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[ "THIRD SECTION CASE OF DANIELYAN AND OTHERS v. ARMENIA (Application no. 25825/05) JUDGMENT STRASBOURG 9 October 2012 FINAL 09/01/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Danielyan and Others v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Egbert Myjer,Corneliu Bîrsan,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 18 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "25825/05) 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 eight Armenian nationals, Mr Sisak Danielyan, Ms Kima Danielyan, Mr Andranik Danielyan, Ms Naira Danielyan, Ms Seda Danielyan, Ms Sona Danielyan, Ms Meri Danielyan and Ms Kristine Mnatsakanyan (“the applicants”), on 14 July 2005. 2. The applicants were represented by Mr V. Grigoryan, 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 29 June 2007 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 applicants were born in 1949, 1951, 1976, 1977, 1984, 1993, 2003 and 1981 respectively and live in Yerevan.", "5. Mr Sisak Danielyan, Ms Kima Danielyan, Mr Andranik Danielyan, Ms Naira Danielyan, Ms Seda Danielyan and Ms Sona Danielyan jointly owned a house measuring 130 sq. m. situated at 11 Byuzand Street, Yerevan. The applicants alleged that Ms Meri Danielyan and Ms Kristine Mnatsakanyan, as members of their family, enjoyed a right of use in respect of this house, while the Government contested this allegation and claimed that they did not enjoy the right of use in respect of the house and simply had the right to live in it. 6.", "On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. 7. On 17 June 2004 the Government adopted Decree no.", "909-N, contracting out the construction of one of the sections of Byuzand Street – which was to be renamed as Main Avenue – to a private company, Glendale Hills CJSC. 8. On 28 July 2004 Glendale Hills CJSC and the Yerevan Mayor’s Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property. 9. It appears that Glendale Hills CJSC attempted to organise a measuring and valuation of the applicants’ house in order to offer them compensation for the purposes of expropriation, unsuccessfully, since the applicants created obstacles.", "10. On 10 March 2005 Glendale Hills CJSC instituted proceedings on behalf of the State against all the applicants except one (Ms Kristine Mnatsakanyan), seeking to oblige them to allow a valuation of their house and sign an agreement on taking of their property for State needs based on the results of such valuation, and to evict them. 11. On 15 March 2005 all the applicants except one (Ms Meri Danielyan) lodged a counter-claim in which they contested the constitutionality of Government Decree no. 1151-N.", "They submitted, inter alia, that this Decree contradicted Article 28 of the Constitution, according to which property could be expropriated only through the adoption of a law concerning the property in question. They further submitted that the Government was not authorised under the same Article to decide on the expropriation of property. 12. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the claim of Glendale Hills CJSC, ordering that the defendants be evicted through payment of compensation. The amount of compensation was to be estimated according to the market value following the relevant valuation.", "The District Court also ordered that they pay court fees in the amount of 4,000 Armenian drams (AMD). It appears that the District Court refused to admit the applicants’ counter-claim on the ground that it was not competent to decide upon the constitutionality of Government Decree no. 1151-N. 13. On 29 March 2005 the defendant applicants lodged an appeal. 14.", "It appears that on 18 April 2005 Orran Ltd real estate company carried out a valuation of the house in question, which was valued at the Armenian dram equivalent of USD 82,600. 15. On 21 April 2005 the Court of Appeal granted the claim of Glendale Hills CJSC. The Court of Appeal found that the defendants were obliged to give up their ownership through payment of compensation and decided to terminate their ownership by awarding them the Armenian dram equivalent of USD 82,600. 16.", "On 5 May 2005 the seven applicants in question lodged an appeal on points of law. On 13 May 2005 they filed additional submissions to their appeal, arguing, inter alia, that the deprivation of their property was in violation of Article 28 of the Constitution. 17. On 27 May 2005 the Court of Cassation dismissed the applicants’ appeal. II.", "RELEVANT DOMESTIC LAW 18. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-43, 23 June 2009). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 19. The applicants complained that the deprivation of their possessions was in violation of the guarantees 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 1.", "Request to strike out the application 20. Following unsuccessful friendly settlement negotiations the Government informed the Court, by letter dated 10 September 2009, that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application by offering the applicants, instead of the amount of AMD 37,206,344 transferred to their bank account on the basis of the court judgment, a redecorated apartment measuring 130 sq. m. in a building in Yerevan, the construction works of which would be finished in 2010, and also a sum of money. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. 21.", "In an undated letter the applicants objected to the Government’s declaration. They submitted that, firstly, their case raised issues which had not been determined by the Court in the past. Secondly, there was a disagreement between the parties regarding the facts of the case, namely the scope of their possessions. Thirdly, the redress proposed by the Government was inadequate and insufficient. It was not comparable to the size and location of the expropriated property and did not take into account the de facto deprivation of land.", "Furthermore, the proposal lacked concrete details and involved a lengthy implementation period and an arbitrary calculation of the amount of rent. 22. The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It reiterates that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings (see Meriakri v. Moldova (striking out), no. 53487/99, § 28, 1 March 2005).", "The Court will therefore proceed on the basis of the Government’s unilateral declaration and the parties’ observations submitted outside the framework of friendly-settlement negotiations, and will disregard the parties’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Estate of Nitschke v. Sweden, no. 6301/05, § 36, 27 September 2007). 23. The Court points out 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. Article 37 § 1 (c) enables the Court in particular 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”.", "24. It also notes 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 applicants wish the examination of the case to be continued. 25. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; also WAZA Spółka z o.o.", "v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03). It does not, however, consider it necessary to rule on the entirety of the parties’ arguments on the matter for the following reason. 26.", "Turning to the nature of the proposed redress, the Court notes that the Government have proposed, instead of the amount already paid to the applicants, to provide them with a new flat and a sum of money. The Court is not convinced that this is an acceptable proposal, since the undertaking to provide a flat was made conditional on the return of the sum of money already paid to the applicants. Thus, this undertaking could not be considered truly unilateral as its implementation was predicated on the other party’s fulfilment of certain additional requirements (for an identical situation, see Yedigaryan v. Armenia (dec.), no. 10446/05, § 35, 15 November 2011, and Yeranosyan v. Armenia (dec.), no. 3309/06, § 24, 15 November 2011).", "Furthermore, the Government failed to provide sufficient details of the flat in question (similarly, see Yedigaryan, cited above, and Yeranosyan, cited above). 27. The Court therefore rejects the Government’s request to strike the application out under Article 37 § 1 (c) of the Convention. 2. Victim status of the applicants Meri Danielyan and Kristine Mnatsakanyan 28.", "The Government submitted that the applicants Meri Danielyan and Kristine Mnatsakanyan could not claim to be victims of an alleged violation of Article 1 of Protocol No. 1 because they did not have any “possessions” within the meaning of that provision. In particular, the applicants Meri Danielyan and Kristine Mnatsakanyan did not enjoy any property rights in respect of the house owned by the remaining applicants, including the right of use of accommodation. The latter right, pursuant to Article 225 of the Civil Code, could arise only from the moment of State registration. However, there was no evidence to show that the applicants Meri Danielyan and Kristine Mnatsakanyan had such a right registered at the Real Estate Registry.", "Thus, the only right enjoyed by them was the right to live in the house in question, pursuant to Article 47 of the Family Code and Section 16 of the Children’s Rights Act. This right, however, could not be considered as “possessions” within the meaning of Article 1 of Protocol No. 1. 29. The applicants Meri Danielyan and Kristine Mnatsakanyan submitted that they enjoyed the right of use of accommodation in respect of the house owned by the remaining applicants.", "There was well-established case-law of the appeal and cassation courts in Armenia which, pursuant to Articles 54 and 120 of the Housing Code, recognised the right of use of accommodation based on three factors: (1) being a member of the family of the owner of the accommodation, (2) living in that accommodation, and (3) running a joint household with the owner. All these three factors existed in their case. The applicant Meri Danielyan, who was the daughter of the applicant Andranik Danielyan, acquired this right upon her birth in 2003, while the applicant Kristine Mnatsakanyan, who was his spouse, acquired this right following their marriage. Moreover, their enjoyment of that right was not disputed in the course of the domestic proceedings. 30.", "Admitting that their right of use of accommodation was not registered at the Real Estate Registry, the applicants Meri Danielyan and Kristine Mnatsakanyan submitted that that right was valid even without State registration since, pursuant to Section 41 of the Law on the State Registration of Rights in Respect of Property, rights of spouses, children and other dependants in respect of property, which were conferred on them by law, were effective without such registration. In any event, they were not able to register that right, even if they wanted to, because Government Decree no. 1151-N had placed limitations on the house in question which precluded any transactions from being registered at the Real Estate Registry. 31. The applicant Meri Danielyan lastly submitted that her enjoyment of the right of use of accommodation was also confirmed by the fact that the plaintiff sought to terminate her property rights in respect of the house through payment of monetary compensation by resorting to courts.", "32. The Court observes that the applicant Meri Danielyan was engaged as a plaintiff in the court proceedings seeking to terminate the ownership right in respect of the house. Furthermore, the domestic courts, when ordering such termination, explicitly referred, among other applicants, to the applicant Meri Danielyan. Thus, the enjoyment by the applicant Meri Danielyan of property rights, in this case the right of use of accommodation, was acknowledged by the domestic courts, which decided to award her compensation for the termination of that right. It follows that the Government’s assertions to the contrary have no basis in the findings of the domestic courts.", "The Court reiterates in this respect that it has already found the right of use of accommodation to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 (see Minasyan and Semerjyan, cited above, § 56). The Government’s objection, as far as it concerns the applicant Meri Danielyan, must therefore be dismissed. 33. Different considerations, however, apply to the applicant Kristine Mnatsakanyan.", "She was never engaged as a plaintiff in the expropriation proceedings, nor did the court judgments refer to or otherwise explicitly affect her rights. She herself never attempted to join the proceedings in question and to claim a violation of her alleged right of use of accommodation. There is no material before the Court which would indicate that she indeed enjoyed such a right. The Court therefore accepts the Government’s objection as far as the applicant Kristine Mnatsakanyan is concerned and declares the application in this part inadmissible. 3.", "Conclusion 34. The Court notes that this complaint, as far as it concerns the first seven applicants, 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 applicants submitted that the deprivation of their possessions was not carried out under the conditions provided for by law since it had been effected in violation of the guarantees of Article 28 of the Constitution. 36. The Government submitted that Article 28 of the Constitution was not applicable to the applicants’ case. 37.", "The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC], no. 25701/94, § 79, ECHR 2000-XII). The Court further reiterates that the phrase “subject to the conditions provided for by law” requires in the first place the existence of and compliance with adequately accessible and sufficiently precise domestic legal provisions (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 110, Series A no.", "102). 38. The Court notes that it has already examined identical complaints and arguments in another case against Armenia and concluded that the deprivation of property and the termination of the right of use were not carried out in compliance with “conditions provided for by law” (see Minasyan and Semerjyan, cited above, §§ 69-77). The Court does not see any reason to depart from that finding in the present case. 39.", "There has accordingly been a violation of Article 1 of Protocol No. 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 40. The applicants also raised a number of complaints under Articles 6 and 8 of the Convention.", "41. Having regard to all the material in its possession, and in so far as these complaints fall 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 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 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. In respect of pecuniary damage the applicants Sisak Danielyan, Kima Danielyan, Andranik Danielyan, Naira Danielyan, Seda Danielyan and Sona Danielyan claimed 3,002,092.90 euros (EUR) as the value of the expropriated property, while the applicant Meri Danielyan claimed EUR 14,565.40 as the value of her terminated right of use. They left the question of non-pecuniary damage to the Court’s discretion. 44.", "The Government did not comment on these claims. 45. The Court notes that it has previously awarded pecuniary damages in an identical situation (see Minasyan and Semerjyan v. Armenia (just satisfaction), no. 27651/05, §§ 17-21, 7 June 2011), which it finds to be fully applicable to the present case. Using the same approach and making an assessment based on all the materials at its disposal, the Court estimates the pecuniary damage suffered at EUR 85,000 and decides to award this amount jointly to the applicants Sisak Danielyan, Kima Danielyan, Andranik Danielyan, Naira Danielyan, Seda Danielyan, Sona Danielyan and Meri Danielyan, while dismissing the remainder of their claim.", "It further decides to award each of these applicants EUR 1,500 in respect of non-pecuniary damage. B. Costs and expenses 46. The applicants also claimed AMD 4,000 for the costs and expenses incurred before the domestic courts, namely the court fee they had been obliged to pay. 47.", "The Government did not comment on this claim. 48. The Court decides to award the sum of EUR 6 for costs and expenses in the domestic proceedings. C. Default interest 49. 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 deprivation of property of all the applicants, except the applicant Kristine Mnatsakanyan, admissible under Article 1 of Protocol No. 1 and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1; 3.", "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, to be converted into Armenian drams at the rate applicable at the date of settlement: (i) EUR 85,000 (eighty-five thousand euros) to the applicants jointly, plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 6 (six euros) to the applicants jointly, plus any tax that may be chargeable to them, 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 9 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FIRST SECTION CASE OF F. AND F. v. ITALY (Application no. 31928/96) JUDGMENT (Friendly settlement) STRASBOURG 24 October 2002 This judgment is final but it may be subject to editorial revision. In the case of F. and F. v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrG. Bonello,MrP.", "Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrV. Zagrebelsky,MrsE. Steiner, judges,and Mr E. Fribergh, Section Registrar, Having deliberated in private on 10 October 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 31928/96) 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 two Italian nationals, Mr F. F. and Mrs G. F. (“the applicants”), on 5 December 1995. 2. The applicants were represented by Mr L. Curradi, a lawyer practising in Florence. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-agent, Mr V. Esposito.", "3. The applicants complained about their prolonged inability - through lack of police assistance - to recover possession of their apartment and about the duration of the eviction proceedings. 4. The case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention.", "On 17 January 2002, having obtained the parties' observations, the Court declared the application admissible. 5. On 18 September 2002 and on 24 September 2002 the Government and the applicants respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicants are the owners of an apartment in Florence, which they had let to E.F. 7.", "In a writ served on the tenant on 2 November 1987, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 8. By a decision of 30 November 1987, which was made enforceable on 5 January 1988, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988. 9. On 20 May 1989, the applicants made a statutory declaration that they urgently required the premises as accommodation for themselves.", "10. On 7 June 1989, the applicants served notice on the tenant requiring her to vacate the premises. 11. On 22 June 1989, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 18 August 1989. 12.", "Between 18 August 1989 and 10 September 1998, the bailiff made twenty attempts to recover possession. 13. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession. 14. Pursuant to Section 6 of Law no.", "431 of 9 December 1998, the enforcement proceedings were suspended. 15. The applicants have not recovered possession of their apartment. THE LAW 16. On 18 September 2002 the Court received the following declaration from the Government: “I declare that the Government of Italy offer to pay 6,000 (six thousand) Euros to Mr F. and Mrs F. with a view to securing a friendly settlement of the application registered under no.", "31928/96. 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. 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.” 17.", "On 24 September 2002 the Court received the following declaration signed by the applicants and by the applicants' representative: “I note that the Government of Italy are prepared to pay a sum totalling 6,000 (six thousand) Euros covering both pecuniary and non-pecuniary damage and costs to Mr F. and Mrs F. with a view to securing a friendly settlement of application no. 31928/96 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 the applicants have 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.” 18. 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). 19. 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 24 October 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF ŽILINSKIENĖ v. LITHUANIA (Application no. 57675/09) JUDGMENT STRASBOURG 1 December 2015 FINAL 01/03/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Žilinskienė 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,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Antoanella Motoc, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 10 November 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "57675/09) 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, Ms Kostancija Žilinskienė (“the applicant”), on 19 October 2009. 2. The applicant was represented by Ms G. Striaukienė, a lawyer practising in Šiauliai. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.", "The applicant alleged that she had been deprived of her property by a decision of a domestic court and had not received adequate compensation, in breach of Article 1 of Protocol No. 1 to the Convention. 4. On 29 June 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1943 and lives in Šilėnai, in the Šiauliai Region. 6. In June 2000 the Radviliškis Land Department of the Šiauliai County Administration recognised L.S.G.’s right to the restoration of title to 4.07 hectares of land in the Radviliškis area. The plot of land in question had belonged to two other individuals, P.M. and E.M., and had been nationalised by the Soviet regime.", "7. Later that month the applicant and L.S.G. signed a notarised agreement by which L.S.G. transferred (perleido) to the applicant the right to the restoration of title to 2.07 hectares of the above-mentioned plot of land. The agreement did not indicate whether the applicant had given any money to L.S.G.", "in exchange for this right. However, the applicant subsequently claimed (see paragraph 12 below) that she had paid 1,400 Lithuanian litai (LTL; approximately 405 euros (EUR)). 8. On 16 October 2001 the Šiauliai County Administration estimated that the value of the plot of land transferred to the applicant was LTL 2,124 (EUR 615). The Šiauliai County Administration then awarded the applicant the right of title to 1.78 hectares of land of equivalent value.", "The applicant registered the plot in the Land Registry under her own name. 9. In October 2004 the Special Investigation Service began investigating allegations of fraud, forgery of documents and abuse of office (under Articles 182, 228 and 300 of the Criminal Code) relating to the restoration of property rights by the Radviliškis Land Department. In January 2005 the prosecutor of the Šiauliai Region (hereinafter “the prosecutor”) launched a similar investigation. Subsequently, the two investigations were joined.", "10. In May 2008 the prosecutor submitted a request to the Radviliškis District Court for the annulment of the agreement between the applicant and L.S.G. The prosecutor stated that L.S.G. had not had the right to the restitution of P.M. and E.M.’s land and thus could not legally have transferred that right to the applicant. 11.", "On 11 November 2008 the Radviliškis District Court granted the prosecutor’s request. The court held that L.S.G. had not been P.M. and E.M.’s relative or heir and thus, under the applicable law, had not been entitled to the restoration of title to their land (see paragraph 17 below). Therefore, the court declared the agreement between the applicant and L.S.G. null and void ab initio, confiscated the plot of land from the applicant, and returned it to the State.", "12. During the proceedings the applicant claimed that she had paid LTL 1,400 (EUR 405) to L.S.G. for the right of title to the land, and L.S.G. acknowledged that she had received an unspecified sum of money. However, since no such payment had been mentioned in the text of their agreement, the court held that the right of title had been transferred to the applicant for free and did not award her any compensation.", "13. On 17 February 2009 the Šiauliai Regional Court dismissed the applicant’s appeal and upheld the decision of the lower court. The court found that the applicant had not proved that she had paid for the transfer of the right of title. It also noted that under the Civil Code, property which had been unlawfully obtained for free could be confiscated from an owner, irrespective of whether the owner had acquired such property in good faith (see paragraphs 19 and 20 below). 14.", "On 22 April 2009 the Supreme Court refused to examine a cassation appeal lodged by the applicant on the ground that it did not raise any important legal issues. 15. On 23 January 2009 the prosecutor instituted criminal proceedings before the Šiauliai District Court against S.D., a former official in the Radviliškis Land Department. S.D. was charged with several counts of forgery of documents and abuse of office under Articles 228 and 300 of the Criminal Code.", "She was accused of, inter alia, having acted together with L.S.G. in forging documents which purported to prove L.S.G.’s right to the restoration of title to certain property, with the aim of selling that right to other individuals. The indictment noted that L.S.G. had received approximately LTL 1,400 (EUR 405) from the applicant in exchange for the right to the restoration of title to the property in question. At the time of the parties’ final submissions to the Court, the criminal case was still awaiting examination before the first-instance court.", "II. RELEVANT DOMESTIC LAW A. Constitutional and statutory provisions 16. Article 31 of the Constitution of the Republic of Lithuania provides: “A person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment...” 17. Article 2 § 1 of the Law on the Restoration of Ownership Rights to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas), adopted on 1 July 1997 and amended several times (hereinafter “the Restitution Law”), provided that ownership rights had to be restored to the former owners of property, and that where such owners were deceased, ownership rights had to be restored to their relatives and heirs.", "18. Article 1.80 § 1 of the Civil Code, in force since 1 July 2001, provides that any transaction which fails to comply with the mandatory statutory provisions shall be null and void, and each party to such a transaction shall be bound to return to the other party everything they have received from the transaction. 19. Article 4.96 § 2 of the Civil Code provides that the State may confiscate immovable property from a person who acquired such property in good faith only if the rightful owner lost such property as a result of a crime. Article 4.96 § 3 provides that where the ownership of property has been acquired for free from a person who had no right to transfer the ownership of that property, such property can be confiscated from the person who acquired it, irrespective of whether he or she acquired it in good faith.", "B. Practice of the Constitutional Court 20. In its ruling of 30 October 2008, the Constitutional Court held as follows: “Unlawfully acquired property does not become the property of the person who has [thus] acquired it. That person does not obtain rights of ownership which are protected by the Constitution (a ruling of the Constitutional Court of 5 July 2000) ... A situation may arise in which a person seeking to acquire property lawfully acquires property which has been lost by its owner on account of a crime committed by other persons, and the person acquiring it does not and could not have known that. In this regard it must be noted that even where a person acquires property without knowing or being [in a position] to know that the owner lost it on account of a crime, the acquisition of such property shall not be regarded as creating rights of ownership in respect of the person acquiring the property.", "As the Constitutional Court has held more than once, no right can result from unlawfulness ... It must be noted that State institutions, when adopting decisions concerning State property, must follow the norms and principles of the Constitution and under no circumstances may they act ultra vires – that is to say, exceed their powers. Ultra vires acts on the part of State institutions or officials shall not be deemed to constitute acts of the State itself ... [I]t must be noted that if State officials, when acting ultra vires, commit a crime, this does not mean that such crime can be identified as an action or omission on the part of the State itself, and that the State, as the owner, cannot retrieve property which has been lost on account of a crime committed by a State official ... [I]t must be concluded that ... a person who has acquired property in good faith, where such property has been lost by the owner on account of a crime committed by other persons, is not held to be the owner of that property. Thus, under the Civil Code, the legal status of the owner and that of the person acquiring the property in good faith is not the same ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 21. The applicant complained that she had been deprived of her land, of which she had been a bona fide owner, without receiving any compensation. 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 22. The Government firstly submitted that the applicant had failed to exhaust domestic remedies by not initiating separate judicial proceedings under Article 6.271 of the Civil Code against the State for redress for the allegedly unlawful deprivation of property. 23. The applicant did not comment on that argument. 24.", "The Court refers to its findings in Pyrantienė v. Lithuania (no. 45092/07, § 27, 12 November 2013) and Albergas and Arlauskas v. Lithuania (no. 17978/05, § 44, 27 May 2014), where it was not demonstrated that at the time the application in question was lodged with the Court, a claim under Article 6.271 of the Civil Code would have constituted an effective remedy and would have had any prospects of success (see, mutatis mutandis, Beshiri and Others v. Albania, no. 7352/03, § 55, 22 August 2006). The Court does not find any reasons to reach a different conclusion in the present case.", "25. Accordingly, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies by not lodging a claim under Article 6.271 of the Civil Code. 26. The Government further submitted that the applicant had failed to exhaust domestic remedies by not submitting a civil claim in the criminal case against S.D. They argued that any damage suffered by the applicant had been a result of criminal acts committed by S.D.", "and her accomplices (including L.S.G), but not the State, and that those individuals were thus responsible for compensating the applicant for her losses. 27. The applicant did not comment on that argument. 28. The Court considers that the Government’s submission that the damage to the applicant had been caused by criminal acts committed by certain individuals is closely related to the substance of the complaint under Article 1 of Protocol No.", "1 to the Convention and should therefore be joined to the merits. 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 submitted that she had acquired the plot of land in good faith and that her interests therefore had to be protected. She argued that any losses on the part of the State should be covered by those individuals who had acted unlawfully and not by confiscating the land from the applicant, who was a bona fide owner.", "The applicant also submitted that she had paid LTL 1,400 (EUR 405) for the right of title to the land and that she had invested labour and money in improving the plot and preparing it for agricultural activity and that therefore taking the land away from her without any compensation had unjustifiably restricted her property rights. 31. The applicant further submitted that the domestic courts had annulled the agreement between her and L.S.G. without first examining the criminal case and without establishing the criminal responsibility of any individuals. The applicant also complained that other individuals who had obtained land in similar circumstances had not subsequently had their land confiscated.", "32. The Government submitted that the confiscation of the land from the applicant had taken place within the context of a large-scale criminal investigation, which had begun in 2004. The investigation concerned multiple allegations of well-organised criminal acts aimed at the unlawful appropriation of land and the sale of restitution rights. The investigating authorities had identified thirty-seven initial suspects, eleven of whom were eventually indicted. More than 130 witnesses had been questioned in the case and the final text of the indictment consisted of 335 pages.", "The Government submitted that both the applicant and the State had been victims of those criminal activities. Accordingly, the applicant had had the possibility of being recognised as a victim in the criminal case and claiming damages from the defendants. 33. The Government further submitted that the interference with the applicant’s right to the peaceful enjoyment of her property had been justified by the public interest in ensuring that land was not being unlawfully taken from the State and distributed to individuals who had no ownership rights to such land. The Government also stated that the applicant had not proved before the domestic courts that she had paid money for the right of title to the plot of land; they further argued that it had been the applicant’s responsibility to ensure that the agreement she had signed accurately represented the obligations of both parties, and she could not subsequently rely on her own negligence.", "34. Lastly, the Government argued that the wrongful allocation of land to L.S.G. had occurred within the context of land reform, which was linked to the process of restoring former owners’ rights to property that had been nationalised by the Soviet regime. Therefore, according to the Court’s relevant case-law regarding central and eastern European States, the circumstances concerning the transition from a totalitarian regime to a democracy and the specific circumstances of each case had to be taken into account. 2.", "The Court’s assessment (a) Applicable rule of Article 1 of Protocol No. 1 35. The Court reiterates that Article 1 of Protocol No. 1 to the Convention, which guarantees in substance the right to property, comprises three distinct rules. The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of property.", "The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among many authorities, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 44, ECHR 1999-V, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).", "36. In the present case the Government argued that the State had confiscated the applicant’s land within the context of criminal proceedings, as property allegedly obtained through criminal activity (see paragraph 32 above). 37. The Court’s constant approach has been that confiscation, while it involves the deprivation of possessions, also constitutes control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Sun v. Russia, no.", "31004/02, § 25, 5 February 2009; C.M. v. France (dec.), no. 28078/95, 26 June 2001; and Air Canada v. the United Kingdom, 5 May 1995, § 34, Series A no. 316-A). 38.", "In the present case the Court notes that the confiscation proceedings concerning the applicant’s property were instituted by the prosecutor who had been in charge of the criminal investigation into allegedly unlawful activities in the Radviliškis Land Department. However, at the time of the domestic court proceedings it had not been established whether any crimes had been committed, and no individuals had been convicted (see, by contrast, Veits v. Estonia, no. 12951/11, § 74, 15 January 2015). The domestic courts annulled the agreement between the applicant and L.S.G., relying on provisions of civil law and without making any reference to the ongoing criminal proceedings (see paragraphs 11 and 13 above). The annulment was definitive and not dependent on the final outcome of the criminal case (see, by contrast, Raimondo v. Italy, 22 February 1994, §§ 20 and 29, Series A no.", "281‑A). The material in the Court’s possession indicates that, at the date of the parties’ final submissions, it had not been established whether the restitution right had been wrongfully allocated to L.S.G. as a result of criminal activity or due to errors on the part of public authorities (for examples of the latter, see Pyrantienė, cited above; Albergas and Arlauskas, cited above; and Paplauskienė v. Lithuania, no. 31102/06, 14 October 2014). 39.", "Given these circumstances the Court is not persuaded that the taking of the applicant’s property fell under the second paragraph of Article 1 of Protocol No. 1. Accordingly, it must be considered as deprivation of possessions under the rule contained in the second sentence of that provision. (b) General principles 40. The relevant general principles are set out in paragraphs 37-40 of Pyrantienė, cited above.", "(c) Application of the above principles in the present case 41. In the present case it is not disputed that there has been an interference with the applicant’s property rights. Having found that this interference falls to be considered as “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1, the Court must now ascertain whether the impugned deprivation was justified under that provision. (i) Lawfulness of the interference 42.", "The decision of the domestic courts to annul the agreement between the applicant and L.S.G. was based on the provisions of the Restitution Law that provide a list of those categories of individuals entitled to the restitution of property (Article 2 § 1), as well as provisions of the Civil Code governing the annulment of transactions (Article 1.80) (see paragraphs 17-20 above). The Court therefore finds that the deprivation was in accordance with the law, as required by Article 1 of Protocol No. 1. (ii) Legitimate aim 43.", "The Court reiterates that because of their direct knowledge of society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make an initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation (see, among other authorities, Pincová and Pinc v. the Czech Republic, no. 36548/97, § 47, ECHR 2002-VIII, and Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 168, 15 March 2007).", "44. The Court has previously found that measures designed to correct authorities’ mistakes and to defend the interests of former owners of property pursued a legitimate aim (see Pyrantienė, cited above, §§ 44-48, and Bečvář and Bečvářová v. the Czech Republic, no. 58358/00, § 67, 14 December 2004). In the present case it was determined that L.S.G. did not have the right to the restoration of title to the property in question under the applicable law and that she could not therefore legally transfer such a right to the applicant.", "Although it does not appear that any former owners had claimed their rights to the land in question, the Court nonetheless considers that there was a public interest in ensuring that land was not transferred to persons who did not have the right to the restoration of title to such property. Accordingly, the Court is satisfied that the impugned measure was undertaken in pursuit of a legitimate aim. (iii) Proportionality 45. The Court reiterates that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual in question, the search for such a fair balance being inherent in the whole of the Convention.", "The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). 46. On several occasions in cases which concerned the correction of mistakes made in the process of restitution, the Court has emphasised the necessity of ensuring that the remedying of old injuries does not create disproportionate new wrongs (see Velikovi and Others, cited above, § 178).", "To that end, legislation should make it possible to take into account the particular circumstances of each case, so that individuals who have acquired their possessions in good faith are not made to bear the burden of responsibility. The risk of any mistake made by a State authority must be borne by the State, and errors must not be remedied at the expense of the individual concerned (see Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011, and Pyrantienė, cited above, § 70). 47. Within the context of revoking ownership of a property transferred erroneously, the good governance principle may not only impose on the authorities an obligation to act promptly in correcting their mistake, but may also necessitate the payment of adequate compensation or another type of appropriate reparation to the former bona fide holder of the property (see Romankevič v. Lithuania, no.", "25747/07, § 37, 2 December 2014, and the cases cited therein). 48. In order to assess the burden borne by an applicant, the Court must examine the particular circumstances of each case, such as the conditions under which the disputed property was acquired and the compensation that was received by the applicant in exchange for the property, as well as the applicant’s personal and social situation (see Pyrantienė, cited above, § 51). 49. In the present case the applicant acquired the right to the restoration of title to land from a third person – L.S.G.", "– whose property rights had been previously recognised by the State authorities. The agreement between the applicant and L.S.G. to transfer said right of title was annulled after the prosecutor lodged a civil claim, which was then allowed by the domestic courts. It was established that under the provisions of the Restitution Law, L.S.G. did not have the right to restoration of the plot of land in question and that the local authorities had accordingly not been entitled to recognise her rights to that plot.", "50. The Court considers that at the time of the acquisition, the applicant did not have any reason to doubt the validity of L.S.G.’s property rights, which had been recognised by the State authorities. She was also entitled to rely on the fact that the administrative acts of 2000 and 2001, on the basis of which she had acquired the property, would not be retrospectively invalidated to her detriment (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 45-47, ECHR 2004-IX, and Pyrantienė, cited above, § 61). The Court also reiterates that for the purpose of acquiring a proprietary interest it is immaterial whether the applicant acquired the land for free or for a monetary payment (see Vistiņš and Perepjolkins v. Latvia [GC], no.", "71243/01, § 121, 25 October 2012). 51. The fact that L.S.G. did not have the right to restoration of title to the plot of land in question was established by the district court for the first time only on 11 November 2008 – eight years after the applicant had entered into the agreement with L.S.G. (see paragraphs 7 and 11 above).", "Furthermore, to date it has not been established whether any crime had actually been committed in awarding property rights to L.S.G. (see paragraph 15 above). The Court finds those circumstances relevant in determining whether the applicant could be considered a bona fide owner of the property. At the same time, the Court acknowledges that the applicant’s good faith could be called into question in view of the fact that her agreement with L.S.G. did not indicate any payment for the land, although subsequently they both claimed that a certain sum had been paid.", "However, the domestic courts which examined the case did not consider that the applicant had acted in bad faith, and the Court sees no reason to doubt their conclusion (see, mutatis mutandis, Vistiņš and Perepjolkins, cited above, § 120). Therefore, the Court is satisfied that the applicant was a bona fide owner, as found by the domestic courts, and that her proprietary interest in the enjoyment of the land had been sufficiently established (see Pyrantienė, cited above, § 60, and Albergas and Arlauskas, cited above, §§ 68-69). As a result, the Court finds that the applicant had a “legitimate expectation” of being able to continue to enjoy that possession. 52. After the applicant’s title to the plot of land was annulled, she did not receive any compensation for it.", "The domestic courts held that the applicant had acquired the right to the restoration of title from L.S.G. free of charge, as no payment had been mentioned in the text of their agreement. The Court recalls that, as a general rule, it is for the domestic courts to assess the evidence before them and establish the relevant facts (see Paplauskienė, cited above, § 61). Accordingly, the Court does not question the conclusion of the domestic courts that the applicant acquired the land for free. However, as already stated above, that did not affect the applicant’s legitimate expectation of being able to enjoy her possession.", "Nor could it be assumed that she had not had any expenses related to the maintenance of the property. In this connection the Court notes that the applicant held the plot of land from October 2001 (when it was registered in the Land Registry under her name) until November 2008, and that she stated that during this time she had made substantial efforts to render the land suitable for agricultural activity (although no documents supporting the cost had been presented – see paragraph 62 below). 53. In this connection the Court reiterates that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Jahn and Others v. Germany [GC], nos.", "46720/99, 72203/01 and 72552/01, § 94, ECHR 2005‑VI, and the cases cited therein). In line with the Court’s case-law, in order to achieve the fair balance between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual, the compensation must be reasonably related to the “market” value of the property at the time of expropriation, taking into account all the relevant circumstances of each case (see paragraph 48 above; Pincová and Pinc, cited above, § 53; and Vistiņš and Perepjolkins, cited above, § 111). 54. The Government argued that the unlawful allocation of the land to L.S.G. had occurred within the context of land reform, which was linked to the complex process of the restoration of former owners’ property rights in Lithuania, as well as possibly criminal acts on the part of certain individuals attempting to profit from the misappropriation of land.", "In the Court’s view, although it is true that States face complex legal and factual issues when resolving such questions, in the present case it has not been established that the hindrance to the peaceful enjoyment of the applicant’s property resulted from criminal acts, and the taking of that property was not dependent on the outcome of the criminal proceedings, which have not been concluded to date (see paragraph 38 above). Neither have the Government demonstrated any justifying exceptional circumstances (see, mutatis mutandis, Nekvedavičius v. Lithuania, no. 1471/05, § 88, 10 December 2013, and Albergas and Arlauskas, cited above, § 62). In this connection, the Court dismisses the Government’s preliminary objection that the applicant should have lodged a civil claim in the criminal proceedings (see paragraphs 26-28 above). 55.", "The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant had her title to the plot of land removed imposed an individual and excessive burden on her and that the authorities failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to the peaceful enjoyment of her possessions on the other. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 56.", "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 57. As concerns pecuniary damage, the applicant claimed 1,400 Lithuanian litai (LTL; 405 euros (EUR)), which she stated she had paid to L.S.G. for the right to the restoration of title to the land, as well as LTL 20,000 (EUR 5,790) in respect of the investment she had made in improving the land. 58.", "The applicant also claimed LTL 5,000 (EUR 1,448) in respect of non-pecuniary damage for suffering and emotional distress caused by the violation. 59. The Government submitted that the domestic courts had dismissed the applicant’s argument that she had paid money to L.S.G. They also submitted that the applicant had not provided any proof of the money she stated she had invested in improving the plot. Lastly, the Government considered that the applicant’s claim in respect of non-pecuniary damage was excessive and unsubstantiated.", "60. The Court notes that the applicant was deprived of her property in connection with the violation found. Among the matters which the Court takes into account when assessing compensation are pecuniary damage, which is the loss actually suffered as a direct result of an alleged violation, and non-pecuniary damage, which is reparation for the anxiety, inconvenience, uncertainty and other non-pecuniary loss caused by such violation (see, among other authorities, Ernestina Zullo v. Italy, no. 64897/01, § 25, 10 November 2004). 61.", "In addition, 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 an overall assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000-IV). 62. The Court notes that the applicant did not submit any documents to confirm the level of expenses which she claimed to have disbursed in improving the plot of land. Nonetheless, the Court considers that the applicant suffered certain pecuniary loss in connection with the failure of the State to award her adequate compensation for the deprivation of her property.", "Moreover, the Court also finds that the applicant must have suffered uncertainty and frustration as a result of the violation found. 63. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant a lump sum of EUR 2,500 in respect of pecuniary and non-pecuniary damage. B. Costs and expenses 64.", "The applicant also claimed LTL 160 (EUR 46) for the costs and expenses incurred before the domestic courts and LTL 1,239 (EUR 359) for those incurred before the Court. 65. The Government contested that claim as unsubstantiated. 66. 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 405, covering costs under all heads. C. Default interest 67. 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 that the applicant failed to lodge a civil claim in the criminal proceedings and dismisses it; 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 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), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; (ii) EUR 405 (four hundred and five 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 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosAndrás SajóRegistrarPresident" ]

[ "THIRD SECTION CASE OF A.M. v. THE NETHERLANDS (Application no. 29094/09) JUDGMENT STRASBOURG 5 July 2016 FINAL 05/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.M. v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Johannes Silvis,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 14 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "29094/09) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national of Hazara ethnic origin, Mr A.M. (“the applicant”), on 4 June 2009. The President of the Section decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). 2. The applicant was represented by Ms E. Ter Meulen-Mouwen, a lawyer practising in Roermond. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A.", "Böcker, and their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs. 3. The applicant alleged that he, if expelled from the Netherlands to Afghanistan, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention and that, on this point, he did not have an effective remedy, as guaranteed by Article 13 of the Convention. He also complained that his expulsion from the Netherlands would be contrary to his rights under Article 8 of the Convention. 4.", "On 5 June 2009 the President of the Third Section decided to apply Rule 39 of the Rules of Court in the applicant’s case, indicating to the Government that he should not be expelled to Afghanistan until further notice. 5. On 9 June 2009 the application was communicated to the Government. The Government submitted written observations on 18 August 2009 and the applicant submitted observations in reply on 2 October 2009. On 1 October 2013, the parties were requested to submit further written observations on the admissibility and merits.", "The Government submitted these on 4 November 2013 and the applicant on 10 January 2014. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1966 and has been in the Netherlands since 2003. A.", "The proceedings on the applicant’s asylum request 7. On 25 July 2003 the applicant entered the Netherlands where on 19 August 2003 he applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the Refugee Convention”) and/or treatment in breach of Article 3 of the Convention. On 20 August 2003, he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). He stated, inter alia, that he was an Afghan national of Hazara origin, that he came from Kabul and that he had travelled to the Netherlands via Pakistan, Iran and Germany. 8.", "On 21 August 2003 the applicant was interviewed about his reasons for seeking asylum (nader gehoor). He stated that he feared persecution and ill-treatment on account of his communist past as a former member of the communist People’s Democratic Party of Afghanistan (“the PDPA”) and for having served as a volunteer in the Revolutionary Guard (Sepah Enghelab). He further claimed that he risked ill-treatment at the hands of mujahideen party Jamiat-e Islami for having been involved between 1992 and 1994 with the rival Hazara-dominated, Hezb-e Wahdat party and, additionally, at the hands of a Mr S., whom he had captured and ill-treated during an interrogation conducted in the context of his work for Hezb-e Wahdat. He also feared problems from the side of Hezb-e Wahdat for having stopped working for them. 9.", "The applicant stated that he had joined the youth branch of the PDPA in 1978 and that in 1981 he had served as a volunteer for twenty days in the Revolutionary Guard. He had been discharged after he had stepped on a mine during combat. He further stated that in 1984 he had started to work for the Ministry of Trade in Kabul, at the department for government stores, and that in 1989 he had given a television interview in which he had criticised the then Minister of Trade. This interview had not been broadcast in 1989 but only in mid-May 1992, after the mujahideen had seized power in Afghanistan. The day after it had been broadcast, the applicant had been arrested by the mujahideen faction Ittehad-al-Islami (Islamic Union) then led by Abdul Rasul Sayyaf.", "In his opinion they had been under the impression, given that he had dared to criticise the Minister of Trade, that he was an important member of the Communist Party. He had been released after ten days in a prisoner exchange operation mediated, at the request of the applicant’s parents, by Mr M., an influential person of Hazara origin. 10. In return, the applicant had had to work for Hezb-e Wahdat. He had worked as a representative of the (military) Division 95 of Hezb-e Wahdat at the West Kabul peace commission in which Jamiat-e Islami, Ittehad‑al-Islami and Harakat-e-Islami had also been represented.", "His tasks had included trading prisoners and seized goods, and mediating between parties. He had also been responsible for preventing members of Hezb-e Wahdat’s Central Committee from defecting and for preventing members of other factions from infiltrating Hezb-e Wahdat. In the course of carrying out these duties and if circumstances so warranted, he had been under orders to take people secretly into custody. One of the persons taken in custody, Mr S., had been interrogated by the applicant himself, who had ill-treated Mr S. during interrogation. After Burhanuddin Rabbani and Ahmad Shah Massoud had taken over control of the Afshar district in West Kabul, the applicant had been arrested and detained again by Ittehad‑al-Islami in December 1992/January 1993.", "He had been released in a prisoner exchange organised by Hezb-e Wahdat. 11. The applicant had continued his work for the peace committee of Hezb-e Wahdat until December 1994, when this party had been defeated and retreated to Bamyan. The applicant had stayed behind in Kabul and had not been persecuted by “Khalili” (see paragraph 39 below). However, fearing Jamiat-e Islami and the Taliban, the applicant had then gone into hiding – moving around between Kabul and the villages of Siah Khak and Sar Shesmeh in the province of Wardak – until December 2001, when American troops had arrived.", "He had been arrested on 20 or 21 March 2002 by Jamiat-e Islami, then under the leadership of General Fahim. The applicant had been tortured several times during his incarceration. Mr S. had been present on one of those occasions. The applicant had been told by interrogators that he had been detained because he was a communist or a convert. He also thought that his arrest had something to do with Mr S. The applicant had managed to escape from prison after 45 days with the help of a guard – who like the applicant was a former communist – to whom the applicant had paid three thousand United States dollars.", "This guard had set up a mock execution outside the prison, which had enabled the applicant to escape. This guard had told the applicant that he should leave Afghanistan forever. After his escape, the applicant had first hidden in his house in Kabul for about 15 days and had subsequently stayed with a distant relative until he had left Afghanistan for Pakistan in May 2002. 12. On 18 September 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) informed the applicant that his case had been transmitted to the 1F Unit (see A.A.Q.", "v. the Netherlands (dec.), no. 42331/05, §§ 47-49, 30 June 2015) in order for it to examine whether Article 1F of the 1951 Refugee Convention should be applied to the applicant’s asylum request. 13. On 5 February 2004 the 1F Unit conducted a supplementary interview (aanvullend gehoor) with the applicant. During this interview, he declared, inter alia, that in 1981, as a member of the Revolutionary Guard, he had participated in a purge action – ordered by the PDPA Central Committee and the Ministry of Defence – aimed against persons active on behalf of Hezb-e Islami and Jamiat in a specific area and that prisoners of war had been handed over to the former Afghan communist security service, KhAD/WAD (Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati).", "He had become disabled when the tank on which he had been standing had hit a mine. The applicant also stated that, during the wars, Hezb-e Wahdat had plundered houses, seized privately owned cars and physically tortured persons. It was correct that Hezb-e Wahdat had committed many crimes and had shed much blood. He further related how he had interrogated and hit Mr S. at the Hezb-e Wahdat headquarters in Kabul. He also stated that, at present, he had no proof that he was being searched for but that it was clear to him, having been released upon payment of a bribe, that he could not show himself in Afghanistan.", "14. On 21 April 2005 the Minister for Immigration and Integration issued notice of her intention (voornemen) to reject the first applicant’s asylum application and to apply Article 1F of the 1951 Refugee Convention. The Minister found it established, given his consistent and detailed statements, that the applicant had worked for the Revolutionary Guard and Hezb-e Wahdat but also found that, in his account to the Netherlands authorities, he had in part misrepresented the facts, had sought to trivialise his activities for Hezb-e Wahdat and had withheld important information. 15. The nature of the applicant’s work, and the contents of an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, entitled “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”; DPC/AM 663896) and an official report, drawn up on 23 June 2000 by the Ministry of Foreign Affairs, on Hezb-e Wahdat (DPC/AM-681499), had given cause to consider whether Article 1F of the 1951 Convention was applicable to the applicant’s asylum claim.", "16. In her notice of intention, the Minister analysed, on the basis of elaborate argumentation based on various international materials and on the prescribed and so-called “knowing and personal participation” test, the nature of the acts imputed to the applicant in the framework of Article 1F of the 1951 Refugee Convention, as well as his individual responsibility under that Convention. The Minister noted, inter alia, that the applicant had worked for a part of the PDPA Government, the Revolutionary Guard, which had collaborated with the KhAD and found that it was justified to conclude that the applicant had known or should have known about the criminal character of the KhAD and that its crimes had formed part of a widespread or targeted attack aimed against the civilian population. Having regard to the official report of 29 February 2000 (see paragraph 15 above), the Minister further found that the cruel character of the KhAD had been commonly known. The Minister further did not believe that the applicant had been ignorant of the criminal character of Hezb-e Wahdat when he had started to work for it as this had been widely known at the material time.", "Relying on the official report of 23 June 2000 (see paragraph 15 above), the Minister underlined that Hezb-e Wahdat had been considered during the Afghan civil war to be one of the most violent groups, not only because of its militia’s actions on the battle field and merciless liquidation of its political opponents, but in particular because of its militia’s crimes against the civil population of Afghanistan and for having instilled a true climate of terror in the country. The Minister lastly found it established that the applicant himself had committed acts of torture on the person of Mr S. 17. As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to Afghanistan, would be exposed to a real risk of being subjected to treatment prohibited by this provision. In reaching this finding, the Minister took into account, inter alia, that the applicant had stayed for about three months in Pakistan and about eight months in Iran without having sought assistance in these countries from, for instance, the United Nations High Commissioner for Refugees (“UNHCR”), that he had not applied for asylum when he had been apprehended by the police in Germany, and that he had not reported immediately to the immigration authorities after his arrival in the Netherlands. 18.", "On 17 June 2005 the applicant submitted written comments (zienswijze) on the Minister’s intended decision. On 19 October 2005 the Minister rejected the applicant’s asylum application, confirming the reasoning set out in her notice of intention of 21 April 2005 and rebutting the applicant’s written comments. 19. The applicant’s appeal against this decision was rejected on 25 January 2007 by the Regional Court (rechtbank) of The Hague, sitting in Roermond. It held in respect of the applicant’s activities as a fifteen-year‑old adolescent volunteer for the Revolutionary Guard that, according to the applicable policy in respect of child soldiers, the Minister had not adequately reasoned her decision finding “knowing participation” in respect of this part of the applicant’s account.", "However, on the basis of the other elements of the account, it accepted the decision of the Minister to deny the applicant asylum by applying Article 1F of the Refugee Convention against him. It further held that it had not been established that the applicant – if expelled to Afghanistan – would be exposed to a risk of being subjected to treatment proscribed by Article 3 of the Convention from the side of Jamiat-e Islami on the basis of the general security situation in Afghanistan, or on the basis of his Hazara ethnic origin. 20. The applicant, who from his first interview was assisted by a lawyer in these asylum proceedings, could have filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), but did not do so. Consequently, the ruling of 25 January 2007 became final when the four week time-limit for filing an appeal with the Administrative Jurisdiction Division expired.", "B. The proceedings on the decision to impose an exclusion order 21. On 25 May 2007 the applicant was informed by the Deputy Minister of Justice (Staatssecretaris van Justitie) of the intention (voornemen) to declare him an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring) in accordance with section 67 § 1 (e) of the Aliens Act 2000 (Vreemdelingenwet 2000), following the decision to hold Article 1F of the Refugee Convention against him in the asylum procedure. 22. The actual decision to impose this exclusion order on the applicant was taken on 24 September 2007 by the Deputy Minister of Justice.", "As regards Article 3, the Deputy Minister did not find it established that the applicant would be at risk of being subjected to treatment contrary to this provision in Afghanistan or that there were any obstacles of a medical nature to his removal to Afghanistan. Further noting that the applicant did not have any relatives or other persons in the Netherlands with whom he had a family life within the meaning of Article 8 of the Convention, the Deputy Minister further found that the exclusion order did not constitute an interference with the rights guaranteed by this provision. 23. The applicant challenged this decision in administrative law proceedings. The last (for the applicant negative) decision in these proceedings was taken on 10 February 2009 by the Regional Court of The Hague, sitting in Maastricht.", "It noted that, in its ruling of 25 January 2007, which had obtained the force of res iudicata, the Regional Court of The Hague, sitting in Roermond, had concluded that there existed serious reasons for assuming that the applicant had been involved in acts referred to in Article 1F of the Refugee Convention. As the Deputy Minister had enjoyed a discretionary power in deciding whether or not to impose an exclusion order, it had to be assessed whether in deciding to impose that order, the competing interests involved had been carefully balanced. In view of the reasons given in the impugned decision and the applicant’s submissions, the Regional Court of The Hague, sitting in Maastricht, accepted the Deputy Minister’s decision that the applicant’s personal interests were outweighed by the general public’s interests pursued by the exclusion order. 24. In so far as the applicant had invoked Article 3 of the Convention, the Regional Court noted that in its ruling of 25 January 2007 it had already found that the applicant had not demonstrated that his expulsion to Afghanistan would expose him to a risk of a violation of his rights under that provision.", "It found that also in the proceedings at hand the applicant had not submitted facts or referred to circumstances on the grounds of which it should be accepted as plausible that he would risk a violation of his rights under Article 3 of the Convention if he were to be expelled to Afghanistan. As regards Article 8, the Regional Court noted that it appeared from the applicant’s notice of appeal (beroepschrift) that it was not in dispute between the parties that the applicant could not claim a right of residence on the basis of Article 8 of the Convention and that it was thus not necessary to consider this point any further. 25. The applicant, who was represented by a lawyer throughout these proceedings, could have filed a further appeal with the Administrative Jurisdiction Division, but he did not do so. Consequently, the ruling of 10 February 2009 became final after the expiry of the four-week time-limit for filing an appeal with the Administrative Jurisdiction Division.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 26. A general overview of the relevant domestic law and practice in respect of asylum proceedings, exclusion orders and enforcement of removals has been set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-32, 25 September 2012). 27.", "Pursuant to the strict separation under the provisions of the Aliens Act 2000 between an asylum application and a regular application for a residence permit for another purpose than asylum, arguments based on Article 8 of the Convention cannot be entertained in asylum proceedings but should be raised in, for instance, proceedings on a regular application for a residence permit (see Mohammed Hassan v. the Netherlands and Italy and 9 other applications (dec.), no. 40524/10, § 13, 27 August 2013; J. v. the Netherlands (dec.), no. 33342/11, § 9, 18 October 2011; and Joesoebov v. the Netherlands (dec.), no 44719/06, § 27, 2 November 2010) or in proceedings concerning the imposition of an exclusion order (see Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII, and Arvelo Aponte v. the Netherlands, no. 28770/05, 3 November 2011).", "28. Until 20 July 2015, when the Aliens Act 2000 was amended (in order to implement Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection), any judicial review by the Regional Court of The Hague – and subsequently the Administrative Jurisdiction Division – in administrative law proceedings would only address whether the executive authority concerned had exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). As from 20 July 2015, the Regional Court of The Hague carries out a full ex nunc examination of both facts and law as these stand at the moment the appeal is lodged. The scope of a further appeal to the Administrative Jurisdiction Division has remained unchanged. 29.", "An appeal against a refusal by the relevant Minister to grant asylum lies with the Regional Court of The Hague. Such an appeal has automatic suspensive effect (section 6:16 of the General Administrative Law Act (Algemene Wet Bestuursrecht) and section 82 § 1 of the Aliens Act 2000). However, preparations in order to ensure effective removal may be made. In the event that an appeal concerns one of a number of defined exceptions and that appeal is denied suspensive effect – for instance when the appeal concerns a rejected repeat asylum application (herhaalde aanvraag) or when the appeal has been filed out of time – it is possible to apply for a provisional measure (voorlopige voorziening) with the Regional Court. Although also a request for a provisional measure does not have suspensive effect, a petitioner is generally allowed to remain in the Netherlands to await its determination.", "30. A further appeal can be lodged against a judgment of the Regional Court of The Hague before the Administrative Jurisdiction Division. Unlike an appeal to the Regional Court of The Hague, a further appeal to the Administrative Jurisdiction Division does not have automatic suspensive effect. However, where there is an urgent interest (spoedeisend belang), it is possible to request a provisional measure under section 8:81 of the General Administrative Law Act. Such a request does, however, not have automatic suspensive effect.", "31. According to the consistent case-law of the Administrative Jurisdiction Division, there is such an urgent interest when a date for an alien’s effective removal has been fixed (see, for instance, Administrative Jurisdiction Division, 9 November 2001, Jurisprudentie Vreemdelingenrecht [Immigration Law Reports – “JV”] 2002/14; 20 December 2004, JV 2005/72 and 1 April 2009, JV 2009/210). The mere fact that a decision is directly enforceable (direct uitvoerbaar) or the possibility that the alien may be placed in aliens’ detention for removal purposes does not, in the absence of any concrete measure, constitute an urgent interest (Administrative Jurisdiction Division, 6 June 2008, Landelijk Jurisprudentie Nummer [National Jurisprudence Number – “LJN”] BD3910; Administrative Jurisdiction Division, 4 May 2012, 201204255/2/V4; and Administrative Jurisdiction Division, 8 May 2015, 201503130/2/V1). Requests for a provisional measure are rejected by the Administrative Jurisdiction Division when it finds no urgent interest within the meaning of section 8:81 of the General Administrative Law Act. 32.", "In its determination of the merits of a further appeal, the Administrative Jurisdiction Division can limit itself to an examination of the grievances raised in the appellant’s written grounds of appeal (section 85 §§ 1-2 and section 91 § 1 of the Aliens Act 2000). 33. Under sections 42 and 44 of the Act on the Council of State (Wet op de Raad van State), the Administrative Jurisdiction Division may either uphold a judgment of the Regional Court (including the possibility of adapting or improving the reasoning supporting that judgment), quash the impugned judgment in whole or in part and do that which the Regional Court should have done, or remit the case to the Regional Court for a fresh judgment. Where it concludes that the further appeal does not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden), the Administrative Jurisdiction Division can decide to uphold the impugned judgment without having to give any additional reasons (section 91 § 2 of the Aliens Act 2000). 34.", "An exclusion order, which is immediately enforceable, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect. Domestic policy in respect of Afghan asylum seekers and country assessment report on Afghanistan 35. The relevant domestic policy, law and practice in respect of asylum seekers from Afghanistan in respect of whom Article 1F of the 1951 Refugee Convention has been found to be applicable have been summarised in A.A.Q. v. the Netherlands ((dec.), no.", "42331/05, §§ 37-52, 30 June 2015). 36. The most recent official country assessment report on Afghanistan was drawn up by the Netherlands Ministry of Foreign Affairs on 17 September 2014. The relevant parts of this report read: “Former communists Many former members of the People’s Democratic Party of Afghanistan (PDPA) and former employees of the former intelligence services KhAD and WAD are currently working for the Afghan government. They have, for example, been appointed as governors of provinces, occupy high positions in the army [or] the police, or are mayors.", "Some former PDPA members have founded new parties. So far as is known, ex-communists have nothing to fear from the side of the government. During the reporting period no reports were received regarding risks of human rights violations [in respect of PDPA members who did not] benefit from the protection of influential factions or from tribal protection, irrespective of the question of whether or not they had stayed for a long period in the former Soviet Union. The most recent UNHCR Eligibility Guidelines do not contain, under ‘potential risk profiles’, information about persons who now identify with the communist ideology (or who are suspected thereof). It can therefore not be said that the group of (former) communists as a whole has reasons to fear being in Afghanistan.", "It depends on each individual person whether or not [he or she] has reason to fear being in Afghanistan, and the same applies to former employees of KhAD/WAD. ... Hazaras There are about 2.7 million Hazaras in Afghanistan – about 9% of the total Afghan population. Hazaras live mainly in the central mountainous part of Afghanistan and in the north, in the mountains of Badakhshan. Hazaras form a Shiite minority in Afghanistan. In the past they have often been victims of discrimination on political, religious and racial grounds.", "During the Taliban regime abuses against the Hazara population took place in central Afghanistan in particular. This is also the reason that Hazaras are concerned about reconciliation talks with the Taliban. Because Hazaras made an important contribution to the victory over the Taliban, their situation has meanwhile improved. They have made economic and political progress since 2001. The Hazara population is represented in government institutions more than in the past.", "... Social discrimination (in the shape of extortion through illegal taxation, forced conscription, forced labour, physical abuse and detention) of Hazaras is widespread, especially in areas where they form a minority. Violent incidents inspired by discrimination can still occur. For example, tensions between Kuchi and Hazaras occasionally surface. No major incidents have occurred during the reporting period.” III. RELEVANT INTERNATIONAL LAW 37.", "Article 1F of the 1951 Refugee Convention reads: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” IV. RELEVANT INTERNATIONAL MATERIALS A. Migration Review Tribunal and Refugee Review Tribunal (Australia) 38. On 7 March 2013 Australia’s Migration Review Tribunal and Refugee Review Tribunal issued a background paper, Afghanistan; Political Parties and Insurgent Groups 2001-2013. As regards Jamiat-e Islami Afghanistan (leader: Salahuddin Rabbani), it reads: “The Jamiat-e-Islami is one of the longest standing political organizations in Afghanistan and draws most of its support from Tajiks in the north. It was long the most effective mujahiddeen force, based in northern Afghanistan, and it engaged in heavy combat with Soviet forces throughout the 1980s, including sporadic invasions of Soviet Tajikistan.", "The Jamiat was the main political party in the Northern Alliance which eventually defeated the Taliban, and occupied Kabul in November 2001.” 39. It states in respect of Hezb-e Wahdat: “The formation of Hezb-e Wahdat in 1989 represented an important step in the political development of Afghanistan’s Hazaras. It unified all the political groups of a community that has historically been notoriously fragmented and divided. During the period of the civil war in the early 1990s, it emerged as one of the major actors in Kabul and some other parts of the country. Political Islamism was the ideology of most of its key leaders but it gradually tilted towards its Hazara ethnic support base and became the key vehicle of the community’s political demands and aspirations.", "Its ideological background and ethnic support base has continuously shaped its character and political agenda. Through the Anti-Soviet jihad and the civil war, Wahdat accumulated significant political capital among Afghanistan’s Hazaras, which could have been spent in the establishment of long-lasting political institutions in Afghanistan. By 2009, however, Wahdat was so fragmented and divided that the political weight it carried in the country bore little resemblance to what it had once been. It had fragmented into at least four competing organisations, each claiming ownership of the name and legacy of Wahdat.” 