the applicant did not play a direct role in the proceedings, it does not appear from the information available in the case file that any of the hearings were postponed because of this fact. She had a designated lawyer who represented her actively at all of the hearings, submitting written conclusions and acting with diligence. 37.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 38.", "The applicant complains that the wording of the domestic courts’ decisions concerning the validity of the arrest warrant issued in her name breached the presumption of innocence. She relied on Article 6 § 2 of the Convention, which provides: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. Admissibility 1. The parties’ submissions 39. The Government contended that the applicant’s complaint was premature, relying on the fact that a person could not, in principle, claim to be a victim of a violation of this provision when the criminal proceedings against him or her were still pending.", "They pointed out that the impugned decisions of 28 August 2002 and 13 February 2004 had been taken before the case had been referred back to the prosecutor. They further submitted that the criminal proceedings against the applicant were still pending. 40. The applicant disagreed. 2.", "The Court’s assessment 41. The Court observes that the applicant’s complaint concerns the initial stages of the criminal proceedings. However, it reiterates that Article 6 § 2 governs criminal proceedings in their entirety, “irrespective of the outcome of the prosecution, and not solely the examination of the merits of the charge” (see Minelli v. Switzerland, (25 March 1983, § 30, Series A no. 62)). Therefore, it dismisses the Government’s objection concerning the prematurity of the applicant’s complaint.", "42. The Court reiterates that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty (see, among many other authorities, Minelli, cited above, §§ 27, 30 and 37; Allenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308; and Matijašević v. Serbia, no. 23037/04, § 45, ECHR 2006‑X).", "43. The Court also emphasises that there is a fundamental distinction to be made between a statement that someone is merely suspected of having committed a crime and a clear judicial declaration, in the absence of a final conviction, that the individual has committed the crime in question (see Wojciechowski v. Poland, no. 5422/04, § 54, 9 December 2008). 44. Turning to the present case the Court notes that in the grounds for their decisions of 28 August 2002 (see paragraph 10) and 13 February 2004 (see paragraph 14), the Prahova County Court and the Braşov Court of Appeal stated that the applicant had committed the offences with which she had been charged.", "The Court stresses that the statements were made by judges, who should have exercised particular caution in the choice of words concerning the suspicion against the applicant. 45. However, the Court notes that on 3 May 2005 the Braşov County Court ordered the quashing of all the decisions taken in the framework of the criminal investigation, including the decisions of 28 August 2002 and 13 February 2004. The Court appreciates that the quashing of decisions by a court with full jurisdiction could be considered as a remedy capable of putting right deficiencies in criminal proceedings. Moreover, the proceedings are still in the investigative stage as no judgment on the merits has been delivered yet.", "A considerable period of time has already elapsed since events referred to by the applicant in support of her complaint under Article 6 § 2 of the Convention. After the Braşov County Court had referred the case back to the investigating body, the prosecuting authorities have lodged in 2008 a new bill of indictment which gave a new legal classification to the facts of the case. 46. Therefore, in the light of the foregoing considerations, the Court finds that the applicant’s complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 48. The applicant did not submit a claim for just satisfaction. She submitted that a judgment of the Court in her favour would in itself constitute sufficient just satisfaction for the violation of Article 6 § 1 of the Convention.", "49. In the light of the above, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non‑pecuniary damage sustained by the applicant. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 concerning the length of the criminal proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "THIRD SECTION CASE OF AKSAÇ v. TURKEY (Application no. 41956/98) JUDGMENT STRASBOURG 15 July 2004 FINAL 15/10/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aksaç v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrG. Ress, President,MrI.", "Cabral Barreto,MrL. Caflisch,MrR. Türmen,MrJ. Hedigan,MrsM. Tsatsa-Nikolovska,MrK.", "Traja, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 15 January and 24 June 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 41956/98) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yavuz Aksaç (“the applicant”), on 6 January 1998. 2. The applicant, who had been granted legal aid, was represented by Mr H. Erdoğan and Mr L. Kanat, lawyers practising in Ankara.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Convention institutions. 3. The applicant alleged under Article 6 § 1 of the Convention that he had been denied a fair hearing on account of the presence of a military judge on the bench of the Ankara State Security Court which tried and convicted him. He further complained under Article 6 § 3 (b) that the written opinion of the chief public prosecutor at the Court of Cassation had never been served on him, thus depriving him of the opportunity to put forward his counter-arguments. He finally contended that he had been convicted merely on account of his association with a left-wing magazine, in violation of his rights under Articles 9 and 10.", "4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.", "The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).", "7. By a decision of 15 January 2004 the Court declared the application partly admissible. It retained the applicant’s complaints concerning his right to a fair hearing by an independent and impartial tribunal and his right to have adequate time and facilities for the preparation of his defence and declared the remainder of the application inadmissible. 