40. The background paper also contains information on, inter alia, those four organisations, namely: - Hezb-e Wahdat-e Islami (leader: Abdol Karim Khalili), the main successor party to the pre-2001 Hezb-e Wahdat; - Hezb-e Wahdat-e Islami-ye Mardom (leader: Mohammad Mohaqeq), a primarily Shiite offshoot of Hezb-e Wahdat (“Khalili”); - Hezb-e Wahdat Milli Islami (leader: Ustad Mohammad Akbari), formed after a split from Hezb-e Wahdat in 1994; and - Hezb-e Wahdat-e Islami-ye Millat (leader: Qurban Ali Erfani), the fourth split emerging from Hezb-e Wahdat.", "B. United States Bureau of Citizenship and Immigration Services 41. On 27 May 2003 the Resource Information Center (“RIC”) of the US Bureau of Citizenship and Immigration Services published “Afghanistan: Information on Hezb-e Wahdat”. Under the heading “The current human rights situation for former members of Hezb-e Wahdat who return to Afghanistan”, it reads: “The RIC was unable to find information on the situation of former members of Hezb-e Wahdat who have returned to Afghanistan since the fall of the Taliban and the subsequent election of Hamid Karzai as President by the Loya Jirga [a grand assembly of tribal leaders] in June 2002. Hezb-e Wahdat leaders participated in the Loya Jirga that elected Karzai and have publicly thrown their support behind him and the new government.” C. United Nations High Commissioner for Refugees 42.", "In July 2003, UNHCR issued an Update of the Situation in Afghanistan and International Protection Considerations (“the July 2003 Update”). This document reads: “... With regard to agents of persecution, in the present situation of partial fragmentation into zones of influence, power vacuums and tension due to the competition for influence between different actors and the control of the appointed transitional administration not extending to the whole of the Afghan territory, possible risks of persecution by non-state agents continue to require consideration. The record of human rights abuses perpetrated by members of factions who are back in power (including by members of the Jamiat-i-Islami, the Hezb-e Wahdat (Akbari – Pazdar; Khalili – Nasr) and Junbesh-e-Milli-Islami, Ittehad-e-Islami, Harakat-e-Islami Mohseni, Hezb-e-Islami Khalis, Sepah-e-Mohammed) confirm that such risks continue to exist. ...” 43. As regards “persons associated or perceived to have been associated with the communist regime, as well as others who have campaigned for a secular state”, it states: “Even though the Interim Administration issued a ‘Decree on the dignified return of Afghan refugees’, valid as of 22 December 2001, the situation is yet unclear with regard to persons affiliated or associated with the former communist regime in Afghanistan, through membership of the People’s Democratic Party of Afghanistan (PDPA) or as a result of their previous professional or other functions.", "Although not targeted by the central authorities, they may continue to face risks of human rights abuses if they do not benefit from the protection of influential factions or tribal protection. The degree of risk depends on a variety of factors, including the following: a) the degree of identification with the communist ideology, b) the rank or position previously held, c) family and extended family links. In this context, it is noteworthy that the Transitional Authority, as well as regional and local authorities, is dominated by former Mujahideen factions, some royalists from the pre-communist period, and reportedly only five former members of PDPA.” 44. Persons who had been involved in the former Hezb-e Wahdat were not included in the potential risk profiles set out in the July 2003 Update. 45.", "In December 2007 UNHCR issued Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers, setting out categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time. These categories included former PDPA members and officials of the former communist regime unable to rely on protection through family, tribal or political ties. Persons who had been involved in Hezb-e Wahdat were not included in the categories of persons at risk but were mentioned as a category of persons in respect of whom exclusion considerations under Article 1F of the Refugee Convention might arise in individual claims for refugee status. 46. In July 2009, UNHCR issued Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, which again set out categories of Afghans considered to be particularly at risk in Afghanistan at that time.", "Those categories included high-ranking members of the former PDPA associated or perceived to be associated with the human rights violations of the communist regime in Afghanistan between 1979 and 1992 who did not enjoy the protection of influential individuals and/or factions. Persons who had been involved in Hezb-e Wahdat were not included in the categories of persons at risk but were again mentioned as a category of persons in respect of whom exclusion considerations under Article 1F of the Refugee Convention might arise in individual claims for refugee status. 47. On 17 December 2010, UNHCR issued updated Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”). As in the case of the previous guidelines, persons who had been involved in Hezb-e Wahdat were not included in the categories of persons at risk of persecution, whereas members of Islamic parties with armed factions, such as Hezb-e Wahdat (both branches and all nine parties that formed Hezb-e Wahdat), were mentioned as a category of persons requiring careful scrutiny where it concerned exclusion considerations under Article 1F of the Refugee Convention.", "48. The December 2010 UNHCR Guidelines further observed, inter alia: “[I]ndividuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include ... members of (minority) ethnic groups; ... It is widely documented that ethnic-based tension and violence have arisen at various points in the history of Afghanistan. Since the fall of the Taliban regime in late 2001, however, ethnically-motivated tension and violence have diminished markedly in comparison to earlier periods.", "Notwithstanding the foregoing and despite constitutional guarantees of ‘equality among all ethnic groups and tribes’, certain concerns remain. These include, inter alia, ethnic discrimination and clashes, particularly in relation to land use/ownership rights. Afghanistan is a complex mix of ethnic groups with inter-relationships not easily characterized. For different historical, social, economic and security-related reasons, some members of ethnic groups now reside outside areas where they traditionally represented a majority. This has resulted in a complex ethnic mosaic in some parts of the country, notably the northern and central regions, and in the major cities in the west, north and centre of Afghanistan.", "Consequently, an ethnic group cannot be classified as a minority by simply referring to national statistics. A person who belongs to a nationally dominant ethnic group – such as Pashtuns and Tajiks – may still face certain challenges relating, at least in part, to his or her ethnic association, in areas where other ethnic groups predominate. Conversely, a member of an ethnic group constituting a minority at the national level is not likely to be at risk in areas where the ethnic group represents the local majority. The issue of ethnicity may feature more prominently where tensions over access to natural resources (such as grazing land and water) and political/tribal disputes occur, or during periods of armed conflict. ... Marginalized during the Taliban rule, the Hazara community continues to face some degree of discrimination, despite significant efforts by the Government to address historical ethnic tensions.", "Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province, including on access routes to and from these districts, has been worsening. Although not able to launch widespread operations in Jaghori, there are some reports of Taliban attacks in the district. Jaghori district is increasingly isolated given that some access routes to and from the district, including large stretches of the strategic Kabul-Kandahar road, are reportedly under Taliban control. There are regular reports of ambushes, robberies, kidnappings and killings by the Taliban and criminal groups along these roads. The Taliban have also intimidated, threatened and killed individuals, including Hazaras, suspected of working for, or being supportive of, the Government and the international military forces.", "It has also been reported that in the Kajran District of Daykundi province, armed anti-Government groups engage in propaganda against Hazaras and Shia Muslims allegedly on the ground of religious differences. Historically, certain scenarios have also given rise to, or exacerbated, ethnic-based tensions in Afghanistan. These include disputes between ethnic groups or tribes which relate to land, water and grazing rights. In May 2010, for example, ethnic clashes over grazing rights broke out between the Hazaras and the Kuchis, mainly ethnic Pashtun nomads, in Wardak Province resulting in four fatalities, destruction of houses and displacement. In August 2010, a land dispute between Hazaras and Kuchis in Kabul resulted in the displacement of over 250 Kuchi families.", "Furthermore, the various divisions within an ethnic group may, in some instances, lead to intra-ethnic tension or conflict. Although available evidence suggests that some members of (minority) ethnic groups, including Hazaras, may engage in irregular migration for social, economic and historical reasons, this does not exclude that others are forced to move for protection-related reasons. UNHCR therefore considers that members of ethnic groups, including, but not limited to those affected by ethnic violence or land use and ownership disputes, particularly in areas where they do not constitute an ethnic majority, may be at risk on account of their ethnicity/race and/or (imputed) political opinion, depending on the individual circumstances of the case. However, the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone. Other factors including, inter alia, the relative social, political, economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant.", "Consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines, which may exacerbate the risk of persecution. In the ever-evolving context of Afghanistan, the potential for increased levels of ethnic-based violence will need to be borne in mind.” 49. The most recent update of the UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan was released on 6 August 2013 (“the August 2013 UNHCR Guidelines”) and replaced the December 2010 UNHCR Guidelines. The August 2013 UNHCR Guidelines do not include former PDPA members or persons who had been involved in Hezb-e Wahdat in the categories of persons at risk of persecution but do mention members of Islamic parties with armed factions, such as Hezb-e Wahdat (both branches, and all nine parties that formed Hezb-e Wahdat), as a category of persons requiring careful scrutiny where it concerns exclusion considerations under Article 1F of the Refugee Convention. 50.", "In respect of the Hazaras, cited as one of the (minority) ethnic groups whose members may be at risk of persecution or of falling victim to human rights violations, the August 2013 Guidelines read: “Hazaras have also been reported to face continuing societal discrimination, as well as to be targeted for extortion through illegal taxation, forced recruitment and forced labour, and physical abuse. Pashtuns are reportedly increasingly resentful of the Hazara minority, who have historically been marginalized and discriminated against by the Pashtuns, but who have made significant economic and political advances since the 2001 fall of the Taliban regime. Nevertheless, Hazaras have accused the Government of giving preferential treatment to Pashtuns at the expense of minorities in general and Hazaras in particular. Hazaras are also reported to continue to be subject to harassment, intimidation and killings at the hands of the Taliban and other AGE [Anti-Government Elements]. In August 2012, following the murder of two Hazaras in Uruzgan province, allegedly by the Taliban, nine Pashtuns were killed in an attack widely believed to have been carried out by Hazaras.", "Local government officials expressed concerns about the spectre of a cycle of ethnically motivated violence, and about threats by Pashtuns to turn their weapons against the Government if justice were not done in relation to the murders.” 51. The relevant part of the 2015 UNHCR country operations profile on Afghanistan reads: “It is anticipated that the newly-formed national unity Government will demonstrate commitment to creating an enabling environment for sustainable returns. The withdrawal of international security forces, as well as a complex economic transition are, however, likely to affect peace, security and development in Afghanistan. Humanitarian needs are not expected to diminish in 2015. Support and assistance from the international community will be essential to ensure a transition towards more stable development.", "The Solutions Strategy for Afghan Refugees (SSAR) remains the main policy framework for sustainable reintegration of those returning to Afghanistan. The National Steering Committee established in 2014 aims to facilitate the implementation and monitoring of the SSAR’s initiatives. Many returnees have migrated to towns and cities, contributing to the country’s rapid urbanization. As rising poverty and unemployment in urban centres prevent them from reintegrating into society, many will need basic assistance. ...", "Insurgency continues to spread from southern Afghanistan to large areas of the north and centre and is likely to remain a threat to stability in 2015. While violence may displace more people, insecurity is likely to continue restricting humanitarian access. Economic insecurity and the Government’s limited capacity to provide basic services are also challenges. ... Since 2002, more than 5.8 million Afghan refugees have returned home, 4.7 million of whom were assisted by UNHCR.", "Representing 20 per cent of Afghanistan’s population, returnees remain a key population of concern to UNHCR. Refugee returns have dwindled during the past five years and owing to insecurity and a difficult socio-economic situation, only around 10,000 refugees returned during the first seven months of 2014. In June 2014, following military operations in North Waziristan Agency, Pakistan, more than 13,000 families (some 100,000 people) crossed into Khost and Paktika provinces in south-eastern Afghanistan. Many of them settled within host communities, however approximately 3,300 families reside in Gulan camp, Khost province. A substantial number could remain in Afghanistan, despite expectations that an early return may be possible.", "By mid-2014, 683,000 people were internally displaced by the conflict affecting 30 of the 34 Afghan provinces. More than half of Afghanistan’s internally displaced people (IDPs) live in urban areas.” D. European Asylum Support Office (EASO) 52. In January 2016, EASO published a country of origin information report entitled “Afghanistan Update Security Situation”. This report, covering the period between 1 November 2014 and 31 October 2015, is an update of a previous report released by EASO in January 2015. It provides, inter alia, a general description of the security situation in Afghanistan, as well as a description of the security situation for each of the 34 provinces and Kabul.", "53. The report states in its relevant parts: “The general security situation in Afghanistan is mainly determined by the following four factors: The main factor is the conflict between the Afghan National Security Forces (ANSF), supported by the International Military Forces (IMF), and Anti-Government Elements (AGEs), or insurgents. This conflict is often described as an ‘insurgency’. The other factors are: criminality, warlordism and tribal tensions. These factors are often inter-linked and hard to distinguish.", "... The city of Kabul is a separate district in the province of Kabul, alongside 14 other districts. In this report, Kabul city is highlighted because of its prominent position as Afghanistan’s capital. Because of its high concentration of government buildings, international organisations, diplomatic compounds and international and national security forces, the city has a different security outlook than most of Afghanistan’s other districts and provinces. Kabul is by far the biggest city in Afghanistan and certainly the fastest growing.", "Massive returnee populations, IDPs [Internally Displaced Persons] and economic migrants have spurred rapid growth in Kabul. Currently, the population of Kabul is estimated to be 3,678,034 inhabitants. Other estimates run as high as 7 million. More than three quarters of Kabul province’s population lives in the city of Kabul. ... Kabul is an ethnically diverse city, with communities of almost all ethnicities present in the country.", "Pashtuns, Tajiks, Hazaras, Uzbeks, Turkmen, Baluchs, Sikhs and Hindus all reside there with no group clearly dominating. As people tend to move to areas where they already have family or into particular districts as part of a larger group with the same ethnicity, different neighbourhoods have become associated with different ethnic groups. .... Organisations monitoring the security situation in Kabul noticed a spike in insurgent attacks in the city in October 2014 and again in May 2015 and August 2015. ... From 1 January to 13 September 2015, Kabul city saw 217 security incidents, including 68 explosions (roughly two-thirds IEDs [Improvised Explosive Devices] and one-third suicide attacks). There were between one and four suicide attacks every month from January to July, and six in August.", "... According to the analysis of Edinburgh International: ‘attacks in the capital Kabul have traditionally served two purposes. In the first case, militant activity has aimed to physically weaken the power of the Government of the Islamic Republic of Afghanistan (GIRoA) traditionally achieved through the assassination of state officials and supply routes. More commonly however, extremist networks have sought to use the publicity generated by attacks in Kabul to win symbolic propaganda victories ... While the security services continue to improve and develop their capability to counter such tactics (a recent attack on a foreign guesthouse in the Wazir Akbar Khan neighbourhood was put down without military or civilian casualties by the country’s Quick Reaction Force on 26 May 2015), the sheer scale and ingenuity of militant aggression within Kabul’s central districts has meant that an underlying threat is unlikely to be entirely removed at any point in the near future.’ ...", "In 2015 from January to August, 126 Kabul civilians were killed and 717 injured. A large part of these civilian casualties resulted from the string of attacks in August 2015, most notably the one in the Shah Shahid neighbourhood. According to an assessment of several sources by the UK’s Home Office the surge of terrorist attacks in Kabul in mid-May 2015 alone led to at least 26 deaths and more than 80 injuries. In the UNHCR Monthly Updates on Conflict Induced Displacement, Kabul is in this reporting period not mentioned as a province of origin for conflict-induced IDPs, only as a province of arrival of certain IDP movements from other provinces. ...", "In May 2015, UNHCR stated: ‘Although the province experienced a significant number of incidents, Kabul remained a main destination for the displaced families from the Central Region, largely due to the perception of a better security situation and the hope to find better coping mechanisms. ...’ Apart from internal displacement due to the conflict in Afghanistan, Kabul city saw large flows of Afghan refugees returning to Afghanistan after fleeing Pakistani military operations in FATA [Federally Administered Tribal Areas], and unregistered Afghans being expelled by Pakistan since December 2014, when a military school in Peshawar was attacked by the Taliban. The Washington Post reported in August 2015 that more than 82,000 unregistered Afghans had been ‘pushed out’ of Pakistan since January 2015, along with about 150,000 Afghans deported from Iran over the same period. Many of them arrive in Kabul and try to survive doing daily labour.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 AND ARTICLE 13 OF THE CONVENTION 54.", "The applicant complained that his removal to Afghanistan would expose him to a risk of being subjected to treatment contrary to Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 55. He further complained of a violation of Article 13 of the Convention taken together with Article 3. This provision 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.” A. Admissibility 56. The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as he had not lodged a further appeal with the Administrative Jurisdiction Division against either the judgment of 25 January 2007 or the judgment of 10 February 2009. In addition, the Government noted that the judgment of 25 January 2007 apparently had not led the applicant to submit an application to the Court, as the present case was only introduced on 4 June 2009.", "57. The applicant argued that a further appeal to the Administrative Jurisdiction Division in the asylum proceedings would not have stood any chance of success as the Division would not have reviewed the findings of fact made by the Regional Court of The Hague and that therefore, this did not constitute a domestic remedy which he was required to exhaust. As regards the proceedings on the decision to impose an exclusion order, he had decided not to lodge a further appeal with the Administrative Jurisdiction Division, as the judgment of 10 February 2009 concerning this exclusion order had been based mainly on the judgment of 25 January 2007 concerning his asylum request, which had become final. 58. The Court considers that there is a close connection between the Government’s argument as to the exhaustion of domestic remedies and the merits of the complaints made by the applicant under Article 13 of the Convention in conjunction with Article 3.", "It therefore finds it necessary to join this objection to the merits. The Court further finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that no other reasons for declaring the complaints under Articles 3 and 13 inadmissible have been established. They must therefore be declared admissible. B. Merits 1.", "Alleged violation of Article 13 of the Convention (a) The parties’ submissions 59. The applicant argued that a further appeal to the Administrative Jurisdiction Division in the asylum proceedings, as well as in the proceedings on the exclusion order, was not an “effective” remedy as the Division would not have reviewed the facts on the basis of which the Regional Court had found that the applicant’s removal would not be contrary to Article 3. In this connection, he relied on three rulings given by the Administrative Jurisdiction Division on 27 April 2005 (no. 200409315/1), 17 June 2005 (no. 200501236/1) and 7 July 2005 (no.", "200500948/1) respectively. In these three rulings the Administrative Jurisdiction Division reiterated its well-established case-law at that time that an individual member of a group against which organised, large-scale human rights violations are committed must establish that specific facts and circumstances exist relating to him or her personally in order to qualify for the protection offered by Article 3 of the Convention. 60. The Government reiterated that in their opinion the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as he had not lodged a further appeal with the Administrative Jurisdiction Division against either the judgment of 25 January 2007 or the judgment of 10 February 2009. As to the question of whether an appeal to the Administrative Jurisdiction Division was an effective remedy for the purposes of Article 35 § 1, the Government pointed out, relying on rulings given by the Division on, respectively, 9 June 2004 (see K. v. the Netherlands, (dec.), no.", "33403/11, §§ 30, 25 September 2012), and 2 August 2004, the Administrative Jurisdiction Division – like the Regional Court of The Hague – assessed fully whether expelling an alien to his or her country of origin would expose him or her to a real risk of treatment contrary to Article 3. The Division based its considerations on an alien’s account in so far as it was accepted as true. If it concluded in a particular case that the competent Minister or Deputy Minister had failed to carry out an adequate appraisal of an alien’s claims under Article 3 of the Convention, the Administrative Jurisdiction Division – like the Regional Court of The Hague – could quash the decision regarding that alien. The applicant could and should therefore have raised his claims under Article 3 before the Administrative Jurisdiction Division in the context of both his asylum request and the decision to impose an exclusion order. (b) General principles 61.", "Article 13 guarantees the availability at a 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 this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of an “arguable” complaint under the Convention and to grant appropriate relief (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131, and Tselovalnik v. Russia, no. 28333/13, § 63, 8 October 2015). The existence of an actual breach of another provision is not a prerequisite for the application of Article 13 (see Sergey Denisov v. Russia, no.", "21566/13, § 88 with further references, 8 October 2015). 62. The Court reiterates that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. The Court also reiterates that, where a complaint concerns allegations that a person’s expulsion would expose him or her to a real risk of suffering treatment contrary to Article 3 of the Convention, the effectiveness of the remedy for the purposes of Article 13 requires imperatively – in view of the importance the Court attaches to Article 3 and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised – that that complaint be subject to independent and rigorous scrutiny by a national authority and that this remedy has automatic suspensive effect (see the Grand Chamber’s statement of the law on Articles 13 and 3 in De Souza Ribeiro v. France [GC], no. 22689/07, § 82 with further references, ECHR 2012; Mohammed v. Austria, no.", "2283/12, § 72 with further references, 6 June 2013; and A.D. and Others v. Turkey, no. 22681/09, § 95 with further references, 22 July 2014). 63. The Court moreover reiterates that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. This is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention.", "The Court has, therefore, rejected similar arguments put before it in other cases concerning deportation advocating the sufficiency of a suspensive effect in “practice”. It has further pointed out the risks involved in a system where stays of execution must be applied for and are granted on a case-by-case basis (see M.A. v. Cyprus, no. 41872/10, § 137 with further references, 23 July 2013). (c) Application of those principles to the present case 64.", "The Court accepts at the outset that the applicant’s complaint under Article 3 is “arguable” (see paragraphs 4 and 58 above). It has further considered, in light of the distribution of the burden of proof in cases where the respondent Government claims non-exhaustion (see Sher and Others v. the United Kingdom, no. 5201/11, § 132 with further references, ECHR 2015 (extracts)), whether – on the basis of the Government’s submissions regarding the further appeal to the Administrative Jurisdiction Division, which have not been disputed by the applicant – the Government’s objection should be allowed. 65. The Court has also considered the question of whether the applicant in the instant case can be regarded as being exempted from the obligation to lodge an appeal with the Administrative Jurisdiction Division because it would be bound to fail on the basis of domestic case-law (see Strzelecka v. Poland (dec.), no.", "14217/10, § 41 with further references, 2 December 2014). 66. However, the Court does not find it necessary to determine these questions in the instant case for the following reason. In cases concerning expulsion or extradition it is a firmly embedded principle in the Court’s case-law under Article 13, taken together with Article 3 of the Convention, that the notion of an effective remedy under Article 13 in such cases 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, and (ii) a remedy with automatic suspensive effect (see De Souza Ribeiro, cited above). The same applies when considering the question of effectiveness of remedies for the purposes of Article 35 § 1 of the Convention in asylum cases.", "67. As a further appeal to the Administrative Jurisdiction Division does not have an automatic suspensive effect, the Court cannot but find that this remedy falls short of the second effectiveness requirement. This finding is not altered by the fact that it is possible to seek a provisional measure from the Administrative Jurisdiction Division, as such a request does not itself have an automatic suspensive effect either. 68. Consequently, the Court dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies in respect of his complaints under Article 3 as, having no automatic suspensive effect, a further appeal to the Administrative Jurisdiction Division in asylum proceedings cannot be regarded as an effective remedy which must be exhausted for the purposes of Article 35 § 1 of the Convention.", "69. This does not mean, however, that a further appeal to the Administrative Jurisdiction Division in asylum cases should be regarded as irrelevant. Such an approach would overlook the important role played by the Administrative Jurisdiction Division as a supervisory tribunal that seeks to ensure legal consistency in, inter alia, asylum law. In addition, it is quite feasible that – whilst an asylum case is pending before the Court – the Administrative Jurisdiction Division in continued proceedings could decide to accept the further appeal against the impugned ruling of the Regional Court, quash it and remit the case to the Regional Court for a fresh ruling. Such a development at the domestic level could affect an applicant’s status as “victim” in the context of Article 34 of the Convention.", "70. As regards the question whether the applicant’s rights under Article 13 of the Convention have been respected, the Court has noted the automatic suspensive effect of an appeal filed with the Regional Court of the Hague in asylum cases, as well as the powers of this appeal court in asylum cases. Given that Article 13 does not compel Contracting States to set up a second level of appeal, the Court is satisfied that being able to appeal to the Regional Court of The Hague the applicant had at his disposal a remedy complying with the above two requirements (see § 66 above) for challenging the Minister’s decision to deny him asylum. The Regional Court is empowered to examine the Article 3 risks in full and indeed evaluated these on different occasions (see §§ 19 and 24 above). It is true that the appeal to the Regional Court of the Hague in the exclusion order proceedings did not have suspensive effect (as it was imposed after the decision not to grant the applicant asylum had become final).", "However, the character of those proceedings does not affect the Court’s conclusion that Article 13 was complied with by virtue of the suspensive effect in the asylum proceedings. 71. The Court therefore concludes that there has been no violation of Article 13 in conjunction with Article 3 of the Convention. 2. Alleged violation of Article 3 of the Convention (a) The parties’ submissions 72.", "The applicant submitted that, if returned to Afghanistan, he feared he would be subjected to treatment prohibited under Article 3 from (i) the civilian population on account of his membership of the former PDPA and his activities on behalf of the former communist regime, (ii) Hezb-e Wahdat, for whom he had been forced to work, (iii) Jamiat-e Islami, by whom he had been captured and detained, (iv) the current Afghan governmental authorities of which numerous persons who had once belonged to Jamiat-e Islami and the Taliban now formed part, and (v) Mr S., who had recognised him as a former member of Hezb-e Wahdat. He further submitted that the general security situation in Afghanistan had worsened in recent years, in particular in the south, south-west and south-east of the country. 73. The Government accepted as credible the applicant’s statements that he was a former member of the PDPA and had served in the Revolutionary Guard. However, given that according to several public sources, including country assessment reports and UNHCR guidelines, former communists were no longer considered as a group running an enhanced risk in Afghanistan of persecution or treatment proscribed by Article 3, the Government held that the applicant had not demonstrated that he faced a genuine risk of being subjected to such treatment in Afghanistan on the basis of his activities for the former communist regime.", "The Government emphasised that former communists were leading normal lives, that many were currently employed by the Afghan authorities and that some had set up political parties. 74. The Government further did not find that the applicant had established the existence of such a risk emanating from the Afghan authorities currently in power, the Afghan civilian population, the mujahideen, the Taliban, Hezb-e Wahdat, Jamiat-e Islami or Mr S. They pointed out that neither the broadcast of the interview (see paragraph 9 above) nor his subsequent detention by Ittehad‑al-Islami had prompted the applicant to leave Afghanistan and that, after Hezb-e Wahdat had left Kabul in 1994, the applicant had stayed in Afghanistan until 2002. Although he had stated that he had been in hiding during that period, he had – according to his statements to the Netherlands authorities – been able to move about freely during his stay in the villages of Siah Khak and Sar Shesmeh and had not mentioned that he had encountered any problems with members of the general population during that period. As regards the alleged risk from the side of Hezb-e Wahdat, the Government noted that, according to his statements to the Netherlands authorities, the applicant had stopped working for this group in 1994 when, defeated, it had left Kabul for the north (while the applicant had remained in Kabul).", "The applicant had further stated to the Netherlands authorities that he had had no problems with this group between 1994 and 2001. 75. As to the alleged risk from the side of Jamiat-e Islami, the applicant had lived in his house in Kabul for two weeks after his escape from detention by this group; in the Government’s opinion, this suggests that Jamiat-e Islami had no specific interest in him at that time. The Government further submitted that, in a statement given on 5 February 2004, the applicant had said that he had no reason to believe that Jamiat-e Islami was looking for him. To the extent that the applicant’s fears were based on Mr S., the Government submitted that they knew nothing about this person from general sources, that the applicant had not specified with which group Mr S. was currently affiliated, and that in any event the applicant had not provided concrete evidence suggesting that Mr S. was currently looking for him.", "To the extent that the applicant feared ill-treatment at the hands of the Taliban, the Government submitted that this group had not been in power since 2001 but continued to be responsible for a great many violent incidents and human rights violations on a large scale. However, the applicant had not demonstrated satisfactorily that he would be singled out and targeted by the Taliban. 76. In respect of the current general security situation in Afghanistan, the Government submitted that although the security situation in Afghanistan still gave cause for great concern, it was not so poor that returning the applicant to Afghanistan would in itself amount to a violation of the Convention. On this point, they referred, inter alia, to the Court’s findings in the cases of N. v. Sweden (no.", "23505/09, § 52, 20 July 2010); Husseini v. Sweden (no. 10611/09, § 84, 13 October 2011); J.H. v. the United Kingdom J.H. v. the United Kingdom, no. 48839/09, § 55, 20 December 2011; S.H.H.", "v. the United Kingdom (no. 60367/10, 29 January 2013); and H. and B. v. the United Kingdom (nos. 70073/10 and 44539/11, §§ 92-93, 9 April 2013). Further pointing out that both the International Organisation for Migration and UNHCR were assisting Afghans who wished to return voluntarily to Afghanistan, the Government considered that the general security situation in Afghanistan was not such that for this reason the applicant’s removal to Afghanistan should be regarded as contravening Article 3. (b) The Court’s assessment (i) General principles 77.", "The Court reiterates at the outset that the Convention and its Protocols cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law of which they form part. 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 Marguš v. Croatia [GC], no. 4455/10, § 129 with further references, ECHR 2014 (extracts)). 78. It also reaffirms that a right to political asylum and a right to a residence permit are not, as such, guaranteed by the Convention and that, under the terms of Articles 19 and 32 § 1 of the Convention, the Court cannot review whether the provisions of the 1951 Refugee Convention have been correctly applied by the Netherlands authorities (see, for instance, I. v. the Netherlands (dec.), no.", "24147/11, § 43, 18 October 2011). 79. The Court further observes that the Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country.", "The mere possibility of ill-treatment on account of an unsettled situation in the requesting country does not in itself give rise to a breach of Article 3. Where the sources available to the Court describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence, except in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3. The standards of Article 3 imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case. Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials.", "However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection. Finally, in cases concerning the expulsion of asylum-seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the 1951 Refugee Convention. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non‑Contracting States, agencies of the United Nations and reputable non‑governmental organisations (see F.G. v. Sweden [GC], no. 43611/11, § 117, ECHR 2016; and M.E. v. Denmark, no.", "58363/10, §§ 47-51 with further references, 8 July 2014). 80. As regards the material date, the existence of such risk of ill‑treatment must be assessed primarily with reference to the facts which were known or ought to have been known to the Contracting State at the time of expulsion (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 121, ECHR 2012). However, since the applicant has not yet been deported, the material point in time must be that of the Court’s consideration of the case.", "It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Chahal v. the United Kingdom, 15 November 1996, § 86, Reports of Judgments and Decisions 1996‑V). (ii) Application of the general principles to the present case 81. As regards the individual features of the risk of ill-treatment claimed by the applicant, the Court notes that after the communist regime in Afghanistan was overthrown by mujahideen forces in 1992 he did not flee the country but remained in Afghanistan where – after having been held for ten days by the mujahideen faction Ittehad-al-Islami, who apparently were under the erroneous impression that he was an important communist – he had started to work in Kabul for another mujahideen faction, Hezb-e Wadat, until 1994, without encountering any problem from the authorities, any group or private persons on account of his past activities for the former communist regime. 82. The Court further notes that, when Hezb-e Wahdat retreated from Kabul to Bamyan in 1994 (see paragraph 11 above), the applicant remained in Kabul and that, in his own words, he was not persecuted by “Khalili” (see paragraph 11 above), whom the Court understands to be its leader, Abdol Karim Khalili (see paragraph 39 above).", "83. The Court also notes that, according to the applicant, he had been living in hiding in different places between 1994 and the arrival of American troops in December 2001. There is no indication in the case file that, when travelling between different hiding places in Kabul and in Wardak province during that period, the applicant met with any problem from the side of the Taliban, any other group or private persons. The Court also notes that, in March 2002, the applicant was arrested and incarcerated by Jamiat-e Islami and that, after he had managed to abscond after 45 days by bribing a prison guard, he first stayed in hiding in his own home for about 15 days and subsequently in the home of a relative until he left Afghanistan in May 2002. It has not been argued that Jamiat-e Islami conducted a search for the applicant or otherwise showed a concrete interest in finding him after his escape from detention.", "84. The Court further finds no indication that the applicant, since his departure from Afghanistan in May 2002, has attracted negative attention from any governmental or non-governmental body or any private individual in Afghanistan on account of his communist past, his activities for Hezb-e Wahdat or any other personal element cited by him. The Court further notes that UNHCR does not include persons involved in the former communist regime and/or Hezb-e Wahdat in their potential risk profiles in respect of Afghanistan. 85. In view of the above, the Court does not find that it has been demonstrated that, on individual grounds, the applicant will be exposed to a real risk of being subjected to treatment contrary to Article 3.", "86. Although this argument has only been raised in the domestic proceedings but not in the present application, the Court has examined the question whether the applicant runs a risk of being subjected to ill-treatment on account of his Hazara origin. On this point, the materials before the Court contain no elements indicating that the applicant’s personal position would be any worse than most other persons of Hazara origin who are currently living in Afghanistan. Although the Court accepts that the general situation in Afghanistan for this minority may be far from ideal, it cannot find that it must be regarded as being so harrowing that there would already be a real risk of treatment prohibited by Article 3 in the event that a person of Hazara origin were to be removed to Afghanistan. 87.", "Regarding the question of whether the general security situation in Afghanistan is such that any removal there would necessarily breach Article 3 of the Convention, in its judgment in the case of H. and B. v. the United Kingdom (cited above, §§ 92-93), it did not find that in Afghanistan there was a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned there. In view of the evidence now before it, the Court finds no reason to hold otherwise in the instant case. 88. The Court is therefore of the opinion that the applicant has failed to adduce evidence capable of demonstrating that there are substantial grounds for believing that he would be exposed to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention if removed to Afghanistan. 89.", "Accordingly, the applicant’s expulsion to Afghanistan would not give rise to a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 90. The applicant further complained that his removal from the Netherlands would be contrary to his rights under Article 8 of the Convention. This provision reads in its relevant part as follows: “1.", "Everyone has the right to respect for his private and family life, his home and his correspondence. ...” 91. The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as he had not lodged a further appeal with the Administrative Jurisdiction Division against either the judgment of 25 January 2007 or the judgment of 10 February 2009. 92. The applicant contested this argument.", "93. The Court reiterates the applicable general principles (see Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-89, 9 July 2015). It further reiterates its above finding under Article 13 taken together with Article 3 that, in cases concerning removal from the Netherlands raising issues under Article 3 of the Convention, a further appeal to the Administrative Jurisdiction Division cannot be regarded as an “effective remedy” as it does not have automatic suspensive effect (see paragraph 66 above). However, the Court also reiterates that by contrast, where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect.", "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 of the Convention in conjunction with Article 8 requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence 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; and Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, § 56, 15 November 2011). 94. Having regard to the nature of the review carried out by the Administrative Jurisdiction Division in administrative law proceedings (see paragraphs 32-33 above), the Court is satisfied that, in respect of a grievance that a removal from the Netherlands is contrary to Article 8, a further appeal is in principle an “effective” remedy for the purposes of Article 35 § 1 of the Convention. 95.", "The Court therefore finds that the applicant did not provide the national judicial authorities with the opportunity which is in principle intended to be afforded to Contracting States under Article 35 of the Convention, namely the opportunity to prevent or put right Convention violations through their own legal system (see Gherghina, cited above, § 115). 96. Accordingly, the Government’s objection of failure to exhaust domestic remedies must be upheld and this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 in fine of the Convention. III. RULE 39 OF THE RULES OF COURT 97.", "The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 98. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection. 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 to reject it in respect of the applicant’s complaints under Article 3 and Article 13 of the Convention; 2.", "Declares the complaints under Article 3 and Article 13 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been no violation of Article 13 of the Convention taken together with Article 3; 4. Holds that there would be no violation of Article 3 of the Convention in the event of the applicant’s removal to Afghanistan; and 5. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final or until further order. Done in English, and notified in writing on 5 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "SECOND SECTION CASE OF JOANNOU v. TURKEY (Application no. 53240/14) JUDGMENT STRASBOURG 12 December 2017 FINAL 12/03/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Joannou v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Julia Laffranque,Ledi Bianku,Işıl Karakaş,Paul Lemmens,Valeriu Griţco,Jon Fridrik Kjølbro, 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.", "53240/14) 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 British and Cypriot national, Ms Adriani Joannou (“the applicant”), on 28 October 2014. 2. The applicant, who had been granted legal aid, was represented by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged, in particular, a lack of effectiveness of the proceedings she had instituted before the Immovable Property Commission (“IPC) seeking compensation in respect of real property located in the “Turkish Republic of Northern Cyprus” (the “TRNC”). She relied on Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 4. On 19 November 2015 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "5. The British Government and the Cypriot Government were informed of the proceedings. The British Government did not avail themselves of the right to intervene in the proceedings under Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court. In a letter of 28 January 2016 the Cypriot Government indicated that they wished to exercise their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 (b). However, at a later stage of the proceedings, in a letter of 21 October 2016, the Cypriot Government informed the Court that they had decided not to submit any written comments in the procedure.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1953 and lives in Enfield (United Kingdom). A. Background to the case 7.", "The complaints raised in this application arise out of the Turkish military intervention in northern Cyprus in July and August 1974. The general context of the property issues arising in this connection is set out in the cases of Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-16 and 28-33, ECHR 2001‑IV), and Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, §§ 4-16, ECHR 2010). 8.", "In 1997 the applicant was gifted five plots of land, or shares in them, by her aunt, who died in 1998. In 2008 she was also gifted an additional share of one of the plots of land by her mother. According to the certificates of ownership provided by the Department of Lands and Surveys of the Republic of Cyprus, the applicant is the sole owner of four plots of land and owns a 9/16 share of the fifth plot. 9. The land lies in the village Koma Tou Yialou (Kumyali) in the “TRNC”.", "The total area of the land is some 18 dönüm. [1] 10. In 2007 the applicant instructed a law firm in Nicosia, which duly obtained a valuation report on the land from a Turkish Cypriot chartered surveyor. The valuation report of 3 December 2007 assessed each of the five plots of land and provided valuations for them, which ranged from 500 pounds sterling (GBP) per dönüm to GBP 10,000 per dönüm. 11.", "In October 2011 the applicant obtained a further valuation report by a chartered surveyor from the Republic of Cyprus. This report valued the five plots of land, including the economic loss and interest (all calculated for the period between 1974 and 2011), at 2,690,962 euros (EUR) in total. 12. In February 2017 the applicant obtained a new valuation report from the Land Registration Office of the Republic of Cyprus which assessed the value of the property in question, including economic loss and interest accrued since 1997 (when the applicant became owner of the property) to December 2016, at EUR 2,088,366 in total. B.", "The proceedings before the IPC 13. In May 2008 the applicant, through her Turkish Cypriot representatives, filed a claim with the IPC under Law no. 67/2005 (see paragraphs 41-43 below) ‒ supported by an affidavit ‒ claiming restitution of her property and/or compensation at the property’s current market value and damages for loss of use of the land in question. The total compensation sought was GBP 100,000 per dönüm (GBP 1,800,000 or approximately EUR 2,285,000). 14.", "In her affidavit the applicant attested that the property in question had been transferred to her after 1974 by her aunt, who had owned it since before 1974. The affidavit also attested that there were no mortgages, liabilities or restrictions on the property in question, that the applicant lived in South Cyprus in a house owned by a Turkish Cypriot, and that she was paying rent to the Republic of Cyprus. The file also contained the applicant’s identity documents (British passport and Cypriot identity card), certificates from the Republic of Cyprus Land Registry and Surveys Department concerning the ownership and legal status of the applicant’s plots of land (indicating no mortgages, liabilities or other restrictions), and a document issued by the relevant Cypriot authority showing that the applicant lived in a house owned by a Turkish Cypriot and had been billed 270 Cypriot pounds (CYP) by way of rent for the period 1 April 2003 to 30 June 2004. 15. The applicant’s claim was communicated to the “TRNC” Attorney General as provided under Law no.", "67/2005 and the relevant IPC Rules (see paragraph 43 below). 16. On 5 May 2010, the Attorney General’s Office submitted an opinion to the IPC in reply to the applicant’s claim. It relied on an affidavit by the “TRNC” Director of the Land Registry and Surveys Department, who explained that their records showed that one of the registered owners of the property in question was Chrystollou Nicola Stavrinou (the applicant’s aunt), that Maria Nicola Stavrinou (the applicant’s mother) was the owner of part of one of the plots of land, and that the applicant had failed to demonstrate that she was the legal heir of the two registered owners. He also considered that the applicant’s compensation claim was excessive and unfounded.", "17. A directions hearing before the IPC took place on 25 May 2010. The applicant’s representative stated that they had received the Attorney General’s opinion only on the day of the hearing and thus asked for an adjournment in order to prepare their case. The Attorney General’s representative did not object and the hearing was adjourned until 1 June 2010. 18.", "At a directions hearing on 1 June 2010 the applicant’s representative undertook to obtain a valuation report and a document showing that the plots of land had been transferred to the applicant by way of donation. The Attorney General’s representative requested that documents showing that the applicant was the legal heir of Chriystolleuo Nicola Stavrou [sic.] should be provided, as well as proof of the amount of rent she was paying for the Turkish Cypriot house where she lived in the South, or alternatively the lease agreement by which the house had been allocated to her. The Attorney General’s representative also undertook to submit a search document from the “TRNC” Land Registry and Surveys Department, and indicated that he reserved his right to submit and request further documents. The hearing was adjourned so that the parties could obtain the relevant documents.", "19. On 3 June 2010 the Attorney General submitted the search document of the “TRNC” Land Registry and Surveys Department relating to the plots included in the applicant’s claim. 20. On 6 June 2012, through her representative, the applicant asked permission to amend her initial claim. She submitted that she had in the meantime become the sole owner of the plot of which she had previously owned a 5/6 share and that in October 2011 she had obtained a valuation report indicating that the value of her properties was EUR 2,690,962 (see paragraph 8 above).", "21. At a preliminary hearing on 18 June 2012, after the Attorney General’s representative stated that he had no objections with regard to the amendment of the applicant’s claim; the President of the IPC accepted the amendment and instructed the applicant to submit her amended claim and the Attorney General’s Office to submit an opinion in that regard. 22. On 6 July 2012 the applicant complied with the order and amended her claim, seeking compensation in accordance with the new findings and developments concerning her property title. 23.", "On 20 November 2012 the applicant submitted the documents requested by the Attorney General’s representative on 1 June 2010 (see paragraph 18 above). In particular, the applicant submitted certificates issued by the head of the local community (mukhtar) explaining that there were inconsistencies in the spelling of the applicant’s aunt’s name in different documents. The mukhtar explained that the latter had held Cypriot identity document no. 327090 and had been variously known as: Christallou Nikola Stavrinou, Chriystallou Nicola Stavrinon, Christallou Nicola Stavrinou, Christalla Nikola and Chrystallou Nicola, but these were one and the same person. The mukhtar further certified that she had never married and that before her death she had gifted her immovable property to her sister’s daughter, the applicant (Andriani Ioannou, holder of a Cypriot identity card).", "In support of the mukhtar’s certificates, the applicant submitted her aunt’s identity documents (including a Cypriot identity document). The applicant also submitted documents showing the transfer of title from her aunt to her in respect of the plots of land in question. She also submitted documents showing that she had been allocated a Turkish Cypriot house in the South and had paid CYP 342 by way of rent for the period 1 June 2000 to 31 December 2001 and CYP 270 for the period 1 April 2003 to 30 June 2004. 24. A preliminary hearing before the IPC scheduled for 10 January 2013 was adjourned due to the absence of the Attorney General’s representative, who could not attend the hearing for family reasons.", "25. At a preliminary hearing on 25 January 2013 the “TRNC” authorities were represented by the Attorney General’s representative and the under‑secretary of the Housing Affairs Department. They asked the applicant to submit the birth certificates of her aunt and her mother and a title deed for the property which she now owned in its entirety. The hearing was adjourned to enable the applicant to obtain the documents in question. 26.", "On 19 February 2013 the applicant submitted the requested documents, which also included documents confirming that her aunt had never been married. 27. At a preliminary hearing on 25 April 2013 the “TRNC” representatives asked the applicant to submit certificates from the mukhtar showing that the names Andriani Joannou, Andriani Ioannou and Andriani Georgiou Antoniou all referred to the applicant, and further certificates showing that her aunt had been variously known as Chrystollou Nicola Stavrinou, Chrystolleuo Nicola Stavriou, Chrystolleui Nicolou Stavriou, Nikola Hristallu (Nicola Hrystallou), Hristalla Nicola and Hrystallou Nicola (Nikola), and that her mother had been variously known as Maria Nicola Stavrinou, Maria Stavrinou, Maria Georgiou and Maria Georgios, and that their antecedent Nikolas Stavrinou (Nicolas Stavrinou), had also been known as Nicola Stavrinou and Nicola Stavrinu. The hearing was adjourned to permit the applicant to obtain the requested documents. 28.", "On 9 May 2013 the applicant submitted certificates from the mukhtar showing that the aforementioned different names referred to the same individuals, namely the applicant, her mother, her aunt and their antecedent, respectively. The mukhtar’s certificates also identified these individuals on the basis of their identity card numbers. A certificate dated 8 May 2013 indicated that the applicant’s mother was variously known as Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou and her aunt as Chrystolleui Nicolou Stavriou. 29. At a preliminary hearing on 24 October 2013, at which the applicant was also present, the “TRNC” representatives argued that the mukhtar’s certificates were incomplete and that the names Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou, for the applicant’s mother, and Chrystolleui Nicolou Stavriou, for the applicant’s aunt, should be added.", "The representative further argued that an official document should be submitted showing that the applicant’s aunt had not married and did not have any other heirs. He also requested a document showing that there were no liabilities attaching to the property in question. Upon production of these documents, the Attorney General’s representative would be prepared to settle the case by paying GBP 60,000 to the applicant. 30. In reply, the applicant’s representative stated that they would obtain the requested documents.", "However, he pointed out that they had already produced documents showing that the applicant’s aunt had never married and this was anyway apparent from the fact that she had never changed her last name. The applicant’s representative also pointed out that the applicant’s aunt had transferred the property in question to the applicant while she was still alive. He asked for an adjournment in order to consider the Attorney General’s settlement offer. 31. On 16 January 2014 the applicant’s representative asked that a hearing be held before the IPC.", "32. A further examination of the case before the IPC took place on 1 March 2016. The President and members of the IPC questioned the applicant’s representative with regard to the instructions he had received from the applicant concerning the case. As the applicant was not present and could not be reached at that time to give clear instructions concerning the case, the hearing was adjourned. 33.", "On 9 March 2016 the applicant’s Turkish Cypriot representatives informed her representative in the Republic of Cyprus that the fact that an application had been lodged with the Court had caused them upset. They also stated that they would not represent the applicant in further proceedings. 34. A hearing before the IPC was held on 28 June 2016. The applicant’s Turkish Cypriot representative explained that she had informed the applicant of her wish to withdraw from the case.", "However, she was unable to provide an official document to that effect and the hearing was therefore adjourned in order for the representative to complete the formalities for withdrawal. 35. On 19 August 2016 the applicant took over the files from her Turkish Cypriot representatives. 36. At a hearing on 28 September 2016 the IPC accepted the applicant’s Turkish Cypriot representatives’ withdrawal from the case and decided that the applicant should be contacted directly during the future course of the proceedings.", "Another hearing was scheduled for 12 October 2016. 37. On 15 October 2016 the applicant informed the IPC that she had not received the summons to the hearing of 12 October 2016 until 13 October 2016. 38. A further meeting for the examination of the case, at which the applicant was personally present, was held on 2 March 2017.", "The “TRNC” representatives argued that the applicant should provide further documents showing the exact dates of birth of her mother and her aunt as well as the respective death certificates. Furthermore, they argued that the applicant could not be considered to be a legal heir of her aunt for the purpose of Law no. 67/2005 as she had obtained the property at issue from her aunt while the latter was still alive. The applicant contended that these arguments were being raised for the first time now and she therefore asked for a formal hearing to be opened in her case. The President of the IPC instructed the applicant that the opinions expressed by the “TRNC” representatives did not represent the official position of the IPC and that the matter would be decided after the examination of all the circumstances of the case.", "The proceedings before the IPC are still pending. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 1. Constitution of the “TRNC” of 7 May 1985 39.", "Article 159 § 1 (b) and (c), in so far as relevant, provide as follows: “(b) All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and (c) ... shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.” 40. Article 159 § 4 reads as follows: “In the event of any person coming forward and claiming legitimate rights in connection with the immovable properties included in sub-paragraphs (b) and (c) of § 1 above [concerning, inter alia, all immovable properties, buildings and installations which were found abandoned on 13 February 1975], the necessary procedure and conditions to be complied with by such persons for proving their rights and the basis on which compensation shall be paid to them, shall be regulated by law.” 2. Law for the compensation, exchange and restitution of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, as amended by Laws nos. 59/2006 and 85/2007 (“Law no. 67/2005”) 41.", "The relevant provisions of Law no. 67/2005 are set out in the case of Demopoulos and Others v. Turkey (cited above, §§ 35-37). 42. Section 22 of Law no. 67/2005 provides that Rules for the better implementation of the provisions of that Law may be prepared by the IPC, approved by the “TRNC” Council of Ministers and published in the Official Gazette.", "43. In 2006 the IPC adopted its Rules (the English version available at http://www.tamk.gov.ct.tr) which, in the relevant part, provide: Rule 3Form of Application “(8) The Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property shall within 30 working days file with the secretariat a defence or opinion prepared in accordance with Form 2 attached to these Rules and serve a certified copy thereof on the address of the applicant. (9) The defence or opinion given by the Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property in accordance with the legislation in force in the TRNC shall consist of the summary of the facts in issue. If deemed necessary, the Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property shall attach to the defence or opinion an affidavit by persons who have knowledge on the matter.” Rule 6Friendly settlement agreement on the satisfaction of the applicant “(1) The Ministry responsible for Housing Affairs shall execute the decision of the Commission relating to restitution, exchange, compensation in lieu of the immovable property, compensation for non-pecuniary damages due to loss of the right to respect for home and compensation for loss of use. In execution of such decision, the Ministry responsible for Housing Affairs shall prepare a draft friendly settlement agreement in accordance with Form 3 and serve it to the applicant who has demonstrated his legitimate rights together with an invitation letter.", "(2) The invitation letter shall state that the applicant who has demonstrated his legitimate rights should either personally or through a representative come to sign the draft friendly settlement agreement within one month. Otherwise, the draft friendly settlement agreement will be deemed rejected and he shall have the right to apply to the High Administrative Court. (3) Should the applicant who has demonstrated his legitimate rights either personally or through his representative accept the draft friendly settlement agreement, this draft shall be signed by the Minister responsible for Housing Affairs and by him or his representative. (4) Should the friendly settlement agreement be rejected, or when it is deemed rejected according to sub-section (2) of this section, a disagreement document shall be served on the interested parties. (5) In case a dispute is not resolved through a friendly settlement, the right of the interested parties to appeal to courts shall be preserved.” Rule 7The functioning and meetings of the Commission “(1) Following the submission of the defence or opinion of the Ministry in the TRNC responsible for Housing Affairs and/or the Attorney General representing the Ministry and/or a natural or legal person who under the legislation of the TRNC is in possession of or holds the ownership of property in accordance with these Rules, the parties will be convened on a specified date for a meeting concerning the giving of directions regarding the application in the Chairman’s office or any other place he may determine which is convenient for the parties.", "The Chairman may, following the hearing of the views of the parties, give the necessary directions regarding further detail, the discovery or examination of further documents, the manner in which testimony will be heard, whether or not a site investigation shall be carried out, the persons who should be required to be present during the presentation and on other matters deemed appropriate. The proceedings that would be attended by the foreign members shall be in English. In all other cases, it will be in Turkish. However, upon the request of the applicant, an interpreter shall be provided. (2) The proceedings of the Commission shall be based on the documents.", "All material relating to the applications shall be translated into English for foreign members. Provided that if deemed appropriate the Commission may hear the views and arguments of the parties and take the oral or sworn testimony of the witnesses they may wish to call. The proceedings of the Commission shall be held at its own premises provided that if necessary the Commission may also use the existing courtrooms or chambers to be allocated to the Commission with the approval of the President of the Supreme Court. The Commission, when it deems necessary, may delegate the task of on-site exploration of the immovable property and preparation of an exploration report by a group of three members. (3) The Commission may at any stage of the proceedings on its own motion call any person to give evidence or produce any document for the purpose of reaching a fair decision.", "No such testimony will be given without prior notice to the parties. The parties’ rights to express their views on the matter of calling such witnesses shall be reserved. The proceedings of the Commission, other than those on the documents, shall be in public. However, the rights of the applicant to request confidential proceedings should be preserved and upon request all proceedings shall be in camera. (4) The Commission shall take its decisions with the simple majority of those present during sittings with a quorum of the 2/3 of the total number of its members.", "For the purposes of this section, the Chairman and the Deputy Chairman are each to be counted as one member of the Commission. Those dissenting or in the minority may write their views and opinions separately. Such separate views and opinions shall be part of the decision. At the meetings the voting shall be in public. Those present at the meetings shall not be entitled to cast any abstention vote.", "In case of equality of votes, the matter voted upon shall be deemed to have been rejected. The decision of the Commission shall be signed by the Chairman and another member and shall be conveyed to the parties or served on their address for service after having been sealed by the seal of the Commission. (5) The Commission shall, after hearing all the views and claims of the parties, announce its reasoned decision within three months. However, depending on its work load and the unique character of the application, the writing of the reasoned decision may be extended up to six months.” B. Relevant practice 44.", "The relevant case-law of the “TRNC” Constitutional Court is summarised in the Demopoulos and Others case (cited above, §§ 38-39). 45. According to the English translation of the “TRNC” Supreme Court’s judgment in case no. 129/2015, in which it dealt with issues relating to the nature of the awards made by the IPC and their enforcement, the “TRNC” Supreme Court referred to section 14 of Law no. 67/2005, which provides that the decisions of the IPC have binding effect and are of an executory nature similar to judgments of the judiciary, and such decisions must be implemented without delay upon service thereof on the authorities concerned.", "The “TRNC” Supreme Court pointed out, however, that it was not entirely apparent from the relevant law how the awards should be executed. In this connection it referred to Rule 6 of the IPC Rules (see paragraph 43 above) and explained that, in order to make the awards executable, actions designed to implement execution of the IPC’s awards, as required under Rule 6, must be taken by the relevant Ministry. Accordingly, only an award finalised in this manner could be said to be legally executable in a manner similar to a judicial decision. C. Cases before the IPC 46. According to the currently available statistical information (the IPC’s Monthly Bulletin no.", "96, 13 November 2017; available at http://www.tamk.gov.ct.tr) a total of 6,369 applications have so far been lodged with the IPC. The IPC has finalised 1035 cases, of which twenty-five were concluded following a hearing of the case and a decision by the IPC and 1012 by means of friendly settlement. In the vast majority of finalised cases (845) compensation has been awarded, amounting in total to the sum of GBP 238,779.386, whereas in other cases other forms of redress have been ordered or the claims were rejected. 47. The applicant pointed to 144 cases pending before the IPC in which her representative, Mr A. Demetriades ‒ who was representing other applicants in those cases ‒ had complained before the IPC that the “TRNC” Attorney General had failed to submit initial observations in reply to the lodged applications within a reasonable period of time.", "The periods of time that had elapsed before the Attorney General’s submission of initial observations ranged from three months to five years. III. RELEVANT INTERNATIONAL MATERIAL A. United Nations 48. The United Nations’ activities aimed at resolving the property issues in northern Cyprus arising out of the Turkish military intervention have been summarised in Demopoulos and Others (cited above, §§ 7-16).", "49. A number of further political initiatives have been taken at UN level, particularly within the framework of the mission of the Secretary General’s Special Adviser for Cyprus. The United Nations Security Council welcomed these initiatives in its Resolution 2263 (2016) of 28 January 2016 (S/RES/2263 (2016)) and called upon the parties to put further efforts into reaching convergence on the core issues in dispute. B. Council of Europe 50.", "In the context of the execution of the Court’s judgment in the Inter‑State case of Cyprus v. Turkey (cited above), the Committee of Ministers is currently examining the general measures of execution required with respect to various issues identified in that judgment, including those relating to the immovable property of displaced Greek Cypriots that is located in the “TRNC” . 51. With respect to these measures, the following findings were made at the Committee of Ministers meeting in March 2017: “... Following the judgment of 22/12/2005 in the Xenides-Arestis case, an ‘Immovable Property Commission’ was set up in the northern part of Cyprus under ‘Law No. 67/2005 on the compensation, exchange or restitution of immovable property’.", "In its inadmissibility decision in Demopoulos and others, delivered on 5 March 2010, the Grand Chamber found that Law No. 67/2005, which set up the Immovable Property Commission in the northern part of Cyprus, ‘provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots’ (§ 127 of that decision). In the judgment Cyprus v. Turkey (just satisfaction), delivered on 12 May 2014, the Court found that Turkey had not yet complied with the conclusion of the main judgment according to which there had been a violation of the property rights of displaced persons as they had been denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights. The Court said that ‘the compliance’ with this conclusion ‘could not be consistent with any possible permission, participation, acquiescence or otherwise complicity in any unlawful sale or exploitation of Greek Cypriot homes and property in the northern part of Cyprus’. The Court also said that ‘the Court’s decision in the case of Demopoulos and Others to the effect that cases presented by individuals concerning violation of property complaints were to be rejected for non-exhaustion of domestic remedies, cannot be considered, on its own, to dispose of the question of Turkey’s compliance with section III of the operative provisions of the principal judgment in the inter-State case’ (see § 63 of the judgment on just satisfaction of 12 May 2014).", "b) Examination of the Committee of Ministers at its 1259th meeting (June 2016) On 30 May 2016, the delegation of Cyprus also submitted a memorandum on the property rights of displaced persons (DH-DD(2016)688). The Turkish delegation submitted a memorandum on this issue on 3 June 2016 (DH-DD(2016)707). In the Cypriot authorities’ view, in order to comply with the main judgment, Turkey had inter alia to introduce measures to put an end to all transfers of immovable property belonging to displaced Greek Cypriots and ban all construction activities on such properties without the consent of the owners. The Turkish authorities considered that Turkey had already taken the measures required for the execution of this part of the judgment with the setting-up of the Immovable Property Commission. They also referred to protective measures prohibiting the sale and improvement of property which had been returned to its owners by the Commission or which would be returned, in accordance with its decisions, after the solution of the Cypriot problem.", "At its 1259th meeting (June 2016) (DH), the Committee decided to resume consideration of the issue of the homes and immovable property of displaced Greek Cypriots at its 1280th meeting (March 2017) (DH).” 52. On the basis of the above findings, the Committee of Ministers decided at its 1280th meeting to resume consideration of the issue of displaced Greek Cypriots’ property rights at its meeting in December 2017. 53. An issue still outstanding before the Committee of Ministers is the execution of the just satisfaction awards in thirty-three cases (designated as the Xenides-Arestis group; see the document containing the list of cases https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=090000168072832d) in which the Court found violations of the Convention with regard to breaches of the property rights of displaced Greek Cypriots. 54.", "The following findings were noted following the Committee of Ministers meeting in September 2017 (footnote references omitted): “a) Payment of the just satisfaction: In the Loizidou case the just satisfaction was paid in 2003. The cases of Alexandrou and Eugenia Michaelidou Developments and Michael Tymvios do not raise any issue in respect of the payment of just satisfaction, as the applicants concluded friendly settlements with the respondent State regarding Article 41 (see below under “individual measures concerning the applicants’ property”). The Turkish authorities paid the just satisfaction awarded in the Xenides‑Arestis judgment of 22 December 2005 in respect of costs and expenses. As regards the Xenides-Arestis judgment of 07 December 2006, the sums awarded for material and moral damages and for costs and expenses have been due since 2007. In the Demades case, the sums awarded for just satisfaction have been due since 2009 and, in the more recent cases, since 2010-2012.", "In the Xenides-Arestis case the Committee of Ministers adopted two interim resolutions, in 2008 and 2010, strongly urging Turkey to pay the just satisfaction awarded by the European Court in the judgment of 7 December 2006, together with the default interest due. In the majority of these cases, the applicants or their representatives have addressed the Committee of Ministers on several occasions to complain about the lack of payment of the just satisfaction awarded to them. At the 1208th meeting (September 2014) (DH), the Committee adopted an interim resolution deeply deploring that, to date, despite the interim resolutions adopted in the cases of Xenides-Arestis and Varnava, the Turkish authorities, on the ground that this payment could not be dissociated from the measures of substance in these cases, had not complied with their obligation to pay the amounts awarded by the Court to the applicants in those cases, as well as in 32 other cases in the Xenides-Arestis group. In its interim resolution, the Committee also recalled that the then Chairmen of the Committee of Ministers had stressed on behalf of the Committee, in two letters addressed to the Turkish Minister of Foreign Affairs, that the obligation to comply with the judgments of the Court was unconditional. The Committee declared that the continued refusal by Turkey to pay the just satisfaction awarded in the case of Varnava and in 33 cases of the Xenides-Arestis group was in flagrant conflict with its international obligations, both as a High Contracting Party to the Convention and as a member State of the Council of Europe.", "It exhorted Turkey to review its position and to pay without any further delay the just satisfaction awarded by the Court, as well as the default interest due. At its 1214th meeting (December 2014) (DH), the Committee expressed its deepest concern in view of the lack of response from the Turkish authorities to the two letters sent by the Chairmanship of the Committee of Ministers to the Turkish Minister of Foreign Affairs, as well as to the interim resolution adopted in September 2014. The Committee exhorted once again the Turkish authorities to review their position and to pay without further delay the just satisfaction awarded by the Court At its 1230th (June 2015), 1236th (September 2015), 1243rd (December 2015) and 1250th (March 2016) meetings (DH), the Committee deeply deplored the lack of payment of the just satisfaction and exhorted once again the Turkish authorities to pay without further delay the sums awarded by the Court to the applicants, as well as the default interest due. The Committee also invited the Secretary General to raise the issue of payment of the just satisfaction in these cases in his contacts with the Turkish authorities, calling on them to take the measures necessary to pay it. At its 1236th meeting (September 2015) (DH), the Committee also encouraged the authorities of the member States to do the same.", "On 28 April 2016, the Secretary General sent a letter to the Minister for Foreign Affairs of Turkey trusting that the Turkish authorities would take the necessary measures to ensure the prompt payment of the just satisfaction awarded in these cases (see DH-DD(2016)573). At its latest examinations of this issue (1259th, 1265th, 1273rd, 1280th and 1288th meetings (June, September, December 2016 and March and June 2017) (DH), the Committee firmly insisted once again on Turkey’s unconditional obligation to pay the just satisfaction awarded by the European Court in these cases and deeply deplored the absence of progress in this respect, again exhorting Turkey to comply with this obligation without further delay. The Committee agreed to resume consideration of this issue at their 1294th meeting (September 2017) (DH). ... b) Individual measures concerning the applicants’ properties: The Committee decided to close its examination of the individual measures in one of these cases (Eugenia Michaelidou Developments and Michael Tymvios, decision taken at the 1043rd meeting (December 2008) (DH). In the Alexandrou case, the Turkish authorities having complied with the friendly settlement according to which they had to pay the applicant and return the immovable property at stake, it was noted that no further individual measures were needed (see the public notes of the 1092nd meeting (September 2010) (DH).", "The Secretariat’s assessment of the individual measures in the cases of Loizidou, Xenides-Arestis, Demades and Eugenia Michaelidou Developments Ltd and Michael Tymvios is presented in the information document CM/Inf/DH(2010)21 of 17 May 2010. This assessment is valid for the other cases of this group in which the judgments on the just satisfaction became final after 2010. The Turskish authorities presented their position in this respect in their memorandum of 3 June 2016 (DH-DD(2016)707).” 55. On the basis of the above findings, the Committee of Ministers decided to resume consideration of the Xenides-Arestis group of cases at its further meetings. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 56. The applicant complained that the procedure before the IPC by means of which she sought compensation for her property in the “TRNC” had been protracted and ineffective and thus in breach of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1. 57.", "The Court finds that an issue related to the applicant’s claim for compensation before the IPC may arise under all the provisions relied upon by the applicant. In the circumstances of the case, and noting that the central tenet of the applicant’s grievance concerns her inability to obtain compensation for her property claim, the Court considers that the complaint should be examined solely under Article 1 of Protocol No. 1 (see, for the approach, Kirilova and Others v. Bulgaria, nos. 42908/98 and 3 others, §§ 87-88 and 125-127, 9 June 2005; Naydenov v. Bulgaria, no. 17353/03, §§ 48 and 86-87, 26 November 2009, and Shesti Mai Engineering OOD and Others v. Bulgaria, no.", "17854/04, § 64, 20 September 2011). 58. Article 1 of Protocol No. 1 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.” A. Admissibility 1. The parties’ arguments (a) The Government 59. Relying on the Court’s findings in the case of Demopoulos and Others v. Turkey (cited above) concerning the effectiveness of the IPC remedy, the Government argued that the applicant had failed to properly exhaust the available domestic remedies since she had lodged her application with the Court before the relevant proceedings before the IPC had finished. In this connection, the Government pointed out that the applicant had failed to produce all the relevant documents before the IPC in due time and that she had amended her application for compensation in the course of the proceedings before the IPC. Moreover, for reasons unknown to the Government, the applicant had never submitted the available valuation reports to the IPC.", "The Government also stressed that the applicant had failed to reply to the settlement offer made by the “TRNC” authorities for compensation in the amount of GBP 60,000 and she had failed to produce the documents necessary for such a settlement to be effected. In the Government’s view, the applicant had had unsatisfactory communication with her representative before the IPC, which had led to a number of misconceptions on her part with regard to the functioning of the IPC. As a result, the applicant had prematurely lodged an application with the Court, while the relevant proceedings before the IPC were still ongoing. The Government thus considered that her application was premature and/or manifestly ill-founded. (b) The applicant 60.", "The applicant contended that she had decided to apply to the Court at the time that she did because the proceedings before the IPC had not been fair and effective, particularly in view of the lengthy delay in reaching a decision in her case. She argued that the IPC had failed to come to a decision even though it was in possession of all the relevant information concerning her property claim. The IPC’s requests for further documents had in fact been aimed at delaying the proceedings and had clearly been used as tactics on the part of the authorities to create further obstacles to an effective resolution of her case. At the same time, the IPC had never asked her to produce the valuation report ‒ even though she had made reference to it when amending the claim ‒ and the respondent had never submitted a report of its own. In this connection, the applicant also argued that the subsequent amendment of her claim had been of a technical nature and not one that could justify the delay in the proceedings.", "She further contended that in the proceedings before the IPC she had merely had a position of spectator as the proceedings had been conducted hastily and without proper translation from Turkish. Moreover, in her view, the case was not very complex as her property title was evident and the identities of her mother and aunt were easily ascertainable from the available identity documents. Lastly, the applicant argued that the fact that the Xenides-Arestis group of cases remained unexecuted suggested that the IPC remedy was ineffective. 2. The Court’s assessment 61.", "The Court notes that the respondent Government did not raise an objection as regards the incompatibility ratione personae of the present application with the provisions of the Convention or of its Protocols. However, in view of the fact that the matter calls for consideration by the Court of its own motion (see, for instance, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009), the Court finds it important to note that in the light of its findings in the cases of Loizidou v. Turkey ((merits), §§ 52-57, 18 December 1996, Reports of Judgments and Decisions 1996‑VI), Cyprus v. Turkey (cited above, §§ 75‑81) and Demopoulos and Others (cited above, §§ 89 and 103), the issues complained of fall within the jurisdiction of Turkey, which has, in the northern part of Cyprus, the obligation to secure to the applicants the rights and freedoms set out in the Convention. 62. The Court will therefore proceed on the assumption that Turkey is responsible for the circumstances complained of by the applicant.", "Having said that, the Court would stress that this does not in any way call into doubt either the view adopted by the international community regarding the establishment of the “TRNC” or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus (see Cyprus v. Turkey, cited above, § 90, and Demopoulos and Others, cited above, § 89). 63. As to the Government’s preliminary objection of inadmissibility for non-exhaustion of domestic remedies due to the fact that the proceedings before the IPC are still pending, the Court finds that the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that she has been unable to obtain compensation for her property due to the protracted and ineffective proceedings before the IPC. The Court therefore considers that the Government’s objection should be joined to the merits of the applicant’s complaint. 64.", "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 any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ arguments (a) The applicant 65. The applicant submitted that there was no doubt that she was the owner of the plots of land in question. She had received them by way of a gift from her aunt, who had in turn received them from her father. The applicant further argued that the matter under examination in relation to her property claim had been considered in the light of the Court’s well‑established case-law in the cases of Loizidou (cited above) and Cyprus v. Turkey (cited above). In her view, however, it was paradoxical to assert that the IPC remedy was effective, as found in the Demopoulos and Others case (cited above), when the Xenides-Arestis group of cases and the just satisfaction arising from the Cyprus v. Turkey judgment could not be executed.", "She also pointed to a newspaper article, referring to an interview with the IPC’s President, alleging that Turkey had stopped financing IPC. Moreover, the proceedings before the IPC were ineffective due to the delaying and arbitrary practices of the “TRNC” authorities and the relevant statistics showed that a substantial number of cases were still pending before the IPC. In this connection, the applicant also argued that other applicants before the IPC faced various obstacles in proving their claims and in obtaining the payment of compensation awarded by the IPC. 66. The applicant further contended that since she had lodged her application with the IPC in May 2008 there had been no serious progress in the case and the examination of the substance of her claim had been repeatedly adjourned.", "In her view, the case in itself was not complex and there had been only one amendment of the claim of a purely technical nature. She contended that the IPC had not so far held a real hearing but only directions meetings for the purpose of assessing her case. The applicant considered that such delaying practices had been continuous, systemic and deliberate and had rendered the remedy before the IPC ineffective. In this connection the applicant pointed to the fact that she had repeatedly been requested to provide further irrelevant documents and certificates, such as those relating to her property title and the identity of her aunt, all of which were already known and available in the file. In particular, she had been requested to clarify the different spellings of her aunt’s name even though the identity documents had been available to the IPC and clearly attested to her aunt’s identity.", "Similarly, she had been asked to provide further documents concerning her property title, which required her to go through a time-consuming and costly procedure. This had in point of fact been completely unnecessary, because the certificates concerning her property title, including proof of the non-existence of any liabilities on her property, had already existed in the file. 67. The applicant also contended that she had been made an initial settlement offer of GBP 20,000, which she had not been prepared to accept, and then, at the meeting of 24 October 2013, this offer had been increased to GBP 60,000. At the same meeting before the IPC she had not been able to participate effectively as the proceedings had been conducted hastily and in Turkish, without the provision of adequate translation services.", "Moreover, on several other occasions, her representative had not been allowed to address the IPC on her behalf. On one occasion she had attempted to attend a meeting before the IPC − on 25 April 2013 − but the meeting had been adjourned. The applicant also contended that the IPC had failed to take the necessary measures to ensure effective administration of the proceedings. It had never requested the valuation reports from the parties and had failed to properly address the requests of the respondent “TRNC” Attorney General’s Office for the provision of further documents by declaring such documents unnecessary. In this connection, the applicant also pointed out that her aunt had lived in the occupied northern part of Cyprus and that all the relevant information on her identity and properties had been well known to the “TRNC” administration.", "In the applicant’s view, all this clearly demonstrated that the proceedings before the IPC had been ineffective. (b) The Government 68. Relying on the case of Meleagrou and Others v. Turkey (dec.), no. 14434/09, 2 April 2013, the Government argued that the Court had confirmed its finding in Demopoulos and Others v. Turkey (cited above) that the procedure before the IPC provided an adequate and effective remedy for Greek Cypriot property claims relating to properties located in northern Cyprus. However, in the Government’s view, the applicant in the case at issue had failed to avail herself properly of that remedy.", "In this connection, the Government argued that the applicant’s claim for damages had been excessive and she had asked for an adjournment of the preliminary examination of the case on 25 May 2010 to subsequently amend her compensation claim. However, her amended claim had not corresponded to the reality of the property market in northern Cyprus and the methods used in the 2011 valuation report had been inadequate and inaccurate. Moreover, it had taken her two years to submit the documents requested on 1 June 2010. In addition, the applicant had only been present for the examination of the case before the IPC on 24 October 2013 and it had been for her to substantiate her claim by providing the relevant documents, including those that could have clarified the confusion over the different spellings of the names. 69.", "In the Government’s view, the applicant’s impression that the IPC remedy was ineffective had not been objectively substantiated but had rather resulted from deficiencies in communication between her and her legal representatives. This was apparent from the fact that the applicant seemed to be unaware that her legal representatives had failed to submit the relevant documents showing the transfer of the property from her aunt to her and had likewise failed to present the relevant valuation reports. In this respect the Government explained that the transfer of properties by Greek Cypriots was not recorded in the “TRNC” registers and applicants were therefore required to produce the relevant documents showing their property title before the IPC. Moreover, the confusion over the spelling of the names could not be clarified on the basis of the identity documents and the mukhtar’s certificates had been needed in that respect. The Government also considered that the documents initially provided by the applicant to the IPC had not clearly shown that she had paid rent for the use of a Turkish Cypriot house.", "Moreover, the amendment of the applicant’s claim had necessitated the production of further relevant documents, which the applicant had failed to procure and present with the requisite diligence. The Government also stressed that the applicant and her representatives had failed to inform the IPC whether they would accept the friendly settlement offer by the “TRNC” Attorney General. 70. The Government furthermore contended that the execution of the Xenides-Arestis group of cases had nothing to do with the effectiveness of the IPC remedy as those cases had been decided prior to the Demopoulos and Others case (cited above), which had confirmed the effectiveness of the IPC. In the procedure before the IPC, compensation awards were executed and payments made in accordance with the relevant law and the timetable of execution.", "Moreover, the functions of the Court and the Committee of Ministers in this respect differed. With regard to the proceedings before the IPC, the Government pointed out that the applicant had been represented by lawyers who spoke both Turkish and English and the proceedings before the IPC, as well as the documents submitted to it, had been simultaneously translated into English as the IPC was also made up of two international members. The applicant and her representatives had been given every opportunity to address and to argue her case before the IPC. Moreover, under Rule 7(5) of the IPC Rules, a hearing should be completed within three months and exceptionally within six months. The Meleagrou and Others case (cited above) showed no issue of ineffectiveness arising in this respect.", "In addition, the Government considered that the significant number of cases decided by means of friendly settlement before the IPC also suggested that the mechanism functioned and there were only a few cases that ended before the High Administrative Court. Taking all these factors into account, in the Government’s view there was nothing to call into question the effectiveness and adequacy of the IPC remedy. 2. The Court’s assessment (a) Preliminary points 71. The Court observes at the outset that it has been provided with official certificates of ownership from the Department of Lands and Surveys of the Republic of Cyprus proving that the applicant is the owner of the relevant property.", "There is also sufficient evidence before the Court showing that the applicant had received the property in question in 1997 by way of a gift from her aunt, who owned it prior to the Turkish military intervention in 1974, and that in 2008 she had received an additional share in one of the plots concerned from her mother (see paragraphs 8 and 18 above). 72. In these circumstances, in accordance with its findings in the cases of Loizidou (cited above, §§ 42-47 and 62), Cyprus v. Turkey (cited above, § 180), Demopoulos and Others (cited above, § 107) and Xenides-Arestis v. Turkey ((dec.), no. 46347/99, 14 March 2005, and (merits) § 28, 22 December 2005), for the purpose of its assessment under Article 1 of Protocol No. 1, the applicant must be regarded as the legal owner of the property in question.", "73. With regard to the nature of the infringement of the property rights of displaced Greek Cypriots in the “TRNC”, in the Loizidou case (cited above, §§ 63-64) the Court reasoned as follows: “63. However, as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as all possibilities to use and enjoy, her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol No. 1.", "Such an interference cannot, in the exceptional circumstances of the present case to which the applicant and the Cypriot Government have referred (see paragraphs 49-50 above), be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it clearly falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment (see, mutatis mutandis, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 14, para.", "25). 64. Apart from a passing reference to the doctrine of necessity as a justification for the acts of the \"TRNC\" and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey. It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial of access and a purported expropriation without compensation. Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention.", "In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.” 74. The Court confirmed the above findings in the case of Cyprus v. Turkey (cited above, §§ 184-189) and in subsequent cases concerning the complaints of Greek Cypriots concerning interference with their property rights in the “TRNC” (see Demopoulos and Others, cited above, § 71; see also, for instance, Demades v. Turkey, no. 16219/90, §§ 44-46, 31 July 2003; Xenides-Arestis, cited above, §§ 29-32, and Lordos and Others v. Turkey, no. 15973/90, §§ 67-70, 2 November 2010).", "75. The Court further notes, as it did in Demopoulos and Others (cited above, § 108), that the Turkish Government no longer contest their responsibility under the Convention for the areas under the control of the “TRNC” and that they have, in substance, acknowledged the right of Greek Cypriot owners to remedies for breaches of their rights under Article 1 of Protocol No. 1. Indeed, in Demopoulos and Others, the Court recognised this acknowledgment as a significant factor in the provision of the IPC mechanism, which, by applying the Court’s findings in the earlier cases, most notably in the Xenides-Arestis pilot judgment (cited above), sought to secure effective redress for Convention violations identified in the Court’s judgments with regard to the property rights of Greek Cypriots in the “TRNC”. 76.", "With regard to the effectiveness of the IPC mechanism, in Demopoulos and Others (cited above, §§ 127-128), following a careful examination of all the relevant institutional and procedural aspects of that remedy, the Court reasoned as follows: “127. The Court finds that Law no. 67/2005 provides an accessible and effective framework of redress in respect of complaints about interference with property owned by Greek Cypriots. The applicant property owners in the present cases have not made use of this mechanism and their complaints under Article 1 of Protocol No. 1 must therefore be rejected for non-exhaustion of domestic remedies.", "It is satisfied that Law no. 67/2005 makes realistic provision for redress in the current situation of occupation that is beyond this Court’s competence to resolve. 128. Lastly, it would stress that this decision is not to be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political solution.", "If, however, at this point in time, any applicant wishes to invoke his or her rights under the Convention, the admissibility of those claims will be decided in line with the principles and approach above. The Court’s ultimate supervisory jurisdiction remains in respect of any complaints lodged by applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress.” 77. Following the adoption of the Demopoulos and Others judgment, the Court declared inadmissible for non-exhaustion of domestic remedies all applications that had not already been declared admissible and where the applicants had not presented a claim to the IPC in accordance with Law no. 67/2005 (see, for instance, Cacoyanni and Others v. Turkey (dec.), nos. 55254/00 et al., 1 June 2010; Papayianni and Others v. Turkey (dec.), nos.", "479/07 et al., 6 July 2010; Marios Eleftheriades and Others v. Turkey (dec.), nos. 3882/02 et al., 5 October 2010; Papaioannou and Others v. Turkey (dec.), no. 58678/00, 7 December 2012; and Efthymiou and Others v. Turkey (dec.), nos. 40997/02, 7 May 2013). 78.", "For other applications which had been declared admissible or where the Court had ruled on the merits prior to the adoption of the Demopoulos and Others judgment, the Court proceeded with the adoption of judgments on the merits and/or awards of just satisfaction (see, for instance, Lordos and Others, cited above; see also Gavriel v. Turkey (just satisfaction), no. 41355/98, 22 June 2010; Solomonides v. Turkey (just satisfaction), no. 16161/90, 27 July 2010; Christodoulidou v. Turkey (just satisfaction), no. 16085/90, 26 October 2010; Anthousa Iordanou v. Turkey (just satisfaction), no. 46755/99, 11 January 2011; Loizou and Others v. Turkey (just satisfaction) (final judgment), no.", "16682/90, 24 May 2011). These cases form part of the aforementioned Xenides-Arestis group of cases in the execution process (see paragraph 53 above). 79. The Court has also examined an application (Meleagrou and Others, cited above) − lodged after Demopoulos and Others and where the applicants had presented their claims to the IPC − which was declared inadmissible on the following two grounds. Firstly, as regards the applicants’ complaints under Article 1 of Protocol No.", "1, Article 8 and Article 14 concerning certain plots of land owned by a registered company, the Court found that the complaints failed by reason of incompatibility ratione materiae on the grounds that, as shareholders, the applicants could not claim property rights in land owned by a company which was still in existence. As to the ongoing refusal to return certain of their plots of land to them, the Court found that, although the applicants had submitted claims for restitution to the IPC, they had not made claims either for exchange of land in the south of Cyprus or for pecuniary compensation, which would also have permitted the award of damages for loss of use or non-pecuniary compensation if restitution was not afforded. That failure meant the applicants had not made proper use of the IPC remedy. Secondly, in respect of the applicants’ complaints under Article 6 § 1, the Court found that there was no evidence that the proceedings had been unfair or that the IPC was biased or lacking independence. As regards their complaint as to the length of the proceedings the Court found that a period of four years and eight months (before the IPC and on appeal to the “TRNC’s” High Administrative Court) was not unreasonable given the newness of the proceedings and what had been involved in their adjudicating the applicants’ claims.", "80. The applicant in the present case challenges the effectiveness of the IPC remedy, arguing that the procedure before the IPC by which she sought compensation for her property located in the “TRNC” has been protracted and ineffective. The Court will embark on its determination of these issues below, taking full account of the particular circumstances of the case and its findings in the aforementioned cases, particularly the principles laid down in the Demopoulos and Others judgment. 81. At this point, the Court finds it important to note that there is nothing in the applicant’s arguments and submissions which could, in itself, at present call into question the effectiveness of the IPC remedy as such.", "In particular, the Court is unable to accept the applicant’s argument that the difficulties in the execution of the just satisfaction awards in the Xenides‑Arestis group of cases undermine the effectiveness of the IPC remedy. In this context it should be remembered that the just satisfaction awards in the cases belonging to the Xenides-Arestis group have been adopted separately from the considerations relating to the assessment of the effectiveness of the IPC remedy in the Demopoulos and Others judgment (see paragraphs 77-78 above; see also Demopoulos and Others, cited above §§ 80-82; and the approach in Xenides-Arestis v. Turkey (just satisfaction), no. 46347/99, § 37, 7 December 2006, and Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, § 63 in fine, ECHR 2014). 82.", "Moreover, although it goes without saying that Contracting States are bound, in any event, to comply with the Court’s judgments (see Demopoulos and Others, cited above § 81), it should be noted that the above-mentioned difficulties concerning the just satisfaction awards in the Xenides-Arestis group of cases have arisen in the context of processes and considerations linked to the Committee of Ministers’ supervision of the execution of the Court’s judgments (see paragraphs 54 above). On the other hand, the IPC mechanism and the redress provided by that mechanism are dependent on the relevant domestic arrangements and mandatory budgetary inclusions (see paragraphs 41-43 and 45 above) that were found to be adequately established in the Demopoulos and Others judgment (cited above, § 125). At present, there is no conclusive evidence allowing the Court to call the adequacy of such arrangements into question. 83. In so far as the applicant asserted that the IPC mechanism was ineffective due to the significant number of cases pending before it and the alleged delaying and arbitrary practices of the “TRNC” authorities, the Court does not consider it possible, on the basis of the evidentiary material and information available to it, to reach such a general conclusion as to the functioning of the IPC remedy.", "The fact that there is currently a high number of pending claims cannot be relied on to prove that any particular claims have not been or will not be handled with due expedition (see Demopoulos and Others, cited above, § 125). 84. In this respect it is noted that in the above-cited Meleagrou and Others case, the Court did not find that the proceedings before the IPC had been unduly protracted or otherwise ineffective (see paragraph 79 above). Moreover, there are other cases before the Court showing that individual Greek Cypriot applicants have terminated their cases before the IPC in a satisfactory manner (see Alexandrou v. Turkey (just satisfaction and friendly settlement), no. 16162/90, 28 July 2009, and Angoulos Estate Ltd v. Turkey (dec.), no.", "36115/03, 9 February 2010) and that the awards made by the IPC have been duly enforced (see Loizou v. Turkey (dec.), no. 50646/15, § 81, 3 October 2017). 85. It is, of course, possible that the particular structural arrangement of a remedy could result in an excessive length of proceedings in the implementation of that remedy and consequently to a detraction from its effectiveness (see, for instance, Bellizzi v. Malta, no. 46575/09, § 42, 21 June 2011).", "However, there is nothing at present persuading the Court to conclude that the possible delays or difficulties arising in the processing of particular cases before the IPC call into doubt its findings in the Demopoulos and Others case (cited above, §§ 124-126), according to which that remedy is accessible and capable of efficiently delivering redress. 86. Indeed, and without prejudice to its findings regarding the applicant’s specific arguments concerning her case before the IPC, the Court emphasises that it is perfectly possible that a remedy that is in general found to be effective operates inappropriately in the circumstances of a particular case. This does not, however, mean that the effectiveness of the remedy as such, or the obligation of other applicants to avail themselves of that remedy, should be called into question (see, for instance, V.K. v. Croatia, no.", "38380/08, §§ 115-116, 27 November 2012). Nevertheless, the Court would stress that it remains attentive to the developments in the functioning of the IPC remedy and its ability to effectively address Greek Cypriot property claims. 87. Bearing in mind the above considerations, and without calling into question the effectiveness of the IPC remedy as such, the Court will deal below with the applicant’s allegations with regard to the manner in which the proceedings before the IPC operated in her particular case. (b) General principles 88.", "The Court reiterates that the essential objective of Article 1 of Protocol No. 1 is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions. However, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”. The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his or her effective enjoyment of possessions (see, amongst many others, Broniowski v. Poland [GC], no. 31443/96, § 143, ECHR 2004‑V; Öneryıldız v. Turkey [GC], no.", "48939/99, § 134, ECHR 2004‑XII; and Tunnel Report Limited v. France, no. 27940/07, § 36, 18 November 2010). 89. The boundaries between the State’s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition.", "The applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the part of the State or in terms of an interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole (see, for instance, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52; Sargsyan v. Azerbaijan [GC], no. 40167/06, § 220, ECHR 2015; see also Tunnel Report Limited, cited above, § 37).", "90. For the purposes of the first sentence of the first paragraph of Article 1 of Protocol No. 1, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In each case involving an alleged violation of Article 1 of Protocol No. 1, the Court must ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate and excessive burden.", "In assessing compliance with that requirement, the Court must make an overall examination of the various interests at issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. 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 Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 108, ECHR 2014; see also Kirilova and Others, cited above, § 106, with further references). (c) Application of these principles in the present case 91.", "The Court notes that the applicant’s complaints concerning the ineffectiveness of the proceedings before the IPC in which she sought compensation for her property located in the “TRNC” revolve around two principal issues. The first concerns the alleged lack of adequate opportunity for the applicant and her representatives to participate effectively in the proceedings − particularly in the light of the interpreting services provided − and to address the IPC; and the second concerns the protracted length of the proceedings, which commenced in 2008 and are still ongoing. The Court will address these two issues in turn. 92. With regard to the former issue, as regards the complaint relating to the interpreting services, the Court has already observed in Demopoulos and Others (cited above, § 126), that the IPC works in Turkish and in English, that the latter is in common usage in Cyprus, and that interpreters are always available during IPC proceedings (see also paragraph 43 above, Rule 7(1) in fine of the IPC Rules).", "Moreover, the Court notes, as it did in Meleagrou and Others (cited above, § 19), that the applicant was represented by lawyers who understood both Turkish and English and that, in addition to the interpreting facilities at the hearings, the applicant was able to obtain English translations of key documents, which are now also available to the Court. In this connection, it is also noted that the applicant did not complain to the IPC at the time that the inadequate interpretation and translation facilities were impeding her effective participation in the proceedings. In view of these considerations, the Court finds that no indication of unfairness or a lack of effectiveness of the proceedings arises in the circumstances. 93. The same holds true for the applicant’s complaint that she and her representatives were unable to properly address the IPC during the proceedings.", "This complaint is unsubstantiated. The applicant’s representatives were given an adequate opportunity to address the IPC and during the proceedings they never raised the issue of their inability to present the applicant’s arguments properly. Nor is there any reason for the Court to doubt that the applicant would have been able to attend the proceedings before the IPC, if she had so wished, and to raise all the issues she considered relevant for her case. Accordingly, there is nothing that persuades the Court to conclude that in this respect the proceedings fell short of the requirement of effectiveness. 94.", "With regard to the allegedly protracted length of proceedings concerning the applicant’s compensation claim, the Court notes that, in contrast to Meleagrou and Others (cited above) ‒ where the proceedings lasted four years and eight months before the IPC and the High Administrative Court of the “TRNC” ‒ the proceedings in the case at issue commenced in May 2008 and to date they have been pending before the IPC for some nine years without a formal resolution of the case being reached. The Court has already found that such an inordinate length of proceedings concerning the resolution of an applicant’s property claim is capable of seriously undermining their remedial efficacy from the perspective of Article 1 of Protocol No. 1 (see, for instance, Kirilova and Others, cited above, § 117, and Naydenov, cited above, §§ 81-84). Bearing that in mind, the Court considers that the Government would have to provide highly convincing and plausible reasons to persuade it to reach a different conclusion in the present case. 95.", "In this connection, the Court notes that a significant delay in the processing of the applicant’s compensation claim occurred in the initial stages of the proceedings before the IPC as it took the “TRNC” Attorney General two years to submit a reply to the applicant’s claim (see paragraphs 13 and 16 above). Although such an initial delay in itself is not sufficient to draw any conclusion concerning the lack of effectiveness of the proceedings, it nonetheless significantly contributed to an overall length of time which can be considered unacceptable for the resolution of a property claim under Article 1 of Protocol No. 1. 96. The Court also notes that the relevant IPC Rules require the competent “TRNC” authorities to submit their initial observations concerning a property claim within a period of thirty working days following submission of the claim (see paragraph 43 above, Rule 3(8) of the IPC Rules).", "However, although this time-limit was significantly overstepped in the case at issue, the IPC took no action aimed at ensuring that the parties’ submissions were properly obtained and administered. In this connection, the Court wishes to reaffirm the importance of administering justice without delays which might jeopardise its effectiveness and credibility. Indeed, the Court has already observed that excessive delays in the administration of justice constitute a significant threat, in particular as regards respect for the rule of law (see Di Mauro v. Italy [GC], no. 34256/96, § 23, ECHR 1999‑V). 97.", "The Court furthermore notes that the course of the proceedings before the IPC was marked by repeated and successive requests by the “TRNC” authorities for the applicant to submit additional documents concerning her property claim. In this connection it should be noted that the IPC again remained passive as regards these repeated requests, making no effort to assess their reasonableness or relevance or to ensure that the parties’ submissions were properly obtained and administered. The Court considers that such a passive attitude on the part of the IPC may have contributed to a lack of coherence in the proceedings and prolongation of the examination of the case for a significant period of time. 98. In this connection it is salutary to reiterate that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate for it to determine which documentary evidence should be submitted in proceedings (see, amongst other examples, Demopoulos and Others, cited above, § 69 in fine).", "The Court observes, for instance, that at the directions hearing in June 2010 the “TRNC” Attorney General’s representative requested that a document showing that the applicant used a Turkish Cypriot house in the South should be provided, even though such a document already existed in the file (see paragraphs 14 and 18 above). Similarly, at a preliminary hearing in April 2013 the “TRNC” representatives asked for additional certificates from the mukhtar, even though the applicant had already provided a certificate that left no doubt as to her and her aunt’s identity (see paragraphs 23 and 27 above). 99. Moreover, after the applicant had submitted all the requested documents in support of her initial and amended claim (see paragraphs 14, 23, 26 and 28 above), in October 2013, when the proceedings had already been pending for some five and a half years, the “TRNC” representatives asked for further documents to be provided. This request concerned in particular the clarification of the different spellings of the applicant’s mother’s and her aunt’s names, the marital status and succession of her aunt and the liabilities status of the property in question (see paragraph 29 above).", "However, the Court observes that the different spellings of the names had already been clarified several times by the mukhtar’s certificates, which also contained references to the numbers of the identity documents of the individuals in question. Furthermore, the marital status and the succession of the applicant’s aunt was apparent from the previously obtained documents (see paragraphs 23 and 26 above) and, in support of her initial claim, the applicant had already provided evidence that there were no mortgages, liabilities or other restrictions on the property in question (see paragraph 14 above). Similarly, the Court notes that it was clear from the outset that the applicant’s aunt had gifted the applicant the property in question while she was still alive in 1997, whereas an issue in that respect was raised for the first time at the meeting in March 2017, almost nine years after the applicant lodged the compensation claim. 100. The Court notes that, without having critically scrutinised the “TRNC” authorities’ requests, the IPC on numerous occasions adjourned the examination of the case.", "In this connection it is also noted that ‒ despite the applicant’s request of 16 January 2014 (see paragraph 31 above) ‒ the IPC scheduled a further examination of the case only two years later, in March 2016 (see paragraph 32 above), which again protracted the already lengthy proceedings unnecessarily. The further course of the proceedings was marked by the procedural issues relating to the applicant’s Turkish Cypriot representatives’ withdrawal from the case and the improper summoning of the applicant for the hearing on 12 October 2016 (see paragraphs 32-37 above) as well as an additional adjournment of the examination of the case in March 2017. 101. Having noted the above, the Court does not consider it insignificant that the applicant failed to duly submit some of the relevant documents in support of her application before the IPC (see paragraph 18 above) and that she provided some of the documents only two years later (see paragraph 22 above). However, it should be noted that in the meantime the applicant had acquired ownership of a further share of one of the five plots in question from her mother, which necessitated the amendment of her initial claim, and that in the period in question she had obtained a significant number of documents clarifying the circumstances of her property claim (see paragraphs 20-23 above).", "102. The Court is also mindful of the applicant’s argument that the process of obtaining such documents was time-consuming (see paragraph 66 above; see also Demopoulos and Others, cited above, § 124 in fine). In any case, the Court does not consider it plausible that the period of nine years during which the proceedings have been pending before the IPC can be explained by the applicant’s conduct alone. 103. In the Court’s view, the protracted length of the proceedings in the case at hand was due chiefly to the IPC’s manner of proceeding.", "Much of it could have been avoided if the IPC had, from the outset, tried to identify the controversial points and gather evidence in relation to them in a more efficient manner (see paragraph 43 above, Rule 7(1) of the IPC Rules; and compare Finger v. Bulgaria, no. 37346/05, § 102, 10 May 2011, and Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I). However, it failed to do so and thereby allowed the proceedings to drag on over a significant number of years without a final resolution of the case being reached. 104.", "In view of the above considerations, the Court finds that, in the present case, the IPC did not act with coherence, diligence and appropriate expedition concerning the applicant’s compensation claim as required under Article 1 of Protocol No. 1. 105. This is sufficient for the Court to conclude that there has been a violation of Article 1 of Protocol No. 1.", "106. It follows that the Government’s preliminary objection, which has been joined to the merits (see paragraph 63 above), must be rejected. However, the Court would stress that, for the present, the IPC remedy remains a remedy to be exhausted by other applicants who wish to invoke their rights under the Convention before the Court (see paragraphs 85-87 above; see also Demopoulos and Others, cited above, § 128). II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No.", "1 107. The applicant complained of a violation of Article 14 of the Convention on account of discriminatory treatment against her in the enjoyment of her right under Article 1 of Protocol No. 1. She alleged that this discrimination had been based on her national and ethnic origin, language and religious beliefs. 108.", "The Government disputed that claim. 109. The Court points out that in previous cases relating to Greek Cypriot property claims in the northern part of Cyprus it has found that it was not necessary to carry out a separate examination of the admissibility and merits of the complaint under Article 14 of the Convention. The Court does not see any reason to depart from that approach in the present case (see, most recently, Lordos and Others, cited above, § 85). III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 110. 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 and non-pecuniary damage 1. The parties’ submissions 111. With regard to the claim for pecuniary damage, within the period fixed for the submission of a claim for just satisfaction in accordance with Rule 60 of the Rules of Court, the applicant claimed restitution or, alternatively, compensation for the loss of use, interest and the current value of her plots of land. Her compensation claim was based on the 2011 valuation report and was set at EUR 2,690,962 (see paragraph 11 above).", "She stressed that this did not imply that she was seeking compensation for purported expropriation, since she considered that she was still the legal owner of the property in question. In respect of non-pecuniary damage, the applicant claimed EUR 100,000. 112. The Government argued that the applicant’s claim in respect of pecuniary damage was excessive and unfounded. The Government also considered the applicant’s claim in respect of non-pecuniary damage was unfounded in any respect.", "2. The Court’s assessment 113. The Court would stress at the outset 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, amongst many others, Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, § 33, ECHR 2014). 114.", "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 restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical ability to do so itself. If, on the other hand, national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 33, ECHR 2000‑XI, and Kurić and Others v. Slovenia (just satisfaction) [GC], no.", "26828/06, § 80, ECHR 2014). 115. As a rule, the fact that an applicant may still receive an award in respect of pecuniary damage under the domestic legal proceedings does not deprive the applicant of his or her right to claim compensation under Article 41 of the Convention (see, for instance, Mikheyev v. Russia, no. 77617/01, § 155, 26 January 2006, and S.L. and J.L.", "v. Croatia (just satisfaction), no. 13712/11, § 15, 6 October 2016, with further references). However, exceptionally, if the circumstances of the case so warrant, the Court may decide not to grant compensation as the applicant can obtain compensation at domestic level (see, for instance, Mascolo v. Italy, no. 68792/01, § 55, 16 December 2004, and Bistrović v. Croatia, no. 25774/05, § 58, 31 May 2007).", "116. As to the pecuniary damage claimed by the applicant, having regard to the procedural nature of the violation found under Article 1 of Protocol No. 1, related to the IPC’s lack of coherence, diligence and appropriate expedition concerning the applicant’s compensation claim (see paragraph 104 above), the Court considers that it is not necessary to award any amount in respect of pecuniary damage as the further course of the proceedings before the IPC, conducted in compliance with the requirements of Article 1 of Protocol No. 1, should allow the applicant to obtain compensation for her property claim (see, mutatis mutandis, Mascolo, cited above, § 55, and Bistrović, cited above, § 58). 117.", "On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage – such as distress resulting from the ineffectiveness of the proceedings before the IPC – which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 7,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 118. In the period fixed for submission of a claim for just satisfaction in accordance with Rule 60 of the Rules of Court, the applicant sought in total EUR 7,825 plus VAT, which covered the costs and expenses of her legal representation (EUR 6,325) and the cost of obtaining the valuation report (EUR 1,500).", "119. The Government considered that the applicant’s claim was unfounded as she had failed to cooperate appropriately with her representatives before the IPC and before the Court. 120. 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 considers it reasonable to award the sum of EUR 6,325, plus any tax that may be chargeable to the applicant, in respect of her claim for costs and expenses incurred until the date of the present judgment.", "FOR THESE REASONS, THE COURT 1. Joins, unanimously, to the merits the Government’s preliminary objection concerning the non-exhaustion of domestic remedies and rejects it; 2. Declares, unanimously, the applicant’s complaint that the proceedings by which she sought compensation for her property located in the “TRNC” had been protracted and ineffective, under Article 1 of Protocol No. 1, admissible; 3. Holds, unanimously, that there has been a violation of Article 1 of Protocol No.", "1; 4. Holds, unanimously, that there is no need to examine separately the admissibility and merits of the complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1; 5. 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, 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 6,325 (six thousand three hundred and twenty-five 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, by six votes to one, the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithRobert SpanoRegistrarPresident 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 Karakaş; (b) partly dissenting opinion of Judge Bianku. R.S.S.H.N. CONCURRING OPINION OF JUDGE KARAKAŞ I agree that there has been a procedural violation of Article 1 of Protocol No. 1.", "However, as the central reason for finding a violation relates to the length of proceedings before the IPC (pending for almost ten years), I think that an examination under Article 6 § 1 of the Convention would have been more appropriate. I think that Article 6 § 1 is applicable to the proceedings before the IPC (moreover, the parties did not contest this). There is no doubt that there was a dispute before the IPC concerning the applicant’s property claim. Such a dispute was for the IPC to decide at first instance followed, if necessary, by the High Administrative Court at second instance (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, §§ 35-37, ECHR 2010, citing sections 4 and 9 of Law no.", "67/2005). So the applicant was obliged to obtain a ruling from the IPC in order to bring a case before the “TRNC” High Administrative Court, which is a body integrated into the domestic system of courts (see Cyprus v. Turkey [GC], no. 25781/94, §§ 90-102 and 236, ECHR 2001‑IV, and Demopoulos and Others, cited above, §§ 92-98). These considerations are sufficient for the Court to conclude that − for the purpose of the applicant’s length-of-proceedings complaint – Article 6 § 1 is applicable to the proceedings before the IPC (see, for instance, Janssen v. Germany, no. 23959/94, § 40, 20 December 2001, and Božić v. Croatia, no.", "22457/02, § 26, 29 June 2006). This is true irrespective of the fact that the case has not yet been examined by the “TRNC” High Administrative Court, as the IPC has failed to adopt its decision over a prolonged period of time (compare Bici v. Albania, no. 5250/07, §§ 28 and 41-45, 3 December 2015). Indeed, the Court cannot overlook the length of proceedings before the IPC, as to do so would make the applicability of the reasonable-time guarantee under Article 6 § 1 wholly dependent on the IPC’s conduct and allow it to drag the proceedings on for years without them reaching the stage of the “TRNC” High Administrative Court, before which Article 6 § 1 would undoubtedly apply. In view of this, it is clear that Article 6 § 1 of the Convention is applicable to the applicant’s complaint concerning the length of proceedings before the IPC.", "On the merits, it is clear that the applicant failed to duly submit some of the relevant documents in support of her application before the IPC and that she provided some of the documents only two years later. However, in any case, the period of more than nine and a half years during which the proceedings have been pending before the IPC cannot be explained by the applicant’s conduct alone. I agree that the protracted length of the proceedings in this case was due chiefly to the IPC’s manner of proceeding. Much of it could have been avoided if the IPC had, from the outset, tried to identify the controversial points and gather evidence in relation to them in a more efficient manner (see Rule 7(1) of the IPC Rules, cited in paragraph 43 of the judgment). However, it failed to do so and thereby allowed the proceedings to drag on over a significant number of years without a final resolution of the case being reached.", "In sum, the length of the proceedings complained of is far from satisfying the reasonable-time requirement. In the judgment the Court emphasises that the violation found does not call into question the effectiveness of the IPC remedy as such (see paragraphs 86-87 and 106 of the judgment). As a result, having regard to the procedural nature of the violation found under Article 1 of Protocol No. 1, relating to the IPC’s lack of coherence, diligence and appropriate expedition concerning the applicant’s compensation claim (see paragraph 104 of the judgment), the Court considers that it is not necessary to award any amount in respect of pecuniary damage. It takes the view that, as regards pecuniary damage, the proceedings before the IPC would still allow the applicant to obtain compensation for her property claim (see paragraph 116 of the judgment).", "For this reason the Court awards only non-pecuniary damage. In view of the fact that the applicant’s property claim is still pending before the IPC, I find that her complaint concerning the length of proceedings should have been examined under Article 6 § 1 and that the remaining complaint under Article 1 of Protocol No. 1 should have been rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. PARTLY DISSENTING OPINION OF JUDGE BIANKU I agree with the finding of a violation of Article 1 of Protocol No. 1 in this case.", "However, I do not agree with the conclusion of the majority as to points 5 and 6 of the operative part. I think that the Chamber should have reserved the Article 41 issue, with a view to possibly deciding later on the applicant’s claim for pecuniary damage in the event that the IPC procedure continues to be ineffective. The choice adopted by the majority, firstly, does not reflect the case-law of the Court in similar cases; secondly, it does not take duly into account the circumstances of the case. As to the first reason, the consistency of the case-law, it is sufficient to observe that in two recent Grand Chamber judgments concerning very similar violations of Article 1 of Protocol No. 1 because of situations resulting from armed conflicts, the Court reserved the issue of Article 41 (see Sargsyan v. Azerbaijan [GC], no.", "40167/06, § 283, ECHR 2015, and Chiragov and Others v. Armenia [GC], no. 13216/05, § 224, ECHR 2015). In my opinion, the “merely” procedural nature of the violation is not such an exceptional circumstance as to justify departing from the approach adopted in those cases, an approach which constitutes the long-standing case-law of the Court (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34-46, Series A no. 330‑B). The “procedural” breach at issue in fact led to the ineffectiveness of the IPC remedy in the applicant’s case.", "Accordingly, this remedy was not able to address the applicant’s property claim, and therefore the approach applied in other TRNC cases in which the IPC remedy was not effective should have been applied. In those cases the Court reserved the question of Article 41 and later determined the issue of pecuniary damage separately (see, for instance, the judgments in the case of Xenides-Arestis v. Turkey, no. 46347/99, § 36, 22 December 2005 (merits), and Xenides-Arestis (just satisfaction), 7 December 2006). This approach would not mean that today’s judgment contests the conclusion reached in Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, ECHR 2010) that the procedure before the IPC is a priori an effective remedy.", "But at the same time it would confirm that, where the Court considers that certain remedies are effective and therefore must be exhausted, the national authorities must consistently secure the effective operation of those remedies, such as the procedure before the IPC, to all individuals in all cases. Thus, while the procedure before the IPC remains a priori an effective remedy, cases like Demopoulos should not be interpreted to mean that the national authorities obtain an “increased margin of violation” in the name of subsidiarity and that the Court has given away all control over the way the Convention rights are applied in practice. Secondly, I do not think that the solution offered by the majority in this case takes duly into account the circumstances of the case. Let me recall that the applicant was gifted several plots of land by her mother and aunt. These plots are located in Koma Tou Yialou (Kumyali), and her family lost effective use of their properties following the Turkish military intervention in northern Cyprus in July and August 1974 (see paragraph 7 of the judgment, with the references contained therein) and have not been able to access or use them since then.", "That was some forty-three years ago. Almost ten years ago the applicant initiated proceedings before the IPC with a view to obtaining compensation (see paragraph 13 of the judgment). In both Sargsyan and Chiragov, cited above, the Grand Chamber observed in relation to Article 1 of Protocol No. 1 that “the situation has continued to exist over a very lengthy period” (see Sargsyan, § 240, and Chiragov, § 200). If in those cases the expression “very lengthy” applied to situations that had continued since 1991, a fortiori it should apply to situations that have continued since 1974.", "Throughout all those years the applicant and her family have not had access to their properties. What can justify an invitation to wait almost fifty years to have access to one’s properties or to be compensated instead? As the majority rightly conclude in paragraphs 103 and 104 of the judgment, the proceedings before the IPC were so lengthy that they were in violation of Article 1 of Protocol No. 1. In these circumstances it seems to me inappropriate to give no other option to the applicant but to wait for a solution which, in her case, has proved ineffective for almost ten years and therefore in violation of Article 1 of Protocol No.", "1. If the issue of Article 41 had been reserved there would still be some hope that if the IPC proceedings continue to drag on and prove ineffective, as they have until now in the applicant’s case, judicial proceedings in Strasbourg would continue on the main issue of the case, namely compensation. Now they have become a remote possibility because the applicant would have to make a fresh application on the same subject-matter should the IPC continue to drag its feet. For these reasons I believe that reserving the Article 41 issue in this case would have been the sound solution based on our case-law and the fairest approach to the resolution of the applicant’s claims and the effective protection of her property rights, in view of a violation that has continued to exist over a very, very lengthy period. [1] Unit of area used in the Ottoman Empire and still used, in various standardised versions, in many countries which were formerly part of the Ottoman Empire.", "It was defined as “forty standard paces in length and breadth”, but varied considerably from place to place. It is considered to be the equivalent of about a quarter of an acre. See Demopoulos and Others v. Turkey (dec.) [GC], no. 46113/99, ECHR 2010 at paragraph 12, footnote 1." ]

[ "FIFTH SECTION CASE OF SEMENENKO v. UKRAINE (Application no. 52819/08) JUDGMENT STRASBOURG 20 October 2016 This judgment is final but it may be subject to editorial revision. In the case of Semenenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Erik Møse, President,Yonko Grozev,Mārtiņš Mits, judges,and Milan Blaško, 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 an application (no. 52819/08) 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 Viktor Mykolayovych Semenenko, on 30 October 2008.", "2. The applicant was represented by Ms G.V. Nazarova, a lawyer practising in Chernivtsi. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna. 3.", "On 15 October 2014 the complaint concerning the alleged unlawfulness of the applicant’s detention was 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 4. The applicant was born in 1982 and resides in Vinnytsia. 5.", "The applicant suffers from emotional instability and slight mental retardation since childhood. Several forensic psychiatric examinations found him to have sufficient mental capacity to be held criminally liable. 6. On 17 July 2007 Ms O., a tobacco kiosk seller, was stabbed to death at her working place. 7.", "On 19 July 2007 the applicant was apprehended by the police. According to the police reports, that measure was undertaken on at least two different occasions, each time in respect of an administrative (minor) offence formally unrelated to the murder. 8. Under the first police report, at 2.30 a.m. on 19 July 2007, the applicant was noted in a public place while being in a state of manifest alcohol intoxication, swearing and disturbing passers-by. When the police ordered him to produce his documents and follow them to their vehicle, he resisted in a vehement manner.", "As indicated in the apprehension report, at 10.30 a.m. on 19 July 2007 the applicant was taken to the court for the examination of the above administrative offence case. 9. In the morning on the same day the Vinnytsya Leninskyy District Court (“the Leninskyy Court”) found the applicant guilty of the administrative offence of resisting the police and fined him 150 Ukrainian hryvnias (around 14 euros). 10. It is not known what exactly happened next.", "The case file contains two more reports on the applicant’s administrative apprehension dated 19 July 2007. According to one of them, he was released at 9.40 p.m. on that date, without any further details being indicated. As noted in the other report, at 10.10 p.m. on that day the applicant was apprehended again in respect of an administrative offence. According to the related judicial ruling of 20 July 2007 (see paragraph 14 below), at 3.25 p.m. on 19 July 2007 the police apprehended the applicant in a street after he resisted to an identity check. 11.", "It appears from the materials of the criminal proceedings against the applicant, which were instituted later (see paragraph 19 below), that on 19 July 2007 he was questioned in respect of Ms O.’s murder. He submitted that he had bought cigarettes at her kiosk on 17 July 2007, without anything unusual having happened. The case file does not contain any further information regarding that questioning. 12. On the same day the applicant had a conversation with his cell-mate in the temporary detention facility, Yu., who convinced him to confess to the murder.", "He also promised the applicant money in exchange for the information as to where the applicant had thrown the knife. The applicant drew a scheme. Subsequently the police found the knife at the indicated place. Yu.’s statements and the related material evidence were eventually relied on by the trial court in the criminal proceedings against the applicant. 13.", "Still on 19 July 2007, from 6.30 to 7.30 p.m., the police carried out a search in the applicant’s flat in the context of the investigation of the murder of Ms O. It appears that they seized his shirt. 14. On 20 July 2007 the Leninskyy Court found the applicant guilty of the administrative offence of resisting the police at 3.25 p.m. on 19 July 2007 (see also paragraph 10 above) and sentenced him to five days’ administrative detention to be calculated from 19 July (at 3.25 p.m.) to 23 July 2007. 15.", "On the same day the applicant was questioned as a witness in the murder case. He reiterated his statement that he had only bought cigarettes at Ms O.’s kiosk. 16. On 21 July 2007 the applicant was questioned again as a witness concerning the murder of Ms O. He confessed to having stabbed her several times after she had refused to give him cigarettes without payment.", "17. On the same day the applicant repeated his confession during a reconstruction of the crime. He also showed where he had thrown the knife. 18. Later on 21 July 2007 the applicant was questioned as a criminal suspect.", "The questioning took place in the presence of a lawyer appointed for him. As noted in the investigator’s decision to that effect, there were sufficient reasons to suspect the applicant of the murder and, given the fact that he suffered from a mental disorder, his legal representation was mandatory. During that questioning the applicant retracted his earlier confession and submitted that he had not been at the tobacco kiosk on the day of the murder. He explained that he had invented his confession being scared that otherwise he would not be released. 19.", "On 23 July 2007 at 9.20 p.m. the applicant was formally arrested on suspicion of Ms O.’s murder. The arrest report noted that there were eyewitnesses who had directly pointed at him as the offender. During his questioning on that and the following day the applicant confessed to that crime. 20. On 26 July 2007 the Leninskyy Court ordered the applicant’s pre‑trial detention as a preventive measure pending trial.", "21. The trial court remitted the case for additional investigation many times. According to the case-file materials, the most recent such remittal took place on 31 October 2013. There is no information about any subsequent developments. II.", "RELEVANT DOMESTIC LAW 22. The relevant provisions of the Constitution and the Code of Criminal Procedure, as worded at the material time, can be found in Belousov v. Ukraine (no. 4494/07, §§ 41-42, 7 November 2013). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 23.", "Relying on various provisions of Article 5 of the Convention, the applicant complained that his detention until 26 July 2007 had been unlawful and arbitrary. The Court considers that this complaint falls to be examined solely under paragraph 1 of Article 5 of the Convention, the relevant part of 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 or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 24. The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 25. The applicant submitted that both his arrest at the night from 18 to 19 July 2007 and his subsequent detention had been unlawful and arbitrary.", "He further noted that his detention from 23 to 26 July 2007 had not been covered by any judicial decision. The applicant observed in this connection that the term of his administrative detention had expired on 23 July 2007, whereas he had remained detained thereafter until 26 July 2007, when the court ordered his pre-trial detention pending trial. 26. The Government contested the above arguments. They maintained that the applicant’s detention had been in compliance with the domestic legislation which, in turn, was clear and foreseeable.", "27. The Government admitted that the applicant had been questioned as a criminal suspect during his administrative detention. They argued, however, that this did not imply any denial of his procedural rights. The Government observed in this connection that already on 21 July 2007 a lawyer had been appointed for the applicant. 28.", "The applicant did not submit any observations in reply to those of the Government. 2. The Court’s assessment (a) The applicant’s detention from 19 to 23 July 2007 29. The Court notes that, as confirmed by documents and not disputed by the parties, the applicant was apprehended by the police at 2.30 a.m. on 19 July 2007. His apprehension was formally based on suspicion of an administrative (minor) offence of no relevance to the investigated murder, for which he was fined by a court at about 10.30 a.m. on that day (see paragraphs 8 and 9 above).", "30. The Court further observes that, according to the ruling of the Leninskyy Court of 20 July 2007, the applicant was apprehended again at 3.25 p.m. on 19 July 2007 for resisting to having his identity checked by the police in a street (see paragraph 14 above). 31. It follows from the above-mentioned ruling that the applicant had been released at an unspecified time after 10.30 a.m. and that at 3.25 p.m. the police decided to check his identity when he was walking in a street, to which he resisted. 32.", "Having regard to all the other case-file materials pertaining to the events of 19 July 2007, the Court has serious doubts that the applicant was ever released, even for a brief period, after his apprehension at the night from 18 to 19 July 2007. The Court takes note, in particular, of the contradictions in the available police reports: according to one of them, the applicant was released at 9.40 p.m. on that day; according to another one, he was arrested at 10.10 p.m.; whereas according to the judicial ruling mentioned above (relying on yet another police report), the applicant was arrested at 3.25 p.m. on 19 July 2007 and remained detained thereafter (see paragraphs 10 and 14 above). 33. There is unequivocal evidence in the case file that from the beginning of his detention the applicant was treated as a suspect in the case of Ms O.’s murder. Thus, he was questioned in that respect, but did not confess.", "Subsequently, his cell-mate, in a private conversation, made him confess to that murder and indicate the place where he had thrown the knife, and that conversation was reported to the police. Finally, in the evening on that day the police conducted a search at the applicant’s home and seized his shirt (see paragraphs 11-13 above). Accordingly, looking beyond the appearances and the language used, and concentrating on the realities of the situation, the Court considers that the applicant’s administrative detention was in reality part of his detention on remand under Article 5 § 1 (c) as a criminal suspect in the murder case without, however, safeguarding his procedural rights as a suspect (see Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008, and Doronin v. Ukraine, no. 16505/02, §§ 55-56, 19 February 2009).", "34. The Court does not accept the Government’s argument that the procedural rights of the applicant were sufficiently protected by the fact that a lawyer was appointed for him for one of his questionings during the administrative detention (see paragraphs 18 and 27 above). The Court notes that the applicant did not have the status of a criminal suspect then. That being so, the role of the appointed lawyer was unclear. Furthermore, the participation of that lawyer was confined to an isolated questioning, whereas numerous other investigative measures were carried out without his involvement (see paragraphs 11 and 15-17 above).", "Lastly, but particularly importantly from the standpoint of Article 5 § 1 of the Convention, the failure to duly document the applicant’s detention as being on suspicion of a criminal offence implied for him the absence of a timely judicial control (see also paragraph 40 below). 35. In the Doronin case cited above (§ 56), as well as in a number of other cases against Ukraine (see, for example, Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 88, 24 June 2010, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 178, 21 April 2011), the Court condemned such conduct by the authorities as being incompatible with the principle of legal certainty and arbitrary, and as running counter to the principle of the rule of law.", "36. In the present case, the Court finds no reason for it to depart from its findings under Article 5 § 1 of the Convention in the cases cited above and, accordingly, considers that the applicant’s detention between 19 to 23 July 2007 was in breach of that provision. (b) The applicant’s detention from 23 to 26 July 2007 37. The Court observes that from 23 to 26 July 2007 the applicant was detained upon the investigator’s order, on suspicion of murder (see paragraph 19 above). 38.", "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 enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other references, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996‑III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II). 39. The Court notes that, under Ukrainian legislation (see the reference in paragraph 22 above and also Rudnichenko v. Ukraine, no.", "2775/07, § 69, 11 July 2013), deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision. Thus, Article 29 of the Constitution permitted such a measure for a maximum of three days only as a response to an urgent need to prevent or stop a crime. According to further indications in Articles 106 and 115 of the Code of Criminal Procedure, an investigator could arrest a person if the latter was caught in flagrante delicto, was pointed out as the offender by eyewitnesses/victims, or had clear traces of the crime on his body or clothing. 40. Having regard to the circumstances of the applicant’s apprehension and noting the fact that, by the time he was formally detained as a criminal suspect he had already been in detention without judicial supervision for three days, the Court considers that his deprivation of liberty by the investigator from 23 to 26 July 2007 was in breach of the national legal safeguards and therefore unlawful within the meaning of the Convention.", "(c) Conclusion 41. In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 19 to 26 July 2007. 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 5,900 euros (EUR) in respect of pecuniary damage. He also claimed compensation in respect of non-pecuniary damage, leaving the amount at the Court’s discretion. 44. The Government contested the above 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, it awards the applicant EUR 5,000 in respect of non‑pecuniary damage. B. Costs and expenses 46.", "The applicant also claimed 8,436 Ukrainian hryvnias (at the material time equivalent to about EUR 1,000) in costs and expenses. In substantiation of this claim, he submitted copies of postal receipts for his correspondence to various Ukrainian authorities and to the Court, as well as several train tickets. He also submitted a remittance receipt in confirmation of his payment to the lawyer “for the preparation of the application to the European Court of Human Rights”. 47. The Government contested the above claim as insufficiently substantiated.", "48. 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 covering costs under all heads. C. Default interest 49. 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 5 § 1 of the Convention in respect of the applicant’s detention from 19 to 26 July 2007; 3. 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Milan BlaškoErik MøseDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF ORUÇ v. TURKEY (Application no. 33620/02) JUDGMENT STRASBOURG 21 December 2006 FINAL 21/03/2007 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 Oruç v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrR.", "Türmen,MrC. Bîrsan,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 30 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 33620/02) 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 Abdulvahap Oruç (“the applicant”), on 6 August 2002. 2. The applicant was represented by Ms N. Aktaş, a lawyer practising in İzmit. In the instant case, the Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicant alleged, in particular, that the length of the criminal proceedings brought against him was excessive. 4. On 1 December 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the criminal 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 THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961 and lives in İzmit. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7.", "On 11 June 1991 an auditor initiated an investigation into the alleged falsification of documents carried out in the applicant's pharmacy. On 4 July 1991 the auditor informed the Diyarbakir Public Prosecutor about the outcome of his investigation. 8. The Ministry of Finance and Customs filed a complaint against the applicant. Consequently, on 16 June 1993 the Public Prosecutor filed an indictment against the applicant for forgery of official documents.", "9. On 21 June 1993 the Diyarbakır Assize Court scheduled the first hearing for 20 September 1993. It requested the Diyarbakır Security Directorate to find the applicant's address. It also requested the Ministry of Finance to submit all documents that are relevant to the case. The applicant was not present during most of the hearings, however he was represented by his lawyer.", "10. On 10 May 1994, at the sixth hearing, the Ministry complied with the court's request. 11. Following the establishment of the applicant's address, his statement taken by way of rogatory letter was submitted to the case file during the hearing of 28 June 1994. Moreover, at the same hearing the court requested Bismil and Mersin Assize Courts to take the statements of two witnesses.", "These statements were submitted to the case-file at the following hearing. 12. On 28 February 1995 the court sent the case-file to an expert to comment on the allegedly forged documents. During the following seven hearings there was no reply from the expert. The trial judge has therefore rescheduled the hearing without taking any substantial or procedural decision.", "At the hearing of 14 May 1996 the expert report was submitted to the case file. 13. On 19 September 1996 the court referred the case-file to the Forensic Department in order to have their opinion on the matter. After eight hearings, on 27 January 1998, the Forensic Department submitted its report on the allegedly forged documents, but it failed to send back the case-file. On 23 June 1998 the case-file was sent back to the court.", "14. On 9 February 1999 the court requested a graphology expert at the Forensic Department to determine whether the handwriting and the signatures found on the documents belonged to the applicant. 15. On 23 December 1999 the graphology expert submitted his report. 16.", "On 18 January 2000 the Diyarbakır Assize Court found the applicant guilty of the charges and sentenced him to two years and eleven months imprisonment. 17. The applicant appealed against the judgement of the Assize Court. On 24 January 2002 the Court of Cassation upheld the decision of the Assize Court. The Court of Cassation pronounced its decision in the presence of the applicant.", "The final decision was deposited with the Registry of the first instance court on 26 February 2002. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18. The applicant complained that the length of the criminal proceedings exceeded the “reasonable time” requirement under 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...” A. Admissibility 19. The Government argued that the application is inadmissible as the applicant failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention because he did not introduce his application within six months of the Court of Cassation's decision of 24 January 2002.", "They argued that as the applicant was present during the hearing held before the Court of Cassation he did not have to wait until the decision was notified to him in writing. 20. The applicant contended that the six months should start to run from the date on which he was officially notified of the decision of the Court of Cassation. 21. The Court refers to its case-law according to which the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment in cases where the applicant is entitled, pursuant to domestic law, to be served ex officio with a written copy of the final domestic decision, irrespective of whether that judgment was previously delivered orally (see, Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997‑V, p. 1547, § 33; Venkadajalasarma v. The Netherlands (dec.), no.58510/00, 9.7.2002, unreported).", "Whereas in cases where the domestic law does not provide for service, the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were definitely able to be informed of its content (see, among many others, Seher Karatas v. Turkey, no. 33179/96, § 27, 9 July 2002, and Karatepe v. Turkey (dec.), no. 43924/98, 3 April 2003). 22. The Court observes that, despite the wording of Article 33 of the Code of Criminal Procedure which stipulates that judgments and decisions of courts are to be served on the parties to the case, it is not the practice of the Criminal Divisions of the Court of Cassation to serve their decisions on defendants (see Seher Karatas, cited above, § 28).", "However, the accused and his or her lawyer have the possibility to request a copy of the judgment from the moment when the judgment of the Court of Cassation is sent back to the registry of the first instance court. 23. In the present case, the written judgment which contained detailed legal reasoning was at the disposal of the applicant and his lawyer as of 26 February 2002, when it was sent to the registry of the first-instance court. The application to the Court was introduced less than six months thereafter, namely on 6 August 2002. It follows that the Government's preliminary objection must be dismissed.", "24. 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 25. The Government argued that it was a complex case which concerned forgery of official documents. It had been difficult to find the addresses of all doctors who had their signatures under the documents which were allegedly forged. Moreover as these witnesses were living in different cities their statements had to be taken by way of rogatory letters. In their submissions the length of the proceedings was mostly due to the negligent acts of the applicant who changed his address without notifying the court.", "26. The applicant alleged that the length of the criminal proceedings was excessive. He also claimed that the authorities could have easily found his address. 27. The Court observes that the period to be taken into consideration began on 16 June 1993, when the Diyarbakır Public Prosecutor filed a bill of indictment against the applicant and ended on 24 January 2002, when the Court of Cassation upheld the judgment of the first-instance court.", "The period under consideration thus lasted eight years and seven months before two instances. 28. 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 others, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 29.", "The Court considers that, even though the case was of some complexity, it cannot be said that this in itself justified the entire length of the proceedings. 30. As regards the conduct of the applicant, the Court observes that at the beginning of the proceedings, the authorities were unable to determine the applicant's address for almost a year. After taking his statements in the very beginning of the proceedings, the court has never requested the applicant's presence. Moreover, he was represented by his lawyer throughout the proceedings.", "Thus, it does not appear that the applicant's absence has contributed significantly to the prolongation of the proceedings, as alleged by the Government. 31. As to the conduct of the domestic authorities, the Court observes that the domestic court waited for more than one year for the expert report on the allegedly forged documents to be drafted (paragraph 13). Similarly, the graphology expert at the Forensic Department took nine months to determine whether the handwriting and the signatures found on the documents belonged to the applicant (paragraphs 15 and16). During both of these periods the court rescheduled the hearings for a later date, without taking any substantial or procedural decisions.", "The Court further observes that it took the experts at the Forensic Department almost sixteen months to submit their opinion on the case-file. Additionally, the fact that these experts have failed to send the case file back to the court delayed the proceedings for five more months (paragraph 14). 32. Finally, the Court considers that what was at stake for the applicant in the domestic litigation was of considerable importance to him. It observes that a criminal case into the alleged falsification of documents carried out in the applicant's pharmacy has clearly had a negative effect on his professional life.", "33. The foregoing considerations are sufficient to enable the Court to conclude 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 violation of Article 6 § 1 of the Convention. 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 120,000 euros (EUR) in respect of pecuniary damage. He further claimed a total of EUR 30,000 for non-pecuniary damage.", "37. The Government disputed these claims. 38. As regards the alleged pecuniary damage sustained by the applicant, the Court observes that he has not produced any document in support of his claim. Accordingly, the Court dismisses the applicant's claims in respect of pecuniary damage.", "39. With regard to the non-pecuniary damage, the Court considers that the applicant may have suffered a certain amount of distress in the circumstances of the case. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 4,500 under that head. B. Costs and expenses 40.", "The applicant also claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court. 41. The Government maintained that only those expenses which were actually and necessarily incurred could be reimbursed. In this connection, they submitted that the applicant and his representative had failed to submit documents showing the costs and expenses. 42.", "According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far 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 to EUR 1,000 covering costs and expenses. C. Default interest 43. 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, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros) in respect of non‑pecuniary damage; (ii) EUR 1,000 (one thousand euros), in respect of costs and expenses; (iii) any taxes 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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "THIRD SECTION CASE OF KORONIOTIS v. GERMANY (Application no. 66046/01) JUDGMENT (Striking out) STRASBOURG 21 April 2005 FINAL 21/07/2005 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 Koroniotis v. Germany, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrL.", "Caflisch,MrC. Bîrsan,MrsM. Tsatsa-Nikolovska,MsR. Jaeger,MrE. Myjer,MrDavid Thór Björgvinsson, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 31 March 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 66046/01) 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 an applicant of both German and Greek nationality, Alexander Koroniotis (“the applicant”), on 2 November 2000. 2. The applicant was represented by his parents, Panagiotis Koroniotis and Rita Eggendinger-Koroniotis. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialrätin.", "3. The applicant complained, inter alia, about the length of proceedings before the civil courts. 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. By a partial decision of 30 January 2003 the Court declared the application partly inadmissible. 6. By a decision of 16 September 2004 the Court declared the remainder of the application admissible. 7.", "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). 8. The Government filed observations on the merits (Rule 59 § 1). THE FACTS 9.", "During the applicant's birth in a public hospital, he suffered a lack of oxygen due to a delayed Caesarean section, which resulted in the permanent paralysis of his arms and legs. 10. On 30 June 1989 the applicant, represented by his parents, filed a motion for medical malpractice against the three doctors who had assisted at his birth. 11. On 27 September 1993 the Munich Regional Court (Landgericht), by partial judgment, rejected the applicant's motion with regard to one of the doctors.", "12. On 3 November 1993 the applicant filed an appeal against the partial judgment. 13. On 26 January 1995 the Munich Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal. 14.", "On 26 March 1996 the Federal Court of Justice (Bundesgerichtshof) refused to entertain the applicant's appeal on points of law. 15. On 4 December 1996 the Regional Court rejected the applicant's remaining claims. 16. On 8 January 1998 the Court of Appeal confirmed the Regional Court's judgment.", "17. On 8 December 1998 the Federal Court of Justice refused to entertain the applicant's appeal on points of law. 18. On 18 April 2000 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint. THE LAW 19.", "On 24 September 2004 the Court dispatched a letter to the applicant's parents in order to inform them about the admissibility decision of 16 September 2004. This letter was returned on 15 October 2004 with the remark that the addressee could not be identified (Empfänger nicht zu ermitteln). 20. On 19 October and 29 December 2004 the Court dispatched that same letter by registered mail, which was returned as being undeliverable on 2 November 2004 and 14 January 2005 respectively. 21.", "In these circumstances, the Court concludes that the applicant, who has not submitted any new address, does not intend to further pursue his application. Accordingly, it is no longer justified to continue theexamination of the application within the meaning of Article 37 § 1 (a) and (c) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of the application by virtue of that Article. 22. Accordingly, the case should be struck out of the list.", "FOR THESE REASONS, THE COURT UNANIMOUSLY Decides to strike the case out of the list. Done in English, and notified in writing on 21 April 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "FIRST SECTION CASE OF ÖSTERREICHISCHER RUNDFUNK v. AUSTRIA (Application no. 35841/02) JUDGMENT STRASBOURG 7 December 2006 FINAL 07/03/2007 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 Österreichischer Rundfunk v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 16 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35841/02) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Österreichischer Rundfunk (“the applicant”), on 12 September 2002. 2. The applicant was represented by Mr G. Korn, a lawyer practising in Vienna.", "The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. On 25 May 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 is the Austrian Broadcasting Corporation (ORF), a public law foundation (Stiftung öffentlichen Rechts) with its seat in Vienna. 5. On 13 July 1999 the applicant broadcast information on the evening news of its regional television channel about the release on parole of K., head of a neo-Nazi organisation called Extra-Parliamentary Opposition True to the People (Volkstreue Ausserparlamentarische Opposition – “VAPO”) who had been sentenced under the National Socialist Prohibition Act (Verbotsgesetz, “the Prohibition Act”). This news item also mentioned his deputy S., who had been convicted under the Prohibition Act in 1995 and had been released on parole five weeks earlier.", "Its text ran as follows: “For years G. K. [full name] was known as the head of the Austrian neo-Nazi scene. But it was only after the strengthening of the Prohibition Act in 1992 that he was charged and sentenced to eleven years' imprisonment. Many other members of the VAPO were put behind bars along with him, among them H.-J. S.[full name] – who has also recently been released. K.[family name], now aged 41, made the headlines even while in prison in Krems, for instance at the first letter bomb trial.", "His release today, however, took place without much ado. Waiting journalists saw nothing but his belongings packed in boxes.” 6. While the third sentence of this text was broadcast, a picture showing S. at his trial in 1995 was broadcast for a couple of seconds. 7. The news item was followed by a brief statement of the commentator.", "He stated that K. had served seven and a half years of his sentence. The Public Prosecutor had opposed his release on parole, but the Vienna Court of Appeal had granted K.'s request, having refused his first request for early release in 1997. 8. On 23 September 1999 S. brought proceedings under Section 78 of the Copyright Act (Urheberrechtsgesetz), requesting that the applicant be prohibited from publishing his picture without his consent accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or once he had been released on parole. In addition he requested a preliminary injunction to that effect.", "9. In its submissions in reply (Klagebeantwortung) the applicant asserted that it had reported on true facts. As regards the publication of the applicant's picture the applicant referred to the Supreme Court's established case-law that Section 78 of the Copyright Act had to be interpreted in the light of Section 7a of the Media Act (see below). Given that S. was an adult who had been convicted of a crime, it followed from Section 7a (2) of the Media Act that the publication of his picture only violated his legitimate interests if it substantially prejudiced his economic advancement. Even if the claimant's legitimate interests were affected, they had to be weighed against the public interest in the publication.", "In the present case, the public interest was predominant, given that VAPO was an organisation which aimed at destroying the Austrian constitutional order and that two of its leading members, namely K. and the claimant, had been released from prison within a short period. Other media including two leading daily newspapers had also mentioned S.'s release in the context of reports on K.'s release. Finally, the applicant emphasised that under the relevant broadcasting laws it even had an obligation to impart information on political issues. 10. On 11 November 1999 the Vienna Commercial Court (Handelsgericht) granted the preliminary injunction.", "11. The Commercial Court noted that the following facts were undisputed: The claimant, who had been convicted under the Prohibition Act in 1995 and had been sentenced to eight years' imprisonment, had been one of the leading members of VAPO which aimed at fighting against democratic order in Austria. He had participated in training camps organised by VAPO which were destined to train to kill. He had been released on 7 June and K. five weeks later on 13 July 1999. On the latter date the applicant had broadcast the report at issue.", "12. As to the interpretation of Section 78 of the Copyright Act in conjunction with Section 7a of the Media Act, the Commercial Court agreed that the legitimate interests of an adult who had been convicted of a crime were only violated if the publication of his name or picture disproportionately prejudiced his economic advancement. 13. Applying this case-law to the facts of the present case, the Commercial Court noted that the report in the present case dealt mainly with K.'s release on parole. In its view there was an evident interest of S. not to have broadcast his picture taken in the course of criminal proceedings dating years back, even if the fact that he had meanwhile been released on parole was mentioned.", "S.'s picture had been widely broadcast at the time of the criminal proceedings against him. However, its broadcasting at the present stage did not add any relevant information to the report at issue, even if the criminal proceedings against him had been among the most important ones conducted under the Prohibition Act. 14. On 21 June 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal. The Court of Appeal confirmed the Commercial Court's assessment that the publication of S.'s picture had violated his legitimate interests within the meaning of Section 78 of the Copyright Act read in conjunction with Section 7a of the Media Act.", "Like the Commercial Court it stressed in particular that S.'s picture had been broadcast in the context of a report on the release of another person, K., and found that S. had an evident interest not to have his picture published in that context even if his own release dating some weeks back had also been mentioned. Even taking into account that S. had a certain degree of notoriety, his advancement within the meaning of Section 7a of the Media Act had been hampered disproportionately by the new publication of a picture taken at his trial. 15. The Supreme Court (Oberster Gerichtshof) rejected the applicant's extraordinary appeal on points of law on 13 September 2000. In the subsequent main proceedings, the Vienna Commercial Court gave judgment on 31 December 2000.", "It ordered the applicant to refrain from publishing S.'s picture without his consent if it was accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or he had been released on parole. In its reasoning it repeated the arguments which had been developed in the preliminary injunction proceedings. 16. On 29 November 2001 the Vienna Court of Appeal dismissed the applicant's appeal. It repeated the arguments set out in its judgment of 21 June 2000.", "Moreover, it referred to the Supreme Court's judgment of 13 September 2000. 17. On 12 February 2002 the Supreme Court rejected the applicant's extraordinary appeal on points of law. 18. The decision was served on the applicant's counsel on 8 April 2002.", "II. RELEVANT DOMESTIC LAW A. Regulations concerning the ORF and broadcasting 19. The general framework for broadcasting is set out in the Constitutional Act concerning the Safeguarding of the Independence of Broadcasting of 10 July 1974 (“the Constitutional Broadcasting Act”, BVG über die Sicherung der Unabhängigkeit des Rundfunks, Federal Law Gazette no. 396/1974).", "Article 1 of the Constitutional Broadcasting Act, as far as material, reads as follows: “2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.” 20. With effect of 31 December 2001 the ORF, which had been a public law corporation before, was transformed into a public law foundation, a legal entity without an owner by the Act on the Austrian Broadcasting (“the 2001 Act”, Bundesgesetz über den Österreichischen Rundfunk, Federal Law Gazette no. 83/2001).", "Those provisions of the law relating to the setting up of the ORF's organs entered into force on 1 August 2001, the law in its entirety came into force on 1 January 2002. 21. The foundation has to fulfil a public law mandate which comprises operating at least two national television programmes plus three national and nine regional radio programmes (Section 3 § 1). 22. In accordance with Section 4 § 1 the ORF has to provide comprehensive news coverage of major political, social, economic, cultural and sporting events.", "In its broadcasts it has to observe the requirements of objectivity and diversity of views and has to preserve its independence from the State, parties, other media or lobbying groups (Section 4 §§ 5 and 6). 23. Pursuant to Section 19 § 1 the ORF's bodies are the Foundation Council (Stifungsrat), the Director General (Generaldirektor), the Audience Council (Publikumsrat) and the Auditing Commission (Prüfungskommission). In the exercise of their functions, all members of these bodies are only subject to the law and are not bound by any instructions (Section 19 § 2). 24.", "Section 20 regulates the appointment of the Foundation Council. It consists of 35 members who are appointed as follows: six by the Federal Government upon proposals of the political parties represented in the National Assembly (Nationalrat), nine by the Länder, nine by the Federal Government, six by the Audience Council and five by the Central Works Council (Zentralbetriebsrat). Pursuant to Section 21 § 1, the Foundation Council is in charge of monitoring the management and of appointing the Director General. 25. The Director General is appointed for five years.", "The Foundation Council can only remove him from office with a two thirds majority (Section 22 §§ 1 and 5). The Director General runs the ORF's activitites. He is not bound by any instructions (Section 22 § 3). 26. The Audience Council is composed of 35 members representing different sectors of society.", "Its task is to represent the interests of the audience (Section 28). 27. The programme fees are fixed by the Foundation Council and are subject to approval by the Audience Council (Section 31 §§ 1 and 2). 28. Pursuant to Section 32 § 1 the ORF has to guarantee the independence of all editorial and journalistic members of its staff.", "To safeguard the latter's independence the ORF has to conclude an Editor's Statute (Redakteursstatut) with the staff representatives elected by secret ballot. 29. Section 35 provides that the Federal Communication Panel (Bundeskommunikationssenat) decides on alleged violations of the 2001 Act, unless the issue falls within the competence of the courts or administrative authorities. 30. The ORF does not have a broadcasting monopoly.", "Private broadcasters may obtain licences under the Private Radio Act (Regionalradiogesetz) and the Private Television Act (Privatfernsehgesetz). 31. The Federal Communication Panel, established by the Act on the Communication Authority Austria (Federal Law Gazette no. 32/2001) consists of five members, who are appointed for a term of six years. Three members have to be judges one of whom is elected by the Panel as its Chairperson.", "All members of the Panel are independent in the exercise of their functions and are not bound by any instructions. The Federal Communication Panel is competent to monitor the ORF's compliance with the 2001 Act (see paragraph 29 above) and to supervise the KommAustria, the authority competent for all matters of broadcasting regulation, including the granting of licences to private broadcasters and the supervision of private broadcasters' compliance with the provisions of the Private Radio Act and the Private Television Act. The decisions of the Federal Communication Panel are subject to an appeal to the Administrative Court. B. The Copyright Act 32.", "Section 78 of the Copyright Act reads as follows: “(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured...” 33. Starting with its judgment of 23 September 1997 (4 Ob 184/97, MR 1997, 302) the Supreme Court has consistently held that Section 78 of the Copyright Act has to be interpreted in the light of Section 7a of the Media Act. C. The Media Act 34. Section 7a of the Media Act reads as follows: “(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who 1. has been the victim of an offence punishable by the courts, or 2. is suspected of having committed, or has been convicted of, a punishable offence, and where the legitimate interests of that person are thereby harmed and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, Section 6(1), second sentence, shall apply.", "(2) The legitimate interests of the victim shall in any event be harmed if the publication 1. in the case of subsection (1)1, is such as to give rise to an interference with the victim's strictly private life or to his or her exposure, 2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence or may disproportionately prejudice the victim's advancement. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 35. The applicant complained that the courts' decisions violated its right to freedom of expression as provided in Article 10 of the Convention, which 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 1. The parties' submissions 36.", "The Government contested the applicant's locus standi within the meaning of Article 34 of the Convention. 37. Referring to the Convention case-law concerning territorial authorities and to the case of The Holy Monasteries v. Greece (judgment of 9 December 1994, Series A no. 301‑A), they argued that the applicant did not qualify as a “non-governmental organisation”. 38.", "The Government asserted that the applicant was, since 2001, a public law foundation without an owner. Nevertheless, it was under State control: the majority of the members of the Foundation Council, namely 18 out of 35, were appointed by the Federal Government and the Länder. Consequently, the public authorities were in a position to exercise a direct or indirect dominant influence on the applicant company, which therefore qualified as a public undertaking under EU-law (Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings directive). 39. Furthermore the applicant had a public service mandate defined by law obliging it to provide regularly and permanently one region-wide and two nation-wide radio programmes and two nation-wide television programmes.", "40. It financed its activities from programme fees fixed unilaterally by its organs, namely the Foundation Council and the Audience Council. A company of which the applicant was the sole owner was empowered by law, namely the Collection of Broadcasting Fees Act (Rundfunkgebührengesetz), to collect these fees. Private broadcasters did not have such a system of financing at their disposal. 41.", "Finally, the applicant's activities were subject to State supervision in two respects. Firstly, the Federal Communication Panel supervised the applicant company's compliance with its obligations under the 2001 Broadcasting Act. Secondly, the Audit Office (Rechnungshof) controlled its financial management. 42. The applicant contested the Government's view.", "Although it was a legal person established by public law and provided a public service, it did not exercise any sovereign powers comparable to that of an administrative authority. Relying on a decision of the Constitutional Court (of 27 June 1975, G 24, 27/74) the applicant company argued that its bodies were neither state organs nor did they exercise governmental powers. 43. Moreover, the applicant asserted that it was not acting under Government control. It argued that the 2001 Act, apart from transforming it from a public law corporation into a public law foundation, did not affect other aspects of its legal status, in particular its institutional independence.", "Its organs were established as independent bodies which did not receive any instructions in the exercise of their functions. 44. The applicant's public service mandate consisted of the duties defined in the Constitutional Broadcasting Act, and was designed to secure the enjoyment of the right to freedom of information by all citizens. Moreover, the Constitutional Broadcasting Act was also applicable to private broadcasting companies with which the applicant company competed on the media market, just like public broadcasting companies in other European countries did. 45.", "Finally, if one followed the Government's argument, public law broadcasting companies would not be able to rely on the provisions of the Convention, whereas their private competitors could, which would not be in conformity with the concept of the Convention. 2. The Court's assessment 46. The Court observes that a legal entity “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set fourth in the Convention and the Protocols thereto” may submit an application to it provided that it is a “non-governmental organisation” within the meaning of Article 34 of the Convention. The Government's line of argument was that the ORF was a governmental rather than a non-governmental organisation.", "47. In its Radio France and Others v. France decision (no. 53984/00, ECHR 2003‑X (extracts)), the Court summarised the Convention case-law relating to the question whether territorial authorities and other public law entities qualified as “governmental organisations”: “It follows from the above-mentioned decisions and judgment that the category of 'governmental organisation' includes legal entities which participate in the exercise of governmental powers or run a public service under government control. In order to determine whether any given legal person other than a territorial authority falls within that category, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities.” 48. The Court notes at the outset that the parties' submissions refer to the legal situation as described in the 2001 Act on the Austrian Broadcasting, which had entered into force on 1 January 2002 before the final decision in the present case was given and the application lodged.", "It follows that the question of the ORF's locus standi is to be assessed in the light of the provisions contained in the 2001 Act. 49. Applying the criteria set out in the Radio France decision (cited above) to the present case, the Court observes that the applicant undisputedly does not exercise governmental powers. It provides a public service and it therefore remains to be examined whether it does so under government control. 50.", "The Court observes that the basic rules for broadcasting in Austria are laid down by the 1974 Constitutional Law concerning the Safeguarding of the Independence of Broadcasting, which stipulates that any law governing broadcasting has to contain provisions to ensure the objectivity and independence of reporting. The applicant which, since 1974, was a public law corporation was transformed into a public law foundation without an owner by the 2001 Act. Its capital, though stemming from public means, is therefore no longer held by the State. The applicant finances its activities from programme fees which it can fix itself. Its mandate is set out in the 2001 Act as are the rules relating to the establishment of its organs, namely the Foundation Council, the Director General, the Audience Council and the Auditing Commission.", "51. The Foundation Council monitors the applicant's management and appoints the Director General for a period of five years. The latter is responsible for running of the applicant's activities and can only be removed by the Foundation Council acting with a two-thirds majority. The Government argued in particular that the public authorities exercise control since the Federal Government and the Länder appoint a majority of the members of the Foundation Council, namely 18 out of 35. However, the Court notes a number of features which are designed to guarantee the ORF's independence.", "Firstly, its mandate laid down in Section 4 § 1 of the 2001 Act oblige it to observe the requirements of objectivity and diversity of reporting and to preserve its independence inter alia from the State and the parties. Secondly, Section 19 § 2 provides that the members of the Foundation Council are only bound by law in the exercise of their functions and do not receive any instructions. Section 22 § 3 contains the same provision for the Director General. Thirdly, a number of provisions of the said Act guarantee the editorial and journalistic independence of the applicant's staff members. Finally, the Federal Communication Panel which monitors the ORF's compliance with the 2001 Act is an independent body consisting of a majority of judges.", "Having regard to all these elements, the Court is not convinced that the applicant is placed under “government control.” 52. Moreover, the Austrian Broadcasting does not hold a broadcasting monopoly, but operates in a sector open to competition. Private broadcasters can obtain licences under the Private Radio Act and the Private Television Act. As to the Government's argument that the applicant could rely on a method of financing which was not at the disposal of private broadcasters and was subject to the financial control of the Audit Office, the Court recalls that, even where a public broadcaster is largely dependent on public resources for the financing of its activities this it not considered to be a decisive criterion, while the fact that a public broadcaster is placed in a competitive environment is an important factor (see Radio France and Others, cited above). 53.", "In conclusion, the Court finds that the Austrian legislator has devised a framework which ensures the Austrian Broadcasting's editorial independence and its institutional autonomy. Consequently, the Austrian Broadcasting qualifies as a “non-governmental organisation” within the meaning of Article 34 of the Convention and is therefore entitled to lodge an application. 54. 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 55. The applicant, while conceding that the interference at issue had a legal basis and served a legitimate aim, contested its necessity.", "It argued in particular that the prohibition to publish Mr S.'s picture in the context of any reports about his conviction under the Prohibition Act limited its choice of the form and means of imparting information, while other media remained free to publish Mr S.'s picture in the said context. 56. In the applicant's assertion the Austrian courts had failed to duly weigh the competing interests, since they prohibited the publication of Mr S.'s picture although the accompanying text reported true facts, namely S.'s conviction under the Prohibition Act and his release from prison. Moreover, the news item at issue reported on a subject of great public interest which the applicant, given its broadcasting mandate, was obliged to cover, namely the release on parole of Mr K., a well-known neo-Nazi and leader of VAPO, an organisation which aimed at destroying the democratic order in Austria. There was an equally important public interest in reporting that only a few weeks earlier Mr K.'s deputy, Mr S., had also been released on parole.", "57. The Government's observations also concentrated on the necessity of the interference. They conceded that the news item broadcast by the applicant concerned an issue of public interest, namely the release on parole of Mr K., a leading neo-Nazi. Mr S. was only mentioned as an example of another convict in proceedings against VAPO members. Furthermore, his own release on parole a few weeks earlier was mentioned.", "The publication of a picture showing him at his trial years back did not add any information of public interest to the report. 58. Even if Mr S. enjoyed certain notoriety, the courts had rightly found that his interest not to have his picture broadcast many years after his trial prevailed over the applicant's interest to use that picture for purely illustrative purposes. This was all the more so, since Mr S. had been released a few weeks earlier and was thus just beginning to re-integrate into society. He therefore had an important interest not to have his picture shown again in the context of criminal acts the penalty of which he had already served.", "In any case, the applicant remained free to report about the events at issue without showing Mr S.'s picture. In sum, the interference with the applicant's right to freedom of expression was proportionate. 2. The Court's assessment 59. The present case concerns proceedings under the Copyright Act brought by Mr S. against the applicant in respect of a news item in which his picture was shown.", "The courts prohibited the applicant from showing Mr S.'s picture in connection with any report stating that he had been convicted under the Prohibition Act one the sentence had been executed or once he had been released on parole. It is undisputed that the courts' judgments in these proceedings constituted an interference with the applicant's right to freedom of expression. 60. It is not in dispute either that the interference was “prescribed by law” and served a legitimate aim, namely the protection of rights and reputation of others. 61.", "The parties' argument concentrated on the necessity of the interference. As regards the general principles relating to freedom of expression of the media in the context of reporting on issues of public interest and the question of assessing the necessity of an interference with that freedom, the Court refers to its established case-law in the cases of Feldek v. Slovakia (no. 29032/95, §§ 72-76, ECHR 2001‑VIII) and Scharsach and News Verlagsgesellschaft v. Austria (no. 39394/98, § 30, ECHR 2003‑XI). 62.", "In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were “relevant and sufficient” and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts' margin of appreciation. 63. As it did in comparable cases, the Court will take the following elements into account: the position of the applicant, the position of Mr S. who brought the proceedings and the nature and subject matter of the report at issue (see, for instance, Scharsach and News Verlagsgesellschaft, cited above, § 31, and Jerusalem v. Austria, no. 26958/95, § 35, ECHR 2001‑II).", "64. The applicant is the Austrian public broadcaster. The Court notes that Section 4 § 1 of the 2001 Act obliges it to cover any major new item in the field of politics. In this connection the Court's reiterates its view that the press and more generally the media have a duty to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest (see, among many other authorities, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997‑I, pp. 233-34, § 37).", "65. Mr S. who brought the proceedings at issue, is a well-known member of the neo-Nazi scene in Austria. The Court has already held in a similar case that a person expressing extremist views lays himself open to public scrutiny (see, News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 56, ECHR 2000‑I). Moreover, Mr. S. was convicted of crimes under the Prohibition Act in 1995 and was sentenced to a lengthy prison term for being a leading member of VAPO, an organisation aimed at destroying the Austrian constitutional order.", "In the domestic courts' assessment the proceedings against Mr S. were among the most important ones under the Prohibition Act. At the time of his trial his picture was widely published. 66. Turning to the nature and subject matter of the news item broadcast by the applicant, the Court notes that it was a brief report dealing mainly with the release on parole of Mr. K. the leader of VAPO and the neo-Nazi scene in Austria. Mr S. was mentioned as another convicted member of VAPO who had also been released on parole a few weeks earlier.", "It is not contested by the Government that the news item concerned an issue of public interest. Consequently, it related to a sphere in which restrictions on freedom of expression are to be strictly construed. Accordingly, the Court must exercise caution when the measures taken by the national authorities are such as to dissuade the media from taking part in the discussion of matters of public interest (see for instance Thoma v. Luxembourg, no. 38432/97, § 58, ECHR 2001‑III, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp.", "25-26, § 35). 67. The Court notes that the injunction granted by the domestic courts was phrased in broad terms. It prohibited the applicant from showing Mr S.'s picture in connection with any text mentioning his conviction under the Prohibition Act once the sentence has been executed or once he had been released on parole. 68.", "While the court agrees that there may be good reasons to prohibit the publication of a picture of a convicted person after his release on parole a number of elements are to be taken into account when weighing the individual's interest not to have his physical appearance disclosed against the public's interest in the publication of his picture. Elements that will be relevant are the degree of notoriety of the person concerned, the lapse of time since the conviction and the release, the nature of the crime, the connection between the contents of the report and the picture shown and the completeness and correctness of the accompanying text. 69. The domestic courts attached great weight to the time-element, in particular to the long lapse of time since Mr S.'s conviction, but did not pay any particular attention to the fact that only a few weeks had elapsed since his release. They did not take into account his notoriety and the political nature of the crime of which he had been convicted.", "Nor did they have regard to other important elements, namely that the facts mentioned in the news items were correct and complete and that the picture shown was related to the content of the report. 70. The latter elements distinguish the present case from a comparable case (Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004) which was declared inadmissible. In that case, the Court found no indication of a violation of Article 10 as regards the prohibition to publish a convict's picture after his release on parole.", "It had regard to the fact that the picture of B. who had been convicted under the Prohibition Act had been shown in a different context, namely in connection with the investigations in respect of a spectacular series of letter bomb attacks without mentioning that B. had been acquitted of any involvement in these attacks and without mentioning that he had served his sentence under the Prohibition Act and had been released on parole. 71. Another element which is of relevance is that the other media remained free to publish Mr S.'s picture in the said context. This has not been contested by the Government. 72.", "In sum the Court finds that the reasons adduced by the domestic courts were not “relevant and sufficient” to justify the interference. It follows that the interference was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. 73. There has accordingly been a violation of Article 10 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 10 74. The applicant complained of a violation of Article 14 taken in conjunction with Article 10, in that the contested injunction prohibited it from publishing Mr S.'s picture while other media remained free to do so. 75. The Government contested that argument. 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 the finding relating to Article 10 (see paragraph 71 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 14 taken in conjunction with Article 10 (see, among other authorities, News Verlags GmbH & Co.KG, cited above, §§ 61-62). 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 6,711.63 euros (EUR) as compensation for pecuniary damage, namely the costs the courts had ordered it to reimburse to Mr. S. This sum includes value-added tax (VAT) which the applicant asserts it cannot recover. 80. The Government commented in general terms that there must be a causal link between the damage claimed and the violation found.", "81. The Court finds that there is a causal link between the violation found and the pecuniary damage claimed; it awards the sum in full, that is EUR 6,711.63. B. Costs and expenses 82. The applicant also claimed EUR 13,190.67 for the costs and expenses incurred before the domestic courts.", "It accepted that the amount of VAT included in this sum, namely EUR 1,892.74, have to be deducted. Moreover, the applicant claimed EUR 7,019.28 for costs and expenses incurred before the Court. 83. The Government accepted the amounts claimed, but submitted that 20% VAT, i.e. EUR 1,169.88, had to be deducted from the costs incurred before the Court.", "84. 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. 85. In the present case, regard being had to the information in its possession and the above criteria, the Court awards EUR 11,297.93 in respect of costs and expenses incurred before the domestic court and EUR 5,849.40 for the proceedings before the Court. The total amount, which does not include VAT, is EUR 17,147.33.", "C. Default interest 86. 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 that there is no need to examine the complaint under Article 14 of the Convention taken in conjunction with Article 10; 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 6,711.63 (six thousand seven hundred eleven euros and sixty-three cents) in respect of pecuniary damage and EUR 17,147.33 (seventeen thousand one hundred forty-seven euros and thirty-three cents) 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 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF SYLLA v. THE NETHERLANDS (Application no. 14683/03) JUDGMENT STRASBOURG 6 July 2006 FINAL 06/10/2006 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 Sylla v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrL. Caflisch,MrC. Bîrsan,MrV. Zagrebelsky,MrsA. Gyulumyan,MrE.", "Myjer, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 15 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14683/03) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Béliard Sylla (“the applicant”), on 29 April 2003. 2. The applicant was represented by Ms J. Serrarens, a lawyer practising in Maastricht.", "The Netherlands Government (“the Government”) were represented by their Agent, Ms. J. Schukking, of the Netherlands Ministry of Foreign Affairs. 3. On 6 October 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the applicant’s complaint that the weekly routine strip-searches to which he had been subjected between 22 May 2002 and 4 February 2003 in the course of his stay in the maximum security institution (Extra Beveiligde Inrichting – “EBI”) breached his rights under Article 3 of the Convention. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of this part of the application at the same time as its admissibility. It rejected the remainder of the applicant’s complaints.", "4. In accordance with Article 36 § 1 of the Convention and Rule 44 of the Rules of Court, the Registrar informed the French Government of their right to submit written comments. They did not avail themselves of this right. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1966 and is currently serving a prison sentence in the Netherlands. A. The circumstances of the applicant’s detention 1. The applicant’s detention prior to 4 July 2000 6. On 17 February 1998 the applicant was detained in the Netherlands on the basis of a request for his extradition by the authorities in Germany, where he was suspected of having committed a bank robbery and, during his subsequent flight and pursuit by the police, of having taken several hostages and having shot and killed one person.", "On 4 November 1998 he was extradited to Germany where, by judgment of 21 May 1999, the Duisburg Regional Court (Landgericht) convicted the applicant of extortion, attempted homicide, homicide and hostage-taking and sentenced him to life imprisonment. 7. Pending the determination of a request under the Enforcement of [Foreign] Criminal Judgments (Transfer) Act (Wet overdracht tenuitvoerlegging strafvonnissen – “WOTS”) for the applicant to be allowed to serve his sentence in the Netherlands, where he had lived since early childhood, the applicant was transferred to the Netherlands on 4 July 2000. 8. On 3 October 2000, in accordance with the provisions of the WOTS, the Hague Regional Court (arrondissementsrechtbank) gave leave for the applicant’s sentence to be executed in the Netherlands and, considering that under the Netherlands sentencing rules a life sentence fitted the nature and seriousness of the offences, the circumstances in which they had been committed and the person and personal circumstances of the applicant, imposed a life sentence.", "The applicant filed an appeal on points of law against this ruling with the Supreme Court (Hoge Raad). 9. On 26 June 2001 the Supreme Court allowed the applicant’s appeal on points of law against the ruling and quashed the decision of 3 October 2000. It held that the Regional Court had failed to examine whether or not, with regard to the possibilities of early or conditional release for persons sentenced to life imprisonment, the applicant’s situation in the Netherlands would be less advantageous than in Germany. It remitted the applicant’s case to the Amsterdam Regional Court for a fresh decision.", "At the time the application was lodged with the Court, the proceedings before the Amsterdam Regional Court were still pending. 2. The applicant’s detention in the Netherlands after 4 July 2000 10. Following his transfer from Germany to the Netherlands on 4 July 2000, the applicant was initially detained in an ordinary remand centre (huis van bewaring) in Rotterdam. On 5 December 2000 a number of items (a whet stone attachment for a rotary grinder, knotted sheets, a rope and a metal hook) were found in his cell.", "The applicant was subsequently transferred to the National Segregation Unit (Landelijke Afzonderingsafdeling) in the Nieuw Vosseveld Penitentiary Complex in Vught. 11. On 21 December 2000, on the advice of the special selection board of the maximum security institution (Extra Beveiligde Inrichting – “EBI”), the Minister of Justice decided to place the applicant in the EBI, which is part of the Nieuw Vosseveld Penitentiary Complex. His detention in the EBI was reviewed and extended by the Minister every six months. The applicant unsuccessfully challenged each decision to extend before the Appeals Board (beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing).", "On 1 April 2001 the Central Council was replaced by the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming). 3. The decision of 22 May 2002 extending the applicant’s stay in the EBI 12. On 27 May 2002, as he had done in respect of the previous decisions to extend, the applicant filed an appeal with the Appeals Board against the decision of 22 May 2002 extending his stay in the EBI by six months. He argued, inter alia, that the EBI detention regime was in breach of Articles 3 and 8 of the Convention, that he was suffering from sarcoidosis and that the environment in the EBI had a very negative effect on his health.", "13. On 1 November 2002 the Appeals Board rejected his appeal. In so far as relevant, its decision reads as follows: “On the basis of Article 6 of the Regulation on the selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000, which entered into force on 1 October 2000, detainees may be placed in the maximum security institution if they: a. are considered extremely likely to attempt to escape and pose an unacceptable risk to society in terms of the danger of their committing further serious violent crimes, or b. in the event of an escape, would pose an unacceptable risk to society, the risk of escape in itself being of lesser importance. ... The Appeals Board considers as follows: During an inspection of the [applicant’s] cell in the [Rotterdam] remand centre on 5 December 2000 a whet stone attachment [for an electrical device], a coil of ‘rope’ [made from] plaited strips of sheet and a long rope with a hook made from a broom handle, with an attached hook made from the aluminium handle of a floor sweeper, were found.", "In addition a crack was noted in the cell window. The seriousness and quite recent nature of these discoveries justify the finding that the [applicant] at present still poses an extreme risk of escape. In that connection [the Appeals Board] notes that the 1998 incidents mentioned by the [EBI] selection officer have not been taken into consideration in reaching this finding. Those incidents concern a knife found in January 1998 in a bus in which the [applicant] and three other detainees had been transported, some visitors of the applicant who in May 1998 remained in their car for a remarkably long time observing the detention facility, a fork going missing from the applicant’s cell and odd behaviour in the visitors’ room. Those incidents did not lead to the [applicant’s] being placed in the EBI at that time.", "Instead, the [applicant], after a stay in the National Segregation Unit, was transferred to an ordinary remand centre. It remains unknown whether the knife belonged to one of the detainees who had been travelling in the bus. In view of the very violent crimes the [applicant] is suspected of having committed and the subsequent pursuit in Germany and the Netherlands during which persons were taken hostage, the [applicant] – in the event of an escape – would pose an unacceptable risk to society in terms of the danger of his committing further serious violent crimes. The Appeals Board, noting the above considerations, concludes that the [applicant] falls within the category [referred to in Article 6 (a) of the Regulation on the selection, placement and transfer of detainees]. As regards the [applicant’s] reliance on [the Convention], the Appeals Board considers that the EBI regime is not in violation of the prohibition set out in Article 3 of the Convention.", "Interference with the right to respect for private and family life set forth in Article 8 of the Convention is permitted as long as such interference is in accordance with the law and is necessary in a democratic society for, inter alia, the prevention of disorder and crime. On the basis of the documents obtained it appears that the examination [to establish whether the applicant suffers from sarcoidosis] is still ongoing. In these circumstances, the argument [based on this medical condition] cannot (for the time being) succeed. The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and that, weighing up all the interests involved, it cannot be considered as unreasonable or unjust.” 14. No further appeal lay against this decision.", "4. The decision of 19 November 2002 extending the applicant’s stay in the EBI 15. By decision of 19 November 2002 the applicant’s stay in the EBI was extended by a further period of six months. He again lodged an appeal with the Appeals Board in which he argued, inter alia, that the EBI regime was in breach of Articles 3 and 8 of the Convention, in particular as regards strip-searches in the EBI and the conditions governing visits. He submitted that the EBI regime was having adverse effects on his mental and physical health.", "16. On 25 March 2003 the Appeals Board dismissed the appeal. The relevant parts of the decision read as follows: “In its decision of 1 November 2002 the Appeals Board found that the [applicant] continued to pose an extreme risk of escape. ... The Appeals Board notes that, since then, there have been no signs indicating a possible escape by the [applicant].", "Noting this, it is of the opinion that at present lesser weight is to be attached to the discovery in December 2000 and that it can no longer be said that the [applicant] poses an extreme danger of escape. However, in view of the very violent offences the [applicant] is suspected of having committed and the subsequent pursuit having taken place in Germany and the Netherlands, in which people were taken hostage and one person was killed, the [applicant], in the event of an escape, would pose an unacceptable risk to society. The Appeals Board, noting the above considerations, therefore concludes that the [applicant] falls within the category [referred to in Article 6 (b) of the Regulation on the selection, placement and transfer of detainees]. As regards the applicant’s arguments based on Articles 3 and 8 of the European Convention of Human Rights, the Appeals Board points out that, under the [1999] Prisons Act, it reviews decisions by the selection officer, in the instant case the decision to extend the [applicant’s] stay in the EBI. Consequently, it does not review the underlying detention regime as such and, therefore, the examination of the question as to whether or not the regime is in violation of Articles 3 and 8 of the Convention [falls outside the scope of the present appeal proceedings].", "The Appeals Board considers, in any event, that – having regard to the case-law of the European Court of Human Rights – it cannot be held that the EBI regime as it currently exists should be regarded as being in breach of the Convention. It does not appear from the documents that the applicant’s medical condition represents a contra-indication for a longer stay in the EBI. The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and, weighing up all the interests involved, concludes – albeit on a different ground – that it cannot be considered as unreasonable or unjust.” 17. No further appeal lay against this decision. 18.", "On 30 June 2003 the applicant was transferred from the EBI to another prison with a different regime. B. Civil proceedings against the Netherlands State 19. On 10 August 2004 another individual – who had been detained in the EBI between 26 June 1998 and 24 December 2003 – brought a civil action in tort (onrechtmatige daad) against the Netherlands State before the Hague Regional Court. One of the grounds on which he claimed payment of compensation in respect of non-pecuniary damage for unlawful acts for which he considered the Netherlands State to be liable was that, from his arrest in March 1998 until the end of December 2003, he had been subjected to inhuman and degrading treatment on account of the conditions of his detention, including having had to undergo humiliating and unnecessary strip-searches.", "He based this part of his claim on, inter alia, the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003-II) and Lorsé and Others v. the Netherlands (no. 52750/99), the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as set out in two reports (see paragraphs 47-48 below), and a report drawn up on 10 October 2003 by academic researchers on the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraph 24 below). 20. On 11 July 2005 the applicant and eight other (former) EBI detainees applied to the Regional Court for leave to join the civil action against the Netherlands State.", "Their application related to the part of the claim concerning compensation for non-pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the EBI, including having had to undergo humiliating and unnecessary strip-searches. These civil proceedings are currently still pending and, to date, no decision has been taken on the applicant’s request to join the pending civil action. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Weekly routine strip-searches in the EBI 21.", "An overview of the relevant domestic law and practice is given in the Court’s judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands (no. 50901/99, §§ 26-35, ECHR 2003-II) and in Baybaşın v. the Netherlands ((dec.), no. 13600/02, 6 October 2005). 22. On 1 March 2003, in the light of the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven (cited above) and Lorsé and Others (cited above), the EBI house rules (huisregels) were amended, with the result that the practice of weekly routine strip-searches accompanying the weekly cell inspections was abandoned.", "Under the amended Article 6(4) of the EBI house rules, strip-searches could be carried out at random during or directly after a weekly cell inspection. 23. As from 10 July 2003, pursuant to a ruling given on 7 July 2003 by the judge responsible for provisional measures (voorzieningenrechter) of the Hague Regional Court in summary injunction proceedings brought against the Netherlands State in June 2003 by thirteen EBI detainees, the random strip-searches were no longer linked to cell inspections and the EBI authorities from then on determined in the case of each individual detainee to what extent random strip‑searches were called for. The situation of each individual detainee is now discussed at the monthly EBI staff meeting on detainees. 24.", "On 10 October 2003 researchers from the Free University of Amsterdam presented a report on a study, commissioned in January 2001 by the Minister of Justice, about the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraphs 48-49 below). It concluded that the EBI regime affected the cognitive functioning of detainees in a negative manner, with particular reference to the speed of processing information and response inhibition. This was probably a result of the lack of stimuli in the detention situation. The report further concluded that the EBI regime caused more depression than a restricted community regime and that strip-searches were perceived as humiliating, constituting an extra burden for persons detained in the EBI. On the other hand, the EBI regime provided a better balance between rest and activity than a restricted community regime, as a result of which EBI detainees maintained a healthier life rhythm.", "In addition it had not been demonstrated that EBI detainees displayed more physical symptoms of persistent mental stress. B. Civil actions for compensation in tort brought against the Netherlands State 1. Judicial review by the civil courts of acts by public authorities 25. Under Netherlands law, the civil courts have traditionally had jurisdiction to grant relief against the authorities, if and in so far as no other relief is available.", "Where a person bases a claim against the authorities on an allegation that the latter has committed a tort within the meaning of Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek) against him or her, the civil courts have jurisdiction in principle. Where the civil courts have jurisdiction, they can also act in summary injunction proceedings (kort geding) in which a plaintiff can, inter alia, request the civil court to issue an order against the authorities. An act by the authorities is unlawful and constitutes a tort when it violates a right of the plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff’s interests, or to general principles of proper administration (algemene beginselen van behoorlijk bestuur). An action in tort is subject to a limitation period of five years under Article 3:310 (1) of the Civil Code. 26.", "However, as to the jurisdiction of the civil courts in cases where an administrative appeal lies, it is an established principle under Netherlands law that – given the closed system of legal remedies (gesloten system van rechtsmiddelen) in the Netherlands legal system – the civil court should refrain from examining the lawfulness of an administrative decision, provided that the administrative appeal offers sufficient guarantees as to a fair procedure. On this topic, extensive case-law has been developed by the Netherlands Supreme Court (Hoge Raad) over the last decades, supported by several authorities, to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure, the civil courts have full jurisdiction to review the lawfulness of the administrative decision. On the other hand, a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings (see Supreme Court, 12 December 1986, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1987, no. 381; see also Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, §§ 21-35 and §§ 53-56).", "27. In a case in which it gave judgment on 3 December 1971, the Supreme Court examined the question whether a party which considers that it has been injured by a judicial ruling against it can bring a subsequent civil action in tort against the State arguing that the judge failed to act with due care in giving that ruling. The Supreme Court found that this was not possible, holding that it was solely for the legislature to decide in what cases a remedy was to be provided. It would be incompatible with this principle if an unsuccessful party were to have the possibility, via a civil action, of making the correctness of a [final] judicial ruling the subject matter of new proceedings, and thus to obtain a renewed examination in another manner than that provided for by statute. It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles (fundamentele rechtsbeginselen) that the case could no longer be said to have been determined in a fair and impartial manner, and if there was no possibility of appeal nor had there ever been such a possibility, could the State be held liable for the effects of such a ruling in a civil action in tort (NJ 1972, no.", "137; see also Supreme Court, 29 April 1994, NJ 1995, no. 727; Court of Appeal of The Hague, 16 July 1998 and 12 November 1998, NJ 1999, nos. 256 and 127; and Court of Appeal of The Hague, 7 April 2000 and 18 May 2000, Administrative Law Reports (Jurisprudentie Bestuursrecht) 2000, nos. 147 and 142). 28.", "In a judgment given on 3 April 1987 concerning civil proceedings taken against the Netherlands State by an association of detainees who wished to challenge a special restricted-detention regime in a specific wing of the prison in The Hague, the Supreme Court held that, as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned (that is to say, the individual complaint procedure provided for in Article 51 et seq. of the Prison Act 1953 (Beginselenwet Gevangeniswezen) as in force at that time) and it was not in dispute that this remedy offered sufficient procedural safeguards, the plaintiff’s case had been correctly declared inadmissible, as the association had acted solely “in the context of promoting the interests of its members”, which were already safeguarded by the individual complaint procedure under Article 51 et seq. of the Prisons Act 1953 (NJ 1987, no. 744). 29.", "In a judgment given on 1 February 1991 (NJ 1991, no. 413) in a civil action against the Netherlands State brought by a co‑accused of a successful applicant in Strasbourg (Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166), the Supreme Court held: “It is embedded in the [Netherlands] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should, but must, be executed. It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity, via a claim [for damage arising from tort] against the State, to bring a fresh set of proceedings challenging the decision of the criminal court judge or the acceptability of the [criminal] proceedings leading to the decision and to have [the subject matter] reviewed by the civil courts. Considering the obligations flowing from Articles 1, 5 and 13 [of the Convention] to secure the rights set out in Article 6 [of the Convention] and to provide an effective remedy in the event of a violation of those rights, an exception must be made to the above-mentioned rules should a ruling of the European Court [of Human Rights], which the criminal court judge could not take into account in his decision, prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article 6 § 1 [of the Convention].", "When such an exceptional case occurs, immediate execution of the decision can no longer be permitted under the legal system, and the person convicted can institute interim injunction proceedings [before the civil court judge] seeking – depending on the circumstances – to have execution prohibited, suspended or limited. The nature of interim injunction proceedings and the reticence to be observed by the judge in interim injunction proceedings when examining the manner in which an irrevocable decision of the criminal court judge has come about, mean that there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of the European Court [of Human Rights] indeed requires that the above-mentioned conclusion be reached.” In this case, the Supreme Court accepted the Court of Appeal’s finding against the plaintiff in view of the fact that, when the impugned ruling was given on 22 December 1988, the Court had not yet delivered its judgment in the Kostovski case. 2. Civil actions brought by persons detained in the EBI 30. A number of persons detained in the EBI have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime, or certain aspects of it, relaxed (for further details, see Lorsé and Others, cited above, §§ 40-42).", "3. Revision of final criminal convictions 31. On 1 January 2003 an amendment to Article 457 of the Code of Criminal Procedure (Wetboek van Strafvordering – “the CCP”) entered into force, governing possible means of obtaining revision (herziening) of final judgments. This amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by the European Court of Human Rights that the criminal proceedings leading to that conviction had been in violation of the Convention. The relevant part of the amended text of Article 457 of the CCP reads as follows: “1.", "An application for revision of a final ruling (eindbeslissing) entailing a conviction which has obtained the force of res iudicata can be lodged: ... 3o. on the ground of a ruling of the European Court of Human Rights in which it has been established that [the Convention or one of its Protocols] has been violated in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of Article 41 of [the Convention].” A request for revision can be lodged with the Supreme Court by the Procurator-General, the convicted person or the latter’s lawyer within a period of three months after the convicted person has become aware of the Court’s ruling referred to in Article 457 (1), subparagraph 3 (Article 458 of the CCP). 32. If the Supreme Court accepts a request for revision based on Article 457 (1), subparagraph 3, it can either itself determine the criminal charges after reopening of the criminal proceedings, or order the suspension of execution of the original judgment and remit the case for a fresh determination to a Court of Appeal different from the one that gave the original judgment (Article 567 (2) of the CCP). 4.", "Domestic proceedings brought by applicants after proceedings under the Convention in which the Court found a violation of the Convention and in which it examined and determined claims by the applicants for just satisfaction under Article 41 of the Convention 33. In its judgment of 23 April 1997 in the case of Van Mechelen and Others v. the Netherlands (Reports 1997-III), the Court found a violation of the Convention in that the criminal proceedings against the four applicants had not been conducted in compliance with the requirements of Article 6 §§ 1 and 3 (d) of the Convention. In its judgment, it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the applicants’ claim for non-pecuniary damage, considering that that part of the applicants’ claim for just satisfaction was not ready for decision. 34. On 23 April 1997 the applicants in that case lodged a request for their immediate release from detention, failing which they would bring summary injunction proceedings against the State.", "On 25 April 1997 the Minister of Justice decided to grant them temporary release (strafonderbreking) and they were released from prison on the same day. 35. The Court determined the applicants’ claims for non-pecuniary damage in its judgment of 30 October 1997 (Van Mechelen and Others v. the Netherlands (Article 50), Reports of Judgments and Decisions 1997‑VII), in which it noted that under domestic law it was not possible for the applicants to obtain a retrial[1]. The applicants had claimed 250 Netherlands guilders (NLG) for each day spent in detention, resulting in total claims of between NLG 746,000 and NLG 752,500. After having examined the respondent Government’s comments on those claims, the Court awarded one applicant NLG 30,000 (13,613.41 euros (EUR)) and each of the three other applicants NLG 25,000 (EUR 11,344.51) for non-pecuniary damage, and rejected the remainder of the applicants’ claims for non-pecuniary damage.", "36. On 19 February 1999 the Committee of Ministers of the Council of Europe, exercising its supervisory powers under the Convention as regards the execution of the Court’s judgments of 23 April 1997 and 30 October 1997, adopted a final resolution (Res DH(99)124) in the case. Having noted the measures taken by the Netherlands on the basis of the Court’s judgments, the Committee of Ministers concluded that the manner in which the Netherlands had executed both judgments was in compliance with their obligations under the Convention. 37. On 29 April 1999 three of the four applicants brought a civil action in tort against the Netherlands State before the Hague Regional Court.", "They sought a declaratory ruling that the Netherlands State was liable for pecuniary and non-pecuniary damage arising out of unlawful administration of justice in violation of their rights under Article 6 §§ 1 and 3 (d). They sought payment of compensation corresponding to NLG 250 for each day spent in detention, less the compensation amount awarded by the Court. They based their claims on the argument that, given the Court’s findings in its judgment of 23 April 1997, it had been established that in the domestic criminal proceedings against them the Netherlands judge had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful. 38. In its judgment of 5 July 2003, following appeal proceedings brought by the Netherlands State, the Hague Court of Appeal quashed the impugned judgment given on 17 January 2001 by the Regional Court, and for the time spent in detention (pre-trial and following conviction) awarded compensation for non-pecuniary damage to the first plaintiff in the amount of EUR 190,240, less EUR 13,613.41 already awarded by the Court.", "It awarded the second plaintiff EUR 127,120, less EUR 11,344.51 awarded by the Court, and the third plaintiff EUR 127,140, less EUR 11,344.51 awarded by the Court. The Court of Appeal held, inter alia, that: “The finding of the European Court [of Human Rights] that full redress (volledige genoegdoening) by means of a ‘retrial’ in the Netherlands is not possible, means that the European Court may award compensation on grounds of equity (vergoeding naar billijkheid), but not that in subsequent civil proceedings the domestic judge can no longer award full compensation for damage (volledige schadevergoeding). The State’s argument, that [the three plaintiffs] requested compensation for damage for the first time before the European Court and not previously before the domestic judge, and that the European Court would have taken into account in its judgement the same claims for damages (schadeposten) as those now in issue in the present procedure, fails because no rule exists prohibiting the bringing of a claim before the Netherlands judge seeking compensation for damage, a part of which – namely an award in equity – has already been awarded in separate proceedings before the European Court.” 39. In its judgment of 18 March 2005 on the appeal on points of law brought by the Netherlands State against the ruling of 5 July 2003, the Supreme Court held that the State had been correct in not challenging this part of the reasoning in the impugned judgment. 40.", "On 4 February 2003 the Court delivered its judgment in the case of Lorsé and Others (cited above), finding a violation of Article 3 of the Convention in respect of the applicant Lorsé in that, during his stay in the EBI of more than six years, the applicant – who was already subjected to a great number of control measures – had been subjected to weekly routine strip-searches without convincing security reasons. It found no violation in respect of the other grievances raised by Mr Lorsé and the other applicants (his spouse and his children) under Articles 3, 8 and 13 of the Convention. As regards damages, the applicants requested the Court to award them a symbolic amount of NLG 1,000 (EUR 453.78), stating that no amount of money would be capable of compensating for the harm suffered by them. Taking the view that Mr Lorsé had sustained some non-material damage on account of the treatment which had been found contrary to Article 3, the Court awarded him for non‑pecuniary damage EUR 453.78, that is to say, the full amount claimed under that head. 41.", "On 6 February 2003 Mr Lorsé brought summary injunction proceedings against the Netherlands State before the judge responsible for provisional measures in the Civil Law Division of the Hague Regional Court, seeking an order against the State to cease with immediate effect the execution of the fifteen-year prison sentence that had been imposed on him, to release him immediately from prison and not to seek payment of the fine of NLG 1,000,000 (EUR 453,780.22) that had also been imposed. 