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "9. On 24 May 2004 the case was assigned to the Third Section of the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1971 and lives in Ankara.", "11. On 23 March 1995 the applicant was arrested and placed in police custody by police officers from the Ankara Security Directorate. He was accused of aiding and abetting an illegal organisation, the DHKP-C (Revolutionary People’s Liberation Party-Front). 12. On 6 April 1995 the public prosecutor attached to the Ankara State Security Court filed an indictment with the latter charging the applicant, under Articles 168 § 2 and 169 of the Criminal Code and Article 5 of the Prevention of Terrorism Act, with membership of an illegal organisation.", "13. On 10 April 1996 the Ankara State Security Court found the applicant guilty of aiding and abetting an illegal organisation, the DHKP-C, and sentenced him to three years and nine months’ imprisonment and debarred him from public service for three years. 14. The applicant appealed. On 11 June 1997 the chief public prosecutor at the Court of Cassation submitted his written opinion (tebliğname) on the merits of the appeal to the Court of Cassation.", "The chief public prosecutor proposed that the first instance court’s judgment be upheld. The written opinion of the chief public prosecutor was read out during the hearing before the Court of Cassation. 15. On 10 July 1997 the Court of Cassation dismissed the applicant’s appeal upholding the Ankara State Security Court’s judgment. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 16. The relevant domestic law at the material time may be found in Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV; Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998‑VII; Özel v. Turkey, no. 42739/98, 7 November 2002, and Gençel v. Turkey, no. 53431/99, 23 October 2003. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 17. The applicant complains under Article 6 § 1 of the Convention that he was denied a fair hearing by an independent and impartial tribunal on account of the presence of the military judge on the bench of the Ankara State Security Court which tried and convicted him. He further complains under Article 6 § 3 (b) that the written observation of the chief public prosecutor at the Court of Cassation on the merits of his appeal was not served on him. 18. As to the applicant’s complaint concerning the composition of the Ankara State Security Court, the Court notes that it has examined similar grievances in the past and has found a violation of Article 6 § 1 (see, among many other authorities, Özel, cited above, §§ 33-34, and Özdemir v. Turkey, no.", "59659/00, §§ 35-36, 6 February 2003). 19. The Court sees no reason to reach a different conclusion in the instant case. It is reasonable that the applicant who was prosecuted in a State Security Court for membership of an illegal organisation should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, he could legitimately fear that the Ankara State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.", "In other words, the applicant’s fears as to the State Security Court’s lack of independence and impartiality can be regarded as objectively justified (see Incal, cited above, p. 1573, § 72 in fine). 20. Accordingly, the Court concludes that there has been a violation of Article 6 § 1. 21. Having regard to its finding that the applicant’s right to fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant’s complaint under Article 6 § 3 (b) (see Çıraklar, cited above, § 45).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 23. The applicant claimed a total of 20,000 euros (EUR) for pecuniary and non-pecuniary damage.", "24. The Government contested the applicant’s claim. They maintained that the sums claimed were excessive and unjustified. 25. Regarding the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of the proceedings before the State Security Court might have been had the violation of the Convention not occurred (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, § 85).", "Moreover, the applicant’s claim in respect of pecuniary damage has not been substantiated by any evidence whatsoever. It therefore makes no award under this head. 26. With regard to non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Çıraklar, cited above, § 49). 27.", "Where the Court finds that an applicant has been convicted by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (see Gençel, cited above, § 27). B. Costs and expenses 28. The applicant claimed a total of EUR 5,500 for costs and expenses incurred in the proceedings before the domestic authorities and before the Strasbourg institutions. 29.", "The Government contested the applicant’s claim. They submitted that the claim in respect of costs and expenses had not been duly documented. 30. The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).", "31. Making its own estimate based on the information available and having regard to the criteria laid down in its case-law (see, among other authorities, Uzunhasanoğlu v. Turkey, no. 35070/97, § 33, 20 April 2004), the Court considers it reasonable to award the applicant EUR 3,000 under this head less the sum of EUR 630 received in legal aid from the Council of Europe. C. Default interest 32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the Ankara State Security Court; 2. Holds that it is not necessary to consider the applicant’s complaint under Article 6 § 3 (b) of the Convention; 3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, less EUR 630 (six hundred thirty euros) granted by way of legal aid, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident" ]