42. On 12 February 2003 the judge responsible for provisional measures ruled on the applicant’s request. This decision, in its relevant part, reads: “3.1. The plaintiff has an urgent interest in his claim.", "The civil court judge – in this case the judge responsible for provisional measures in summary injunction proceedings – is empowered to take cognisance [of the case], as the plaintiff claims that the State has acted unlawfully toward him, inter alia by continuing his detention. 3.2. For the determination of the claim, it is a fact that the State has violated the applicant’s rights under Article 3... 3.3. Under Article 41 of [the Convention] the applicant is entitled to reparation (rechtsherstel) in respect of this irreparable violation of the Convention. If need be, he can assert that right before the courts.", "The State is deemed to be acting unlawfully towards him if no suitable form of redress is provided. 3.4. The parties provide different answers to the question as to whether the measures requested by the plaintiff ... constitute a form of redress compatible with our legal system and, if so, whether those measures are suitable and appropriate in this case. 3.5. [The judge responsible for provisional measures rejects] the argument of the State that the closed system of legal remedies in criminal proceedings and the corresponding obligation of the State to execute rulings of the criminal courts, militate against this form of redress.", "In this system, no provision has been made to date for (a suitable response to) a violation of the kind at issue in the instant case. There have been no prior similar cases, and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in existing case-law. In principle, early release or non-execution of a fine imposed may constitute a suitable form of redress for a violation of Article 3 of the Convention of the kind in issue. This exception to the closed system of legal remedies in criminal cases is, to that extent, consistent with the Supreme Court’s approach in its judgment of 1 February 1991 (NJ 1991, 413). 3.6.", "The State has referred to the financial compensation awarded by the [European Court of Human Rights] and to the satisfaction which, in the case of the applicant, lies in the fact that his complaint was declared well-founded [by the European Court of Human Rights]. However, these two elements do not form a suitable, and certainly not a sufficient, form of redress for the plaintiff. Consequently, they do not stand in the way of the claims being allowed. The plaintiff can request the domestic judge to order that additional measures be taken. 3.7.", "In reply to a question, the State stated that it was possible, in this respect, to consider measures such as the plaintiff’s serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure. ... Again, these options do not form an obstacle to allowing the claims. The first option does not constitute sufficient redress in this case, while the option of a pardon corresponds to (a request for) a concession rather than the granting of a right, which is what is at issue here. 3.8. In these circumstances, the State should release the plaintiff earlier than June 2004 [when the plaintiff becomes eligible for early release] and waive the execution of the sentence in its entirety.", "Having regard to the nature of the violation of the Convention which is an established fact, a form of redress (genoegdoening) which relates to the applicant’s liberty is more suitable, and in any event warrants greater priority than waiving payment of the part of the fine still outstanding. 3.9. No fixed standard exists for ‘offsetting’ the remaining part of the plaintiff’s prison sentence. There are no pertinent reference points on the subject in the existing legislation. This means that the amount of the compensation must be determined on an equitable basis (naar billijkheid).", "The seriousness of the violation [of the Convention] justifies reduction of the sentence by a period equal to 10% of the number of days for which the applicant was subjected to the regime in the EBI... This amounts to a reduction of 230 days (round figure)... 3.10. On the basis of this solution, the plaintiff’s claim should be rejected. Indeed, the plaintiff has no urgent interest in a provisional measure which will only take effect after about nine months [when the applicant has served his mitigated sentence]... It is assumed that the State (the Minister of Justice) will execute this ruling and release the plaintiff at a time that can be determined precisely on the basis of the standard set out here.", "If need be, the plaintiff can apply again in due course to the judge responsible for provisional measures. 3.11. Each of the parties can in fact be deemed to have been ruled against.” 43. Both parties agreed to lodge a direct “leapfrog” appeal on points of law (sprongcassatie) with the Supreme Court, which dismissed both appeals on 31 October 2003. Although it agreed with the Netherlands State that the judge responsible for provisional measures had incorrectly assumed that Article 41 of the Convention gave Mr Lorsé an (independent) right to redress which, if need be, could be asserted before the domestic judge, it held that this could not lead to the setting-aside of the judgment as, pursuant to the Convention, the State was obliged to provide redress.", "However, relying on the Court’s reasoning in the cases of Papamichalopoulos and Others v. Greece ((Article 50), judgment of 31 October 1995, Series A no. 330‑B) and Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000‑VIII), the Supreme Court considered that, although the State was in principle free to determine the manner in which redress was to be provided, that freedom did not mean that the domestic judge was unable to take a decision on that point, but simply that a suitable form of redress was to be sought within the domestic legal order. As the Netherlands State had acted unlawfully towards Mr Lorsé in so far as his rights under Article 3 had been violated, as found by the Court, Mr Lorsé was entitled to claim compensation from the State, which would be acting unlawfully if it failed to provide a suitable form of redress. The Supreme Court accepted that such compensation could be granted in a manner other than the payment of a sum of money.", "In cases such as the present one, where the violation found concerned the manner of execution of a custodial sentence, it could take the form of cessation of the execution of the sentence. The Supreme Court found that the order of the judge responsible for provisional measures to cease execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of Mr Lorsé. As regards the argument raised by the State that the closed system of legal remedies and the corresponding obligation for the State to execute rulings of the criminal courts precluded the form of redress claimed by Mr Lorsé, the Supreme Court – while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [as in the case of Van Mechelen and Others] and a situation in which the violation found was unrelated to such a conviction or proceedings [as in the case of Mr Lorsé] – held that this difference did not mean that the judge responsible for provisional measures had based point 3.5 of the impugned ruling on an incorrect interpretation of the law. Given the particular circumstances of the case, the violation of Article 3 found by the Court and the fact that there was no specific statutory remedy for determining redress for such a violation, the Supreme Court concluded that in that case an exception to the closed system of legal remedies could be accepted. It further found that the judge responsible for provisional measures had given sufficient reasons as to the determination of the compensation awarded to Mr Lorsé.", "44. In its judgment of 8 April 2003 in the case of M.M. v. the Netherlands (no. 39339/98), in which the applicant complained that his telephone conversations with a Mrs S. had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him, the Court found a violation of Article 8 of the Convention on the ground that the conversations in question had not been recorded “in accordance with the law”. As the applicant had declined to submit any claims for compensation in respect of pecuniary or non‑pecuniary damage, stating that he intended instead to pursue such claims before the domestic courts, the Court made no award for just satisfaction under those headings.", "In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings, the Court rejected the applicant’s argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case, taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant’s part, and recalling that it had already at the admissibility stage rejected the applicant’s complaints touching on the use made of the evidence obtained as a result of the violation found. 45. On an unspecified date and on the basis of the Court’s findings in its judgment of 8 April 2003, the applicant M.M. filed a request with the Supreme Court for revision of the final domestic judgment of 16 June 1995, in which the Court of Appeal – without the recorded telephone conversations having been relied on in evidence – had convicted him of having sexually assaulted Mrs S. and another woman and had sentenced him to a suspended term of four months’ imprisonment and payment of a fine of NLG 10,000 (EUR 4,537.80), to be replaced by 100 days’ detention in the event of non-payment. 46.", "On 27 September 2005 the Supreme Court accepted the request for revision and, in accordance with Article 467 (2) of the CCP, determined the matter itself. It held: “4.4. ... the State has the obligation to provide redress if the European Court of Human Rights has found a violation of a Convention provision. Such redress can be provided entirely or in part within the framework of the revision procedure, amended for this purpose. 4.5.", "Having regard to the violation of Article 8 found by the European Court of Human Rights, the Supreme Court is of the opinion that revision is necessary for the purposes of redress. To that extent, the request is well-founded. ... The request is aimed primarily at having the Supreme Court declare the prosecution inadmissible, while quashing the judgment in respect of which revision is sought. 4.6.", "The Supreme Court cannot accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible, and the instant case cannot be considered as such. In this respect the petitioner relies mistakenly on [the Supreme Court’s judgment of 19 December 1995; NL 1996, no. 249]. In that case the Supreme Court held that, in certain circumstances, a serious breach of the principles of proper proceedings may lead to the prosecution being declared inadmissible if, as a result of that breach, deliberately or owing to gross negligence of the defendant’s interests, the defendant’s right to a fair hearing has been violated. As the European Court of Human Rights, in its decision on admissibility [M.M.. v. the Netherlands (dec.), no.", "39339/98] of 21 May 2002, preceding its judgment of 8 April 2003, declared inadmissible the [applicant’s] complaint under Article 6 of the Convention as being manifestly ill‑founded, it cannot be said that there has been a serious breach of the principles of proper proceedings as a result of which, deliberately or owing to gross negligence of the [applicant’s] interests, his right to a fair hearing has been violated. 4.7. Taking into account that, in the proceedings leading to the judgment of which revision is sought, there was no breach of Article 6 and that the contents of the recorded telephone conversations were not used in evidence, there is no ground for referring the case to another Court of Appeal under Article 461 of the CCP for the purposes of obtaining redress, as requested by the petitioner in the alternative. 4.8. In the light of the importance of the provision violation and the nature and seriousness of the irreparable defects in the preliminary criminal investigation, as found by the European Court of Human Rights, the Supreme Court will, after accepting the [revision] request, determine the matter itself, in accordance with Article 467 (2) of the CCP, and reduce the fine imposed by the Court of Appeal in the following manner.” The Supreme Court quashed the original judgment of the Court of Appeal in part, that is, in respect only of the amount of the fine imposed and the duration of the alternative detention period, reducing the fine by 10% to EUR 4,000 and the duration of the alternative detention to 90 days.", "III. RELEVANT INTERNATIONAL TEXTS 47. The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as regards the EBI, as set out in its Report on the visit to the Netherlands from 17 to 27 November 1997, together with the Netherlands Government’s response to those findings, are set out in the Court’s judgment of 4 February 2003 in the case of Van der Ven (cited above, §§ 32-35). 48. The CPT visited the Netherlands again from 17 to 26 February 2002 and, in the course of this visit, carried out a follow-up visit to the EBI.", "Its findings were the following (Report to the Authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe and to the Netherlands Antilles by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in February 2002, CPT/Inf (2002) 30, excerpts): “33. At the time of the February 2002 visit, the Extra Security Institution (EBI) at the Nieuw Vosseveld Prison Complex was being renovated, and the inmates allocated to it were being held in the Temporary Extra Security Institution ((T)/EBI) building nearby (cf. paragraph 58 of CPT/Inf (98) 15). In addition to paying a brief visit to the facilities undergoing renovation, the CPT’s delegation examined the regime currently being applied, and devoted attention to the procedures governing placement and extension of placement in EBI. In the course of the visit, interviews were held with all 14 inmates, the establishment’s management and staff, as well as representatives of the EBI Selection Board.", "... c. regime 37. Following its first visit to the EBI, the CPT expressed considerable concern about the regime applied within the institution. It recommended that the regime be revised, in particular as regards certain of its features: the group system (if not discarded, to at least be relaxed and inmates to be allowed more out-of-cell time and a broader range of activities); searching policies (to be reviewed in order to ensure that they are strictly necessary from a security standpoint); and visiting arrangements (to be reviewed, the objective being to have visits take place under more open conditions) (cf. paragraphs 61 to 70 of CPT/Inf (98) 15). However, in their response (dated 1 March 1999) to the CPT’s visit report, the Dutch authorities defended point by point the different aspects of the regime being applied in the EBI (cf.", "paragraph 29 of CPT/Inf (99) 5). 38. In the course of the February 2002 visit, the Director of the Nieuw Vosseveld Prison Complex and the Acting Director of the EBI informed the CPT’s delegation that a limited number of modifications to the regime and its implementation had taken place. For instance, steps were being taken to increase staff/inmate communication through a training programme known as “Safety at the door”, as well as by the previously-mentioned adaptations of the exercise yards. Further, a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells.", "Another positive development was that the special “handcuffs regime” (cf. paragraph 8 of CPT/Inf (98) 15) had not been applied in respect of any inmate since 1999. However, despite these welcome developments, the regime in the unit was essentially the same as in 1997, and the prison’s management acknowledged that there had been “no change in most of the rules”. Although the official allowance for activities was generous (50 or more hours per week), in practice, most inmates’ out-of-cell time did not appear to have increased (averaging 2 to 4 hours per day). The stringing of plastic curtain hooks on short rods, which was performed individually in the cells, continued to be the only work offered.", "It remained the case that body searches - including anal inspections - were performed on each prisoner at least once a week 13, a process which was invariably perceived as humiliating. Conditions under which visits and sessions with non-custodial staff took place also continued to be very restrictive. Inmates’ remarks to the delegation (e.g. “losing positivity”, lacking “future feelings”, “beginning to hate people from the heart”, and/or having to cope by being “mentally separate”) frequently echoed those made in November 1997. To sum up, inmates held in the EBI remained subject to a very impoverished regime.", "39. In an environment which is potentially hazardous to the mental health of prisoners, it is of critical importance to provide a varied programme of appropriate stimulating activities (including education, sport, work of vocational value, etc.). The CPT calls upon the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff. Following a recommendation made by the CPT in its previous periodic visit report (cf.", "paragraph 70 of CPT/Inf (98) 15), the Dutch authorities commissioned the University of Nijmegen to carry out an independent study of the psychological state of current and former inmates of the EBI. A preliminary study completed on 17 April 2000 concluded that “an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible.” The Dutch authorities have indicated that such an empirical examination has in fact commenced and would be completed by Summer 2003. The CPT trusts that it will receive the results of the study in due course. One point raised by the preliminary study may be noted, i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI. The Committee would like to receive the views of the Dutch authorities on this statement.", "______ 13. Each prisoner was also subjected to such a search before and after being interviewed by members of the CPT’s delegation.” 49. The Netherlands Government responded to these findings in the following terms (CPT/Inf (2003) 39, excerpts): “The “Extra Security Institution” at the Nieuw Vosseveld Prison Complex recommendations ... - the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff (paragraph 39) Response: Prisoners in the EBI spend a total of about 52 hours a week on out-of-cell activities, and these activities are no less varied than in other prisons. They include exercise, visits, sport, work, education and recreation.", "Not all prisoners take part in all activities. What they do depends partly on interest and ability. The work in the EBI is simple. However, it is difficult to provide work that is more varied and yet meets security requirements. In principle, work in the EBI is done jointly.", "The Government refutes the claim that, on average, prisoners participate in activities for no more than between two and four hours a day. In fact they spend an average of four to five hours a day in out-of-cell activities. The Government agrees that prisoners and staff should have more contact. Fenced-off walkways for staff have now been erected in the exercise yards. They provide more opportunities for informal contact and interaction between prisoners and staff.", "The number of searches has been sharply reduced since the opening of the EBI. Besides a weekly search during cell checks, searches are carried out after visits to areas containing potentially dangerous objects, such as the hairdresser’s or the doctor’s or dentist’s surgery, and after contact with the outside world, such as visits. Searches are still necessary from the point of view of security. The Government would point out that searches are also conducted in ordinary prisons. On 4 February 2003, in two separate cases against the Netherlands, the European Court of Human Rights ruled that: “the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of article 3 of the Convention.", "There has thus been a breach of this provision.” (Van der Ven v. the Netherlands, Application no. 50901/99, ECtHR 4 February 2002, § 63; see also Lorsé et al v. the Netherlands, Application no. 52750/99, ECtHR 4 February 2002, § 74). These judgments and other considerations have prompted the Government to stop routine weekly searches in the EBI over a long period of time. The EBI’s regulations will be amended.", "... requests for information - the results of the “empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners”, being conducted by the University of Nijmegen (paragraph 39) Response: The study is expected to be completed by autumn 2003 as indicated. As soon as the findings are available, the Government will forward them to the Committee. - the views of the Dutch authorities on the statement, made in the preliminary study carried out by University of Nijmegen, to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI (paragraph 39) Response: The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime. However, opportunities to exercise influence are necessarily more restricted in the EBI than in other prisons because of the nature of the system. The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society.", "Placement in the EBI is mainly determined by considerations of safety and security. In this sense the EBI differs from other prisons. The emphasis on safety and security means that placement in the EBI does not depend on a prisoner’s behaviour but on the risk he represents.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 50. The applicant complained that the weekly routine strip-searches to which he had been subjected between 22 May 2002 and 4 February 2003 during his stay in the EBI were incompatible with his rights under 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’ submissions 51. The Government submitted that domestic remedies had not been exhausted, as the applicant had requested leave from the Hague Regional Court to join a pending civil action in tort brought by another former EBI detainee claiming, inter alia, compensation for non-pecuniary damage suffered on account of having been subjected to allegedly humiliating and unnecessary strip-searches in the EBI. Furthermore, if the applicant were to be awarded any compensation in those proceedings, he could no longer be regarded as a victim for the purposes of Article 34 of the Convention. The Government were therefore of the opinion that the application should be declared inadmissible. 52.", "The applicant, pointing out that the Regional Court had not yet ruled on his request for leave to join the pending civil action brought by another former EBI detainee, disagreed. He submitted that, even if the Regional Court were to accept his request to join the pending civil action, he could only apply to the civil court for his early release or payment of damages for the treatment to which he had been subjected in the EBI as, according to the Netherlands legal system, the civil courts did not in principle have jurisdiction to determine whether the treatment of detainees was in accordance with the Convention. Complaints about detention in the EBI and complaints about the EBI regime had to be brought before the penitentiary judge. Only if the latter refused to take a decision as to the merits could the civil judge act as a “last resort judge” within the closed system of legal remedies. However, the civil judge could not overrule the penitentiary judge’s ruling on the merits.", "2. The Court’s assessment 53. The Court reiterates the relevant principles as to exhaustion of domestic remedies as set out in, inter alia, its judgment of 28 July 1999 in the case of Selmouni v. France ([GC], no. 25803/94, §§ 74-77, ECHR 1999‑V). The purpose of Article 35 § 1 of the Convention 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.", "The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available, meaning that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. 54. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case.", "This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then 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, for instance, Reilly v. the United Kingdom (dec.), no. 53731/00, 26 June 2003). 55. In the present case, the ordinary remedy for challenging a decision to transfer to, or prolong detention in, the EBI was to appeal to the Appeals Board of the Central Council for the Administration of Criminal Justice or, after 1 April 2001, the Appeals Board of the Council for the Administration of Criminal Justice and Protection of Juveniles, a remedy of which the applicant in fact availed himself.", "The Court has further found no indication that a civil action against the State has ever been entertained by a domestic civil court on the basis of a finding that this specific remedy before the Appeals Board did not offer sufficient guarantees of fair proceedings or that in such appeal proceedings fundamental legal principles had been breached. Consequently, the Court has found no reason for concluding that, for the purposes of Article 35 § 1 of the Convention, the applicant should have turned to the civil courts after his appeals to the Appeals Board were rejected. 56. This finding is not altered by the fact that proceedings concerning the applicant’s request for leave to join a civil action brought by another former EBI detainee, filed by the applicant on 11 July 2005, are currently pending before the Regional Court, as these proceedings concern a claim for compensation in respect of non-pecuniary damage comparable to a claim under Article 41 of the Convention. The Court therefore finds it appropriate to examine this point under that provision.", "57. In these circumstances, the Court finds that the application cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. It further finds that the application is not inadmissible on any other grounds. Consequently, it must be declared admissible. B.", "Merits 58. The applicant complained that the weekly routine strip-searches to which he had been subjected between 22 May 2002 and 4 February 2003 during his stay in the EBI infringed his rights under Article 3 of the Convention. 59. The Government’s submissions did not address the merits of the case. 60.", "The Court notes that the applicant was detained from 21 December 2000 until 30 June 2003 in the EBI where, until 1 March 2003, when this practice was abandoned, he was subjected to routine weekly strip-searches. 61. The Court recalls that, in its judgments of 4 February 2003 in the cases of Van der Ven and Lorsé and Others, cited above, it found that this practice amounted to treatment contrary to Article 3 of the Convention. As regards the routine weekly strip-searches to which the applicant was subjected between 22 May 2002 and 4 February 2003, the Court sees no reason to distinguish the present case from the cases of Van der Ven and Lorsé and Others. 62.", "There has accordingly been a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 63. 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.” 64. Article 46 of the Convention reads: “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.” A. Damage 1. The parties’ submissions 65.", "The applicant, pointing out that he had been detained in the EBI for a period of two and a half years, during which he had been subjected to weekly routine strip-searches on account of which he had suffered considerable non-material damage that could not be expressed in monetary terms, claimed an amount of EUR 2,000 in compensation for non-pecuniary damage. In that connection he submitted that, in the case of Van der Ven, who had been detained in the EBI for three and a half years, the Court had made an award of EUR 3,000 under this head. 66. The Government submitted that an award for compensation for non‑pecuniary damage should be proportionate to the period of the applicant’s detention in the EBI falling within the scope of the application. In the instant case, that period was eight months.", "2. The Court’s decision 67. Having found a violation of a substantive Convention provision, the Court must now consider how Articles 41 and 46 are to be applied. The unusual situation has arisen whereby an applicant is attempting to bring proceedings in a domestic court aimed at securing a monetary award in respect of non-pecuniary damage for a violation of the Convention even before the Court itself has given judgment, notwithstanding the fact that in the light of the Court’s findings in the cases of Van der Ven and Lorsé and Others v. the Netherlands, cited above, the instant case can be qualified as a repetitive or “clone” case. 68.", "As regards claims for damage arising from a violation of a Convention provision, the Court cannot allow proceedings before it and proceedings in a domestic court aimed at precisely the same intended result to be actively pursued in parallel. It makes little difference in this respect whether such parallel domestic proceedings are already pending at the time when the application is lodged with the Court, in which case the application is inadmissible under Article 35 § 1 of the Convention, or whether the application is lodged with the Court first. The Court’s decision, however, cannot be the same in both cases: the Convention does not contain any provision corresponding to Article 35 § 1 covering the latter eventuality. 69. For the sake of clarity it is worth noting that the rule that domestic remedies should be exhausted does not apply to just satisfaction claims submitted to the Court under Article 41 (formerly Article 50) of the Convention (see De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment of 10 March 1972, Series A no.", "14, pp. 8-9, §§ 15-16). 70. In deciding how to address the situation that the applicant has created, the Court must have regard to the object and purpose of the Convention. These are stated in the Preamble to the Convention, the most significant passage of which is the fifth paragraph, in which the signatory Governments declare that they are “resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” of 10 December 1948 (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no.", "18, p. 16, § 34). 71. The Court must next consider its task as an institution created by the Convention. The Court’s task, set it by Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. This it does by giving judgments and decisions interpreting the provisions of the Convention in specific cases on the basis of applications submitted under Articles 33 and 34 of the Convention by High Contracting Parties and persons, non-governmental organisations or groups of individuals claiming to be victims of violations of their rights, respectively, and by giving advisory opinions on questions within its competence at the request of the Committee of Ministers (Article 47 of the Convention; see also Decision on the Competence of the Court to give an Advisory Opinion, ECHR 2004‑VI).", "72. Under Article 41 of the Convention, the Court may afford just satisfaction to a party injured by a violation of the Convention or its Protocols if the internal law of the High Contracting Party concerned does not allow complete reparation to be made. However, the Court is enjoined to do so only “if necessary”. Consequently, although the Court is sensitive to the effect which its awards under Article 41 may have and makes use of its powers under that Article accordingly (see Scordino v. Italy (no. 1) [GC], no.", "36813/97, § 176, ECHR 2006-...), the awarding of sums of money to applicants by way of just satisfaction is not one of the Court’s main duties but is incidental to its task of ensuring the observance by States of their obligations under the Convention. 73. Seen in this light, there can be no doubt of the greater importance of Article 46 of the Convention in comparison with Article 41. Under Article 46, the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties, the execution being supervised by the Committee of Ministers. One of the effects of this is that where the Court finds a violation, the respondent State has a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects.", "The respondent State remains free, subject to monitoring by the Committee of Ministers, 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 (see Scordino, cited above, § 233). Furthermore, under the Convention, particularly Article 1, in ratifying the Convention, the Contracting States undertake to ensure that their domestic law is compatible with the Convention (see Scordino, cited above, § 234). 74. In relation to a party injured by a violation of a provision of the Convention or its Protocols, 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 (see Scordino, cited above, § 246). 75.", "At the individual level as at the level of general measures, 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, neither the Court nor for that matter the Committee of Ministers having the power or the practical possibility of doing so themselves. 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 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Scordino, cited above, § 247). 76.", "It should be observed at this point that the Court makes, under Article 41, such awards as in its view constitute “just satisfaction” for the violations which it has found. Once the Court’s judgment has been executed in accordance with Article 46 – that is, once the necessary general and individual measures have been taken to put an end to the violation found and provide redress for its effects – any additional awards over and above those made by the Court are at the discretion of the competent domestic authorities. More specifically, once the Court has given judgment, found a violation of the Convention and awarded the applicant concerned compensation for damage under Article 41 for this violation, the Contracting State may – if it sees fit – grant the applicant concerned further compensation, either in the form of extra money or in another form such as mitigation of a sentence imposed, in addition to the award for just satisfaction under Article 41 of the Convention already made by the Court. This occurred for instance in the cases of Van Mechelen and Others (cited above, §§ 33-39) and Lorsé (cited above, §§ 40-43). Such voluntary additional compensatory measures, however, do not have any basis in Article 41 or 46 of the Convention nor in any other provision of the Convention and its Protocols.", "77. In the present case the Court considers that the nature of the violation found does not allow for restitutio in integrum in that – unlike a situation where criminal proceedings have been found to have infringed Article 6 of the Convention and a reopening of the criminal proceedings is possible under Netherlands law on the basis of that finding – the strip‑searches complained of, which have not caused the applicant any pecuniary damage, simply cannot be undone. Consequently, only an award for non-pecuniary damage – to be determined on an equitable basis – can be envisaged. 78. Before examining the claim for compensation in respect of non-pecuniary damage submitted by the applicant under Article 41, and having regard to the circumstances of the case, the domestic case-law as regards civil actions brought by a number of successful applicants in Strasbourg and the evolution of its workload, the Court proposes to examine what consequences may be drawn from Article 46 for the respondent State in the instant case.", "79. It is not normally for the Court to determine what may be the appropriate measures of redress for a respondent State to adopt in accordance with its obligations under Article 46. However, having regard to the fact that the violation which the Court found in the judgments in the cases of Van der Ven and Lorsé and Others, cited above, concerned a practice to which all persons detained in the EBI until 1 March 2003 were subjected, the Court would observe that general measures at the national level were undoubtedly called for in the execution of those judgments and that those measures should take into consideration the entire group of individuals affected by the practice found to be in breach of Article 3. Furthermore, such measures should be such as to remedy the Court’s finding of a violation in respect of a general practice, so that the system established by the Convention is not compromised by a large number of repetitive applications stemming from the same cause. Such measures must therefore include a mechanism for providing injured persons with compensation for the violation of the Convention established in the cases of Van der Ven and Lorsé and Others.", "In that connection the Court’s concern is to facilitate the rapid and effective correction of a defect identified in the national system of human-rights protection. Once such a defect has been identified, the national authorities have the task, subject to supervision by the Committee of Ministers, of taking – retrospectively if necessary – the necessary measures of redress in accordance with the principle of subsidiarity under the Convention, so that the Court does not have to reiterate its finding of a violation in a series of comparable cases. 80. As to the Netherlands authorities’ response to the Court’s judgments of 4 February 2003 in the cases of Van der Ven and Lorsé and Others, the Court notes that the practice of weekly routine strip-searches, which was found to be in breach of Article 3, was abolished on 1 March 2003 and that it has found the new practice as regards strip-searches in the EBI, as applied since 1 March 2003, to be compatible with Article 3 (see Baybaşın, cited above). The Court further understands that, under domestic law, it is possible for detainees who have been subjected to this particular practice found contrary to Article 3 in the cases of Van der Ven and Lorsé and Others to bring a civil action against the Netherlands State in order to obtain compensation for non-pecuniary damage sustained as a result of the practice of weekly routine strip-searches, which has now been abolished.", "81. Although it is not for the Court, but for the Committee of Ministers, to determine whether such measures are sufficient for the purposes of Article 46, it considers that these measures are likely to prevent further admissible applications to the Court stemming from the same cause. 82. The Court further understands from the ruling of 12 February 2003 by the judge responsible for provisional measures and the subsequent judgment of 31 October 2003 of the Supreme Court (see paragraphs 42-43 above), and also from the judgment of 5 July 2003 of the Court of Appeal and the subsequent judgment of 18 March 2005 of the Supreme Court (see paragraphs 38-39 above), that proceedings before the Court concerning claims for just satisfaction filed by applicants under Article 41 do not form part of the closed system of legal remedies in the Netherlands domestic legal system, as in both these sets of civil proceedings – brought against the Netherlands State by successful applicants in Strasbourg in whose cases the Court had examined and determined claims for non-pecuniary damage under Article 41 – the domestic courts agreed to consider the applicants’ claims for compensation for non-pecuniary damage arising out of the violation found by the Court, and in both cases made an award for compensation for non-pecuniary damage in addition to the award already made by the Court. 83.", "Having regard to the fact that the applicant in the instant case has already taken steps before the Hague Regional Court aimed at obtaining compensation for non-pecuniary damage suffered on account of being subjected to weekly routine strip-searches contrary to Article 3, the Court considers that in these circumstances this aspect of the case is not yet ready for decision. Without prejudging its determination of this part of the case, the Court has found no indication in the case file that the psychological impact of the EBI detention regime and the practice of weekly routine strip-searches on the applicant’s mental health would be comparable to or worse than the impact they had on Van der Ven and Lorsé, warranting an award of the same or a higher amount for non-pecuniary damage. However, the proceedings concerning the applicant’s request to the Hague Regional Court are still pending, and the Court wishes to take into account – in case it must determine the applicant’s claim under Article 41 for compensation in respect of non-pecuniary damage – the compensation for non-pecuniary damage that the applicant may obtain under domestic law (see Clooth v. Belgium, judgment of 12 December 1991, Series A no. 225, p. 17, § 52). 84.", "Consequently, the question of the application of Article 41 is not yet ready for decision and should be reserved pending a final domestic decision on this matter, due regard being had to the possibility that on this point and during the domestic proceedings a friendly settlement may be reached between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). B. Costs and expenses 85. The applicant claimed EUR 2,380, including 19% value-added tax (VAT), in respect of the costs and expenses incurred by him. According to the bill submitted, this amount corresponded to ten hours’ work by his lawyer at an hourly rate of EUR 200.", "86. The Government submitted that the lawyer’s fees claimed by the applicant merely corresponded to the number of hours worked by the applicant’s representative, without specifying to which proceedings these activities related. The Government further submitted that, as the applicant had been granted legal aid under the Netherlands legal aid scheme for the domestic proceedings as well as the proceedings before the Court, the costs claimed – in so far as they related to those proceedings – did not qualify for compensation. 87. The Court recalls that in order for costs and expenses to be included in an award 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). 88. According to Rule 60 § 2 of the Rules of Court, itemised particulars of all claims made are to be submitted, failing which the Chamber may reject the claim in whole or in part. 89. In the present case, the Court notes that the bill of fees submitted does not specify the nature of the work to which these fees relate.", "The applicant has further not indicated whether, and if so, to what extent he was granted legal aid under the Netherlands legal aid scheme for the domestic proceedings and the present proceedings before the Court. 90. Considering that, in these circumstances, this part of the applicant’s Article 41 claim is also not ready for decision, the Court considers it appropriate to reserve its determination thereof, due regard being had to the possibility that on this point also a friendly settlement may be reached between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). FOR THESE REASONS, THE COURT 1. Declares the application admissible by a majority; 2.", "Holds unanimously that there has been a violation of Article 3 of the Convention; 3. Holds unanimously that the question of the application of Article 41 of the Convention in respect of the applicant’s claims under this provision is not ready for decision; accordingly, (a) reserves the said question; (b) invites the Government and the applicants to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on 6 July 2006 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident [1] Since 1 January 2003, it has been possible to obtain a retrial in criminal cases. (See paragraph 31 above; see also Bocos-Cuesta v. the Netherlands, no.", "54789/00, § 57, 10 November 2005.)" ]

[ "FIFTH SECTION CASE OF USTIMENKO v. UKRAINE (Application no. 32053/13) JUDGMENT This version was rectified on 1 February 2016 under Rule 81 of the Rules of Court STRASBOURG 29 October 2015 FINAL 29/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ustimenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Josep Casadevall, President,Angelika Nußberger,Boštjan M. Zupančič,Ganna Yudkivska,Vincent A. De Gaetano,André Potocki,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 6 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 32053/13) 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 Konstantin Grigoryevich Ustimenko (“the applicant”), on 3 May 2013. 2. The applicant was represented by Ms Y.N. Ashchenko, a lawyer practising in Kharkiv.", "The Ukrainian Government (“the Government”) were most recently represented by their Agent, Mr B. Babin, of the Ministry of Justice. 3. The applicant alleged that he had not been duly informed about the appeal proceedings in his case and that the extension of the time-limit for appeal and the quashing of a final judgment in his favour breached the principle of legal certainty. 4. On 17 December 2014 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Dnipropetrovsk. A. Proceedings before administrative courts 6.", "On 18 October 2010 the applicant lodged with the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District Court (“the District Court”) an administrative claim against the Department of the Pension Fund for the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District (“the defendant”) seeking an increase in his pension based on the rise in the average wages in the country since his retirement. 7. On 1 December 2010 the District Court, having considered the applicant’s claim by way of an abridged administrative procedure, allowed the claim. In the judgment it was pointed out that any appeal must be lodged by the appellant within a period of ten days following their receipt of a copy thereof. 8.", "The defendant received a copy of the judgment on 27 December 2010. 9. The defendant lodged its first appeal with the District Court on 13 January 2011 and did not request an extension of the time-limit for appeal. 10. On 11 April 2011 Judge N. of the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”) dismissed the defendant’s appeal on the grounds that it had been lodged after the time-limit for appeal had expired and the defendant had failed both to explain the reasons for the late lodging of the appeal and to submit a request for an extension.", "The ruling stated that it could be appealed against before the Higher Administrative Court. The defendant did not appeal. 11. On 1 June 2011 the District Court, at the applicant’s request, issued a writ of enforcement confirming that the judgment had become final on 11 April 2011. 12.", "With effect from 1 August 2011 the defendant complied with the judgment and increased the applicant’s pension. 13. On 17 June 2011 the defendant lodged a second appeal with the District Court. By letters of 21 June and 5 July 2011 the District Court forwarded the case file, including the appeal and its copy for the applicant, to the Court of Appeal. The case file gives no indication of any steps to follow up on the matter.", "14. On 15 August 2011 the defendant lodged a third appeal, requesting that the Court of Appeal extend the time-limit for its submission. As grounds for its request the defendant stated that it “had begun the process of appealing against” the District Court’s judgment on 31 December 2010. 15. On 26 October 2011 Judge N. of the Court of Appeal scheduled a hearing for 26 January 2012 to examine the question of extending the time-limit for appeal.", "16. According to a summons dated 26 October 2011[1] addressed to both the applicant and the defendant, they were summoned to attend a hearing of the Court of Appeal on 26 January 2012 at which the court was to examine the applicant’s request for an extension of the time-limit for appeal. The summons included the warning that failure to appear would not prevent the Court of Appeal from examining the matter. 17. It is apparent from the domestic case file that no other document was added to it between 26 October 2011 and 26 January 2012.", "18. On 26 January 2012 a panel of the Court of Appeal, presided over by Judge N., extended the time-limit for appeal, stating that the defendant had missed the deadline for “valid reasons”. The Court of Appeal recounted the sequence of events in the case from 1 December 2010 to 15 August 2011, found it established that the first appeal had been lodged outside the time-limit, namely on 13 January 2011, and observed that the defendant had requested the extension because it had received a copy of the judgment only after the time-limit for appeal had already expired. 19. On 27 January 2012 Judge N. of the Court of Appeal ruled that appeal proceedings be opened, that copies of the ruling be sent to the parties, and that the applicant be sent a copy of the appeal and be invited to provide his reply.", "20. According to a summons dated 30 January 2012 and addressed to both the applicant and the defendant, they were summoned to attend a hearing of the Court of Appeal on 13 June 2012 at which the court was to examine the appeal. This summons also contained the warning that failure to appear would not prevent the Court of Appeal from examining the matter. 21. On 13 June 2012 the Court of Appeal quashed the judgment of 1 December 2010 and rejected the applicant’s claim, holding that the first-instance court had erred in its interpretation of the relevant legislation governing pensions.", "22. On 27 November 2012 the defendant sent a letter to the applicant informing him that his pension had been reduced in accordance with the decision of the Dnipropetrovsk Court of Appeal of 13 June 2012. B. Criminal investigation 23. On 12 December 2012 the applicant lodged a complaint with the prosecutor’s office for the Dnipropetrovsk Amur‑Nyzhnyodniprovskyy District alleging that Judge N. had intentionally failed to inform him about the appeal proceedings.", "24. On 29 December 2012 the prosecutor’s office made an entry in the Unified Register of Pre-Trial Investigations to investigate the suspicion that offences of delivering of an intentionally unjust court decision and of failure to enforce a court decision may have been committed. 25. On 17 May 2013 the prosecutor’s office decided to discontinue the investigation concerning the applicant’s complaint. The prosecutor’s office found, in particular, that the defendant had dispatched the original appeal against the judgment of 1 December 2010 on 31 December 2010 that is to say within the time-limit.", "As to the applicant’s allegations that he had not been informed about the reopened appeal proceedings, the prosecutor’s office noted that the case file contained copies of court summonses dated 26 October 2012 and 30 January 2012. 26. On 21 May 2013 the District Court and on 27 May 2013 the Dnipropetrovsk Regional Court of Appeal upheld the prosecutor’s decision. II. RELEVANT DOMESTIC LAW Code of Administrative Justice of 6 July 2005 27.", "Article 102 of the Code provides that the procedural time-limit can be extended if the court, at the request of a party to the proceedings, determines that the party to the proceedings missed the original time-limit for valid reasons. The question of extension may be decided in written proceedings or at a hearing, at the court’s discretion. A failure to appear by those duly notified does not prevent the court from considering the question. 28. Article 183-2 of the Code provides, inter alia, that claims concerning social and pension payments are to be considered by way of an abridged procedure without summoning the parties.", "The day after the adoption of a judgment by the first-instance court, copies thereof must be sent to the parties by registered letter. The judgment may be appealed against before a court of appeal. The decision of the court of appeal shall be final. 29. Article 186 of the Code provides that an appeal must be lodged within a period of ten days following pronouncement of a judgment.", "If the court decides to prepare a full text of the judgment after pronouncing only its operative part, or if the judgment is delivered in writing, any appeal must be lodged within a period of ten days following receipt by the appellant of a copy of the judgment. 30. At the material time, paragraph 3 of Article 189 of the Code provided that a judge rapporteur was to return to the appellant any appeal lodged outside the time-limit if no request to extend the time-limit had been lodged. 31. Article 197 of the Code provides that a court of appeal may consider an appeal sitting in camera on the basis of the evidential material in the case file in particular if the case concerns social benefits or pension payments and was decided at first instance by way of an abridged procedure.", "32. At the material time Articles 189 and 190 of the Code provided that all new cases arriving at a court of appeal were to be allocated to a judge rapporteur. The judge, having decided to open appeal proceedings, had to send the parties, within ten days of having opened those proceedings, a copy of the ruling by which the proceedings were opened, together with a copy of the appeal, and to set a time-limit for replying to the appeal. 33. Article 191 of the Code provides that parties other than the appellant have the right to reply to an appeal within the time-limit set by the judge of the administrative court of appeal in the ruling opening the appeal proceedings.", "34. Paragraph 2 of Article 211 of the Code provides that interlocutory rulings of the first-instance and appellate courts can be appealed to the courts of appeal and the Higher Administrative Court respectively, provided that such decisions prevent proceedings in the case from advancing. Objections against all other rulings can only be submitted, together with the appeal on points of law, after the first-instance court judgment has been reviewed on appeal. 35. According to Article 254, a judgment becomes final upon expiration of the time-limit for appeal if no appeal has been lodged.", "In cases where an appeal has been lodged, the judgment becomes final when the appeal is returned, when a judge of the appellate court refuses to open appeal proceedings, or when the appeal decision delivered upon review of the first-instance court’s judgment becomes final. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 36. The applicant complained that the reopening of proceedings and the quashing of the final judgment of 1 December 2010 in his favour breached the principle of legal certainty and that the principle of equality of arms had been breached in the course of proceedings before the Court of Appeal. He relied on Article 6 § 1 of the Convention which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 1.", "The parties’ submissions 37. The Government submitted that the fact that the applicant had been informed about the appeal proceedings was proved by the summonses dated 26 October 2011[2] and 30 January 2012 found in the domestic case file. They were not in a position to provide any evidence showing that the summonses in question had in fact been sent because, in accordance with the regulations in force, the registers of sent correspondence were kept for one year only and the periods relating to the summonses had expired on 26 October 2012 and 30 January 2013 respectively. Moreover, the prosecutor’s office to which the applicant complained had examined the circumstances under which the relevant decisions of the Court of Appeal had been made. The prosecutor’s office had established that the defendant had missed the time-limit for lodging its appeal because it had only received a copy of the judgment after some delay, and for this reason the Court of Appeal had had valid reasons for extending the time-limit.", "It had also established that the case file contained summonses addressed to the applicant and copies of the defendant’s appeal. These findings of the prosecutor’s office had been upheld by the domestic courts. Accordingly, the Government argued that the domestic authorities had examined the applicant’s complaint carefully and had established that the facts alleged by him were untrue. In view of these submissions, the Government maintained that the application was manifestly ill-founded. 38.", "As regards the observance of the principle of equality of arms, the applicant submitted in his application form that he had received no notification of the proceedings before the Court of Appeal after 1 June 2011 and had first learned about the proceedings concerning the defendant’s second appeal from the defendant’s letter dated 27 November 2012 explaining the reduction in his pension. In his observations in reply to the Government’s observations the applicant maintained that he had not been sent a copy of the defendant’s appeal far enough in advance and, accordingly, had not had enough time to prepare his reply. Moreover, he submitted that he had been obliged to draft his applications to the domestic courts himself, being unable to benefit from free legal assistance. As regards the reopening of proceedings in his case, the applicant submitted that the Court of Appeal’s decision to extend the time-limit for appeal had been arbitrary and the reasons given for it had not corresponded to those given by the defendant in its request for extension. The applicant insisted that his application was not manifestly ill-founded.", "2. The Court’s assessment (a) The complaints concerning the proceedings before the Court of Appeal following the extension of the time-limit for appeal 39. The Court reiterates that the principle of equality of arms requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see 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 (see Beer v. Austria, no.", "30428/96, §§ 17-20, 6 February 2001). 40. The Court observes in this respect that although in his application form the applicant stated that he had not received any notification whatsoever about the proceedings before the Court of Appeal after 1 June 2011, and in particular that he had not been sent a copy of the defendant’s appeal, in his subsequent observations the applicant stated, to the contrary, that the copy of the defendant’s appeal had not been sent to him far enough in advance, thus not allowing him enough time to prepare his reply. In view of the latter submissions, the Court finds that the applicant is no longer alleging that he did not receive a copy of the defendant’s appeal at all, but rather that he only received it after some delay. However, he failed to specify exactly when he had received the copy of the appeal and, accordingly, how important the alleged delay had been.", "Accordingly, his complaint in this respect is wholly unsubstantiated. 41. As regards the applicant’s complaint that he was not informed about the Court of Appeal hearings following the reopening of proceedings in his case, the Court observes that, in view of the lack of consistency in his submissions as to whether and when he was sent a copy of the defendant’s appeal, and given that neither party was present at the Court of Appeal hearings, the applicant has failed to make out an arguable complaint that he was placed at a substantial disadvantage vis-à-vis the defendant in the course of the proceedings before the Court of Appeal. To the extent the applicant’s complaint can be interpreted as a complaint that he was deprived of an opportunity to present his arguments in the course of a public hearing before the Court of Appeal on the merits of the defendant’s appeal, the Court observes that in the applicant’s case the only question examined on appeal was the question of the interpretation of domestic social security legislation, namely whether or not a pensioner was entitled to have his pension increased on the basis of the rising average wages in the country. The first-instance court interpreted the provisions of domestic legislation to answer this question in the affirmative, while the appellate court answered it in the negative.", "In short, the case raised a purely legal and technical question but no questions of fact or of the assessment of evidence. The Court has repeatedly held that such disputes concerning the benefits payable under social security schemes are technical and may accordingly be better dealt with in writing than in oral argument (see, for example, Miller v. Sweden, no. 55853/00, § 29, 8 February 2005, and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263). The applicant’s case fell squarely within this category.", "42. It follows that the applicant’s complaint concerning the alleged failure of the domestic courts to inform him about the appeal proceedings following the reopening of proceedings in his case is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. (b) The complaint concerning the reopening of proceedings and the quashing of the judgment 43. As regards the applicant’s complaint about the reopening of proceedings and the quashing of a final judgment in his favour, the Court notes that this part of the application raises serious issues requiring an examination of the merits. Therefore, contrary to the Government’s submissions, it 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’ submissions 44. The applicant submitted that the decision to extend the time-limit had been arbitrary.", "Whilst the defendant argued that the time-limit had been complied with, the Court of Appeal had in fact extended the time-limit on grounds which had not been argued by the defendant. Moreover, although requesting an extension, the defendant had failed to submit the postal receipt which would have supported its allegation that the initial appeal had been lodged on 31 December 2011. In the applicant’s view, this demonstrated that it had been the Court of Appeal, and not the defendant, which had sought to justify the extension of the time-limit. 45. The Government did not make any submissions on the merits of this complaint.", "2. The Court’s assessment (a) General principles 46. The Court reiterates that the right to a fair hearing before a court as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention which, in its relevant part, declares 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 presupposes respect for the principle of res judicata, that is to say the principle of the finality of judgments, according to which no party is entitled to seek review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no.", "52854/99, §§ 51 and 52, ECHR 2003-X). 47. The Court has held that if the time-limit for an ordinary appeal is extended after a considerable lapse of time, such a decision can breach the principle of legal certainty. While it is primarily within the domestic courts’ discretion to decide on any extension of the time-limit for appeal, such discretion is not unlimited. The courts are required to indicate the reasons.", "In every case, the domestic courts should verify whether the reasons for extending a time-limit for appeal can justify the interference with the principle of res judicata, especially when the domestic legislation does not limit the courts’ discretion as to either the time or the grounds for extending the time-limits (see Ponomaryov v. Ukraine, no. 3236/03, § 41, 3 April 2008). (b) Application of the above principles to the present case 48. The Court notes at the outset that, as in the Ponomaryov case (ibid. ), in the present case domestic law did not, at the material time, limit the courts’ discretion as to either the time or the grounds for extending the time-limit.", "The very concept of “valid reasons”, whereby domestic courts justified reopening the proceedings in the applicant’s case, lacks precision (see, mutatis mutandis, H. v. Belgium, 30 November 1987, § 53, Series A no. 127‑B, and Georgiadis v. Greece, 29 May 1997, § 43, Reports of Judgments and Decisions 1997‑III). In such circumstances it was all the more important for the domestic courts to indicate the reasons for their decision to extend the time-limit and reopen proceedings in the applicant’s case. 49. The Court observes that on 11 April 2011 the Court of Appeal ruled that the appeal had been lodged on 13 January 2011 that is to say outside the ten-day time-limit.", "The defendant did not appeal against this ruling to the Higher Administrative Court. Pursuant to domestic law, this meant that the judgment of the District Court became final and enforceable and the defendant complied with it increasing the applicant’s pension (see paragraphs 11 and 12 above). 50. In its request for an extension of the time-limit, lodged on 15 August 2011, the defendant appeared to argue that the time-limit had not in fact been missed because it “had begun the process of appealing” against the District Court’s judgment on 31 December 2010, that is within the time-limit. However, on 26 January 2012 the Court of Appeal found it established that the appeal had been lodged on 13 January 2011 that is outside the time-limit.", "Nevertheless, the Court of Appeal decided to extend the time-limit, merely referring, without further explanation, to “valid reasons”. 51. According to the Government, the “valid reason” referred to by the Court of Appeal was that the defendant had experienced a delay in receiving the copy of the District Court’s judgment. The Court notes, however, that neither the defendant nor the Court of Appeal cited this as the reason for the extension. In any event, that reason could not have been considered relevant to the decision to extend the time-limit, given that under domestic law the time-limit for appeal is counted from the moment when the appellant actually receives a copy of the judgment.", "52. Put differently, having implicitly rejected the only reason given by the defendant for its request to extend the time-limit, the Court of Appeal proceeded to grant the request without referring to any specific circumstances of the case, instead limiting itself to stating that the defendant had unspecified “valid reasons” for extending the time-limit. In the light of these considerations, the Court finds that the Court of Appeal extended the time-limit for appeal against a final judgment in the applicant’s favour without giving coherent reasons for its decision. 53. It follows that, by deciding to extend the time-limit for appeal against the final judgment in the applicant’s case without giving relevant reasons and subsequently quashing the judgment, the domestic courts infringed the principle of legal certainty and the applicant’s right to a fair trial under Article 6 § 1 of the Convention.", "54. There has accordingly been a violation of Article 6 § 1. 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 5,000 euros (EUR) in respect of non-pecuniary damage. 57. The Government submitted that this claim was unsubstantiated. 58.", "The Court considers that the applicant suffered non-pecuniary damage as a result of the violation found which cannot be compensated for by the mere finding of a violation. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 1,000 in respect of non-pecuniary damage. B. Costs and expenses 59. The applicant also claimed EUR 850 for the costs and expenses incurred before the Court.", "60. The Government contended that this claim was unsubstantiated. 61. 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 applicant has failed to provide any supporting documents – such as itemised bills or invoices – substantiating his claim (Rule 60 §§ 1 and 2 of the Rules of Court).", "The Court accordingly makes no award under this head. C. Default interest 62. 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 reopening of the proceedings and the quashing of the judgment of 1 December 2010 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 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekJosep CasadevallRegistrarPresident [1].", "Rectified on 1 February 2016: the text was “26 October 2012”. [2]. Rectified on 1 February 2016: the text was “26 October”." ]

[ "FIRST SECTION CASE OF MARESTI v. CROATIA (Application no. 55759/07) JUDGMENT STRASBOURG 25 June 2009 FINAL 25/09/2009 This judgment may be subject to editorial revision. In the case of Maresti v. Croatia, 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, Section Registrar, Having deliberated in private on 4 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 55759/07) 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 Armando Maresti (“the applicant”), on 26 November 2007.", "2. The applicant was represented by Mr M. Zubović, a lawyer practising in Pazin. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. On 9 June 2008 the President of the First Section decided to communicate the complaints concerning the applicant’s right of access to a court and his right not to be punished twice for the same offence 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 1965 and lives in Pazin. 1.", "Minor-offences proceedings against the applicant 5. On 16 June 2005 the Pazin Police lodged a request for minor-offences proceedings to be instituted against the applicant in the Pazin Minor-Offences Court (Prekršajni sud u Pazinu). In a decision of the same day the Pazin Minor-Offences Court found that at about 7 p.m. on 15 June 2005 at the Pazin coach terminal, the applicant had, while under the influence of alcohol, verbally insulted one D.R., punched him in the head several times and proceeded to kick and punch him about the body. The applicant was found guilty of particularly offensive behaviour in a public place in that he had insulted another and caused a breach of the peace. This constituted a minor offence under section 6 of the Minor Offences against Public Order and Peace Act for which he was sentenced to forty days’ imprisonment.", "That decision became final on 29 June 2005. The relevant part of the decision reads: “Defendant: Armando Maresti ... is guilty in that at 7 p.m. on 15 June 2005 at the coach terminal in Pazin, while under the influence of alcohol, he ... firstly insulted D.R. ... and then pushed him with both hands and, when he fought back, started to hit him with his fists many times to the head before continuing to punch and kick him about his entire body. ...” 2. Proceedings on indictment Proceedings in respect of A.M. 6.", "On 14 July 2005 the Pazin State Attorney’s Office (Općinsko državno odvjetništvo Pazin) lodged an indictment with the Pazin Municipal Court (Općinski sud u Pazinu) accusing the applicant of causing grievous bodily injury to A.M. 7. The applicant was represented in the proceedings by counsel. On 9 September 2005 his counsel submitted a written request for all correspondence to go through him and enclosed a signed authority by the applicant’s mother. At the time the applicant was serving a prison sentence in Pula Prison. Proceedings in respect of D.R.", "8. On 15 November 2005 the Pazin State Attorney’s Office lodged an indictment with the Pazin Municipal Court accusing the applicant of causing grievous bodily injury to D.R. It relied in the indictment on a police report on the events of 15 June 2005. 9. On 12 April 2006 the Municipal Court joined three separate sets of criminal proceedings against the applicant, including the proceedings in respect of the alleged assaults on A.M. and D.R.", "On the same day it ordered the applicant’s detention on the grounds that he had been indicted in several sets of proceedings, had a number of previous convictions and would be liable to reoffend if left at large. 10. On 19 May 2006 the Municipal Court found the applicant guilty on two counts of assault causing grievous bodily injury and one count of making death threats. In respect of the incident at the Pazin coach terminal on 15 June 2005, it found that the applicant had approached D.R. and insulted him verbally before proceeding to punch and kick him about the body.", "He was sentenced to one year’s imprisonment in respect of all the offences of which he was convicted. The time he had already served in connection with his conviction in the summary proceedings before the Minor-Offences Court was to be deducted from his sentence. He was ordered to undergo compulsory treatment for alcohol addiction during his imprisonment. The relevant part of the judgment reads: “Defendant Armando Maresti ... is guilty because ... 2) at about 7 p.m. on 15 June 2005. at the coach terminal in Pazin, while under the influence of alcohol, he ... approached D.R. ... and firstly insulted him verbally, ... and then proceeded to push him with both hands before hitting him on the head with his fists breaking his dental prosthesis; when he [D.R.]", "attempted to leave, the defendant caught him, pushed him to the ground and kicked him about his entire body thereby causing him a number of injuries...” 11. In an appeal of 7 June 2006 the applicant alleged, inter alia, that in respect of the offences against A.M. and D.R. he had already been convicted by the Pazin Minor-Offences Court and that the non bis in idem rule had been violated. On 30 June 2006 the Pula County Court (Županijski sud u Puli) allowed the applicant’s appeal in respect of the offence against A.M., on grounds other than the alleged violation of the non bis in idem rule, and upheld his convictions of the other two offences, while reducing the overall sentence to seven months’ imprisonment. 12.", "The appellate judgment was served on the applicant’s mother on 9 August 2006 and on his counsel on 16 August 2006. On 13 September 2006 the applicant’s counsel lodged a request with the Pazin Municipal Court for extraordinary review of the final judgment. He argued, inter alia, that the applicant had acted in self defence and repeated the submission he had made on appeal that, as the applicant had already been convicted by the Pazin Minor-Offences Court , the non bis in idem rule had been violated. 13. In a decision of 14 September 2006, the Municipal Court declared the request inadmissible as it had been lodged outside the one-month time limit.", "On an appeal against that decision, the applicant argued that the impugned judgment had not been properly served since his mother suffered from schizophrenia and was not capable of clear judgment and so could not be regarded as an adult member of the same household within the meaning of Article 146, paragraph 1, of the Code of Criminal Procedure. He supported that assertion with a medical certificate. He further argued that his request for extraordinary review of the final judgment had been lodged within one month after it was served on his counsel and so had complied with the prescribed time-limit. 14. On 23 February 2007 the Pula County Court dismissed the appeal after finding that the applicant’s mother had signed an authority for the applicant’s legal representation in the criminal proceedings, so that it could not be said that she had been incapable of clear judgment.", "15. In a subsequent constitutional complaint lodged on 23 March 2007 the applicant argued, inter alia, that the judgment of the Pula County Court of 30 June 2006 had not been properly served on him and that his right to a remedy had thus been violated. On 24 May 2007 the Constitutional Court declared the complaint inadmissible on the ground that it did not concern the merits of the case. II. RELEVANT DOMESTIC LAW 16.", "The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows: Article 146 “Correspondence for which this Act does not specifically prescribe personal service shall also be served personally. Where, however, the intended recipient is not found on the premises..., it may be served on an adult member of the same household who shall be bound to accept service...” Article 368 “An infringement of the Criminal Code arises if: ... 3. there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated, ...” Article 425 “(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act. (2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant. ...” Article 426 “The Supreme Court shall decide requests for the extraordinary review of a final judgment.” Article 427 “A request for the extraordinary review of a final judgment may be lodged [in respect of]: 1. an infringement of the Criminal Code to the detriment of the convicted person under Article 368(1)-(4) of this Act... ... 3. an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.” 17.", "The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows: Article 99 “Whoever inflicts bodily injury on another or impairs another’s health shall be sentenced to imprisonment for a term of no less than three months and not exceeding three years.” 18. The relevant part of the Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads: Section 6 “Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19.", "The applicant complained of a lack of access to court. 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 fair ... hearing ... by [a] ... tribunal ...” 20. The Government contested that argument. A. Admissibility 21. The Government argued that the proceedings concerning the applicant’s request for an extraordinary review of a final judgment did not fall within the scope of Article 6 § 1 of the Convention because under the domestic law such requests were considered an extraordinary legal remedy.", "22. The applicant argued that Article 6 was applicable to the proceedings. 23. The Court firstly observes that the actual name given to the proceedings in the domestic legal system or the fact that the national jurisdictions have considered them as an extraordinary remedy cannot be considered determinant: what is decisive is the nature and the scope of the proceedings at issue (see San Leonard Band Club v. Malta, no. 77562/01, § 41, ECHR 2004-IX).", "Furthermore, it is the Court’s well-established practice that the proceedings following an appeal on points of law or an appeal for cassation fall within the scope of Article 6 § 1 of the Convention (see, for example, H.E. v. Austria, no. 33505/96, §§ 14 and 18, 11 July 2002, and Cobianchi v. Italy (no. 1), no. 43434/98, §§ 8 and 11, 9 November 2000).", "24. As to the Government’s references to the Court’s decision in the case of Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004‑II (extracts), the Court notes that a request for an extraordinary review under the Croatian Code of Criminal Procedure may be seen as similar to the cassation appeal under the Russian Code of Criminal Procedure. A cassation appeal may be lodged with the Russian Supreme Court on the grounds of, inter alia, a breach of the rules of criminal procedure or incorrect application of the criminal law. The proceedings concerning the cassation appeal were regarded as an ordinary stage of the criminal proceedings against the applicant in that case.", "Conversely, the Court found that a supervisory-review complaint under the Russian procedure was akin to an application for retrial and similar remedies which should not normally be taken into consideration as a remedy under Article 35 § 1 of the Convention. It reached that conclusion mainly on the following grounds: “... under the CCrP, supervisory-review complaints may be brought at any time after a judgment becomes enforceable, even years later. Furthermore, pursuant to Article 403 of the CCrP, if the Presidium of a Regional Court dismisses a supervisory-review complaint, it may be re-submitted to the Supreme Court. Pursuant to Article 406-4 of the CCrP, where a judge refuses to transfer a supervisory-review complaint to a supervisory-review court, the President of the court may overrule the judge’s decision. Exercise of these rights is also not subject to a time-limit.", "The Court considers that if the supervisory-review procedure under the CCrP were considered a remedy to be exhausted, the uncertainty thereby created would render nugatory the six-month rule.” 25. However, the supervisory-review procedure cannot in any way be compared to a request for extraordinary review of a final judgment under the Croatian Code of Criminal Procedure for the following reasons. As to the nature of the proceedings following a request for extraordinary review of a final judgment in a criminal case, the Court observes that the Croatian Supreme Court may, if it finds the request well-founded, quash the lower courts’ judgments and remit the case, or in certain cases even decide the case itself. The reasons justifying extraordinary review of a final judgment are expressly enumerated in Article 427 of the Code of Criminal Procedure and are not subject to any discretionary decision of the court. The remedy is available only to the defendant (not to the prosecution) for strictly limited errors of law that operate to the defendant’s detriment and is subject to a strict one-month time limit following the service of the judgment on the defendant.", "26. The request for extraordinary review has its equivalent in civil proceedings in the form of an appeal on points of law to the Supreme Court (revizija), which is also lodged against a final judgment. In this connection, the Court notes that it has already found that Article 6 is applicable to proceedings concerning such an appeal (see Debelić v. Croatia, no. 2448/03, §§ 21 and 22, 26 May 2005). As to the criminal-law remedy at issue, the Court has in a previous case (Kovač v. Croatia (no.", "503/05, 12 July 2007)) taken into consideration proceedings before the Supreme Court concerning a request for extraordinary review of a final judgment by a defendant in a criminal case. 27. In his request for an extraordinary review, the applicant complained, inter alia, of an infringement of the Criminal Code on account of the alleged violation of the non bis in idem principle. The Court notes that the applicant’s request was made on one of the prescribed grounds for finding an infringement of the Criminal Code, namely that there existed circumstances which excluded criminal prosecution and in particular that the matter had already been finally adjudicated (Articles 368, 425 and 427 of the Code of Criminal Procedure –see paragraph 16 above). 28.", "In these circumstances, the Court concludes that the proceedings following the request for extraordinary review of the final judgment were decisive for the determination of a criminal charge against the applicant and so fall within the scope of Article 6 § 1. Accordingly, the Government’s objection must be dismissed. 29. The Court considers that this complaint 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 The parties’ submissions 30. The applicant stated that the national court’s decisions dismissing his request for extraordinary review of the final judgment as time-barred were erroneous as the appeal had in fact been submitted within the relevant time-limit. The judge who decided to dismiss the appeal should have taken into account the date on which the impugned appellate judgment had been served on the applicant’s counsel and not the date on which it had been served on his mentally ill mother.", "31. The Government argued that a request for extraordinary review of a final judgment could be lodged within one month after the impugned judgment had been served on the defendant in the criminal proceedings. In the proceedings concerning extraordinary judicial remedies the time-limits were to be counted from the day the decision was served on the defendant. This was because an authority given to defence counsel ceased to be valid when the judgment in the criminal proceedings became final. 32.", "In the present case, the judgment of the Pula County Court had been served on the applicant’s mother on 9 August 2006 and the one-month time-limit for lodging a request for extraordinary review of that judgment was to be calculated from that date. Although the applicant’s mother suffered from a mental illness she had never been deprived of her capacity to act. This showed that her mental illness could not be seen as an obstacle to her being served with court decisions. Furthermore, it was the applicant’s mother who had signed the authority for the applicant’s defence counsel to act in the criminal proceedings at issue. She had received some other correspondence in the proceedings, such as a decision to adjourn a hearing, which had been served on her on 20 January 2006.", "The applicant had, however, made no objections to the fact that his mother had received other court orders, nor had he objected to the authority she had signed. The Court’s assessment 33. The Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts (see, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 37, Reports of Judgments and Decisions 1997-VIII; Kozlica v. Croatia, no. 29182/03, § 32, 2 November 2006; and Angel Angelov v. Bulgaria, no.", "51343/99, § 31, 15 February 2007). 34. In the present case the applicant was given access to the review proceedings only to be told that his request had been lodged out of time. Such “access” of itself does not exhaust the requirements of Article 6 § 1 of the Convention (see Ashingdane v. the United Kingdom, 28 May 1985, §§ 56 and 57, Series A no. 93).", "35. By dismissing the applicant’s request for review on formal grounds, the national courts enforced the relevant provision setting out a time-limit for instituting review proceedings. The applicant did not question the time-limit as such but alleged that the decision dismissing his request for an extraordinary review of a final judgment had been arbitrary. 36. The Court reiterates at the outset that it is not its task to take the place of the domestic courts.", "It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The role of the Court is limited to verifying whether the effects of such interpretation are compatible with the Convention (see, Miragall Escolano and Others v. Spain, no. 38366/97, §§ 33-39, ECHR 2000-I). 37. The right of access to a court by its very nature calls for regulation by the State and 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. A limitation will violate the Convention 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, among other authorities, Kreuz v. Poland, no. 28249/95, §§ 52-57, ECHR 2001-VI, and Liakopoulou v. Greece, no. 20627/04, §§ 19-25, 24 May 2006). 38.", "While time-limits are in principle legitimate limitations on the right to a court, the manner in which they were applied in a particular case may give raise to a breach of Article 6 § 1 of the Convention (see Miragall Escolano and Others v. Spain, cited above). 39. As to the present case the Court notes that the impugned decision was served on the applicant’s mother and not the applicant personally. The national courts calculated the time-limit for lodging a request for extraordinary review from the date the impugned decision was served on the applicant’s mother. However, the medical certificate submitted by the applicant shows that his mother had been diagnosed with schizophrenia.", "The applicant produced that certificate before the national courts and argued that, in view of the nature of her illness, his mother could not have been considered able to inform him of the delivery of the judgment by the Pula County Court. 40. The national courts rejected that argument as invalid after noting that it was the applicant’s mother who had signed the authority for the applicant’s defence counsel to act in the proceedings in question. 41. The Court cannot endorse the views of the national courts.", "In this connection, it notes that they made their findings without hearing any evidence from the applicant’s mother or making any assessment of her mental state. In view of the nature of her illness, the Court considers that it was necessary to establish her capacity to understand the nature of the court judgment she had received on behalf of the applicant and the need to pass it on to the applicant. In the Court’s view, the domestic court’s laconic conclusion that service of the impugned judgment on the applicant’s mother sufficed because she had signed the authority for the applicant’s defence counsel was not compatible with the requirements of Article 6 § 1 of the Convention. 42. Furthermore, the Court notes that the applicant’s legal counsel received the impugned decision on 16 August 2006 and that the request for an extraordinary review of that decision was lodged on 13 September 2006, that is to say within the thirty-day time-limit.", "43. In these circumstances, the Court considers that the applicant was not afforded access to court in respect of his request for extraordinary review of the final judgment. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 4 PROTOCOL NO.", "7 TO THE CONVENTION 44. The applicant complained that he had been tried and convicted twice for the same offence in respect of an incident at about 7 p.m. on 15 June 2005 at the Pazin coach terminal. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.", "2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” 45. The Government contested that argument.", "A. Admissibility 46. The Government argued that the applicant had not properly exhausted domestic remedies, in that instead of lodging a request for extraordinary review with the Supreme Court, he should have lodged a constitutional complaint against the judgment of the Pula County Court of 30 June 2006. 47. The applicant argued that he had properly exhausted all available remedies and that the request for extraordinary review of a final judgment was the remedy which would address the violation of which he had complained in respect of the criminal proceedings. 48.", "The Court reiterates that an applicant is required to make normal use of domestic remedies which are effective, sufficient and accessible. It is also recalled that, in the event of there being a number of remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance (see Croke v. Ireland (dec.), no. 33267/96, 15 June 1999). In other words, when a remedy has been pursued, the use of another remedy which has essentially the same objective is not required (see Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V, and Jeličić v. Bosnia and Herzegovina (dec.), no.", "41183/02, 15 November 2005). 49. As to the present case the Court refers to the analysis in paragraphs 21-26 above which is also relevant to the issue of the exhaustion of domestic remedies. It notes in addition that, under domestic law, several remedies against final judgments exist both in respect of civil and criminal proceedings. To date, the Court has dealt with a number of Croatian cases where an appeal on points of law to the Supreme Court against a final judgment delivered in civil proceedings has been regarded as a remedy requiring exhaustion (see, for example, Blečić v. Croatia, no.", "59532/00, §§ 22-24, 29 July 2004; Debelić v. Croatia, no. 2448/03, §§ 10 and 11, 26 May 2005; and Pitra v. Croatia, no. 41075/02, § 9, 16 June 2005). The same rule has been applied in cases against Bosnia and Herzegovina where an identical remedy exists (see Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 17, ECHR 2006‑...).", "50. A request for extraordinary review of a final judgment is available only to the defendant (the prosecution is barred from its use) and may be filed within one month following the service of the judgment on the defendant in respect of strictly limited errors of law that operate to the defendant’s detriment. The Court notes that in the present case this remedy afforded the applicant an opportunity to complain of the alleged violation. Therefore, and notwithstanding the Constitutional Court’s finding that the Supreme Court’s decision following such a request did not concern the merits of the case, the Court considers that the applicant made proper use of the available domestic remedies and complied with the six-month rule. 51.", "The Court considers that this complaint 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 The parties submissions 52.", "The applicant argued that in both the minor-offences proceedings and the criminal proceedings he had been found guilty in respect of the same event and the same facts and that, irrespective of the different classification of the two offences under domestic law, this had violated his right not to be tried and punished twice for the same offence. 53. The Government argued that the applicant’s conduct during the incident on 15 June 2006 had amounted to two different offences and that the applicant had therefore been convicted in two different sets of proceedings by two different courts. In the minor-offences proceedings, the applicant had been found guilty because he had disturbed public order and the peace in that, while obviously under the influence of alcohol, he had insulted other citizens in a particularly offensive manner, so disturbing the peace in a public place. The purpose of the sanction in those proceedings had been to protect the well-being of citizens and public order and peace in a broader sense.", "54. Conversely, the criminal proceedings concerned a physical attack on D.R. that had caused him grievous bodily injury. That assault could not be seen as a minor offence, but was in the sphere of criminal proceedings. Inflicting grievous bodily injury could not be seen as identical to disturbing public order and the peace, the offence for which the applicant was punished in the proceedings before the Minor-Offences Court.", "The Court’s assessment A. Whether the first penalty was criminal in nature 55. The Court observes that on 16 June 2005 the applicant was found guilty in proceedings conducted under the Minor Offences Act and sentenced to forty days’ imprisonment. Under the Croatian legal classification it is not entirely clear whether “minor offences” are to be regarded as “criminal”. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No.", "7. 56. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see, most recently, Storbråten v. Norway (dec.), no.", "12277/04, ECHR 2007‑... (extracts), with further references). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007; Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Manasson v. Sweden (dec.), no.", "41265/98, 8 April 2003; Göktan v. France, no. 33402/96, § 48, ECHR 2002-V; Malige v. France, 23 September 1998, § 35, Reports 1998‑VII; and Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005‑...). 57. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no.", "22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, as recent authorities, Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006‑..., and Ezeh and Connors v. the United Kingdom [GC], nos.", "39665/98 and 40086/98, §§ 82-86, ECHR 2003‑X). 58. In the domestic legal classification the offence at issue amounted to a minor offence under section 6 of the Minor Offences against Public Order and Peace Act. Nevertheless, the Court reiterates that it has previously found that certain offences still have a criminal connotation although they are regarded under relevant domestic law as too trivial to be governed by criminal law and procedure (see Menesheva v. Russia, no. 59261/00, § 96, ECHR 2006‑...; Galstyan v. Armenia, no.", "26986/03, § 57, 15 November 2007; and Ziliberberg v. Moldova, no. 61821/00, §§ 32-35, 1 February 2005). 59. By its nature, the inclusion of the offence at issue in the Minor Offences against Public Order and Peace Act served to guarantee the protection of human dignity and public order, values and interests which normally fall within the sphere of protection of criminal law. The corresponding provision of the Act was directed towards all citizens rather than towards a group possessing a special status.", "The reference to the “minor” nature of the acts does not, in itself, exclude their classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh, cited above, § 104). Finally, the Court considers that the primary aims in establishing the offence in question were punishment and deterrence, which are recognised as characteristic features of criminal penalties (ibid., §§ 102 and 105). 60. As to the degree of severity of the measure, it is determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but it cannot diminish the importance of what was initially at stake (ibid., § 120).", "The Court observes that section 6 of the Minor Offences against Public Order and Peace Act provided for sixty days’ imprisonment as the maximum penalty and that the applicant was eventually sentenced to serve forty days’ deprivation of liberty. As the Court has confirmed on many occasions, in a society subscribing to the rule of law, where the penalty liable to be imposed and actually imposed on an applicant involves the loss of liberty, there is a presumption that the charges against the applicant are “criminal”, a presumption which can be rebutted entirely exceptionally, and only if the deprivation of liberty cannot be considered “appreciably detrimental” given its nature, duration or manner of execution (see Engel, § 82, and Ezeh, § 126, both cited above). In the present case, the Court does not discern any such exceptional circumstances. 61. In the light of the above considerations the Court concludes that the nature of the offence in question, together with the severity of the penalty, were such as to bring the applicant’s conviction of 16 June 2005 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No.", "7. B. Whether the offences for which the applicant was prosecuted were the same (idem) 62. Article 4 of Protocol No. 7 establishes the guarantee that no one shall be tried or punished for an offence of which he or she has already been finally convicted or acquitted.", "The Court set out the relevant principles in that respect in the case of Sergey Zolotukhin v. Russia ([GC], no. 14939/03, 10 February 2009). The relevant passages read as follows: “78. The Court considers that the existence of a variety of approaches to ascertaining whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the ‘same offence’ – the idem element of the non bis in idem principle – for the purposes of Article 4 of Protocol No.", "7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007‑...). 79. An analysis of the international instruments incorporating the non bis in idem principle in one or another form reveals the variety of terms in which it is couched.", "Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the UN Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental Rights of the European Union refer to the ‘[same] offence’ (‘[même] infraction’), the American Convention on Human Rights speaks of the ‘same cause’ (‘mêmes faits’), the Convention Implementing the Schengen Agreement prohibits prosecution for the ‘same acts’ (‘mêmes faits’), and the Statute of the International Criminal Court employs the term ‘[same] conduct’ (‘[mêmes] actes constitutifs’) . The difference between the terms ‘same acts’ or ‘same cause’ (‘mêmes faits’) on the one hand and the term ‘[same] offence’ (‘[même] infraction’) on the other was held by the Court of Justice of the European Communities and the Inter-American Court of Human Rights to be an important element in favour of adopting the approach based strictly on the identity of the material acts and rejecting the legal classification of such acts as irrelevant. In so finding, both tribunals emphasised that such an approach would favour the perpetrator, who would know that, once he had been found guilty and served his sentence or had been acquitted, he need not fear further prosecution for the same act... 80. The Court considers that the use of the word ‘offence’ in the text of Article 4 of Protocol No.", "7 cannot justify adhering to a more restrictive approach. It reiterates that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002‑VI).", "The provisions of an international treaty such as the Convention must be construed in the light of their object and purpose and also in accordance with the principle of effectiveness (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 123, ECHR 2005‑I). 81. The Court further notes that the approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual, for if the Court limits itself to finding that the person was prosecuted for offences having a different legal classification it risks undermining the guarantee enshrined in Article 4 of Protocol No. 7 rather than rendering it practical and effective as required by the Convention (compare Franz Fischer, cited above, § 25).", "82. Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same. 83. The guarantee enshrined in Article 4 of Protocol No.", "7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first ‘penal procedure’ was concluded and the list of charges levelled against the applicant in the new proceedings. Normally these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court’s view, such statements of fact are an appropriate starting point for its determination of the issue whether the facts in both proceedings were identical or substantially the same. The Court emphasises that it is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No.", "7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal... 84. The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings. ...” 63. As to the present case the Court notes that in respect of the minor offence and the criminal offence the applicant was found guilty of the same conduct on the part of the same defendant and within the same time frame. In this connection, it notes that the definition of the minor offence under section 6 of the Minor Offences against Public Order and Peace Act does not as such include inflicting bodily injury while this element is crucial for the criminal offence of inflicting grievous bodily injury under Article 99 of the Criminal Code.", "However, in its decision, the Pazin Minor-Offences Court expressly stated that the applicant was guilty of, inter alia, hitting D.R. on the head with his fists and of punching and kicking him about his entire body. The physical attack on D.R. thus constituted an element of the minor offence of which the applicant was found guilty. In the criminal proceedings before the Municipal Court the applicant was again found guilty of, inter alia, hitting D.R.", "The events described in the decisions adopted in both sets of proceedings took place at the Pazin coach terminal at about 7 p.m. on 15 June 2006. It is obvious that both decisions concerned exactly the same event and the same acts. 64. The Court cannot but conclude that the facts constituting the minor offence of which the applicant was convicted were essentially the same as those constituting the criminal offence of which he was also convicted. 65.", "The deduction of the forty days’ imprisonment imposed by the Minor-Offences Court from the one-year sentence imposed by the Municipal Court does not alter the fact that the applicant was tried twice for the same offence. C. Whether there was a duplication of proceedings (bis) 66. The Court reiterates that Article 4 of Protocol No. 7 does not necessarily extend to all proceedings instituted in respect of the same offence (see Falkner v. Austria (dec.), no. 6072/02, 30 September 2004).", "Its object and purpose imply that, in the absence of any damage proved by the applicant, only new proceedings brought in the knowledge that the defendant has already been tried in the previous proceedings would violate this provision (see Zigarella, cited above). 67. The Court notes that the proceedings before the Pazin Minor-Offences Court were conducted further to a request lodged by the police. The decision was adopted on 16 June 2005 and became final on 29 June 2005. The criminal proceedings before the Pazin Municipal Court were instituted further to an indictment lodged by the Pazin State Attorney’s Office on 15 November 2005 with a proposal, inter alia, that a police report be read at a hearing to be held before the Municipal Court.", "These circumstances show that both sets of proceedings were instituted on the basis of the police report. It is obvious that the police lodged a request for proceedings to be instituted against the applicant in the Pazin Minor-Offences Court and also submitted the report on the same incident with the Pazin State Attorney’s Office, which resulted in the applicant being prosecuted twice. 68. Furthermore, it is to be noted that in his appeal against his conviction by the Municipal Court the applicant clearly complained of a violation of the non bis in idem principle. However, the appellate court upheld the applicant’s conviction in respect of the same offence for which he had already been punished by the Minor-Offences Court.", "In these circumstances, the Court finds that the domestic authorities permitted the duplication of criminal proceedings in the full knowledge of the applicant’s previous conviction of the same offence. 69. The Court finds that the applicant was prosecuted and tried for a second time for an offence of which he had already been convicted and for which he had served a term of detention. There has accordingly been a violation of Article 4 of Protocol No. 7.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 70. Lastly, the applicant, relying on Article 5 § 1, Article 6 §§ 2 and 3(b) and (c) and Article 13 of the Convention, as well as on Article 2 of Protocol No. 7, complained that his deprivation of liberty had not been based in law, that his right to be presumed innocent had been infringed, that he had not been given adequate time and facilities for the preparation of his defence by counsel of his own choosing, and that he had had no effective remedy or right of appeal in the criminal proceedings. 71.", "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 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 17,400 euros (EUR) in respect of non-pecuniary damage. 74. The Government deemed the request unfounded and excessive. 75.", "In the circumstances of the present case the Court considers that a finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction. B. Costs and expenses 76. The applicant also claimed EUR 657 for the costs he had had to pay in respect of the criminal proceedings before the domestic courts and EUR 3,443 for those incurred before the Court. 77.", "The Government opposed the applicant’s claim for the costs incurred in the domestic proceedings. 78. 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. As regards the costs the applicant had to pay in the criminal proceedings, the Court notes that it has found that his conviction in those proceedings violated the non bis in idem principle. Therefore, these domestic legal costs may be taken into account in assessing the costs claim.", "Having regard to the information in its possession and the above criteria, the Court awards the applicant a sum of EUR 657 in respect of the criminal proceedings before the Municipal Court. As to the Convention proceedings, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 3,443. It also awards any tax that may be chargeable to him on these amounts. C. Default interest 79. 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 lack of access to court and the violation of the ne bis in idem principle 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 4 of Protocol No. 7 to the Convention; 4.", "Holds (a) that the finding of a violation constitutes sufficient just satisfaction; (b) 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 4,100 (four thousand one hundred euros), plus any tax that may be chargeable to the applicant, 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; (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 25 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF ALLEN v. THE UNITED KINGDOM (Application no. 18837/06) JUDGMENT STRASBOURG 30 March 2010 FINAL 30/06/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Allen v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Nicolas Bratza,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early, 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.", "18837/06) 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 British national, Ms Susan Anne Allen (“the applicant”), on 2 May 2006. 2. The applicant, who had been granted legal aid, was represented by Mr D. Taylor, a lawyer practising in Liverpool. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office, London. 3.", "The applicant alleged that the fact that she was not allowed to attend the hearing of the prosecution's appeal against her being granted bail had breached her rights under Article 5 §§ 3 and 4 and Article 6 of the Convention. 4. On 14 May 2008 the President of the Chamber 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 1970 and lives in Liverpool. 6. On 6 October 2005 the applicant was charged with two offences of conspiracy to supply Class A drugs. 7.", "On 7 October 2005 the applicant was produced at Liverpool City Magistrates' Court. Following a contested bail application she was granted bail by the Deputy District Judge. 8. The prosecution gave notice that it wished to appeal against the grant of bail and the applicant remained in detention. The appeal hearing was to take place at Liverpool Crown Court on 11 October 2005 and the applicant's solicitors arranged with the Prison Service for her to be present at the court building.", "9. The prosecution's appeal came before Judge Globe on 11 October 2005. At the start of the hearing, counsel for the applicant requested that the judge exercise his discretion to allow the applicant to be present while the appeal was heard. It was contended on the applicant's behalf that she had been led to believe that she would be released following the grant of bail at the magistrates' court and that she had not properly understood the implications of the prosecution's appeal. Counsel for the applicant asserted that if she were present she would see that her case was being dealt with fairly and he further clarified that the basis for his application was “common humanity” and “not technical”.", "Judge Globe declined the request, reasoning that the applicant could be given a full report of what had happened from her counsel. Moreover, her attendance would be undesirable as one of the applicant's co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably. 10. When the applicant later arrived in the court building, her counsel again requested that she be allowed to attend the hearing in person. He emphasised that this was a re-hearing and rather unusual as it was the prosecution which had sought to appeal the Deputy District Judge's ruling on bail.", "As the applicant was already present in the building, her production would cause little inconvenience. Judge Globe again refused, this time explaining that if he allowed the applicant to be present it would set a precedent for any defendant in custody wishing to attend an appeal against bail in the future. 11. The applicant's counsel submitted to the judge: “You have considerable experience of looking at people and taking into account their demeanour. This woman is, on the defence case, a respectable woman of good background and a vulnerable person.", "I would like you to see her, frankly, because you will be able to tell and see that she does not fall into a category of so many of those who appear before you ... I was able to address the learned District Judge on precisely those terms. I believe that it had some impact on his decision to grant bail because he was able to see her and make an assessment of that person. She is here and you could make that assessment if she was brought up before you.” 12. In refusing the applicant permission to attend, Judge Globe stated: “I am not going to alter my view in relation to [the applicant] being present during the hearing.", "I will listen to your submissions. If there is anything during your submissions that causes me to hear evidence from her or to have to do something different to what I am doing at the moment in relation to the hearing of the matter, I will reconsider it at that stage.” 13. At a later stage of the hearing, Judge Globe remarked: “... [W]hat beyond what you have been able to describe to me are you suggesting that I should gain from bringing her up from the cells into the dock at the moment? What do you want me to do if I were to ask her to come up into the dock, just look at her? Does that add anything to anything that you are suggesting?", "I have a very clear picture of the sort of person who is going to walk into the dock. No doubt she is going to be very worried. It must be a very intimidating experience for anybody of no previous convictions who has recently been taken into custody, to be brought into a court as large as this. I can imagine full well what is going to happen when she walks in. But given the fact that I can imagine that, and I have seen it happen many times, what else am I going to notice?” 14.", "The applicant's counsel replied that he had withdrawn his application for her to attend. Judge Globe invited him to make any last submissions about what might be gained by seeing the applicant in person. Counsel answered with: “...looking at the demeanour of the person, that is all. There is something to do with that assessment which is better if one looks at the person and sees them looking across the court looking back at you. But you have in detail, as you have pointed out, a thorough description of her and if that suffices I am not going to seek to persuade you to go further.” 15.", "Judge Globe proceeded with the hearing in the applicant's absence. He decided to allow the prosecution appeal and refuse bail, on the grounds that the applicant's brother, one of the co-accused, was at liberty, possibly overseas, and that there was a risk that she would abscond and join him or provide him with information about the prosecution case which would obstruct the course of justice. 16. The applicant applied for permission to apply for judicial review of the decision not to allow her to attend the hearing on the ground that her rights under the Convention had been breached. 17.", "On 9 November 2005 Mr Justice Sullivan refused the application for permission to apply for judicial review. He first observed that the applicant was challenging Judge Globe's decision not to allow her to attend the prosecution appeal, and that she did not contend that the ultimate decision to refuse her bail was unreasonable. Mr Justice Sullivan further noted that though Rule 19.17 (4) of the Criminal Procedure Rules (see paragraph 22 below) was not referred to during the hearing before Judge Globe, it was Convention compliant because a person was entitled to be present if, in an exceptional case, the interests of justice so required. The applicant's grounds for applying for permission to seek judicial review did not explain why hers was an exceptional case or why the interests of justice required her attendance whilst she was legally represented. 18.", "Mr Justice Sullivan took into account Judge Globe's clear indication that he would be prepared to reconsider his view and allow the applicant to be present if there was anything that would require him to hear evidence from her in person. However, counsel representing the applicant had not been able to identify what would be gained by producing the applicant. 19. On 7 December 2005 Mr Justice Gibbs refused the applicant's renewed application for permission to bring judicial review proceedings. The applicant's counsel attended and argued that the decision to refuse her admission to the hearing of the prosecution's appeal had breached her rights under Article 5 § 3, or alternatively, Article 5 § 4 of the Convention.", "It was asserted that the production of the applicant before the Deputy District Judge did not fulfil the requirements of Article 5 § 3 because the judge was not a judge authorised by law to exercise judicial power, as his decision was subject to immediate appeal and was never put into effect. 20. In giving judgment, Mr Justice Gibbs took into account a transcript of the proceedings before Judge Globe. Although Rule 19.17 (4) had not been expressly cited to Judge Globe, the latter's approach to the application made to him had been entirely consistent with that rule. The general principle underlying Rule 19.17 (4) was that an applicant should not generally be entitled to be present at the hearing of a prosecution appeal.", "The first exception to that proposition had not been fulfilled as the applicant was not acting in person. Therefore the judge would have to take the view that the case was of an exceptional nature and/or that the interests of justice required the applicant to be present. Judge Globe, in considering the matter, undoubtedly had the interests of justice in mind. He had referred to the position of the co-defendant and had made an enquiry as to whether there was any particular reason to believe that injustice would occur, having regard to the fact that an explanation could be given to the applicant immediately afterwards as to the judge's decision and his reasons for it. Judge Globe had also, notably, left open the possibility of altering his decision if, for example, it became apparent that oral evidence might be required from the applicant in support of her application.", "21. Mr Justice Gibbs found that the Deputy District Judge was authorised to exercise judicial power as required by Article 5 § 3 of the Convention and clearly had exercised it, even though his decision was subject to immediate appeal and was not put into effect pending appeal. As concerned the applicant's complaints under Article 5 § 4, the legal framework covering applications for bail, including appeals, did in Mr Justice Gibbs view enable her to take proceedings whereby the lawfulness of her detention could be decided speedily by a court as required by that article. There was, in his judgment, nothing even arguably to be found in the wording of Article 5 § 4 which entitled an applicant to be present at such proceedings in all instances. Where prosecution appeals against refusal of bail were concerned, Rule 19.17 (4) provided a Convention compatible procedure to ensure that no injustice was caused to an applicant in cases in which he or she was not permitted to be present.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 22. Rule 19.17(4) of the Criminal Procedure Rules SI 2005/384 (“the Criminal Procedure Rules”) provides as follows: “The person concerned [when the prosecution appeal against a decision to grant bail] shall not be entitled to be present at the hearing of the appeal unless he is acting in person or, in any other case of an exceptional nature, a judge of the Crown Court is of the opinion that the interests of justice require him to be present and gives him leave to be so.” 23. Section 1 (1) of the Bail (Amendment) Act 1993 (“the 1993 Act”) grants the prosecution the right to appeal to the Crown Court against a decision by magistrates to grant bail in cases concerning particularly serious charges or convictions. Section 1 (3) of the 1993 Act provides that such an appeal may only be made where, prior to the grant of bail, the prosecution has made representations that bail should not be allowed.", "The appeal itself is by way of a re-hearing of the application for bail and the judge hearing the appeal may remand the accused person in custody or grant bail subject to such conditions as he thinks fit (section 1 (9) of the 1993 Act). 24. Section 1 (4) of the 1993 Act requires that the prosecution give oral notice of its intention to appeal to the court which has granted bail. This must be done at the conclusion of the proceedings in which bail has been granted and before the release from custody of the person concerned. Section 1 (5) gives the prosecution two hours within which to serve written notice of appeal upon both the court which has granted bail and the defendant.", "If it fails to do so, the appeal is deemed to be disposed of (section 1 (7)). Section 1 (6) of the 1993 Act states that upon receipt of the prosecution's oral notice of appeal against the decision to grant bail, the magistrates' court shall remand the person concerned in custody, until the appeal is determined. Once the proper notice has been given, section 1 (8) of the 1993 Act provides that the hearing of the appeal must commence within two working days of the first instance proceedings at which oral notice of appeal is given. THE LAW I. ALLEGED VIOLATION OF ARTICLES 5 §§ 3 AND 4 AND ARTICLE 6 § 1 OF THE CONVENTION 25.", "The applicant complained that the Deputy District Judge did not meet the requirements of Article 5 § 3 of the Convention as he was not able to give a binding ruling on bail, as the prosecution were entitled to appeal against his decision. She also complained that the fact that she was not permitted to attend the hearing of the prosecution's appeal against bail breached her rights under Article 5 § 4 of the Convention. She further complained that the refusal in question gave rise to a violation of her rights under Article 6 § 1 of the Convention. Article 5 §§ 3 and 4 of the Convention provides as follows: “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.", "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.” Article 6 § 1 of the Convention, as relevant, provides: “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...” 26. The Government contested that argument. A. Admissibility 27. 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.The refusal to allow the applicant to attend the prosecution's appeal against bail 28. The applicant asserted that her being refused permission to attend the prosecution's appeal breached her rights under Article 5 § 4 of the Convention. She further maintained that her inability to attend the hearing in person constituted a breach of her rights under Article 6 § 1 of the Convention.", "29. The Court considers that the applicant's complaint under Article 6 should be examined under Article 5 § 4 of the Convention, it being the lex specialis in the matter (see, mutatis mutandis, Alp and Others v. Turkey, (dec.), nos. 34396/05, 8753/06, 25853/06, 37432/06, 37435/06, 2873/07, 24664/07 and 44938/08, 9 June 2009). a) The parties' arguments i) The applicant 30. The applicant maintained that Article 5 § 4 of the Convention entitled her to be present when the prosecution's appeal against the decision to grant her bail was considered.", "31. She stressed that a lengthy period of detention was in issue, as her trial was on serious charges and would be likely to take a long time. Consequently, the procedure adopted when reviewing her entitlement to bail had to be similar to that applied during a criminal trial in order to comply with Article 5 § 4 of the Convention. 32. The applicant further asserted that Judge Globe had erred in the exercise of his discretion under Rule 19.17 (4) of the Criminal Procedure Rules.", "The interests of justice required that she, in the circumstances, attend the hearing as she had been granted bail previously and had a legitimate interest in understanding why Judge Globe allowed the prosecution appeal. Moreover, she was present at the Crown Court when the appeal was being heard and there was no practical reason why she should not have been allowed to be present. 33. The applicant finally contended that the basis for her detention was first reviewed at the Crown Court during the consideration of the prosecution's appeal against bail. As the reasons for her detention had not been reviewed before, it was more likely that she would hear things in the course of the hearing that she might wish to address through her representative.", "Furthermore, the assessment of her character had been a key issue during the appeal hearing, as the judge had been required to consider whether she would comply with the restrictions placed upon her by the bail conditions. ii) The Government 34. Since the prosecution's appeal against the grant of bail was a re‑hearing of the issues which had been determined by the Deputy District Judge, the Government accepted that the procedural requirements of Article 5 § 4 applied in full to the hearing before Judge Globe. The Government submitted that both the hearing before the Deputy District Judge and Judge Globe had met the requirements of Article 5 § 4 of the Convention. 35.", "It was well-established that the requirements of Article 5 § 4 were not the same as those under Article 6 of the Convention, regardless of the length of pre-trial detention that might ensue. The difference between the stringency of the procedural requirements under Articles 5 § 4 and Article 6 of the Convention reflected the different purposes of the two provisions. Rather than guaranteeing that the merits of the case against a defendant receive a “fair and public hearing,” Article 5 § 4 was intended simply to ensure that a review could properly establish whether detention was lawful rather than arbitrary. 36. The general principle enshrined in Article 5 § 4 was that either the accused or their legal representative should be permitted to attend a review of detention.", "That had clearly been permitted in the applicant's case. The only exceptions were where the presence of the accused was necessary in order to give satisfactory information or instructions to her counsel; where there had been a significant lapse of time between detention decisions; or where there was a proposed change to the basis of detention. 37. In the applicant's case, the appeal hearing had taken place within two working days of the original bail hearing at which the applicant and her lawyers had all been present. Furthermore, the grounds on which the prosecution had sought to appeal the grant of bail were the same grounds on which they had contested the original grant of bail in the magistrates' court.", "b) The Court's assessment i) General principles 38. The Court recalls that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 154-B, § 65). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005-...., with further references).", "The proceedings must be adversarial and must always ensure equality of arms between the parties. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Trzaska v. Poland, no. 25792/94, § 74, 11 July 2000). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, judgment of 13 July 1995, Series A no. 318-B, § 47).", "39. The Court reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Moisyev v. Russia, no. 62936/00 § 160, 9 October 2008; Navarra v. France, judgment of 23 November 1993, Series A no. 273-B, § 28 and Toth v. Austria, judgment of 12 December 1991, Series A no.", "224, § 84). ii) Application of principles to the instant case 40. Turning to the present case, the Court reiterates that its task is not to rule on legislation in abstracto and it does not therefore express a view as to the general compatibility of Rule 19.17 (4) of the Criminal Procedure Rules with the Convention (see Reinprecht v. Austria cited above, § 32 and Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR 1999-II). Yet it must examine whether the proceedings in the applicant's case were in conformity with Article 5 § 4 of the Convention.", "41. The Court notes that the applicant initially had been granted bail at the hearing before the Deputy District Judge, which she personally attended (see paragraph 7 above). It further notes the submissions made by the applicant's counsel at the outset of the prosecution's appeal hearing that the applicant had expected to be released following the grant of bail and that she had not properly understood the implications of the prosecution's appeal (see paragraph 9 above). 42. The Court considers to be relevant the fact that the Deputy District Judge had the opportunity to see the applicant in person and make his own assessment of her before deciding to grant her bail.", "This was a factor emphasised by counsel for the applicant when requesting that Judge Globe use his discretion to allow the applicant to attend the hearing of the prosecution's appeal against bail. 43. Against this background, the Court recalls its earlier case-law concerning the question of whether an applicant's attendance is required for the purposes of Article 5 § 4 of the Convention (see, among other authorities, Mamedova v. Russia, no. 7064/05, 1 June 2006; Graužinis v. Lithuania, no. 37975/97, 10 October 2000 and Jankauskas v. Lithuania (dec.), no.", "59304/00, 16 December 2003). In these cases, as pointed out by the respondent Government, the Court identified special circumstances in which an applicant's personal attendance might be required under Article 5 § 4 of the Convention, even though he or she was legally represented. Notably however, the Court finds these cases to be distinguishable, in that they all concerned applicants' appeals against their detention on remand and not, as in the present case, a prosecution appeal against the grant of bail, without which the applicant would have been entitled to be at liberty. Indeed, in Jankauskas, cited above, the Court was careful to note that the domestic courts had held hearings in the presence of both the applicant and his lawyer when making orders authorising and extending the term of his detention on remand. What was at issue in that case was whether the applicant had a right to be personally present at his subsequent appeal against the order for his detention.", "44. The Court considers of central importance the fact that the relevant domestic law qualifies a prosecution appeal against bail as a re-hearing of the application for bail, thereby entitling the judge hearing the appeal to remand the accused in custody or to grant bail subject to such conditions as he may deem appropriate (see paragraph 23 above). It follows that the applicant should have been afforded the same guarantees at the prosecution's appeal as at first instance. Though the Court is mindful of the inherent logistical difficulties involved in ensuring a detainee's personal attendance at a court hearing, it finds no evidence of any compelling reasons in the present case which might have rendered the applicant's presence undesirable or impracticable. To the contrary, it is accepted that the applicant's representatives had made arrangements for her to be present at the court building on the day of the prosecution appeal hearing, and that no inconvenience would have been caused in allowing her to attend.", "45. It is also noteworthy that, according to the applicable domestic law, the prosecution appeal had the effect of immediately staying the applicant's grant of bail at first instance, consequently depriving the applicant of her liberty from the moment the prosecution announced their intention to appeal against the Deputy District Judge's decision (see paragraph 24 above). Furthermore, as the applicant herself asserts, a lengthy period of pre-trial detention was likely given the gravity of the charges against her (see paragraph 31 above). 46. The Court cannot but stress the importance of what was at stake for the applicant, namely her right to liberty.", "It recalls in this connection its judgment in the case of Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001, where it stated that: “According to the Court's case-law, it follows from the wording of Article 6 – and particularly from the autonomous meaning to be given to the notion of “criminal charge” – that this provision has some application to pre-trial proceedings (see the Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, § 36). It thus follows that, in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure.” 47. For the reasons set out above, and in light of the fundamental importance of the right to liberty in issue, the Court does not find the Government's justification for the refusal in question to be sufficient.", "For the Court, having regard to the particular circumstances of the applicant's case as described above, fairness required that the applicant's request to be present at the appeal be granted. 48. There has accordingly been a violation of Article 5 § 4 of the Convention. 2.The alleged failure of the Deputy District Judge to meet the requirements of Article 5 § 3 of the Convention 49. The applicant also complained that the Deputy District Judge did not meet the requirements of Article 5 § 3 of the Convention as he was unable to give a final ruling on bail.", "She emphasised the fact that the Deputy District Judge's decision was open to appeal by the prosecution, and that his decision would be stayed pending the outcome of such an appeal. 50. The Court recalls its judgment in McKay v. the United Kingdom [GC], no. 543/03, §§ 36 - 40, ECHR 2006‑X. There, after a thorough examination of the relevant case-law, the Grand Chamber stated that it had found no persuasive authority for concluding that the first obligatory appearance before a judge must encompass the power to grant release on bail.", "Rather, it was stressed that the initial automatic review of arrest and detention “must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person had committed an offence, in other words, that the detention falls within the permitted exception set out in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial officer must then have the power to release” (see McKay, cited above § 40). It further reiterates its conclusion at § 39 of McKay that: “Insofar as it may be suggested that the power to grant bail was a power which the magistrates had to be able to exercise on the first court appearance of the detained person after arrest, the Grand Chamber is unable to agree with this interpretation.” 51. In view of the foregoing, the Court rejects the applicant's contention that the Deputy District Judge did not “exercise judicial power,” as his decision on bail was open to appeal. To the contrary, it observes that its case-law to date has emphasised that the power of a judge or judicial officer on initial review under Article 5 § 3 simply must be to release an individual in the event that he finds their detention unlawful or not to be based on any reasonable suspicion that they have committed an offence.", "The Court further notes that, as was the case in McKay (cited above, see §§ 49 and 50), the question of the applicant's bail was reconsidered shortly thereafter by a judicial officer who undisputedly did have the power to make a final decision in that respect. 52. There has, accordingly, been no violation of Article 5 § 3 of the Convention. 2. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53.", "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 54. The applicant claimed compensation for the breach of her rights as the Court deemed appropriate. 55. The Court finds it reasonable to assume that the applicant suffered a certain amount of distress and frustration due to her inability to attend the hearing of the prosecution's appeal, after which she was denied bail and kept in detention.", "Therefore, ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,000 for non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 56. The applicant, who was granted legal aid in connection with the proceedings before the Court, has failed to submit quantified claims in respect of costs and expenses. Thus, the Court does not make any award under this head.", "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 1. Declares unanimously the application admissible; 2. Holds by six votes to one that there has been a violation of Article 5 § 4 of the Convention; 3.", "Holds unanimously that there has been no violation of Article 5 § 3 of the Convention; 4. Holds unanimously that there is no need to examine the complaint under Article 6 of the Convention; 5. 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, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into pounds sterling 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 30 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech GarlickiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions of Judges Bratza, Bonello and Mijović are annexed to this judgment.", "L.G.T.L.E. CONCURRING OPINION OF JUDGE BRATZA 1. With some hesitation, I have voted in favour of finding a violation of Article 5 § 4 of the Convention in the present case. 2. The applicant was represented by counsel at the hearing before Judge Globe of the prosecution's appeal against the grant of bail.", "The applicant's presence in the court building had not been requested by the Crown Court itself but had been arranged directly between the applicant's solicitors and the Prison Service. When, at the start of the hearing, the applicant's counsel requested that Judge Globe should exercise his discretion to allow the applicant to be present when the appeal was heard, the request was refused, the judge finding that the case was not of “an exceptional nature” and that “the interests of justice” did not require the applicant's presence for the purposes of Rule 19.17(4) of the Criminal Procedure Rules (SI 2005/384). Judge Globe went on, however, to emphasise that, if during the submissions of the applicant's counsel something should occur which required him to hear evidence from the applicant herself or to take a different view about the need for the applicant's presence, the matter would be reconsidered at that stage. There is nothing to suggest that any new factor arose which required the applicant's presence; in particular, it is not claimed that, during the appeal hearing, any new or different ground was advanced by the prosecution for opposing the grant of bail, which had not been relied on before the Magistrates' Court. 3.", "Had this been a case of an applicant's appeal against the refusal of bail, I would have found no basis in the Court's case-law for holding that the applicant's rights under Article 5 § 4 had been violated. The case-law makes clear that, in order to comply with that paragraph, proceedings to extend a person's detention on remand or to review a decision ordering the person's detention or refusing bail must be adversarial in nature and must ensure equality of arms between the parties: in this regard, the Court has held that the possibility for a detainee to be heard in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see, for example, Kampanis v. Greece, judgment of 13 July 1995, Series A no. 318-B, § 47). However, the Court has also held that, where an applicant is legally represented at a hearing in such proceedings, Article 5 § 4 does not additionally require the presence at the hearing of the applicant himself or herself in the absence of special reasons (Jankauskas v. Lithuania (dec.), no. 59304/00, 16 December 2003).", "Such reasons have been found to exist in cases where the hearing of the appeal took place many weeks after the original remand in custody and where the appeal court changed the original basis for the remand of the applicant, without any possibility of further appeal (Graužinis v. Lithuania, no. 37975/97, 10 October 2000); where, in seeking release from detention on remand, the applicant relied on the appalling conditions of detention, of which her counsel had no first-hand knowledge (Mamedova v. Russia, no. 7064/05, 1 June 2006); and where the case called for an assessment of the applicant's character or mental state (Mamedova v. Russia, cited above; Duda v. Poland, no. 67016/01, 19 December 2006). 4.", "No special reasons were advanced before Judge Globe for requiring the presence of the applicant at the bail appeal hearing and the application for her attendance was eventually not pursued by her counsel. 5. However, in common with the majority of the Chamber, I consider that different considerations apply in a case such as the present, where bail has been granted to an applicant at first instance, where the applicant is detained pending the determination of an appeal against the grant of bail brought by the prosecution and where the prosecution's appeal is qualified as a rehearing of the original application for bail. I consider that in these circumstances an applicant should be afforded the same guarantees under Article 5 as he or she enjoys in the original application for bail and that the presence of the applicant at the appeal hearing should be the rule rather than the exception. Since there were in the present case no practical or other obstacles to the attendance of the applicant at the appeal hearing, I consider that her rights under Article 5 § 4 were violated.", "CONCURRING OPINION OF JUDGE BONELLO 1. The facts of this case appear simple and uncontested. The applicant, charged with criminal offences, had been granted bail by the Deputy District Judge. The prosecution appealed to have the benefit of bail revoked, and the Crown Court set down the discussion on the revocation of bail for hearing on 11 October 2005. The applicant's lawyer arranged with the Prison Service for the applicant to be present in court for that hearing, and she was duly conveyed to the court building on the appointed day.", "Counsel for the applicant asked the court for his client to be present inside the courtroom, but Judge G., presiding, relying on very clear domestic law in force (see paragraph 22 of the judgment), refused permission. After the pleadings the judge proceeded, in the enforced absence of the accused, to revoke the bail she had already been granted by the Deputy District Judge. 2. I had no difficulty in voting with the majority in favour of finding a violation of the applicant's rights enshrined in Article 5 § 4. However, I believe the reasoning adopted by the Court to be unnecessarily restrictive, and quite alarmingly so.", "The Court found that Judge G.'s denial of the applicant's request to be present at the hearing that would determine her provisional liberty violated the applicant's rights – but only because she had already been granted bail and now faced the danger of losing that provisional liberty. These considerations necessarily imply that in other circumstances – for example, had this been the first bail hearing, or had bail already been refused at first instance – the judge of the appeal court could legitimately have excluded the accused from the courtroom. 3. I concede I embrace far more radical views on the right of an accused person to be present during all the stages of the proceedings in which issues regarding his or her liberty are being discussed and determined, if the accused person so requires. Hard as I try, I cannot bring myself to see the presence of the accused, in proceedings which determine their rights and their liberty, as a discretionary concession that essentially depends on the court's conviviality or misanthropy, or on whether the presiding judge had started the day in a cantankerous or in an affable mood.", "At stake for the applicant at that hearing of 11 October were her freedom, her future, her incarceration. It strikes me as at least moderately weird that every person in the universe had a “right” to be present in the courtroom on 11 October – everybody, that is, except the person most immediately affected by the goings-on in that courtroom. Anyone can be there when imprisonment is being decided, provided it is not the person who is risking prison. Issues intimately concerning the accused are best discussed and determined behind the accused's back, where else? Now we wouldn't want any of the precious lessons from Kafka's Trial to go to waste, would we?", "4. I am unable to look at the presence of the accused in court the way Judge G. did when addressing the applicant's counsel: “What ... are you suggesting that I should gain from bringing her up from her cell into the dock at the moment?” (see paragraph 13 of the judgment), even if “I” presumably stands for “the administration of justice”. Whatever it stands for, surely that was the wrong test to apply. The presence of the accused in court cannot be judged exclusively by reference to its usefulness to the decision-making process, but rather by reference to the right of accused persons to follow, and, if need be, to participate in events which concern them more than they do anyone else. The functioning of the lawyer/accused tandem depends also on the ability of the accused person to give instructions to his or her lawyer in court on a continuous and impromptu basis.", "How else could the applicant give guidance to her lawyer on any matter which might arise, if the judge barred her by diktat from being anywhere near her lawyer? 5. By the same line of reasoning, one fails to see what the judge, or the administration of justice, may “gain” from the presence of the public in the courtroom. Yet Judge G. excluded only the accused from his presence, and showed no intolerance at all towards the presence of the public. It seems that in the UK system the idle curiosity of a spectator in the courtroom attracts a higher degree of judicial favour and protection than the legitimate concerns of a person desiring to follow what is going on with regard to his or her immediate liberty or incarceration.", "What was at issue in the present case was hardly what the judge stood to gain or lose, but rather whether at any stage of the criminal trial the accused, if she so desired and requested, could have rightly been prevented from attending a public hearing regarding her liberty – a hearing everyone else, except her, was entitled to attend. For my part, I believe that those accused who wish to be present when their liberty is being determined deserve not to be looked upon by the whole justice system (including the law) as unwelcome nuisances to be hustled out by the court's bouncers. And this applies independently of whether it was a first or a second hearing, or whether bail had already been granted or refused. In my view the accused's presence should, as a rule, be allowed to contaminate the chastity of abstract academia. 6.", "I could concede, even if with considerable hesitation, the possibility of proceedings relating solely to “routine” prolongation of detention being conducted in the absence of the accused, but always provided the incarceration had been originally decided after fully adversarial argument and if such review proceedings went hand in hand with high-grade guarantees of a fair hearing and of transparency. 7. There exist several values reflecting different interests that the law and the judiciary should attempt to mesh in a balanced manner. No doubt, throughout the whole span of criminal procedures, the interests of the administration of justice and of the community hold a pre-eminent place. But so should the interests of accused persons, not solely in undergoing a fair trial, but also in participating in and following anything that may disturb their rights and their liberty, when their rights and their liberty are at stake.", "It seems to me that the domestic law, as applied by the presiding judge, kept only the first set of interests in mind, casting the second away as irrelevant: what would the judge “gain” from them? 8. It also seems to me that the restrictive reasoning relied on by the judgment of the Court, and domestic law, have stood on its head what, in the criminal process, should be the rule: the presence of the accused. I believe it to be axiomatic that the presence of the accused should be the norm, and the absence of the accused the exception. When the accused's liberty is being determined, it is not for him to prove that he is entitled to be present, but rather for the authorities to furnish compelling reasons to exclude the accused from his own courtroom.", "It appears that, following this judgment, the onus of proving convincingly the right to be present in proceedings relating to provisional liberty has shifted to accused persons. It is now for them to succeed in proving that there exist weighty reasons why their right to liberty should not be determined behind their backs. This, to me, pulls inside out the logic of the criminal process and is manifestly wrong. 9. In the present case, it is not as if the “justice” interests of the community conflicted with the “presence” interests of the accused.", "Both could have easily co-existed without getting in each other's way. It is difficult to see what the presence of the accused during the discussion about whether she deserved provisional liberty or imprisonment would have taken away from the proper administration of justice. It might not have added much, but it certainly would not have detracted anything. And, with no sacrifice at all to the due process of justice, the interests of the accused would not have been sacrificed so pointlessly. 10.", "My reading of the case-law of the Court quoted in paragraph 43 of the judgment is quite different from that of the respondent Government. The judgments cited indicate that at certain stages of criminal proceedings relating to Article 5 § 4, the presence of the accused may not be strictly required. “May not be strictly required” by no stretch means that it can be lawfully refused. This case-law neither adds to nor subtracts anything from the principle that if the accused is ready, willing and able to attend the hearing (the applicant in this case was physically present inside the court building), only judges who are fully paid-up members of the Star Chamber ought to be enabled by any law to slam the door in her face and lock her out of her own proceedings. That is exactly what happened in this case and, in my view, the Court should have proclaimed in the loudest terms possible that Inquisition tunes no longer score high on the charts of the judicial hit parade.", "PARTLY DISSENTING OPINION OF JUDGE MIJOVIC 1. Regrettably, I am unable in the present case to agree with the majority of the Chamber that there has been a violation of Article 5 § 4 of the Convention for the following reasons. 2. The applicant complained that the fact that she was not permitted to attend the hearing of the prosecution's appeal against bail breached her rights under Article 5 § 4 of the Convention. 3.", "In examining whether the proceedings in this case were in conformity with Article 5 § 4 of the Convention, the majority concluded that there was “no evidence of any compelling reasons in the present case which might have rendered the applicant's presence undesirable or impracticable”. 4. For me, the question that should have been considered by the Chamber was whether the applicant needed to be personally present in order “to give satisfactory information and instructions to her counsel” (see Mamedova v. Russia, no 7064/05, § 91, 1 June 2006). When invited to make submissions as to why the interests of justice would require the applicant's presence, her counsel replied only by stating “looking at the demeanour of the person, that is all”, following which he informed the judge that he had withdrawn the application (see paragraphs 14 and 43 of the judgment). 5.", "Furthermore, it is clear from her counsel's statement that the applicant did not have any decisive or relevant information of which she alone had first-hand knowledge. Weight should also be given to the fact, relied on by the Crown Court judge, that one of the applicant's co-accused had not been present at the hearing and that it would have been unfair to have treated the applicant more favourably. Furthermore, the judge expressed his willingness to allow the applicant to attend in person should her counsel identify any cogent reason why her presence would further assist in his assessment of her character. No such reason ever emerged. Therefore, I see no reason to believe that the applicant's attendance at the appeal hearing was crucial.", "6. The Crown Court judge decided to allow the prosecution appeal and refused bail on the grounds that the applicant's brother, one of the co-accused, was at liberty, possibly overseas, and that there was a risk that she would abscond and join him or provide him with information about the prosecution case and thereby obstruct the course of justice. However, the question may be asked as to whether the applicant would have complained if the judge's decision had been different, namely if she had been granted bail even without her being present at the hearing? I do not think so, and that makes the complaint look somewhat artificial and akin to a grievance about the result of the outcome of the hearing. 7.", "Finally, the majority considered that “fairness required that the applicant's request to be present at the appeal be granted”[1]. However, I am of the opinion that the fact that she was represented at the hearing by her counsel fully satisfied “fairness requirements”. The requirements of Article 5 § 4 are not the same as those under Article 6 of the Convention and the difference reflects the different purposes of the two provisions- while “a fair and public hearing” represents the core of Article 6, the proceedings contemplated under Article 5 § 4 are intended, in my understanding, to provide a speedy determination on the lawfulness of detention. I do accept, as pointed out in the judgment, that the procedure under Article 5 § 4 must have a judicial character and must provide guarantees appropriate to the kind of deprivation of liberty in question. i.e.", "that the proceedings must be adversarial and ensure equality of arms between the parties. Turning to the present case, the facts show that the applicant was represented and that her counsel was given ample opportunity to make submissions on her behalf. 8. For all these reasons, I am of the opinion that in the present case there has been no violation of Article 5 § 4 of the Convention. For that reason I voted against making an award of damages to the applicant.", "I have voted with the majority on the other points mentioned in the operative part of the judgment (Article 5 § 3 and Article 6). [1] See paragraph 47" ]

[ "FIRST SECTION CASE OF NIKOLIĆ v. CROATIA (Application no. 5096/12) JUDGMENT STRASBOURG 29 January 2015 FINAL 01/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nikolić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro, 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 6 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "5096/12) 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 Nada Nikolić (“the applicant”), on 9 December 2011. 2. The applicant was represented by Mr T. Filaković, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged in particular that, contrary to the procedural requirement under Article 2 of the Convention, there has not been an adequate response by the national authorities to the killing of her husband. 4. On 12 February 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1964 and lives in Vukovar. A. Background to the case 6. The events at issue took place in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People’s Army and paramilitary Serbian armed forces during the armed conflict in Croatia from August to November 1991 and was finally occupied at the end of November 1991. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (the “UNPA”).", "7. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. B. Facts concerning the death of the applicant’s husband 8.", "Between 4 p.m. and 5 p.m. on 2 October 1991, during a general alert, two unknown uniformed men, armed with firearms, apprehended the applicant’s husband, Lj.N., in the basement or the courtyard of a building in Kudeljarska street in Vukovar, and drove him away. 9. On 24 November 1991, the body of Lj.N. was found in the River Danube at Novi Sad, Serbia. 10.", "On 25 November 1991 the Institute for Forensic Medicine of the Medical Faculty in Novi Sad carried out an autopsy on the body of Lj.N. which established that the cause of death was a gunshot wound caused by a bullet fired from a hand gun. C. Investigation into the death of the applicant’s husband 11. In 2004 the applicant brought a civil action before the Vukovar Municipal Court against the State, represented by the Vukovar Municipality State Attorney’s Office, seeking damages in connection with the death of her husband. 12.", "In connection with the above civil proceedings, the Vukovar Municipality State Attorney’s Office asked the Vukovar police to submit all information concerning the death of the applicant’s husband. The police thereby learned about the death of the applicant’s husband for the first time and opened an enquiry into it. 13. On 24 January 2005 the police interviewed the applicant, who stated that on 2 October 1991 her husband had been abducted from the basement of a building in Vukovar by two Croatian soldiers and driven away. She named six other persons who had been present in the basement on that occasion, B.Š., K.Š., J.T., S.P., M.P.", "and J.M. However, K.Š., S.P. and M.P. had died in the meantime. 14.", "On the same day the police interviewed J.T., who stated that the applicant’s husband had been taken from the basement of a building in Vukovar in October 1991 by two uniformed and armed men wearing masks. 15. On 3 February 2005 the police interviewed B.Š., who stated that he had joined the Croatian Army in August 1991 and had only been visiting his wife K.Š. and their children, who had sought shelter from the shelling of Vukovar in the same basement as the applicant and her husband. He said he had not been present when the applicant’s husband had been taken.", "16. On 15 February 2005 the Vukovar police lodged a criminal complaint with the Vukovar County State Attorney’s Office against an unknown perpetrator in connection with the killing of the applicant’s husband, classifying the offence as a war crime against the civilian population. 17. On 5 May 2009 the applicant approached the Vukovar County State Attorney’s Office and told them that B.Š. had been present when her husband was taken.", "She also stated that after K.Š. had died around 10 November 1991, one of the men who had taken her husband had come to the basement to take J.M. On that occasion B.Š. ‒ who had also been present ‒ whispered to the applicant: ‘This is the man who took Lj.[N.]’. The applicant also stated that B.Š.", "lived in Zagreb. 18. On 9 July 2009 the Zagreb police interviewed B.Š. He said that he had not been present when the applicant’s husband had been taken and did not know the identity of those who had taken him. 19.", "On 21 July 2009 the Vukovar police interviewed J.M., who said that she had been present in the basement on the day Lj.N. had been taken but had not seen the men who had taken him. 20. On 24 March 2011 an investigating judge of the Zagreb County Court heard evidence from B.Š., who repeated his prior statement. 21.", "On 3 May 2011 an investigating judge of the Vukovar County Court interviewed the applicant, who repeated her statement. 22. On 12 November 2011 the Vukovar police informed the Vukovar County State Attorney’s Office that they had not learned any new information. D. Civil proceedings 23. As indicated above (see paragraph 11) in November 2004 the applicant brought a civil action against the State in the Vukovar Municipal Court, seeking compensation in connection with the death of her husband.", "The claim was dismissed on 18 September 2008 and was upheld on appeal by the Vukovar County Court and the Supreme Court on 21 April 2009 and 16 February 2011 respectively. The national courts found that the claim had been submitted after the statutory limitation period had expired. 24. A subsequent constitutional complaint lodged by the applicant was dismissed on 12 July 2011. II.", "RELEVANT DOMESTIC LAW 25. Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) reads as follows: “Every human being has the right to life. ...” 26. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no.", "110/97 with subsequent amendments) provide: Article 174(2) “In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...” Article 177 “Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to identifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings...” Article 187 “(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence. (2) During the investigation, evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 27. The applicant complained about the deficiencies in the investigation into the killing of her husband. She relied on the procedural aspect of Article 2 of the Convention, the relevant part of which provides: “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. ...” A. Admissibility 1. The parties’ arguments 28. The Government argued that the applicant had failed to exhaust all available domestic remedies.", "They contended that the applicant could have lodged a complaint against the individual police officers or employees of the State Attorney’s Office who had been in charge of the investigation into the death of her husband. Such a complaint could have led to the institution of disciplinary proceedings. As regards protection against alleged unlawfulness in the conduct of the domestic authorities, the Government pointed out that the applicant could have sought damages from the State pursuant to the State Administration Act (Zakon o sustavu državne uprave). They argued that such a combination of remedies had been found effective by the Court in the case of D.J. v. Croatia (no.", "42418/10, 24 July 2012). 29. The Government argued further that the application had been introduced before the Court outside the six-month time-limit because she had not enquired about the progress of investigation and had not reacted to delays in the investigation. 30. In reply, the applicant submitted that she had exhausted all available remedies and complied with the six-month rule.", "2. The Court’s assessment (a) Exhaustion of domestic remedies 31. The Court has already addressed the same objections as regards the exhaustion of domestic remedies in other cases against Croatia and has rejected them (see Jelić v. Croatia, no. 57856/11, §§ 59-67, 12 June 2014). The Court sees no reason to depart from that view in the present case.", "32. It follows that the Government’s objection must be dismissed. (b) Compliance with the six-month rule 33. The Court observes that in a number of cases concerning ongoing investigations into the deaths of applicants’ relatives it has examined the period of time from which the applicant could or should start doubting the effectiveness of a remedy and its bearing on the six-month time-limit provided for in Article 35 § 1 of the Convention (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no.", "57952/00, 15 November 2005; and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question (see Narin, cited above, § 43). The Court has found that in cases concerning instances of violent death, the ineffectiveness of the investigation will generally be more readily apparent; the requirement of expedition may require an applicant to bring such a case to Strasbourg within a matter of months or at most, depending on the circumstances, just a few years after the events (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, § 158, ECHR 2009).", "34. As can be seen from the case-law referred to above, the Court has refrained from indicating a specific period for establishing when an investigation has become ineffective for the purposes of assessing the date from which the six-month period starts to run. The determination of such a period by the Court depends on the circumstances of each case and other factors such as the diligence and interest displayed by the applicants. 35. As to the case at issue, the Court notes that the investigation into the death of the applicant’s husband commenced in 2005 and is still pending.", "In 2011 an investigating judge of the Vukovar County Court was still hearing evidence from witnesses, including the applicant. It cannot therefore be said that the six-month time-limit expired at any time in the period between 2005 and the date when the present application was lodged with the Court, on 9 December 2011. It follows that the applicant has complied with the six-month time-limit. (c) Conclusion as to the admissibility 36. The Court notes that the complaint under the procedural aspect of Article 2 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. B. Merits 1. The parties’ submissions 37.", "The Government argued that the Croatian authorities had taken all the appropriate steps, interviewed everyone who could have had any information about the events at issue and had followed up all leads as soon as they had learned about the abduction of the applicant’s husband in 2004. They had thus satisfied their procedural obligation under Article 2 of the Convention. 38. The applicant maintained her complaint. 2.", "The Court’s assessment (a) General principles 39. The Court has already held that the obligation to protect 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”, requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, either by State officials or by private individuals (see, for example, Branko Tomašić and Others v. Croatia, no. 46598/06, § 62, 15 January 2009). 40. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no.", "21594/93, § 88, ECHR 1999‑III). In particular, the authorities must take the steps reasonably available to them to secure 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 (see, for an example concerning autopsies, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; for an example concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 109; and for an example concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).", "Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible may risk falling foul of this standard. 41. There must be a degree of public scrutiny of the investigation or its results sufficient 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 next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no.", "37715/97, §§ 91-92, 4 May 2001). 42. Even where events took place far in the past, it is possible that new developments occur such that a fresh obligation to investigate arises, for example, newly-discovered evidence comes to light (Brecknell v. the United Kingdom, no. 32457/04, §§ 73‑75, 27 November 2007; Hackett v United Kingdom, no. 4698/04, (dec.) May 10, 2005; Gasyak and Others v. Turkey, no.", "27872/03, 13 October 2009). The scope of the fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (e.g.", "Brecknell, cited above, §§ 79-81. The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations; Emin and Others v Cyprus, no. 59623/08 et al, (dec.) 3 April 2012; and (dec.), no. 60441/13 et al., § 21, 11 March 2014).", "(b) Application of these principles to the present case 43. As regards the present case, the Court notes that the relevant authorities learned about the death of the applicant’s husband in suspicious circumstances at the end of 2004, when the applicant lodged a civil action for damages against the State. The State was represented in these proceedings by the Vukovar Municipality State Attorney’s Office, which promptly asked the Vukovar Police for all available information in connection with the death of the applicant’s husband. The police had no such information but started an enquiry into it. The police interviewed the applicant and everyone who had allegedly witnessed the taking of the applicant’s husband by two uniformed men.", "44. The Court is mindful of the fact that the applicant’s husband was allegedly taken by uniformed men from Vukovar in 1991 and that the applicant did not report it to the Croatian authorities, who had remained unaware of it until the end of 2004. Owing to the fact that some fourteen years had elapsed, the prospect of establishing the truth had significantly diminished. Some of the alleged witnesses of the event had died in the meantime. Those still alive had no relevant information about the identity of the men who had taken the applicant’s husband (compare to Gürtekin and Others v. Cyprus (dec.), no.", "60441/13, § 25, 11 March 2014). 45. At this juncture the Court reiterates that it has qualified the scope of the above-mentioned obligation to conduct an effective investigation as an obligation as to means, not as to results (see, for example, the Shanaghan judgment, cited above, § 90 and the judgments referred to therein). As regards the adequacy of the steps taken by the Croatian authorities in connection with the death of the applicant’s husband, the Court is not persuaded by the applicant’s submission that there have been any significant oversights or omissions. The applicants have not pointed to any other concrete avenues of enquiry that the police could in fact pursue.", "The facts of the case show that the key traceable witnesses were interviewed and the available evidence collected and reviewed. The Court notes that the police pursued every line of information. The fact that the investigation did not succeed in identifying the perpetrators does not necessarily render the investigation ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin and Others, cited above, § 27). 46.", "The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 2 of the Convention in the circumstances of the present case. II. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION 47. The applicant complained that she had no effective remedy as regards the investigation into the death of her husband. She relied on Article 13 of the Convention, which 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.” A. Admissibility 48.", "The Court considers that this complaint is closely linked to the one concerning the procedural aspect of Article 2 of the Convention and must also therefore be declared admissible. B. Merits 49. The Court considers that the main issue in the present case is the one concerning effectiveness of the investigation into the death of the applicant’s husband. The complaint under Article 13 of the Convention is a repetition of the complaint under the procedural aspect of Article 2.", "In view of the Court’s analysis under Article 2 of the Convention, the Court considers that in the circumstances of the present case there is no need to examine any further complaint under Article 13 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 50. The applicant complained under Article 6 of the Convention about the outcome of the civil proceedings she had instituted against the State. 51.", "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 (see Bogdanović v. Croatia (dec.), no. 72254/11, §§ 47-56, 18 March 2014). 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the procedural aspect of Article 2 of the Convention as well as the complaint under Article 13 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been no violation of the procedural aspect of Article 2 of the Convention. 3. Holds that there is no need to examine the complaint under Article 13 of the Convention. Done in English, and notified in writing on 29 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle BerroRegistrarPresident" ]

[ "FIFTH SECTION CASE OF KIROVOGRADOBLENERGO, PAT v. UKRAINE (Application no. 35088/07) JUDGMENT STRASBOURG 27 June 2013 FINAL 27/09/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kirovogradoblenergo, PAT v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ann Power-Forde,Ganna Yudkivska,Helena Jäderblom,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 4 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "35088/07) 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 joint stock company, Kirovogradoblenergo, PAT (“Кіровоградобленерго, ПАТ (публічне акціонерне товариствo)”) (“the applicant company”), on 3 August 2007. 2. The applicant company was represented by Mr A.L. Dudka, a lawyer practising in Kirovograd, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy of the Ministry of Justice of Ukraine.", "3. The applicant company, which is a privately owned electricity supplier, alleged that, according to the law in force at the material time, judges were required to pay only 50% of their electricity bills and the State had failed to reimburse the applicant company its expenses for the remaining half in breach of Article 1 of Protocol No. 1 to the Convention. 4. On 29 September 2011 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. First set of proceedings 5. In October 2004 Judge Z. instituted proceedings in the Leninskyy District Court (Kirovograd) against the applicant company. He complained that his electricity had been cut off for unpaid bills, although he was entitled to a 50% reduction in electricity payments in accordance with section 44 of the Status of Judges Act and owed nothing.", "6. On 26 October 2004 the court found that Judge Z. was entitled to the reduction in question, ordered the applicant company to reconnect his apartment to the electricity network, to cancel his debt (668.93 Ukrainian hryvnias (UAH) (at the material time around 95.67 euros (EUR)) and to pay Judge Z. UAH 1,000 (at the material time around EUR 143) in compensation for non-pecuniary damage. It was not indicated what period the debt covered. 7. On 9 March 2005 the Cherkassy Regional Court of Appeal upheld this judgment.", "It held, inter alia, that by cutting off the electricity in Judge Z.’s apartment the applicant company had breached “the judge’s immunity and inviolability of his residence” and that judges’ privileges should not depend on availability of “budget financing”. 8. On 28 December 2006 the Supreme Court of Ukraine rejected the applicant company’s appeal on points of law. This decision was taken in the applicant company’s representative’s absence and, according to the applicant company, was sent to it on 25 January 2007. On 8 February 2007 the applicant company appealed against the decision of 28 December 2006 under the extraordinary review procedure, but its appeal was rejected by the Supreme Court of Ukraine on 16 April 2007.", "B. Second set of proceedings 9. On 18 November 2005 the applicant company instituted proceedings in the Kyiv City Commercial Court against the Kirovograd Regional Court of Appeal and the State Judicial Administration of Ukraine, claiming the amount allegedly unpaid by Judge Z. and reimbursement of the compensation awarded to Judge Z. and paid by the applicant company on 26 October 2004. The applicant company referred to section 17 of the Electric Power Industry Act, and stated that it followed from the law in force that it was for the State to cover the electricity payments, from which the judges were exempted. 10.", "The applicant company further referred to decision No. 426 of the Cabinet of Ministers of Ukraine of 31 March 2003 “On adoption of the Regulation on provision of privileges, compensation and guarantees to employees of the budget entities and to military personnel”, in which, according to the claimant, a mechanism for provision of the said privileges was created. In particular, the regulation provided that the reimbursement of expenses relating to an employee’s exemption from various payments should be covered by the budget-funded institution which employed him/her.. Therefore, the applicant company stated that the Kirovograd Regional Court of Appeal had failed to comply with its obligation to cover the remaining part of Judge Z.’s electricity expenses. 11.", "On 21 April 2006 the court found against the applicant company. It stated, inter alia, that: “The claimant’s reference to the decision of the Cabinet of Ministers no. 426 is irrelevant for the following reasons. Part 3 of the Regulation provides that expenses for reimbursement of costs for reduced payments are to be covered at the expense of and within the limits of budget allocations to budget entities. Part 5 of the Regulation provides that the person entitled to reduction should provide the copies of his receipted bills for communal charges to the accounts service of the relevant budget entity.", "The monetary equivalent of the relevant reductions and compensations is to be paid to the respective person together with other payments (salary etc.) (part 8 of the Regulation). The State Judicial Administration of Ukraine was created by the Presidential Decree no. 780 of 29 August 2002. It is a central executive authority which covers the logistical needs of the courts of general jurisdiction and of other judicial entities (Section 125 of the Judiciary Act).", "The logistical needs of the courts include financial, material, technical, personnel, informational and other activities which form part of an independent judiciary. In accordance with Section 120 of the above Act, the State Judicial Administration is a key budget spending unit which meets the needs of the courts of general jurisdiction. According to Section 121.1 of the above Act, the courts of general jurisdictions are financed in accordance with budget plans and monthly expenses plans, adopted in accordance with the Act, within the limits provided by the Budget Act for the relevant year, and in accordance with the Budget Code. ... As follows from the case materials, there were no breaches in the actions of the State Judicial Administration and of the Kirovograd Regional Court of Appeal. They had no commercial obligations in respect of the claimant, and were not parties to its case with Z.", "It should be also noted that the State Judicial Administration, as a key budget spending unit in respect of the State expenses for financing the functioning of the general jurisdiction courts, did not receive any funding in 2003-2005 to cover judges’ communal charges expenses. As a key budget spending unit the State Judicial Administration creates a budget plan and submits it to the Ministry of Finance. It further receives budget allocations as provided in the State Budget Act pursuant to Sections 22 and 23 of the Budget Code of Ukraine. ... ... the State Judicial Administration has no right to make budget payments without a relevant budget allocation. Given that any payments ... from the Budget may only be made when there is a relevant budget specification, which was not provided by the 2003-2005 State Budget Acts in respect of payments by the State Judicial Administration of Ukraine (as a key budget spending unit) for communal utilities for judges , the court sees no legal grounds for satisfying the claims”.", "12. On 24 April 2007 the Kyiv Commercial Court of Appeal upheld this judgment. 13. On 18 July 2007 the Higher Commercial Court of Ukraine rejected the applicant company’s appeal on points of law. On 4 October 2007 the Supreme Court of Ukraine rejected the applicant company’s request for leave to appeal on points of law against the decision of 28 July 2007.", "C. Other proceedings 14. In 2007-08 the applicant company instituted a number of proceedings against other judges, seeking payment in full for electricity (see Annex). The courts rejected the applicant company’s claims, referring to the legal provisions entitling judges to the reduction in question. The applicant company appealed, arguing that the law in force did not provide for an obligation on a private entity to cover judges’ welfare payments, which were for the State to make. The courts rejected this argument, finding that “material guarantees of judges’ independence should not depend on budget resources”.", "All the applicant company’s further appeals were to no avail. II. RELEVANT DOMESTIC LAW A. Status of Judges Act, 1992, in force at the material time 15. Part 9 of section 44 of the Act provided as follows: “Judges shall have a 50% reduction in payment for housing rented by them and their family members, and in payment for communal charges (water, gas, electricity and heating, and installation and use of an individual telephone).” 16.", "In the new Law on Judiciary and the Status of Judges, 2010, this provision was repealed. B. Electric Power Industry Act, 1997 17. Part 4 of section 17 of the Act provided as follows: “Losses sustained by electricity providers by reductions in electricity payments for particular categories of users shall be reimbursed from the sources foreseen in legal acts, which provide for relevant reductions” C. Other relevant documents 18. By two letters, of 14 February and 26 July 2006, the State Commission on Regulation of the Energy Industry (Національна комісія, що здійснює державне регулювання у сфері енергетики) (letters nos.", "03 39-09/717 and 3906/13/17-06) in reply to inquiries from two companies about reduced electricity charges for judges, informed them that, in accordance with Section 75 of the State Budget Act for 2006, expenses related to reduced electricity charges were to be covered from the budget of those State institutions which employed the persons entitled to the reductions in question. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 19. The applicant company complained that its property rights under Article 1 of Protocol No.", "1 had been violated, since it had been obliged to provide some of its services for free to judges and had been refused reimbursement by the State. It also cited Article 6 § 1 of the Convention. 20. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the above complaints fall to be examined solely under 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 Government’s submissions 21. The Government submitted that the applicant company’s complaint relating to the first set of proceedings had been lodged outside the six‑month period, since the final decision in this set of proceedings had been taken by the Supreme Court of Ukraine on 28 December 2006 and the applicant company had lodged its application before this Court only on 3 August 2007. 22.", "The Government further submitted that the applicant company should have lodged its complaints not under the commercial justice procedure but under the Administrative Justice Procedure Code, which had been in force since 1 September 2005. Therefore, the applicant company had failed to exhaust available effective remedies in respect to its complaint. 23. Finally, the Government stated that the applicant company had not sustained any significant disadvantage, since its income was significantly higher than the amounts sought. 2.", "The applicant company’s submissions 24. The applicant company submitted that the final decisions in its case had been adopted by the Supreme Court of Ukraine on 16 April and 4 October 2007, and thus the present application had been lodged in time. Consequently, the applicant company had also exhausted available effective remedies, as it had lodged its complaints in accordance with procedural requirements at the material time. 3. The Court’s assessment (a) The six months rule 25.", "The Court notes that the applicant company complained that it had been refused payment by the State for the electricity that the applicant company as an electricity provider had supplied to a certain sector of the population for free, in accordance with the law in force. The final decision in the applicant company’s proceedings claiming electricity payments from the State bodies was taken by the Supreme Court of Ukraine on 4 October 2007 (see MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005), while the present application was introduced on 3 August 2007. It follows that the applicant company complied with the six-month rule required by Article 35 § 1 of the Convention. (b) The exhaustion of effective domestic remedies 26.", "The Court reiterates that in determining whether any particular remedy meets the criteria of availability and effectiveness, regard must be had to the particular circumstances of the individual case. 27. In the present case the Court considers that this objection is closely linked to the merits of the applicants’ complaint under Article 1 of Protocol No. 1 and the Court joins it thereto. (c) Whether the applicant company sustained a significant disadvantage 28.", "The Court finally notes that although it could be argued that the amounts claimed by the applicant company in the present case were relatively modest, even including the non-pecuniary damage the applicant was required to pay, the present case forms is one of a series (see “other proceedings” at paragraph 14 above) which indicate that the applicant company is generally unable to recover more than 50% of its bills from a certain category of clients. In these circumstances, it cannot be concluded that the applicant company did not suffer a significant disadvantage. (d) Conclusion 29. The Court therefore rejects the Government’s objections. 30.", "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 therefore joins the objection of non-exhaustion to the merits and declares the application admissible. B. Merits 31.", "The parties did not submit observations on the merits. 32. As the Court has often held, Article 1 of Protocol No. 1 comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property.", "The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 33. The three rules are not \"distinct\" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle enunciated in the first rule (see Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999‑II).", "34. The Court further reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see Iatridis, cited above, § 58). This principle presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable (see Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000‑I).", "35. In the present case, the applicant company was obliged to supply electricity, which appears to be its main business activity, to a certain category of users (judges) with a 50% reduction. This reduction was set out in a legal provision by way of a privilege granted by the State to a certain category of its agents. 36. In the ordinary course of events, where a private utility company delivers services to its customers, the terms of delivery are regulated in one of a number of ways, ranging from complete contractual freedom to tight regulation by statute or some other mechanism.", "37. In the present case, the Judges Status Act unconditionally provided for a 50% reduction in electricity payments for judges. That Act was not directed towards utility companies such as the applicant company but, as the domestic courts found (see First set of proceedings, paragraphs 5–8 above), the applicant company was bound by it. Consequently, the applicant company was obliged to provide electricity free of charge to the above category of its clients. The Court considers that this obligation constituted an interference with its possessions.", "38. It appears, from the express provisions of the Electric Power Industry Act, 1997 (cited at paragraph 17 above) as confirmed by the State Commission of Regulation of the Energy Industry (see paragraph 18 above), that the intention of the legislature was that the applicant company’s losses caused by supplying electricity at half price were to be covered. 39. The domestic commercial courts examined the applicant company’s claim on the merits on two grounds. First, they considered that the defendants – principally the State Judicial Administration as the relevant budget entity – was not in a contractual relationship with the applicant company and could therefore not be liable for the debt.", "Secondly, however, the courts also held that the State Judicial Administration was in any event unable to cover the unpaid part of the judges’ utilities bills as no relevant financing had been provided to this end in the State Budget. The domestic courts thus concluded that in the absence of funding from the State Budget, the applicant company’s claim could not be met. 40. Thus, as no provision for reimbursement has ever been made, the applicant company was in a situation whereby it was obliged to provide part of its services for free. The Court considers that that situation – where the applicant company was not able to pursue half of the debt owed to it because of the absence of clear and foreseeable law on the matter – amounts to an interference with the applicant company’s right to peaceful enjoyment of its possessions which had no basis in law, 41.", "As to the question of exhaustion of domestic remedies, which was reserved to the merits of the case (see paragraph 27 above), the Court recalls that where the Government claim non-exhaustion of domestic remedies, they bear the burden of proving that the applicant has not used a remedy that was both effective and available (McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). The availability of any such remedy must be sufficiently certain in law and in practice and the remedy must be capable of providing redress in respect of the applicant’s complaints and of offering reasonable prospects of success (Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009).", "42. In the present case, the Government have not indicated what claim the applicant could have made before the then recently created administrative courts which could have led to a result other than that reached by the commercial court, nor have they submitted any case-law by the domestic courts supporting this position. Given the previous finding on the absence of clear and foreseeable law on the matter (see paragraph 40 above), the Court dismisses the Government’s objection as to inadmissibility of the application for non-exhaustion of effective domestic remedies. 43. Having regard to its above findings (see paragraph 40 above), the Court finally concludes that there has been a violation of Article 1 of Protocol No.", "1 in the present case. II. 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, costs and expenses 45.", "The applicant company claimed EUR 3,900 in compensation for pecuniary damage (unpaid electricity bills and reimbursement for costs and expenses in domestic proceedings). 46. The Government submitted that the applicant company’s claims were unsubstantiated. 47. The Court notes that the applicant company had failed to specify the exact amount of its expenses incurred in the domestic proceedings and had not submitted any supporting documents in this respect.", "The Court therefore rejects these claims. 48. As regards the amounts of unpaid electricity bills, the Court notes that the applicant company did not request the State to cover its expenses indicated in its proceedings against other judges (see Annex) and it cannot be concluded that the applicant company’s claims for reimbursement of those expenses would also be rejected. 49. The Court, however, awards the applicant company EUR 95, 67 in compensation for pecuniary damage incurred in the first set of proceedings.", "B. Default interest 50. 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 inadmissibility of the application for non-exhaustion of domestic remedies and dismisses it; 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 (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 95,67 (ninety-five euros and sixty-seven cents) in respect of 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 27 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident ANNEX Defendant First-instance court Second-instance court Supreme Court of Ukraine Amount claimed Judge Z. 13 July 2007, Leninsky District Court, Kirovograd 19 October 2007, Mykolayiv Regional Court of Appeal 19 May 2008 UAH 645.36 (EUR 91.80) Judge O. 23 July 2008, Kirovsky District Court, Kirovograd 9 October 2008, Cherkassy Regional Court of Appeal 23 December 2008 UAH 1,018 (EUR 136.75) Judge B. 17 September 2008, Kompaniyivsky District Court, Kirovograd Region 4 December 2008, Cherkassy Regional Court of Appeal 30 January 2009 UAH 127.40 (EUR 18.29) Judge D. 21 October 2008, Kirovsky District Court, Kirovograd 5 February 2009, Cherkassy Regional Court of Appeal 31 March 2009 UAH 479.99 (EUR 65.33) Judge P. 24 November 2008, Kirovsky District Court, Kirovograd 18 March 2009, Dnipropetrovsk Regional Court of Appeal 13 May 2009 UAH 451.94 (EUR 54.43)" ]

[ "FOURTH SECTION CASE OF KANKOWSKI v. POLAND (Application no. 10268/03) JUDGMENT STRASBOURG 4 October 2005 FINAL 04/01/2006 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 Kankowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 13 September 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 10268/03) 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, Mr Adam Kankowski (“the applicant”), on 20 March 2003. 2. The applicant, who had been granted legal aid, was represented by Mr W. Hermeliński, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.", "3. On 4 May 2004 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the excessive length of pre-trial detention 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 pre-trial detention 4. The applicant was born in 1974 and lives in Reda, Poland. 5. On 27 January 1999 the applicant was arrested by the police on suspicion of having committed armed robbery. On 29 January 1999 the Tczew District Court (Sąd Rejonowy) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question, the severity of the anticipated penalty and the fear that he might tamper with evidence.", "The court also observed that other measures designed to secure the proper conduct of the proceedings would be insufficient, given the fact that at the time of the commission of the offence the applicant had already been released under police supervision in another case. That, in the court's opinion, convincingly showed that only detention could prevent him from committing another offence. 6. On 20 April 1999 the Gdańsk Regional Court prolonged the applicant's detention. It reiterated the grounds originally given for his detention.", "Referring to the fact that more lenient preventive measures had not prevented the applicant from having committed another offence, the court considered that there was a reasonable risk that the applicant would abscond. Furthermore, it considered that since the applicant had not admitted the charge and that there had been other persons involved in the offence who had remained at large, there was a reasonable risk of collusion. 7. In the course of the investigation, the applicant's detention was several times prolonged by the Gdańsk Court of Appeal (Sąd Apelacyjny). The court reiterated the grounds originally given for his detention and stressed that keeping him in custody was necessary to secure the process of obtaining evidence.", "The relevant decisions were given on 21 July 1999 (prolonging the applicant's detention until 31 December 1999) and 8 December 1999 (prolonging his detention until 27 January 2000). The applicant's appeals against those decisions – in which he contested the reasonableness of the charge against him – were rejected by the Supreme Court (Sąd Najwyższy). 8. On 21 January 2000 the Supreme Court prolonged the applicant's detention – which had meanwhile exceeded the 1 year's time-limit set for detention pending the investigation under Article 263 § 2 of the Code of Criminal Procedure – until 30 April 2000. It considered that the case was “particularly complex” within the meaning of Article 263 § 4 of the Code.", "9. On 30 March 2000 the Supreme Court prolonged his detention until 30 June 2000. On 24 May 2000 the Supreme Court ordered that that term should further be prolonged until 15 December 2000. The court reiterated the previous grounds given for the applicant's detention and added that the case was very complex, given that 6 further suspects had in the meantime been charged and detained in the case and that several other potential suspects were still being searched for. 10.", "In the meantime, new charges were laid against the applicant. 11. Further prolongation of the applicant's detention pending the investigation were ordered by the Gdańsk Court of Appeal on 13 December 2000 (up to 31 March 2001) and on 7 March 2001 (up to 31 May 2001). In its decision of 13 December 2000, the Court of Appeal relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and the severity of anticipated penalty. It also considered that there was a reasonable risk that the applicant and the other 8 detained co-suspects, if released, might obstruct the proceedings or attempt to evade justice, having regard to the nature and the scale of the offences with which they had been charged (numerous counts of armed robberies) and the number of suspects involved.", "In its decision of 7 March 2001, the Court of Appeal added that the prolongation of detention was justified by the need to obtain DNA evidence. 12. On 15 May 2001 the Gdańsk Regional Prosecutor (Prokurator Okręgowy) indicted the applicant on 48 charges comprising, among other things, numerous counts of armed robbery before the Gdańsk Regional Court (Sąd Okręgowy). The bill of indictment listed 120 charges brought against 19 accused, who were all remanded in custody. The case-file comprised 114 volumes.", "The prosecution asked the court to hear evidence from 366 witnesses. It appears that the principal witness was a certain A.Ł., who had been indicted together with all the defendants but gave evidence against them. 13. The trial began on 28 December 2001. However, as at April 2002 the reading out of the bill of indictment by the prosecution was still continuing.", "14. During the trial, the Gdańsk Court of Appeal prolonged the applicant's detention several times. The relevant decisions were given on 23 May 2001 (extending his detention up to 31 October 2001), on 24 October 2001 (ordering his continued detention until 31 March 2002), on 13 March 2002 (prolonging that period until 30 September 2002), 11 September 2002 (extending his detention until 31 December 2002), on 18 December 2002 (prolonging his detention until 30 June 2003), on 25 June 2003 (prolonging his detention until 31 December 2003), on 17 December 2003 (extending that term until 30 June 2004), on 23 June 2004 (extending that term until 31 December 2004), on 15 December 2004 (ordering his continued detention until 31 March 2005) and on 30 March 2005 (extending that period until 30 June 2005). As at the latter date, 8 of the 19 accused were still detained on remand and the trial court had heard most of the prosecution witnesses. 15.", "In all those decisions the Court of Appeal considered that the original grounds given for the applicant's detention were still valid. It stressed that keeping him in custody was necessary in order to prevent him – and his co-defendants – from evading justice or tampering with evidence. 16. In its decision of 13 March 2002, the Court of Appeal found that holding the applicant and his 7 co-defendants in custody was the only measure which would prevent them from obstructing the trial, having regard to the nature of the offences in question, the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation. It also instructed the trial court to increase the number of hearings held per month.", "17. In its decision of 11 September 2002, the Court of Appeal considered that the applicant's detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. 18. In its decision of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays in the trial was the obstructiveness of the defendants and the abuse of the rights of the defence. 19.", "On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C. ), who in the meantime had been released from detention, were to be tried separately from other defendants. 20. The applicant repeatedly, but unsuccessfully, asked for release and appealed against the decisions prolonging his detention.", "He maintained that the length of his detention was unreasonable and contested the charges against him, stressing that they were based on unreliable evidence from A.Ł. 21. It appears that the applicant is still in detention pending trial. B. The prison term 22.", "From 9 March 2000 to 15 April 2002 and from 21 June 2002 to 31 July 2002 (i.e. for 2 years, 2 months and 17 days) the applicant served a sentence of imprisonment imposed in other criminal proceedings. He was, however, simultaneously remanded in custody in the present case. II. RELEVANT DOMESTIC LAW 23.", "The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju). 24. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “1.", "Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.” 25. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 26.", "The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” 27. Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 28.", "The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. 29. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.", "2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4.", "Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” 30. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 31. The applicant complained that the length of his detention on remand had been excessive.", "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.” 32. The Government contested that argument. A. Admissibility 33. 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 34.", "The Court observes that the applicant was arrested on 27 January 1999 and detained on remand on 29 January 1999. He is still in detention pending trial before the first-instance court. Accordingly, the total period of his detention in the present case has exceeded 6 years and 7 months. 35. However, the Court notes that from 9 March 2000 to 15 April 2002 and from 21 June 2002 to 31 July 2002 the applicant served a sentence of imprisonment imposed in other criminal proceedings.", "It recalls that 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”, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see, for example, B. v Austria, judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 36-39). Thus, the period of the applicant's detention from 9 March 2000 to 15 April 2002 and from 21 June 2002 to 31 July 2002 must be subtracted from the total period of the applicant's detention since during that time was serving a prison sentence resulting from another conviction. 36.", "Accordingly, the period of the applicant's detention on remand to be considered under Article 5 § 3 amounts to over 4 years and 5 months. 2. The reasonableness of the length of detention (a) The parties' arguments 37. The Government argued that the length of the applicant's detention had been reasonable and duly justified in its entire period. They relied firstly on the existence of serious suspicion that the applicant had committed the offences in question.", "38. Furthermore, the Government referred to the gravity of the charges against the applicant and the severity of anticipated penalty. They argued that the likelihood that a severe penalty would be imposed could induce the applicant to interfere with the proper conduct of the proceedings. They also submitted that the risk of the defendants' obstructing the proceedings or tampering with evidence was increased by the fact that they had been charged with having acted in an organised group. The Government pointed out that one of the suspects had attempted to influence the testimonies of witnesses prior to his arrest.", "Thus, the domestic courts had considered it indispensable to keep the applicant and his co-defendants in custody until the trial court had heard all relevant witnesses. 39. Furthermore, the Government referred to the findings of the domestic court which had held that more lenient preventive measures imposed on the applicant in another set of criminal proceedings against him had failed to prevent him from obstructing the proceedings and committing other offences. 40. The Government underlined that that the serious nature of the charges brought against the applicant as well as the fact that there were 19 defendants, and that the case concerned a significant number of offences committed in an organised group between 1991 and 1999 in different parts of Poland, required that the applicant be held in custody in order to secure the proper conduct of the proceedings.", "They also submitted that the prolongation of the detention beyond the statutory time-limit of 2 years had been justified under Article 263 § 4 of the Code of Criminal Procedure by the particular complexity of the case and the need to obtain extensive evidence. 41. The Government maintained that the defendants had repeatedly requested the trial court to adjourn the trial (including on health grounds), to return the case to the prosecution authorities for additional investigation or to transfer the case to another court. They submitted that at the hearing held on 23 September 2002 the applicant had declared that he was unable to follow the hearing due to the dizziness; however the doctor who had examined the applicant, considered that there had been no obstacle to the applicant's participation in the hearing. 42.", "The Government stressed that due to the obstructive attitude of the defendants, the trial court could only begin to hear evidence in April 2003. They referred in that respect to the decision of the Court of Appeal of 23 June 2004 which had observed that the main reason for the delays in the proceedings until April 2003 had been the obstructiveness of the defendants and the abuse of the rights of the defence. The Government also submitted that the defendants had made numerous applications to challenge the trial court. In the Government's view the defendants' actions justified the conclusion that they had resorted to delaying tactics. 43.", "Lastly, they argued that both the prosecuting authorities and the courts had displayed the requisite diligence in the present case. 44. The applicant submitted that his detention had been inordinately lengthy. He argued that an excessive period of detention, as in the present case, was in itself incompatible with Article 5 § 3 of the Convention, given the principle of the presumption of innocence. 45.", "The applicant maintained that, however strong had been the suspicion against him, it could suffice as a basis for holding him in custody only at an early stage of the proceedings. He accepted that the need to secure the proper conduct of the proceedings had justified his detention as long as the evidence had not been obtained. However, he added that with the passage of time that ground became less and less relevant. 46. The applicant emphasised that, during the entire period of his detention, the authorities had not considered the possibility of imposing on him other preventive measures, such as bail or police supervision.", "47. As regards the risk of absconding, the applicant submitted that it had not been based on any reliable evidence, and that with the passage of time, it had become irrelevant from the point of view of the proper conduct of the trial. (b) The Court's assessment (i) Principles established under the Court's case-law 48. The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. 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 laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111 with further references, ECHR 2000-XI). 49. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release.", "It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Kudła, cited above, § 110). 50. The persistence of reasonable suspicion that the person arrested 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. The Court must then 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 be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400, § 74, and I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102). (ii) Application of the principles to the circumstances of the present case 51.", "The Court observes that the judicial authorities relied, in addition to the reasonable suspicion against the applicant, on four principal grounds, namely (1) the severity of penalty to which he was liable, (2) the serious nature of the offences with which he had been charged, (3) the risk of absconding and tampering with evidence and (4) the complexity of the case and the need to obtain extensive evidence (see paragraphs 5-9, 11, 15-17 above). Additionally, the Gdańsk Regional Court in its decision of 20 April 1999 had relied on the reasonable risk of collusion (see paragraph 6 above). 52. The Court accepts that the reasonable suspicion against the applicant of having committed the serious offences may initially have warranted his detention. In addition, it considers that the authorities were faced with a difficult task of determining the facts and the degree of alleged responsibility of each of the defendants, who had been charged with acting in an organised criminal group.", "In these circumstances, the Court also accepts that the need to obtain voluminous evidence from many sources together with the complexity of the investigation, constituted relevant and sufficient grounds for the applicant's detention during the time necessary to terminate the investigation, to draw the bill of indictment and to hear evidence from the accused. 53. However, with the passage of time those grounds inevitably became less and less relevant. In particular, even if the Court were to accept that the defendants, including the applicant, had contributed to certain delays at the trial by making use of their procedural rights, the Court considers that those grounds could not justify the entire period of the applicant's detention. The Court is of the view that this conclusion remains valid, despite the Government's argument that the applicant had attempted to obstruct the trial hearing held on 23 September 2002 (see paragraph 41 above).", "It must then establish whether the other grounds advanced by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of liberty. 54. The Court notes that the judicial authorities also relied on the likelihood that a severe sentence might have been imposed on the applicant given the serious nature of the offences at issue (see paragraphs 5, 11, 16 and 17 above). In this respect, the Court recalls that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. It acknowledges that in view of the seriousness of the accusations against the applicant the authorities could justifiably consider that such an initial risk was established.", "However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). In the circumstances of the present case, the Court finds that the severity of the anticipated penalty alone, or in conjunction with the other grounds relied on by the authorities, cannot constitute a “relevant and sufficient ground” for holding the applicant in detention for a considerably long period of over 4 years and 5 months. 55. As regards the risk of absconding and tampering with evidence, the Court cannot accept that they constituted relevant and sufficient grounds for the entire length of the applicant's detention.", "56. Firstly, it observes that at a very early stage of the investigation the judicial authorities considered that the imposition of detention had been necessary in order to prevent the applicant from tampering with evidence, absconding and re-offending. They had relied on the fact that the more lenient preventive measure (police supervision) imposed on the applicant in another case against him had been inadequate (see paragraphs 5 and 6 above). The Court accepts that at the relevant time the authorities had a valid reason to consider that the risk relied on could materialise. However, it cannot but note that in their decisions, following the decision of the Gdańsk Regional Court of 20 April 1999, the judicial authorities did not refer to the fact that the applicant had breached the preventive measure imposed on him in another set of proceedings.", "Thus, the Court concludes that the risk of absconding and tampering with evidence could not be justified by reference to that latter fact. 57. In respect of the subsequent period, the Court observes that the judicial authorities appeared to presume the risk of absconding and tampering with evidence on account of the likelihood of a severe penalty being imposed on the applicant and the nature of the offences in question (see paragraph 17 above). It notes however that the decisions referring thereto did not put forward any argument capable of showing that these fears were well-founded. The Court considers that such a generally formulated risk flowing from the nature of the offences with which the applicant had been charged may possibly be accepted as the basis for his detention at the initial stages of the proceedings.", "Nevertheless, in the absence of any other factor capable of showing that the risk relied on actually existed, the Court cannot accept those grounds as a justification for holding the applicant in custody for the entire relevant period. 58. Lastly, as regards the risk of collusion the Court notes that the judicial authorities relied on that risk only in the decision of the Regional Court of 20 April 1999. Thus, the Court cannot see how that risk could justify the entire length of the applicant's detention. 59.", "The Court would also emphasise that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 3, § 3; and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). 60.", "In the present case the Court notes that during the entire period of the applicant's detention, except for the initial period covered by the decisions of the Tczew District Court of 29 January 1999 and the Gdańsk Regional Court of 20 April 1999, and despite his applications for release, the authorities never envisaged any other guarantees of his appearance at trial. Nor did they give any consideration to the possibility of ensuring his presence at trial by imposing on him other “preventive measures” expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraph 23 above). 61. What is more, it is not apparent from the relevant decisions given after 20 April 1999 why the authorities considered that those other measures would not have ensured the applicant's appearance before the court or in what way the applicant, had he been released, would have obstructed the course of the trial. Nor did they mention any factor indicating that there was a real risk of his absconding or obstructing the proceedings.", "In that regard the Court would also point out that although such a potential danger may exist where an accused is charged with a serious offence and where the sentence faced is a long term of imprisonment, the degree of that risk cannot be gauged solely on the basis of the severity of the offence and anticipated sentence (see Muller v. France, judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, p. 388,, § 43). 62. The foregoing considerations are sufficient to enable the Court to conclude that the grounds given for the applicant's pre-trial detention were not “sufficient” and “relevant” to justify holding him in custody for over 4 years and 5 months. 63. There has accordingly been a violation of Article 5 § 3 of the Convention.", "II. 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 15,000 euros (EUR) in respect of non-pecuniary damage and an unspecified amount in respect of pecuniary damage.", "66. The Government argued that the applicant's claims should be rejected as excessive. 67. 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 – such as distress resulting from the protracted length of his detention – 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 1,000 under this head. B. Costs and expenses 68. The applicant, who had been granted legal aid, also claimed EUR 1,500 for the costs and expenses incurred before the Court. 69.", "The Government argued that any award under this head should be limited to those costs and expenses that have been actually and necessarily incurred and are reasonable as to quantum. 70. 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 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 it reasonable to award the sum of EUR 500 for the proceedings before the Court. C. Default interest 71.", "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 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 500 (five hundred) in respect of costs and expenses, 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 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 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF DYBO v. POLAND (Application no. 71894/01) JUDGMENT STRASBOURG 14 October 2003 FINAL 14/01/2004 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 Dybo v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrsV. Strážnická,MrM.", "Fischbach,MrJ. Casadevall,MrR. Maruste,MrL. Garlicki,MrsE. Fura-Sandström, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 23 September 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 71894/01) 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 Czesław Dybo (“the applicant”), on 30 November 1999. 2. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs. 3.", "On 17 December 2002 the Fourth Section decided to communicate the complaint concerning the length of the 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. It also gave priority to the application, pursuant to Rule 41 of the Rules of the Court. THE FACTS 4. The applicant was born in 1919 and lives in Lubań, Poland.", "5. The applicant was involved in administrative proceedings concerning the amount of the veteran benefit he had been receiving since 1974. On 12 September 1995 the Supreme Administrative Court gave a judgment in his case. The court, inter alia, ordered the Office for Veterans and Persecuted Persons (Urząd do Spraw Kombatantów i Osób Represjonowanych) to pay the applicant a sum of PLN 10 as reimbursement of the court fees. In May 1997 the applicant received from the Office for Veterans and Persecuted Persons only a half of the awarded sum (PLN 5).", "6. In April 1997 the applicant lodged with the Lubań District Court (Sąd Rejonowy w Lubaniu) a civil action against the Office for Veterans and Persecuted Persons. He claimed compensation and payment of, inter alia, the remaining sum of PLN 5. 7. On 7 May 1997 the Lubań District Court transmitted the case to the Warsaw District Court.", "8. The Warsaw District Court held one hearing and on 30 November 1998 it gave a default judgment (wyrok zaoczny) against the defendant ordering it to pay PLN 50 in compensation and PLN 30 as a reimbursement of the court fees. The court ordered that the judgment should be immediately enforceable. 9. On 30 March 1999 the defendant lodged an objection against this decision.", "10. On 18 October 1999 the Warsaw District Court suspended the enforcement order in respect of the judgment of 30 November 1998. 11. The applicant asked the court to order again that the judgment of 30 November 1998 be immediately enforceable. On 29 October 1999 the Warsaw District Court dismissed his request.", "The applicant appealed against this decision and was ordered to pay the court-fees. On 22 August 2000 his appeal was rejected due to the applicant's failure to pay the court fees. In the appeal procedure against this decision he was also ordered to pay the court‑fees. Finally, the applicant paid the court-fees and on 16 December 2002 the Warsaw Regional Court (Sąd Okręgowy) examined his appeal against the decision of 29 October 1999 and dismissed it. 12.", "On 23 October 1999 the Warsaw District Court, sitting in camera, decided that the applicant would be heard by the Lubań District Court. It appears that this court failed to hear the applicant and on 25 April 2002 the trial court repeated its request. 13. On 28 June 2002 the Lubań District Court heard the applicant. 14.", "The proceedings are pending before the Warsaw District Court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement 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...” 16. The Government contested that argument.", "17. The period to be taken into consideration began in April 1997 and has not yet ended. It has thus lasted six years and five months. A. Admissibility 18. The Government submitted that the applicant's litigation was of vexatious nature and that his application to the Court constituted an abuse of a right of individual application under Article 35 § 3 of the Convention.", "Moreover, the Government argued that the applicant did not intend to pursue his application because he did not provide detailed information as to the facts of his case after October 1999. 19. The applicant stated that he was unable to comment on the Government's submissions because they were written in English. He submitted that he did not understand this language and could not afford the costs of translation. 20.", "The Court observes that the applicant's action originated from the lack of full enforcement of a final judgment of the Supreme Administrative Court. In his action, in addition to payment of the remaining sum of PLN 5, the applicant sought compensation. In the light of the above and taking into consideration the fact that the applicant is eighty-four years old and disabled, the Court is not persuaded by the Government's arguments that the applicant's litigation was vexatious and his application to the Court should be considered as an abuse of a right of individual application. 21. Furthermore, the Court considers that on the basis of the applicant's submissions to the Court, there is no indication that he does not intend to pursue his application.", "22. 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. The Court will therefore declare the case admissible. B.", "Merits 1. The submissions before the Court 23. The Government acknowledged that the case was not complex. 24. As regards the conduct of the applicant, the Government submitted that he partly contributed to the length of the proceedings because he had been lodging requests and appeals.", "25. The Government stressed that what was at stake for the applicant was of pecuniary nature and of minor importance as his claim concerned the sum of PLN 5. 26. With regard to the conduct of the domestic authorities, the Government were of the opinion that they showed due diligence in ensuring the proper course of the proceedings. 27.", "The applicant stressed that the Office for Veterans and Persecuted Persons treated him unfairly and humiliated him by, inter alia, failing to enforce the Supreme Administrative Court's judgment. In the consequence, he turned to the court for help and redress. However, the court not only did not award him any compensation but also caused additional stress and financial hardship by prolonging the proceedings. 2. The Court's assessment 28.", "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 and Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999). 29. As regards the complexity of the case, the Court observes that the Government acknowledged that the case was a simple one.", "30. The Court is not persuaded by the Government's arguments that the applicant contributed to the overall length of the proceedings by actively participating in the proceedings. Moreover, the Court is of the opinion that the applicant's requests and appeals were important for him as they concerned enforceability of the default judgment and exemption from the court fees (see paragraph 11 above). 31. As regards the conduct of the domestic authorities, the Court notes that since the beginning of the proceedings, in April 1997, the Warsaw District Court held only one hearing on 30 November 1998 at which it gave a default judgment (see paragraph 8 above).", "Although subsequently the trial court took some action since it dealt with the applications concerning the enforceability order and exemption from the court-fees, this does not justify the lack of examination of the merits of the applicant's case. Moreover, the Court notes that the examination of the applicant's appeal against a decision to dismiss his application to grant the enforceability order lasted over three years which significantly contributed to the delay in examining the case (see paragraph 11 above). 32. The Court is of the view that what was at stake for the applicant, was of minor importance. 33.", "The Court considers that, in the particular circumstances of the instant case, a period of six years and five months exceeds a reasonable time. There has accordingly been a violation of 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 did not claim any particular sum in respect of pecuniary and non-pecuniary damage. However, he requested the Court to grant him just satisfaction in the amount it considered equitable, given the detriment suffered by him on account of the length of the proceedings in his case. 36. The Government asked the Court to rule that finding a violation would constitute in itself sufficient just satisfaction.", "In the alternative, they invited the Court to make an award of just satisfaction on the basis of its case-law in similar cases and national economic circumstances. 37. The Court is of the view that the applicant must have experienced some frustration and irritation because of the delays involved. Bearing in mind the modest nature of what was at stake in the domestic proceedings, it awards the applicant EUR 1,000 in respect of non-pecuniary damage. B.", "Costs and expenses 38. The applicant also claimed reimbursement of the costs and expenses incurred before the domestic courts and for those incurred before the Court. However, he did not specify the amount sought in this respect and did not provide any supporting documents. 39. The Government submitted that they could not bear any responsibility for the costs and expenses incurred by the applicant during the proceedings before the domestic courts.", "40. 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 dismisses this claim. 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 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 according to Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the 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 14 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF GREGURIĆ v. CROATIA (Application no. 45611/13) JUDGMENT STRASBOURG 15 March 2018 This judgment is final but it may be subject to editorial revision. In the case of Gregurić v. Croatia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Kristina Pardalos, President,Ksenija Turković,Pauliine Koskelo, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 20 February 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45611/13) 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, Mr Zdravko Gregurić (“the applicant”), on 4 July 2013.", "2. The applicant was represented by Mr B. Posavčić, a lawyer practising in Kutina. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. On 18 March 2015 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant lives in Kutina. 5. From 1 January 2001 the applicant concluded several consecutive fixed-duration contracts of employment with the company C.N.S.", "Ltd. concerning the same post. The contracts were for a continuous period which in total amounted to over seven years and seven months. 6. On 5 June 2009 the applicant’s employer returned the applicant’s employment registration book to him, without any written or oral notification, showing that his employment had been terminated. 7.", "On 20 July 2009 the applicant brought a civil action before the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu). He asked it to recognise that he had concluded an open-ended contract of employment, given that he had been in continuous employment with his employer for over three years, which was the time-limit for fixed-term employment contracts under the Labour Act. He also asked the Municipal Court to establish that his employment had not been terminated and to order his reinstatement. 8. On 22 January 2010 the Ivanić Grad Municipal Court dismissed the applicant’s claim as time-barred.", "9. Upon an appeal by the applicant, on 16 February 2011 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) quashed the first‑instance decision and remitted the case for fresh consideration. It held that the first-instance court should have declared the applicant’s claims inadmissible as time-barred, without examining it on the merits. 10. In the fresh proceedings, the Ivanić Grad Municipal Court on 6 May 2011 declared the applicant’s action inadmissible as having been lodged outside the prescribed time-limit.", "The first-instance court, relying on section 133 of the Labour Act, held that the applicant and his employer had concluded a fixed-term contract lasting until 31 May 2009 and that the applicant must have known that his contract would end on that day. He had not concluded a new contract of employment with his employer and he had therefore been obliged to lodge an application for the protection of his rights with his employer within the fifteen-day time-limit, starting from 1 June 2009. However, he had failed to do so and consequently his claim had been lodged out of time. Rejecting the applicant’s argument, the first‑instance court also held that the defendant company had not been obliged to adopt a formal decision on terminating his employment or to send him any other kind of notification, given that he must have known that his contract would come to an end on 31 May 2009. 11.", "On 12 May 2011 the applicant lodged an appeal with the Velika Gorica County Court. 12. On 26 July 2011 the Velika Gorica County Court upheld the first‑instance decision. 13. On 14 November 2011 the applicant lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske), which was dismissed as ill-founded on 25 September 2012.", "The Supreme Court also held that the applicant had failed to seek the protection of his rights in respect of his employer within the deadlines prescribed by section 133 of the Labour Act. Accordingly, his claim had been lodged out of time. 14. On 14 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained that the courts had wrongly declared his claim inadmissible because it had been of a declaratory nature and as such had not been subject to deadlines.", "He relied on a decision by the Velika Gorica County Court of 16 January 2013 in the case of a colleague of his, who for the same reasons as the applicant had also sought to have the court recognise that he had concluded an open-ended contract of employment. In that decision the Velika Gorica County Court, in accordance with instructions given in the Supreme Court’s decision no. Revr-1697/11 of 6 June 2012, had dismissed the defendant’s (the employer’s) objection that the claim was time-barred. Namely, the Supreme Court had held that the claim had been of a declaratory nature and as such was not subject to deadlines. 15.", "On 6 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Civil Procedure Act 16. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos.", "53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008, 123/2008 and 57/2011), as in force at the material time, provided: Section 187 “(1) A claimant may ask the court to recognise the existence or absence of a right or legal relations or the authenticity ... of a document. (2) This form of claim may be lodged when separate regulations so prescribe, when the claimant has a legal interest in the court establishing the existence or absence of a right or legal relations or ..., or when the claimant has some other legal interest in bringing this form of claim. ... ” Section 428a “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or the additional Protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, lodge an application with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” B.", "The Labour Act 17. The relevant provisions of the consolidated text of the Labour Act - (Zakon o radu – pročišćeni tekst, Official Gazette no. 137/2004), as in force at the material time, provided: Section 15 “(1) As an exception, a contract of employment may be concluded for a definite period (‘a fixed-term contract’) in cases of employment where termination has been previously determined by objective factors, i.e. by a specific time-limit, the performance of a specific task or the occurrence of a specific event. (2) An employer must not conclude one or more consecutive fixed-term contracts of employment under which employment commences with respect to the same work for a continuous period exceeding three years, except in order to substitute a temporarily absent employee or if permitted by law or a collective agreement.", "... (5) If a fixed-term contract of employment has been concluded contrary to the provisions of this Act or if the employee continued working for the employer after the expiration of the period for which the contract was originally made, the employee shall be considered to have concluded an open-ended contract of employment. (6) The employer shall inform employees working for him or her under fixed-term contracts about the available jobs in respect of which those workers might conclude open-ended contracts of employment, and provide them with further training and education under the same conditions as those provided to employees working under fixed-term contracts.” Section 16 “(1) A contract of employment shall be concluded in writing. (2) A failure on the part of the parties to the contract to conclude a contract of employment in writing shall not affect the existence and validity of that contract. (3) If a contract of employment was not concluded in writing, the employer shall give a written certificate to the employee on the conclusion of the contract before the work commences. (4) If the employer fails to conclude a contract of employment in writing with the employee within the time-limit referred to in paragraph 3 of this Article, or fails to give him or her a written certificate on the conclusion of the contract, it shall be deemed that the employer has concluded an open-ended labour contract with the worker.", "...” Section 133 “(1) An employee who considers that his or her employer has violated any of his or her rights arising from employment may, within fifteen days following the receipt of a decision violating that right, or the day after he or she became aware of such a violation, seek permission from the employer to exercise that right. (2) If the employer does not accede to the worker’s request referred to in paragraph 1 of this section within fifteen days, the employee may within another fifteen days seek judicial protection from the court having jurisdiction in respect of the right that has been violated. (3) ... (4) An employee who has failed to submit a request of the kind referred to in paragraph 1 of this Article, may not seek judicial protection from the court having jurisdiction in respect of the right that has been violated. ... “ 18. Section 133 of the consolidated text of the Labour Act - (Zakon o radu – pročišćeni tekst, Official Gazette no.", "137/2004) corresponds to section 126 of the Labour Act (Zakon o radu, Official Gazette nos. 38/1995 with its subsequent amendments). C. The Constitutional Court’s jurisprudence 19. The Government relied on Constitutional Court decisions nos. U‑III‑3893/2007 of 11 March 2010, U-III-374/2008 of 27 October 2010, U-III-3256/2011 of 1 December 2014 and U-III-736/2005 of 8 July 2013.", "In those decisions the Constitutional Court held that inconsistency in a court’s case-law breached the principle of legal certainty and thus violated the constitutional right to a fair hearing. In all those cases the applicants clearly stated that the courts had departed from their previous case-law, thus violating their right to a fair hearing. D. The Supreme Court’s jurisprudence 20. The applicant relied on the Supreme Court’s decision in case no. Revr-1697/11 of 6 June 2012, which was delivered in a case brought by his colleague and which was identical to his.", "The Supreme Court quashed a decision by the Velika Gorica County Court of 7 September 2011 and remitted the case for fresh consideration. The relevant part of the decision reads as follows: “The first-instance court established that the claimant had concluded an open-ended contract with the defendant ... , that the claimant’s employment had not been terminated on 31 March 2009 and that the defendant was obliged to reinstate the claimant ... The second-instance court rendered a judgment which allowed the defendant’s appeal, quashed the first-instance judgment and declared the claim inadmissible. ... The second-instance court ... held that the claimant was not entitled to seek judicial protection of his rights ... given that he had failed to lodge an application for the protection of his rights with the employer, as envisaged by section 133(4) of the Labour Act ...", "In the instant case the claimant brought a claim, asking the court to recognise that he had concluded an open-ended contract, that his employment had not been terminated on 31 March 2009, and to order the defendant to reinstate the claimant ... It follows that the claim [in the present case] is a declaratory claim and that the right to lodge such a claim should be assessed in accordance with section 187(1)(2) of the CPA [the Civil Procedure Act], which provides that a claimant may ask [the court] to establish the existence or absence of a right or legal relations or the authenticity or otherwise of a document before the expiry of the claim for performance based on that relationship, or when the plaintiff has some other legal interest for lodging that form of claim. ... A declaratory claim is neither subject to a deadline, nor dependent on whether has a claimant lodged an application for the protection of his rights with his employer. The requirement for lodging such a claim is, inter alia, the existence of a legal interest. Such a claim could only have been declared inadmissible if such a legal interest had not existed.", "... ” 21. In decisions nos. Rev-412/1995 of 15 April 1998, Rev-3017/1999 of 20 July 2000, Rev-538/02 of 10 December 2002, Rev-1391/01 of 10 December 2003, Revr-902/11 of 21 March 2012, Revr-116/13 of 7 October 2014 and Revr-211/13 of 12 November 2014, the Supreme Court held that when an employee seeks to have a court recognise that he or she has concluded an open-ended contract of employment, then such a claim is not subject to deadlines because it is of a declaratory nature. For example, Rev-3017/1999 of 20 July 2000 states: “The claim that was declared inadmissible ... reads as follows: ‘The claimant ... shall be recognised as a Croatian language teacher employed ... on the basis of an open-ended contract, which fact the defendant shall recognise and then reinstate the claimant ... ‘ ... ... the [claimant] claims that a declaratory claim in a labour dispute is not subject to deadlines and that the courts, by examining whether [her] claim was lodged in a timely manner, ... applied the law incorrectly... [The claimant] considers that she has a legal interest in lodging a declaratory claim ... It is clear from the content of the claim that it is a declaratory claim brought on the basis of section 187(1) of the CPA [the Civil Procedure Act]... ... the claimant was not obliged to lodge a declaratory claim within [prescribed] deadlines ... thus, the courts wrongly declared [her] claim inadmissible as time-barred ...", "In the fresh proceedings the [first-instance] court shall ... establish whether the [procedural] requirements for bringing a declaratory claim [before the court] exist, namely, whether ... the legal interest exists, and after that it shall examine the claim on the merits. ... ” Rev-902/11 of 21 March 2012 states: “The subject matter of the dispute is a claim for establishing that the parties [to the proceedings] concluded an open-ended contract ... from 1 June 2009 (namely, the existence of working ... status) and a condemnatory claim for reinstatement. ... ... in the instant case the claimant did not seek to protect his employment rights with a claim of the type provided for by section 126 of the Labour Act but with a claim to recognise that he had concluded an open-ended contract, within the meaning of section 187(1) of the CPA [the Civil Procedure Act]... The declaratory claim provided for by section 187(1)(2) of the CPA [the Civil Procedure Act] is not subject to any deadlines, but to ... [the existence of] a legal interest to seek such a determination, which is a procedural requirement for the admissibility of a declaratory claim. ... By wrongly applying section 126(1)(2) of the LA [the Labour Act], instead of section 187(1)(2) of the CPA [the Civil Procedure Act], the courts wrongly declared the declaratory claim inadmissible.", "In that connection, they also wrongly dismissed the condemnatory claim (reinstatement) given that the merits of that claim were examined on the background of [the lower courts’] misunderstanding about the admissibility of the declaratory claim. Therefore, the case is to be remitted for fresh consideration and in the new proceedings the first-instance court shall establish the existence of a legal interest by the claimant to lodge a declaratory claim. If [the first-instance court] establishes [that the claimant has a legal interest], upon which the admissibility of the claim depends, it shall decide on the merits of that claim.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained that his right of access to a court had been violated on account of the fact that the domestic courts had declared his claim inadmissible for having been lodged out of time.", "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 fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 1. The parties’ arguments 23. The Government argued that the applicant had not exhausted domestic remedies because he had not raised any such complaint in his constitutional complaint. They argued that in his application before the Court the applicant had complained that the Supreme Court had upheld the lower courts’ decisions, contrary to its own well-established case-law. His application to the Court was therefore a complaint of a lack of legal certainty caused by inconsistent Supreme Court case-law.", "However, he had not made those arguments before the Constitutional Court. It was the applicant’s responsibility to state clearly and to substantiate the manner in which his human rights had been violated. Moreover, he had failed to complain that his right to a fair hearing, guaranteed by Article 29 of the Constitution, had been violated. 24. The applicant argued that it could be seen from the arguments made in his constitutional complaint that he had complained about unfairness in the proceedings.", "2. The Court’s assessment 25. In accordance with Article 35 § 1 of the Convention, the Court may only deal with a matter 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 violations alleged against them before those allegations are submitted to the Court (see, for example, Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015; Arps v. Croatia, no.", "23444/12, § 19, 25 October 2016; Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A; and Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II). Thus, a complaint submitted to the Court should first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, and Arps, cited above, § 19). 26.", "The Court notes that in the applicant’s complaint to the Constitutional Court he alleged, inter alia, that the courts had wrongly applied the relevant law when declaring his claim inadmissible as out of time. In substantiating his arguments, the applicant submitted the Velika Gorica County Court decision, which had been taken in a case brought by his colleague and which was identical to his. In that case the court, in accordance with the instructions and opinion given in Supreme Court decision no. Revr-1697/11 of 6 June 2012, had held that the claim aimed at establishing that the claimant had concluded an open-ended contract of employment, that it was of a declaratory nature and as such was not subject to deadlines (see paragraphs 13 and 18 above). The Court considers that in the circumstances of the present case, the applicant, having put forward the issue in substance in his constitutional complaint, did thus raise the complaint which he has submitted to the Court before the domestic courts (see Jaćimović v. Croatia, no.", "22688/09, § 40, 31 October 2013). The applicant thereby provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Gäfgen v. Germany [GC], no. 22978/05, §§ 144‑146, ECHR 2010; Lelas v. Croatia, no. 55555/08, § 51, 20 May 2010; Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012; Bjedov v. Croatia, no.", "42150/09, § 48, 29 May 2012; and Jaćimović v. Croatia, cited above, § 51;). 27. The Government’s objection must therefore be rejected. 3. Conclusion 28.", "The Court considers 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’ arguments 29. The applicant argued that the national courts had declared his claim inadmissible as lodged out of time, although it had been of a declaratory nature and as such had not been subject to deadlines. He argued that such a conclusion had been contrary to Supreme Court’s opinions given in cases which had concerned identical issues. He relied on the Supreme Court’s decision in case no. Revr-1697/11 of 6 June 2012, which had been adopted in his colleague’s case, which had been identical to his own.", "30. The Government submitted that the applicant had failed to contact his employer by 15 June 2009 at the latest and had thereby failed to bring a claim in a timely manner. They stressed that the purpose of the limitation prescribed in section 133 of the Labour Act was to ensure promptness and the efficiency of court proceedings and to protect the legitimate interests of employers in being able to quickly resolve a dispute with an employee. 31. The Government further submitted that there had been no breach of the principle of legal certainty in relation to the applicant’s right of access to court.", "In that connection, they maintained their arguments concerning admissibility of the complaint (see paragraph 23 above). 2. The Court’s assessment (a) General principles 32. The Court reiterates that Article 6 § 1 of the Convention secures for everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. The right of access to a court includes not only the right to institute proceedings, but also the right to obtain a judicial “determination” of the dispute (see, for example, Kutić v. Croatia, no.", "48778/99, § 25, ECHR 2002-II; Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003; Menshakova v. Ukraine, no. 377/02, § 52, 8 April 2010; and Šimecki v. Croatia, no. 15253/10, § 42, 30 April 2014). 33.", "However, this right 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. However, these limitations must not restrict or reduce the access which remains to an individual in such a way or to such an extent that the very essence of the right is impaired (see, for example, Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93, and Stubbings and Others v. the United Kingdom, 22 October 1996, § 50, Reports of Judgments and Decisions 1996‑IV). 34.", "What the Court needs to ascertain in a given case is whether the nature of the limitation in question and/or the manner in which it was applied are compatible with the Convention (see, mutatis mutandis, Vrbica v. Croatia, no. 32540/05, § 66, 1 April 2010). This means, in particular, that the Court must satisfy itself that the application of such a limitation could be regarded as foreseeable for the applicants, having regard to the relevant legislation and case-law and the particular circumstances of the case (see Osu v. Italy, no. 36534/97, § 35, 11 July 2002; Lupaş and Others v. Romania, nos. 1434/02 and 2 others, § 67, ECHR 2006‑XV (extracts); Vrbica, cited above, § 72; Majski v. Croatia (no.", "2), no. 16924/08, § 69, 19 July 2011; and Petko Petkov v. Bulgaria, no. 2834/06, § 30, 19 February 2013). (b) Application of these principles in the present case (i) As to whether there was a restriction of the applicant’s right to a court 35. Turning to the circumstances of the present case, the Court observes at the outset that the sole reason relied on by the domestic courts for dismissing the applicant’s claim was that he had failed to meet the fifteen‑day time-limit under section 133 of the Labour Act to seek the protection of his rights before his employer and had thus, in their view, failed to meet the procedural requirement to bring his claim before a court in a timely manner (see paragraphs 10, 12 and 13 above).", "36. The Court must therefore examine whether the procedural restriction applied by the domestic courts pursued a legitimate aim and whether it was proportionate to that aim (compare with Lupaş and Others cited above, § 67, and Petko Petkov, cited above, § 30). (ii) As to whether the restriction pursued a legitimate aim 37. The Court reiterates that the rules on time-limits for bringing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty (see Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 45, Reports 1998-VIII; Miragall Escolano and Others v. Spain, no. 38366/97, § 33, ECHR 2000-I; and Mizzi v. Malta, no.", "26111/02, § 83, ECHR 2006‑I (extracts)). (iii) As to whether the restriction was proportionate to the legitimate aim pursued 38. The Court must next examine whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued by the State (see, for example, Z and Others v. the United Kingdom [GC], no. 29392/95, § 93, ECHR 2001‑V, and Momčilović v. Croatia, no. 11239/11, § 47, 26 March 2015).", "39. In that connection, the Court firstly notes that the applicant’s claim was aimed at obtaining recognition of the fact that he had concluded an open-ended contract of employment and his reinstatement and that the domestic courts declared his claim inadmissible on the grounds that he had failed to observe the requirement laid down in section 133 of the Labour Act (see paragraphs 7-13 above). However, that finding contradicts the established case-law of the Supreme Court developed in the application of that provision. The Supreme Court’s jurisprudence shows that when an employee asks a court to recognise that he or she has concluded an open‑ended contract of employment, such a claim is of a declaratory nature within the meaning of section 187 of the Civil Procedure Act and, as such, is not subject to deadlines. Namely, the procedural requirement for lodging a declaratory claim is the existence of a legal interest in bringing such a claim before a court and not an obligation to lodge an application with the employer for the protection of the right that has allegedly been violated (see paragraphs 20 and 21 above).", "40. However, in the applicant’s case, the domestic courts, contrary to the above-cited interpretation and application of the relevant domestic law, in particular section 133 of the Labour Act, in cases that were identical to that of the applicant, dismissed his claim on the grounds of alleged non‑compliance with the time-limit under that provision. In doing so, neither the lower courts, nor the Supreme Court provided any arguments capable of justifying their departure from conclusions reached in cases identical to the applicant’s. 41. The foregoing considerations are sufficient for the Court to conclude that the manner in which the domestic courts applied the relevant domestic law was not foreseeable for the applicant, who could have reasonably expected that his claim would be examined on the merits.", "That situation, which was contrary to the well-established case-law of the highest court in the State, infringed the principle of legal certainty and amounted to a denial of justice which impaired the very essence of the applicant’s right of access to a court as secured by Article 6 § 1 of the Convention. 42. There has consequently been a violation of that provision. 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 737,932.73 Croatian kunas (HRK; approximately 97,600 euros (EUR)) on the grounds of lost net salaries, or HRK 1,461,265.49 (approximately EUR 194,000) on the grounds of lost gross salaries, in respect of pecuniary damage. He also claimed EUR 6,000 in respect of non-pecuniary damage. 45.", "The Government objected and argued that the amounts claimed were excessive, unfounded and unsubstantiated as there was no causal link between the violation complained of and the applicant’s financial claims. 46. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. In that connection, the Court first reiterates that the most appropriate form of redress in cases where it finds that an applicant has not had the kind of fair hearing required by Article 6 § 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re‑examine the case in keeping with all the requirements of a fair hearing (see, for example, Lungoci v. Romania, no.", "62710/00, § 56, 26 January 2006; Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006; Lesjak v. Croatia, no. 25904/06, § 54, 18 February 2010; and Kardoš v. Croatia, no. 25782/11, § 67, 26 April 2016). In that connection, the Court notes that under section 428a of the Civil Procedure Act (see paragraph 17 above), the applicant can now lodge an application to reopen the proceedings which were brought before the Ivanić Grad Municipal Court and in respect of which the Court has found a violation of Article 6 § 1 of the Convention.", "In those circumstances, ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 47. The applicant also claimed HRK 11,780 (approximately EUR 1,550 at the material time), for the costs and expenses incurred before the domestic courts, and HRK 12,500 (approximately EUR 1,650 at the material time) for those incurred before the Court. 48.", "The Government contested this claim. 49. 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 850 for the costs and expenses incurred in the proceedings before the domestic courts and EUR 1,650 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant. C. Default interest 50.", "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 (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 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,500 (two 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; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerKristina PardalosDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF MAKARENKO v. UKRAINE (Application no. 43482/02) JUDGMENT STRASBOURG 1 February 2007 FINAL 01/05/2007 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 Makarenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrK.", "Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrJ. Borrego Borrego,MrsR. Jaeger,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 8 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43482/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mr Vasiliy Nikolayevich Makarenko and Mrs Svetlana Viktorovna Makarenko (“the applicants”), on 25 September 2001. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.", "The applicants were represented by Mr A. Stakheyev, a lawyer practicing in the city of Kirovograd, Ukraine. 3. On 13 December 2005 the Court decided to communicate the complaints concerning the length of proceedings in the applicants' case on eviction and the non-enforcement of the judgment in the applicants' favour 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 applicants were born in 1966 and 1968, respectively, and live in the village of Krasnovershka, Kirovograd region, Ukraine. 5. In January 1995 the applicants bought a house from the collective agricultural enterprise “Svitanok”. They lived in it with their two minor children until August 1996. 6.", "In August 1996 after returning from vacation the applicants found that their house was occupied by a police officer, Mr S. The latter informed them that the house purchase agreement had been invalidated by a notary. All of the applicants' possessions had been moved to the “Svitanok” enterprise storehouse. 7. In March 1997 the applicants instituted proceedings against the notary in the Kompaniyvskyy District Court. On 17 November 1997 the court cancelled the act by which the notary had invalidated the purchase agreement.", "8. On 18 February 1998 the applicants instituted other proceedings in the same court against Mr S., the “Svitanok” enterprise and the notary asking that Mr S. be evicted from their house and claiming 10,000 Ukrainian hryvnias (“UAH”) in compensation for non-pecuniary damage. On an unidentified date the applicants introduced additional claims against the “Svitanok” enterprise for UAH 8,063 in pecuniary damage and UAH 40,000 in non-pecuniary damage. 9. In April 1998 the collective agricultural enterprise “Svitanok” initiated proceedings in the Kompaniyivskyy District Court challenging the validity of the house purchase agreement.", "10. On 14 April 1998 the court stayed the proceedings in the applicants' case on eviction until the question of validity of the purchase agreement had been decided. 11. In June 1998 a wedding photo, a coat, a lamp, a wash-basin and some other small items which had been held at the “Svitanok” storehouse were returned to the applicants. 12.", "On 15 December 1998 the court found the purchase agreement invalid. The applicants appealed against this judgment and requested the transfer of their case to another court. On 1 April 1999 the Kirovograd Regional Court quashed the decision of 15 December 1998 and remitted the case for a fresh consideration to the Kirovogradskyy District Court. 13. On 13 December 1999 the applicants requested the Head of the Kirovograd Regional Court to transfer their case on eviction to another court.", "Their request was satisfied. 14. On 2 March 2000 the Kirovogradskyy District Court decided to consider together the case on eviction and the case on validity of the purchase agreement. 15. On 24 October 2001 the court disjoined the cases and declined to consider the case on the validity of the purchase agreement because the representative of the ”Svitanok” enterprise had failed twice to appear at a court hearing.", "16. In June 2002 the house, which was partly derelict, was returned to the applicants. 17. In July 2002 and March 2004 the applicants introduced additional claims, requesting reimbursement of the costs of renovation of the house and payment of UAH 20,544.00 and UAH 60,000 in compensation for pecuniary and non-pecuniary damage respectively. 18.", "On 16 July 2002 the court ordered a technical expert's report on the applicants' house. The expert stated that the court decision was received by him on 7 October 2003. 19. On 17 December 2003 the expert carried out his survey. He concluded that it was not possible to live in the house and that it needed major renovation.", "The cost of such renovation was also determined. 20. On 8 June 2004 the Kirovogradskyy District Court found in part for the applicants and awarded each of the applicants UAH 7,500.50[1] in compensation for pecuniary damage, UAH 20,000[2] in compensation for non-pecuniary damage and UAH 670[3] in court expenses. The applicants did not appeal against this judgment. 21.", "The applicants received some money and goods in enforcement of the judgment in their favour, but for the major part the judgment remains unenforced. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicants complained under Article 6 § 1 of the Convention of an unfair hearing and the length of proceedings in their civil case. The applicants also complained under the same Article about the non-enforcement of the judgment of 8 June 2004 in their favour.", "The above Article, insofar as relevant, reads 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. ...” A. Admissibility 1. Fair hearing 23. The applicants complained in a very general manner about the unfairness and the outcome of the proceedings. The Court notes that the applicants failed to appeal against the judgment of 8 June 2004 of the Kirovogradskyy District Court and, therefore, have not exhausted, as required by Article 35 § 1 of the Convention, the remedies available to them under Ukrainian law.", "This part of the application must be rejected in accordance with Article 35 §§ 1 and 4. 2. Length of the proceedings 24. The Government did not submit any observations on the admissibility of the applicants' complaint. 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. 3. Non-enforcement of the judgment of 8 June 2004 26.", "The Government contended that the applicants' right to have the judgment in their favour enforced had never been questioned. The Government insisted that the Bailiffs' Service had performed all necessary actions as a result of which the judgment in the applicants' favour had been partially enforced. 27. The applicants disagreed. 28.", "The Court notes that the State cannot be considered responsible for the lack of funds of a private company and its responsibility extends no further than the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002). 29. The Court recalls that, as it has already held in similar cases, the Ukrainian legislation provides for a possibility to challenge before the courts the lawfulness of actions and omissions of the State Bailiffs' Service in enforcement proceedings and to claim damages from that Service for the delays in payment of the awarded amount (see, for instance, Kukta v. Ukraine (dec.), no. 19443/03, 22 November 2005).", "In the present case, the applicants neither challenged before the domestic courts the inactivity of the Bailiffs' Service, nor claimed compensation for the alleged omissions of the bailiffs. The applicants, accordingly, cannot be regarded as having exhausted the domestic remedies available to them under Ukrainian law. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention. B. Merits 30.", "The Government did not submit any observations on the merits of the applicants' complaint about the length of proceedings. 31. The Court recalls that the “reasonable” length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent 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). 1.", "Period to be taken into consideration 32. The Court notes that the proceedings in question lasted from 18 February 1998 until 8 June 2004, when the final decision in the applicants' case was adopted. The overall length of the proceedings is, therefore, six years, three months and twenty days. 2. Complexity of the case 33.", "In the present case the national court had to establish whether Mr S. occupied the applicants' house on a legal basis and if not, what how much compensation, if any, should be awarded to the applicants. It is true that the two sets of proceedings began separately, and that the nature of the claims changed with the developing circumstances. The subject matter of the case remained, however, the relatively straightforward question of responsibility for, and consequences of, the allegedly unlawful occupation of the house. The Court concludes that the subject matter of the litigation can not be considered particularly complex. 3.", "What was at stake for the applicants 34. The applicants sought to evict Mr S. from their house. During the court's consideration of their case, the applicants and their two minor children did not have anywhere to live and had to rent a flat. Even after the house had been returned to them, the applicants were still not able to live in it since it was partly derelict and the question of compensation of pecuniary damage had not yet been decided. 35.", "The Court therefore considers that the proceedings were of undeniable importance for the applicants, and what was at stake for them called for an expeditious decision on their claims. 4. Conduct of the applicants 36. The Court concludes that the applicants did not contribute in a significant way to the length of the proceedings. It is true that they amended their claims several time, but this was made necessary by changes in the applicants' situation while the courts were considering the applicants' case.", "5. Conduct of the national authorities 37. The Court recalls that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (Dulskiy v. Ukraine, no. 61679/00, § 86, 1 June 2006). However, in the Court's opinion the national courts did not act with due diligence, having regard to the applicants' situation.", "38. In sum, having regard to the circumstances of the instant case, the overall duration of the proceedings in the first instance court, which was six years, three months and twenty days, the Court considers that the length of proceedings was excessive and failed to meet the “reasonable time” requirement. 39. There has accordingly been a violation of Article 6 § 1. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 40. The applicants complained under Article 1 of Protocol No. 1 about a violation of their property rights caused by a seizure of their house and possessions and by the non-enforcement of the judgment of 8 June 2004. This Article provides, insofar as relevant, as follows: 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 ....” 41. Having regard to its findings under Article 6 § 1 of the Convention in respect of non-enforcement of the judgment in the applicants' favour (see paragraphs 28-29), and assuming that the State was responsible for any interference with the applicants' possessions, the Court concludes that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention. III.", "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 applicants claimed UAH 5,553[4] in respect of pecuniary damage and EUR 40,000[5] each in respect of non-pecuniary damage. 44.", "The Government contended that the applicants had not submitted any documents in support of their claim for pecuniary damage and that their claim for non-pecuniary damage was exorbitant and unsubstantiated. 45. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicants must have sustained non-pecuniary damage as regards the excessive length of the civil proceedings. The Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicants the sum of EUR 2,400 each in respect of non-pecuniary damage.", "B. Costs and expenses 46. The applicants did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect. 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. Declares the applicants' complaint under Article 6 § 1 of the Convention about the length of proceedings in their civil case 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 applicants, 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) each 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; 4. Dismisses the remainder of the applicants' claim for just satisfaction.", "Done in English, and notified in writing on 1 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. At the pecuniary time around 1,176.56 euros (“EUR”). [2]. At the pecuniary time around EUR 3,137.28.", "[3]. At the pecuniary time around EUR 105. [4]. Around EUR 916. [5].", "Around EUR 6,600." ]

[ "THIRD SECTION CASE OF KHAMZIN AND OTHERS v. RUSSIA (Applications nos. 72986/10, 5441/11, 21051/11, 32021/14 and 40987/14) JUDGMENT STRASBOURG 6 October 2016 This judgment is final but it may be subject to editorial revision. In the case of Khamzin 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 Hasan Bakırcı Deputy Section Registrar, Having deliberated in private on 15 September 2016, 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”). 3. Having studied the terms of the Government’s unilateral declarations, the Court considers that the proposed declarations do not provide a sufficient basis for concluding that respect for human rights does not require it to continue its examination of these applications. The declarations are therefore rejected. THE FACTS 4.", "The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of their pre-trial detention. In applications nos. 5441/11 and 21051/11 the applicants also raised other complaints under the provisions of the Convention.", "THE LAW I. JOINDER OF THE APPLICATIONS 6. 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 ISSUE FOR APPLICATION NO. 21051/11 7.", "The applicant, Mr Nikolayev (application no. 21051/11), died on 22 September 2015. In a letter of 25 January 2016 Ms Svetlana Nikolayeva, the applicant’s mother and heir, expressed her intention to pursue the application. 8. The Court considers that the applicant’s mother has a legitimate interest in obtaining a finding of a breach of her son’s right guaranteed by Article 5 §§ 3 and 4 of the Convention (see Ernestina Zullo v. Italy [GC], no.", "64897/01, §§ 36-37, 29 March 2006 and Livada v. Ukraine [Committee], no. 21262/06, §§ 34-35, 26 June 2014). 9. Accordingly, the Court holds that Ms Nikolayeva has standing to continue the proceedings in respect of the application no. 21051/11 on behalf of her late son.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 10. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: Article 5 § 3 “3. 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.” 11. The Court observes 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, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 12.", "In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 13. 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 length of the applicants’ pre-trial detention was excessive.", "14. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. IV. REMAINING COMPLAINTS 15. In applications nos.", "5441/11 and 21051/11, 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 Idalov v. Russia [GC], (no. 5826/03, §§ 154-158, 22 May 2012); Korshunov v. Russia, (no.", "38971/06, §§ 59-63, 25 October 2007) and Govorushko v. Russia, (no. 42940/06, §§ 57-61, 25 October 2007). V. 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 (see, in particular, Pastukhov and Yelagin v. Russia, no.", "55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. 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.", "Decides that the mother of the applicant (application no. 21051/11), Ms Svetlana Nikolayeva, has locus standi in the proceedings; 3. Rejects the Government’s request to strike some applications out of its list of cases under Article 37 of the Convention on the basis of the submitted unilateral declarations; 4. Declares the applications admissible; 5. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 6.", "Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table); 7. 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 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıHelena JäderblomDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth / Date of registration Representative name and location Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 72986/10 02/12/2010 Damir Idrisovich KHAMZIN 31/01/1973 12/08/2010 to 08/12/2010 3 month(s) and 27 day(s) 1,000 5441/11 20/12/2010 Igor Ivanovich KARAKOZOV 29/05/1977 13/03/2008 to 07/08/2009 17/11/2009 to 27/08/2010 1 year(s) and 4 month(s) and 26 day(s) 9 month(s) and 11 day(s) Art.", "5 (4) - excessive length of judicial review of detention, Art. 5 (5) - lack of, or inadequate, compensation for unreasonably long pre-trial detention 3,000 21051/11 14/03/2011 Leonid Lvovich NIKOLAYEV 27/12/1983 Gaynutdinov Damir Ravilevich Kazan 15/11/2010 to 22/02/2011 3 month(s) and 8 day(s) Art. 5 (4) - excessive length of judicial review of detention 1,300 32021/14 30/03/2014 Alla Aleksandrovna VASILYEVA 07/09/1976 17/07/2012 to 10/11/2014 2 year(s) and 3 month(s) and 25 day(s) 2,400 40987/14 30/04/2014 Rinat Khanyafiyevich ABDRAKHMANOV 03/06/1974 Konovalova Yekaterina Viktorovna St Petersburg 24/12/2010 pending More than 5 year(s) and 9 month(s) 5,800 [1] Plus any tax that may be chargeable to the applicants." ]

[ "SECOND SECTION CASE OF TERZİOĞLU AND OTHERS v. TURKEY (Applications nos. 16858/05, 23953/05, 34841/05,37166/05, 19638/06 and 17654/07) JUDGMENT STRASBOURG 16 December 2008 FINAL 05/06/2009 This judgment may be subject to editorial revision. In the case of Terzioğlu and Others 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 25 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in six applications (nos. 16858/05, 23953/05, 34841/05, 37166/05, 19638/06 and 17654/07) 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 eight Turkish nationals, Mr Necdet Terzioğlu, Ms Fatma Terzioğlu, Mr Şencan Kanan, Mr Sezai Kerci, Mr Ömer Tuncer, Mr Mehmet Karadağ, Mr İsmail Özcan and Mr Halil Özcan (“the applicants”), on 15 April, 6 June, 2 September, 30 September 2005, 29 April 2006 and 10 April 2007 respectively.", "2. The applicants were represented by Mr H. Baydar, Mr İ. Uyar, Mr G.A. Yolyapan, Mr T.B. Ulutaş, Mr M.M. Sezgin and Ms M. Adalı, lawyers practising in Çanakkale, Tekirdağ, İzmir, Denizli and Bursa.", "The Turkish Government (“the Government”) were represented by their Agent. 3. On 5 November 2007 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1924, 1932, 1940, 1949, 1946, 1944, 1937 and 1934 respectively and live in different cities in Turkey. 5. On various dates, the applicants inherited or bought plots of land and properties near the coasts in different parts of Turkey, namely in Çanakkale, Şarköy, Izmir, Mudanya and Seferihisar. Some of the applicants constructed houses or operated commercial entities on their land.", "6. On different dates, the Treasury requested from the competent courts of first instance to determine whether the applicants’ properties were located within the coastal strip. A group of experts appointed by the courts inspected the plots of land and any existing buildings on them and concluded that they were located within the coastline area. 7. Following the conclusion of the expert reports, the Treasury brought actions before the relevant courts, requesting the annulment of the applicants’ title deeds to the land and the properties, on the ground that they were located within the coastal area.", "8. On various dates, the courts of first instance upheld the request of the Treasury and annulled in full the applicants’ title deeds in application nos. 23953/05, 37166/05, 19638/06 and 17654/07, whereas the title deeds in the remaining two applications were partially annulled. In their decisions, the courts held that, pursuant to domestic law (the Coastal Law of 1990), the coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the plots of land. 9.", "Appeals by the applicants against these judgments were dismissed by the Court of Cassation. Some of the applicants’ requests for rectification of the judgments were also rejected by that court. 10. In application no. 23953/05 the applicant brought an action for damages in the Şarköy Civil Court of First Instance on account of his loss of ownership and the demolition of four shops located on the land.", "On 28 October 2003 the Şarköy Civil Court of First Instance dismissed the applicant’s action on the ground that, inter alia, the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. The applicant appealed. In a judgment of 24 September 2004 the Court of Cassation upheld the judgment. A rectification request by the applicant was further dismissed by the Court of Cassation on 17 March 2005. The details concerning the six applications are indicated in the table below: Application no.", "and date of lodging Name of the applicants Name of court and date of decision Date of final decision of Court of Cassation Date of notification of final decision of Court of Cassation 16858/05 (15.4.2005) Necdet Terzioğlu Selma Fatma Terzioğlu 26.12.2003 (Çanakkale Civil Court) 15.9.2004 20.10.2004 23953/05 (6.6.2005) Şencan Kanan 28.10.2003 (Şarkoy Civil Court) 17.3.2005 19.4.2005 34841/05 (2.9.2005) Sezai Kerci 28.10.2004 (Izmir Civil Court) 16.6.2005 8.7.2005 37166/05 (30.9.2005) Ömer Tuncer 4.7.2005 (Mudanya Civil Court) 13.6.2005 23.6.2005 19638/06 (29.4.2006) Mehmet Karadağ 25.3.2004 (Mudanya Civil Court) 16.11.2005 31.1.2006 17654/07 (10.4.2007) İsmail Özcan Halil Özcan 3.6.2003 (Seferihisar Civil Court) 26.12.2005 16.10.2006 II. RELEVANT DOMESTIC LAW AND PRACTICE 11. The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006). THE LAW 12.", "In view of the similarity of the applications, the Court finds it appropriate to join them. I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 13. The applicants complained that the authorities had deprived them of their property without payment of compensation, in violation of Article 1 of Protocol No.", "1, which, in so far as relevant, 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...” A. Admissibility 1. Observance of the six month rule 14. The Government submitted that application nos. 16858/05, 23953/05 and 17654/07 should be dismissed for non-compliance with the six-month time-limit laid down in Article 35 § 1 of the Convention.", "In particular, the judgments of the Court of Cassation had been returned to the respondent registries on 7 October 2004, 27 May 2002 and 16 October 2006. 15. The applicants contested the Government’s assertions. 16. The Court observes that in the application no.", "16858/05 an official note on the first-instance court’s judgment signed by a judge and the registry indicates that the judgment was served on the applicants on 20 October 2004. The applicants lodged the application on 15 April 2005. Accordingly, the Court holds that this application was lodged within the six-month time-limit. In application no. 23953/05 the Court observes that the judgment concerning the annulment of the title deed was returned to the registry on 27 May 2002.", "However, following the annulment of the title deed to his property, the applicant brought an action for damages on account of his loss of ownership and the demolition of his four shops. The relevant proceedings ended on 17 March 2005 when the Court of Cassation dismissed the applicant’s rectification request. The Court recalls that the Government’s similar objection was rejected by the Court in the N.A. and Others v. Turkey case ((dec.), no. 37451/97, 14 October 2004).", "The Court sees no reason to adopt a different stance in the instant case. In application no. 17654/07 the Court observes that the judgment of the Court of Cassation had been returned to the first-instance court’s registry on 19 January 2006. Nevertheless, it is indicated on the judgment submitted to the Court by the Government that the applicants’ lawyer obtained a copy of it on 16 October 2006. He then submitted the application to the Court on 10 April 2007.", "In the absence of a notification form which indicates that the judgment was served on the applicants on a date other than the one indicated on the judgment, the Court finds that the application was lodged within the six-month time-limit (see Kutluk and Others v. Turkey, no. 1318/04, § 21, 3 June 2008). 17. In the light of the above the Court rejects the Government’s preliminary objection with respect to the six-month rule. 2.", "Exhaustion of domestic remedies 18. The Government submitted that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, as they had failed to make proper use of the administrative and civil law remedies available to them in domestic law. 19. The applicants contested the Government’s arguments. 20.", "The Court reiterates that it has examined and rejected the Government’s similar preliminary objection in previous cases (see, in particular, Abacı v. Turkey, no. 33431/02, §§ 11-18, 7 October 2008; Asfuroğlu and Others v. Turkey, nos. 36166/02, 36249/02, 36263/02, 36272/02, 36277/02, 36319/02, 36339/02 and 38616/02, § 15, 27 March 2007; Turgut and Others v. Turkey, no. 1411/03, § 80, 8 July 2008). The Court sees no reason to depart from that conclusion in the present case.", "Accordingly, the Court rejects the Government’s preliminary objection regarding non-exhaustion of domestic remedies. 21. The Court concludes that the 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. B.", "Merits 22. The Government maintained that, according to the Constitution, the coastal area belongs to the State and cannot become private property. They argued that the title-deeds were registered under the name of the applicants in breach of domestic law and the illegal transaction had been corrected by the domestic courts. 23. The applicants maintained their allegations.", "24. The Court has examined similar cases on previous occasions and has found violations of Article 1 of Protocol No. 1 in respect of the annulment of title deeds acquired in good faith but later restored to State ownership without compensation being paid (see Abacı, cited above; N.A. and Others v. Turkey, no. 37451/97, ECHR 2005‑X; Doğrusöz and Aslan, cited above, §§ 26‑32; and Aslan and Özsoy v. Turkey, nos.", "35973/02 and 5317/02, § 21, 30 January 2007). The Court finds no reason to depart from that conclusion in the present case. Accordingly, it finds that there has been a violation of Article 1 of Protocol No. 1. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 14 OF THE CONVENTION 25. The applicants also complained under Article 6 § 1 of the Convention that the domestic court decision was unfair, biased, insufficiently motivated and against the provisions of both domestic and international law. In application no. 37166/05 the applicant further alleged under Article 14 that title deeds to numerous other properties situated elsewhere on the coastline in Turkey had not been annulled. 26.", "The Government contested these arguments. 27. However, an examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 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.” 29. The Court notes that in application no. 19638/06 part of the applicant’s just satisfaction claims were submitted with a delay of ten days, whereas the applicant further requested an extension of the time-limit for a period of one month to submit additional documents. The President of the Chamber, pursuant to Rule 60 § 3 of the Rules of Court, decided to include these preliminary submissions in the case file for the consideration of the Court but to reject the applicant’s request for an extension.", "Accordingly the documents submitted afterwards were not included in the case file. A. Damage 30. The applicants claimed different amounts in respect of their pecuniary and non-pecuniary damage. 31.", "The Government contested the claims, arguing that they were unsubstantiated and excessive. 32. The Court reiterates that when the basis of the violation found is the lack of compensation, rather than any inherent illegality in the taking of the property, the compensation need not necessarily reflect the property’s full value (see N.A. and Others v. Turkey (just satisfaction), no. 37451/97, § 14, 9 January 2007; I.R.S.", "and Others v. Turkey (just satisfaction), no. 26338/95, §§ 23‑24, 31 May 2005). It therefore deems it appropriate to fix a lump sum that would correspond to an applicant’s legitimate expectations to obtain compensation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 254‑259, ECHR 2006‑...; Stornaiuolo v. Italy, no.", "52980/99, §§ 82‑91, 8 August 2006; Doğrusöz and Aslan, cited above, § 36). 33. The Court takes note of the various expert reports submitted to the Court by the applicants, assessing the value of the various plots of land in dispute. The Court dismisses the applicants’ claims concerning loss of profits as being speculative (see Aslan and Özsoy, cited above, § 25). As to the remainder, deciding on an equitable basis, the Court awards the applicants the amounts indicated in euros (EUR) in the table below for pecuniary damage: Application no.", "Name of the applicant Loss Amount 16858/05 Necdet Terzioğlu S.Fatma Terzioğlu Land EUR 4,000 jointly 23953/05 Şencan Kanan Land + building (commercial entity) EUR 70,000 34841/05 Sezai Kerci Land + building EUR 65,000 37166/05 Ömer Tuncer Land + building (commercial entity) EUR 70,000 19638/06 Mehmet Karadağ Land + building EUR 65,000 17654/07 İsmail Özcan Halil Özcan Land + building EUR 65,000 jointly 34. As regards the applicants’ claim for non-pecuniary damage, the Court finds that, in the circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction (see Doğrusöz and Aslan, cited above, § 38). B. Costs and expenses 35. The applicants also claimed different amounts in respect of their costs and expenses incurred before the domestic courts and for those incurred before the Court.", "36. The Government contested these claims, arguing that no credible evidence has been submitted by the applicants to support the purported lawyers’ fees, or costs and expenses. They also added that the amounts claimed were excessive. 37. 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 (see Sawicka v. Poland, no.", "37645/97, § 54, 1 October 2002). 38. The Court takes note of the various documents submitted by some of the applicants, indicating their costs and expenses. Accordingly, and in the light of equity, the Court awards the applicants the amounts in the table below for costs and expenses. However, the Court makes no award under this head where the applicants solely referred to the respondent Bar Association’s scale of fees without submitting any documents in support of their claims (see Balçık and Others v. Turkey, no.", "25/02, § 65, 29 November 2007). Application no. Name of the applicant Amount 16858/05 Necdet Terzioğlu S.Fatma Terzioğlu No award 23953/05 Şencan Kanan EUR 2,260 34841/05 Sezai Kerci No award 37166/05 Ömer Tuncer EUR 1,000 19638/06 Mehmet Karadağ No award 17654/07 İsmail Özcan Halil Özcan EUR 1,000 jointly C. Default interest 39. 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 complaint under Article 1 of Protocol No. 1 admissible and the remainder of the complaints inadmissible; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 in each case; 4.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants; 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 sums, plus any tax that may be chargeable, in respect of pecuniary damage: i. application no. 16858/05, EUR 4,000 (four thousand euros), jointly, to Necdet Terzioğlu and Selma Fatma Terzioğlu; ii. application no. 23953/05, EUR 70,000 (seventy thousand euros) to Şencan Kanan; iii.", "application no. 34841/05, EUR 65,000 (sixty five thousand euros) to Sezai Kerci; iv. application no. 37166/05, EUR 70,000 (seventy thousand euros) to Ömer Tuncer; v. application no. 19638/06, EUR 65,000 (sixty five thousand euros) to Mehmet Karadağ; vi.", "application no. 17654/07, EUR 65,000 (sixty five thousand euros), jointly, to İsmail Özcan and Halil Özcan; (b) within the same three months period, the respondent State is to pay the applicants, the following sums, plus any tax that may be chargeable to the applicants, in respect of costs and expenses: i. application no. 23953/05, EUR 2,260 (two thousand two hundred sixty euros) to Şencan Kanan; ii. application no. 37166/05, EUR 1,000 (one thousand euros) to Ömer Tuncer; iii.", "application no. 17654/07, EUR 1,000 (one thousand euros), jointly, to İsmail Özcan and Halil Özcan; (c) that these sums are to be converted into new Turkish liras at the rate applicable on the date of settlement; (d) 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’ claims for just satisfaction. Done in English, and notified in writing on 16 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]

[ "FIRST SECTION CASE OF KAZARTSEV v. RUSSIA (Application no. 26410/02) JUDGMENT STRASBOURG 2 November 2006 FINAL 02/02/2007 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 Kazartsev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrsN. Vajić,MrA. Kovler,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 12 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 26410/02) 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 Aleksey Dmitriyevich Kazartsev (“the applicant”), on 3 June 2002. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.", "3. On 11 October 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 4. The applicant was born in 1940 and lives in Voronezh.", "THE CIRCUMSTANCES OF THE CASE 5. On 21 September 2000 the Levoberezhniy District Court of Voronezh accepted the applicant’s civil action against the Voronezh Regional Division of the Pension Fund (hereafter – the Pension Fund) and awarded him 887.73 Russian roubles (RUR, approximately 38 euros) in pension arrears. The judgment was not appealed against and became final. 6. Enforcement proceedings were instituted but on 27 April 2001 the bailiffs returned the writ of execution to the applicant without enforcement because the Pension Fund lacked the necessary funds.", "7. On 13 December 2005 the judgment of 21 September 2000 was enforced in full. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 8.", "The applicant complained that the judgment of 21 September 2000 had not been enforced in good time. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Burdov v. Russia, no. 59498/00, § 26, ECHR 2002‑III). 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 9. The Government informed the Court that the Pension Fund had attempted to secure a friendly settlement which the applicant had refused to accept. Referring to that refusal, to the fact that the judgment in the applicant’s favour had been fully enforced, and to the Court’s decision in the case of Aleksentseva and Others v. Russia (nos. 75025/01 et seq., 4 September 2003), the Government invited the Court to strike the application out of its list of cases, in accordance with Article 37 of the Convention.", "10. The applicant disagreed with the Government. He claimed that the Government had not offered compensation for the loss of the value of the judgment debt. The sum offered had not covered the pecuniary and non-pecuniary damage he had sustained due to protracted non-enforcement of the judgment. 11.", "The Court firstly observes that the parties were unable to agree on the terms of a friendly settlement of the case. Whilst under certain circumstances an application may indeed be struck out of the Court’s list of cases 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, this procedure is not, as such, intended to circumvent the applicant’s opposition to a friendly settlement (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 76, ECHR 2003; and Androsov v. Russia, no. 63973/00, § 44, 6 October 2005). 12.", "Moreover, a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly settlement proceedings (Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court) and, on the other hand, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court. 13. On the facts, the Court observes that the Government failed to submit any formal statement capable of falling into that category and offering 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, by contrast, Akman v. Turkey (striking out), no. 37453/97, §§ 23-24, ECHR 2001-VI). 14.", "As regards the Government’s argument that the judgment in question have already been enforced, the Court considers that the mere fact that the authorities complied with the judgment after a substantial delay cannot be viewed in this case as automatically depriving the applicant of his victim status under the Convention (see, e.g., Petrushko v. Russia, no. 36494/02, § 16, 24 February 2005). 15. In the light of the above considerations, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention. 16.", "The Court notes that the 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 17.", "The Government argued that the judgment of 21 September 2000 had been fully enforced. In any event, the enforcement had been impeded by difficulties of budgetary arrangements between State bodies and scarcity of financial resources. 18. The applicant maintained his complaints. 19.", "The Court observes that on 21 September 2000 the applicant obtained the judgment by which the Fund, a State body, was to pay him a certain sum of money. The judgment was not appealed against and became final and enforceable. The judgement was enforced in full on 13 December 2005. Thus, it has remained uneforced for over five years. 20.", "The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see Burdov v. Russia, no. 59498/00, § 19 et seq., ECHR 2002‑III; Gizzatova v. Russia, no. 5124/03, § 19 et seq., 13 January 2005; Gerasimova v. Russia, no. 24669/02, § 17 et seq., 13 October 2005).", "21. Having examined the materials submitted to it, the Court notes that the Government have not put forward any fact or argument capable of justifying the delay in enforcement of the judgment of 21 September 2000. The judgment was not enforced because the debtor did not have financial recourses. However, the Court reiterates that it is not open to a State authority to cite the lack of funds, as an excuse for not honouring a judgment debt (see Plotnikovy v. Russia, no. 43883/02, § 23, 24 February 2005).", "The same principle applies to difficulties experienced by the State enforcement services and the complexity of the budgetary arrangements between State bodies (see, for example, Wasserman v. Russia, no. 15021/02, § 38, 18 November 2004). 22. The Court finds that by failing for years to comply with the enforceable judgment in the applicant’s favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving the money he had legitimately expected to receive. 23.", "There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. 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 25. As regards the pecuniary damage, the applicant argued that he should be paid the sum of the judgment award of 21 September 2000 multiplied at least by 10 to cover inflation losses in 2000-2005 and an interest on the amount outstanding. He further claimed 10,000 US dollars (USD), representing medical expenses of his family members in 2000-2005, and USD 10,000, representing the aggregated salary loss in the period of non-enforcement. He also claimed USD 45,000 in respect of non-pecuniary damage. 26.", "The Government argued that the applicant had failed to substantiate his claims. In any event, those claims were unreasonable and excessive. 27. As regards the claim for compensation for pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicant in respect of medical expenses and salary losses; it therefore rejects those claims. As regards the pecuniary damage clamed by the applicant in respect of inflation losses and the interest, the Court observes that the applicant’s calculations are speculative.", "He did not submit any evidence to substantiate his calculations, for example, certificates showing the inflation rate in the period of non-enforcement or the marginal interest rate of the Russian Central Bank in the same period. The Court therefore rejects his claim for pecuniary damage. 28. The Court considers that the applicant must have suffered certain distress and frustration resulting from the State authorities’ failure to enforce a judgment in his favour. However, the amount claimed appears excessive.", "The Court takes into account the relevant aspects, in particular, the length of the enforcement proceedings and the fact that the nature of the award in the present case was connected to the applicant’s livelihood. Making its assessment on equitable basis, it awards the applicant EUR 3,900 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 29. The applicant also claimed RUR 10,000 for the costs and expenses incurred before the domestic courts and the Court.", "However, he did not submit any receipts or other vouchers in support of his claim. Accordingly, the Court does not make any award under this head. 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 of the Convention and Article 1 of Protocol No. 1; 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 3,900 (three thousand nine hundred euros) in respect of non-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; (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 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF VALERIAN DRAGOMIR v. ROMANIA (Application no. 51012/11) JUDGMENT STRASBOURG 16 September 2014 FINAL 16/12/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Valerian Dragomir v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Dragoljub Popović,Luis López Guerra,Johannes Silvis,Valeriu Griţco,Iulia Antoanella Motoc, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 26 August 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "51012/11) 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 Valerian Dragomir (“the applicant”), on 3 August 2011. 2. The applicant was represented by Mr A. Stoica, a lawyer practising in Timișoara. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs. 3.", "The applicant alleged under Article 5 § 1 of the Convention that there had been no legal basis for his detention for almost eleven hours on the premises of the prosecuting authorities. Under Article 3 of the Convention he complained about the conditions of his detention at the Bucharest Police Station detention facility, mainly on account of overcrowding and improper conditions of hygiene. 4. On 23 November 2012 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1980 and lives in Timișoara. A. The background of the case 6. In February 2011 a large-scale criminal investigation was initiated against ninety‑four police and customs officers for corruption‑related offences.", "7. According to the charge, between October 2010 and January 2011 a criminal group was formed at the Moravița and Foeni border checkpoints, which were controlled by the Timiș County Border Police Inspectorate (“the PCTF”). Its members were involved in acts of corruption and the smuggling of cigarettes from Serbia. 8. The applicant was a customs officer at the Moravița border checkpoint at that time, and was considered to be part of the criminal group by the investigation authority.", "On 3 February 2011 the National Anti‑Corruption Prosecution Service (“the NAP”) initiated a criminal investigation against him on suspicion of being a member of a criminal group and bribery. On 28 March 2011 prosecutors extended the investigation to take into account the offence of repeated smuggling. B. The circumstances surrounding the applicant’s placement in pre-trial detention 9. On 7 February 2011 the prosecutor issued orders to appear on behalf of the applicant and the other ninety-three police and customs officers.", "The orders contained reasons justifying the measure. After referring in extenso to the impugned facts and the nature of the offences allegedly committed, the prosecutor emphasised that it was in the best interests of the investigation to take all the suspects to the NAP headquarters simultaneously. 10. In the framework of the criminal investigation, on 8 February 2011 police officers from the NAP carried out a search at the applicant’s home. The search started at 6 a.m. and lasted about three hours.", "The applicant benefitted from the legal assistance of a lawyer of his own choosing during the search. Related searches were carried out at the residences of the other officers under suspicion. 11. At about 9 a.m. the police officers informed the applicant that on 7 February 2011 the prosecuting authorities had issued an order to appear before the NAP on his behalf. 12.", "At 9.15 a.m. he was taken to the headquarters of the Timiș County Police Inspectorate. 13. At about 2 p.m., he was taken with ninety-three other police and customs officers by bus to the NAP headquarters in Bucharest. He alleged that during the journey he could not get off the bus and could not use his mobile phone or contact his lawyer. 14.", "At about 9.20 p.m., after travelling almost 600 km, they arrived at the NAP headquarters in Bucharest. 15. The applicant alleged that at the NAP headquarters in Bucharest he had been kept in a room under permanent guard and that he could not have any contact with his lawyer. He also claimed that he had neither been allowed to go and purchase food nor offered it; he had only been allowed to leave the room to go to the toilet or for a cigarette. 16.", "Multiple investigative activities were carried out that night by a large team of prosecutors. Each suspected officer was informed of the charges against him and invited to give a statement in the presence of a lawyer of his own choosing. 17. The same lawyer who had assisted the applicant during the search carried out at his residence arrived at the NAP headquarters at about 00.27 a.m. 18. At 8.15 a.m. on 9 February 2011, after almost eleven hours, the applicant was informed in the presence of his lawyer of the charges against him.", "He was provided with an eleven-page document containing a record of the facts. 19. At about 9.33 a.m. the applicant informed the investigators that he refused to give a statement on the grounds that he was very tired after being deprived of sleep for more than thirty hours. 20. At about 10.55 a.m. he was informed that the prosecutor had decided to remand him in custody for twenty-four hours.", "C. The applicant’s pre-trial detention 21. A decision was taken to prosecute the applicant and a request to place him in pre-trial detention was lodged with the competent court. 22. At about 8 p.m. on 9 February 2011 he was taken to the Bucharest Court of Appeal for an examination of the prosecutor’s request concerning his pre-trial detention. The hearing started at 10.30 p.m. and lasted almost one hour.", "The court granted the prosecutor’s request and ordered the pre-trial detention of the applicant for twenty-nine days, from 9 February until 10 March 2011. The reasons adduced by the court to justify the detention were the existence of a reasonable suspicion that he had committed the alleged crimes, and their gravity and nature. 23. The applicant was taken to the Bucharest Police Station detention facility. 24.", "An appeal lodged by the applicant against his pre-trial detention was dismissed by the High Court of Cassation and Justice on 14 February 2011. 25. On 2 March and 4 April 2011 respectively, the Bucharest Court of Appeal extended the applicant’s pre-trial detention. The court referred to the gravity of the charges, the strong suspicion that the offences had been committed and the repeated nature of the offences. It also stressed that the applicant had acted in his capacity as a customs officer when allegedly committing the offences.", "It concluded that it would not be in the public interest to release the applicant and the other customs and police officers. In assessing the impact on the public the applicant’s release from detention would have, the court stressed that the acts had been allegedly committed by a significant number of perpetrators over a long period of time, were repetitive and that the perpetrators were customs and police officers in charge of the protection of legal order. 26. On 9 March and 8 April 2011 respectively, the High Court of Cassation and Justice dismissed the applicant’s appeals against the extension of his detention, upholding the interlocutory judgments of the Bucharest Court of Appeal. 27.", "On 3 May 2011 the applicant was transferred to the Timișoara Police Station detention facility. 28. On 6 May 2011 the Timișoara Court of Appeal ordered his release from detention. An appeal lodged by the prosecutor was dismissed by the High Court of Cassation and Justice on 7 May 2011. 29.", "The applicant was released on 8 May 2011 after three months in detention. 30. It appears that the proceedings on the merits are still pending. D. The applicant’s conditions of detention at the Bucharest Police Station detention facility 31. The applicant claimed that he had been placed in a cell measuring 16 square metres, which he had shared with seven other detainees.", "He also complained of improper conditions of hygiene. 32. According to the applicant, the cell had a squat toilet and a shower, which were not separated from the living area. 33. The Government provided information about the applicant’s conditions of detention.", "They submitted that the applicant had been detained in a cell measuring 14.57 square metres, which he had occupied with seven other detainees. They pointed out that each cell had sanitary facilities such as a toilet and a shower, which were separated from the rest of the cell by a curtain. II. RELEVANT LAW AND PRACTICE 34. Excerpts from the relevant international and domestic reports concerning the situation in Romanian prisons are given in Iacov Stanciu v. Romania, (no.", "35972/05, §§ 125-129, 4 July 2012). 35. In the reports on its June 2006 and September 2010 visits to Romania, the CPT expressed concern about the conditions of detention at the Bucharest Police Station detention facility. According to these reports, cells were overcrowded, toilets were not separated from the rest of the cell, and detainees did not receive any personal hygiene products. 36.", "The relevant provisions of the Code of Criminal Procedure (CCP) concerning police custody and pre-trial detention are set out in Creangă v. Romania ([GC], no. 29226/03, § 58, 23 February 2012). 37. An order to appear before the courts (mandatul de aducere) was, at the material time, defined in Articles 183-184 of the CCP, which read as follows: Article 183 “(1) A person may be brought before a criminal investigation body or a court on the basis of an order to appear, drawn up in accordance with the provisions of Article 176, if, having been previously summonsed, he or she has not appeared, and his or her questioning or presence is necessary. (2) An offender or a defendant may be brought [before the authorities] on the basis of an order to appear even before being summonsed, if the criminal investigation body or the court considers that, and provides reasons why, the measure is necessary for the determination of the case.", "(3) The person brought [before the authorities] by virtue of an order to appear under paragraphs 1 and 2 shall be heard immediately and be available to the judicial authorities only for such time as is required to question him or her, except where his or her remand in custody or pre-trial detention has been ordered. (4) The person brought [before the authorities] on the basis of an order to appear shall be heard immediately by the judicial authorities.” Article 184 “(1) [An] order to appear is enforced by the police. (2) If the person specified in the order cannot be brought [before the authorities] because of an illness or for any other reason, the police officer appointed to enforce the order shall mention this in an official report, which shall be immediately handed to the criminal investigation body or the court. (3) If the police officer appointed to enforce the order to appear does not find the person specified in the order at the specified address, he shall investigate and, if unsuccessful [in locating the individual], shall draw up an official report mentioning the investigative activities undertaken. (31) If the offender or the defendant refuses to accompany a police officer or tries to escape, he or she may be forced to comply with the order.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 38. The applicant complained about the conditions of his detention at the Bucharest Police Station detention facility, particularly with regard to overcrowding and poor hygiene conditions. 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 39. 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 40.", "The applicant submitted that the conditions of his detention at the Bucharest Police Station detention facility had been inadequate. He complained of overcrowding and poor hygiene conditions. He also contended that the sanitary facilities, which comprised a shower and a squat toilet, were not separated by the rest of the cell. Therefore, he had lacked any privacy in using the toilet. 41.", "The Government argued that there had been no infringement of Article 3 of the Convention on account of the applicant’s conditions of detention. 2. The Court’s assessment (a) General principles 42. The Court reiterates that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of execution of the measure of detention 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 Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII, and Kudła v. Poland [GC], no.", "30210/96, § 94, ECHR 2000-XI). 43. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). 44.", "The Court has considered extreme lack of space as a central factor in its analysis of whether an applicant’s detention conditions complied with Article 3 (see Karalevičius v. Lithuania, no. 53254/99, § 39, 7 April 2005). In a series of cases, the Court considered that a clear case of overcrowding was a sufficient element for concluding that Article 3 of the Convention had been violated (see Colesnicov v. Romania, no. 36479/03, §§ 78-82, 21 December 2010, and Budaca v. Romania, no. 57260/10, §§ 40-45, 17 July 2012).", "Moreover, the Court has already found a violation of Article 3 of the Convention on account of the lack of privacy when using the toilet (see Onaca v. Romania, no. 22661/06, §§ 38-39, 13 March 2012). (b) Application of those principles to the case in hand 45. The applicant was detained at the Bucharest Police Station detention facility between 10 February and 4 May 2011. 46.", "The Court notes that, even at the cell capacity indicated by the Government, the applicant’s personal space turns out to have been less than 4 square metres, which falls short of the standards imposed by the Court’s case‑law. Furthermore, in the instant case it is not contested that the toilet and the shower were not separated from the living area by a real partition (see paragraphs 32 and 33). 47. The applicant’s submissions about overcrowding and unhygienic conditions correspond to the findings by the CPT in respect of Bucharest Police Station detention facility (see paragraph 35 above). 48.", "The Court concludes that the conditions of the applicant’s detention caused him distress that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3. 49. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention in the Bucharest Police Station detention facility. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 50.", "The applicant complained that his deprivation of liberty from 9.20 p.m. on 8 February 2011 to 8.15 a.m. on 9 February 2011 was unlawful and arbitrary. He relied on Article 5 § 1 of the Convention, the relevant parts of which read 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 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 parties’ submissions 52.", "The Government submitted that between 9.20 p.m. on 8 February and 10.55 a.m. on 9 February 2011 the applicant had been kept at the disposal of the investigators on the basis of the order to appear before them. 53. The applicant’s presence had been necessary because of his direct involvement in substantial criminal activity committed by a large organised crime group. 54. The Government contended that the expedition of the formalities had been affected, among others factors, by the time of arrival of the accused’s’ chosen lawyers at the NAP headquarters.", "The order of the accused’ questioning had therefore been determined not only by the priorities of the inquiry, but also by the time of arrival of the defence lawyers. 55. The Government maintained that the accused had been kept in a waiting room at the NAP headquarters. They had been offered water and coffee and had been allowed to obtain food from their lawyers. The investigators had taken all the measures possible to reduce the periods of time necessary for progressing the procedural measures, having regard to the complexity and particularities of the case.", "56. The Government argued that it had been in the interests of the proper advancement of the investigation to issue an order to appear in the name of the applicant. The investigators had issued the order, taking into account that under Article 183 of the CCP a person might be brought before a prosecutor on the basis of an order to appear even without having been previously summonsed, if an interview or his or her presence was considered necessary. 57. In the Government’s view, the prosecutor’s decision to issue an order to appear was proportionate to the scope of bringing the applicant before the judicial authorities to inform him of the charges and to question him.", "They further pointed out that the domestic legislator had not intended to include the institution of orders to appear among the measures of pre‑trial detention. Orders to appear were included among the procedural measures, more precisely the summonses issued by the judicial authorities. 58. Lastly, the Government pointed out that the applicant had not been deprived of liberty, but his free movement had been restricted for the purposes of the pending investigation with a view to establishing the facts. They concluded by pointing out that in the event that the Court found that the applicant had been deprived of his liberty, it should be considered to fall within the ambit of Article 5 § 1 (c) of the Convention.", "59. The applicant submitted that he did not contest the lawfulness of the order to appear before the investigators but his unlawful confinement from the moment the effects of that order to appear had ceased, namely from the moment he had arrived at the NAP headquarters at 9.20 p.m. on 8 February 2011 until 8.15 a.m. the next day. 60. The applicant maintained that he had not been immediately informed, even before his questioning, about the crime that was being investigated, its legal classification, the right to be assisted by a lawyer and the right to make a statement. He disagreed with the Government’s allegation that the expedition of these formalities had been affected by the time of arrival of his defence lawyer at the NAP headquarters.", "Although his lawyer had arrived at 12.27 a.m., he had only been informed of the charges against him when being questioned by the prosecutor. 61. As regards the conditions he had been kept in until that questioning, the applicant claimed that he had been guarded by police officers and gendarmes. He added that he had been kept in a boardroom, not a waiting room, and had not received coffee, water or food as maintained by the Government. He also submitted that the police officers had prevented his lawyer, who had arrived at the NAP headquarters at 12.27 a.m., from contacting him while he was waiting to be questioned.", "62. The applicant also submitted that his deprivation of liberty on the basis of an order to appear for approximately eleven hours was contrary to Article 183 of the CCP. In this connection, he pointed out that according to Article 183 §§ 3 and 4 a person brought before the authorities by virtue of an order to appear should be immediately heard by the judicial authorities and could not remain at their disposal for more than the time strictly necessary for his questioning. 2. The Court’s assessment (a) The period to be taken into account 63.", "The Court notes that in his initial application, the applicant alleged that he had been deprived of liberty between 9.20 p.m. on 8 February and 10.55 a.m. on 9 February 2011. In his written submissions, he had only complained of a deprivation of liberty until 8.15 a.m. on 9 February 2011. The Court will therefore refer only to the latter time period indicated. 64. The Court nevertheless notes that between 8.15 and 10.55 a.m. on 9 February 2011 the applicant was being questioned by the prosecutor in the presence of his lawyer.", "(b) Whether the applicant was deprived of liberty 65. The Court must first establish whether or not the applicant was deprived of his liberty within the meaning of Article 5 of the Convention. 66. In order to determine this, the starting point must be his or her specific situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy, 6 November 1980, § 92, Series A No. 39, and Mogoş v. Romania (dec.), no.", "20420/02, 6 May 2004). 67. In this connection, the Court must emphasise that the characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă, cited above, § 92). Thus, the fact that both the national authorities and subsequently the respondent Government considered that the applicant had not been arrested and detained does not automatically mean that the applicant was not deprived of his liberty. 68.", "In the present case the applicant claimed – and the Government have not disputed – that the applicant spent almost eleven hours in a waiting room at the NAP headquarters before being questioned by the prosecutor. 69. According to the Court’s established case-law, coercion is a crucial element in its examination of whether or not someone has been deprived of his or her liberty within the meaning of Article 5 § 1 of the Convention (see, for example, Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008 and M.A. v. Cyprus, no.", "41872/10, §§ 186-193, ECHR 2013 (extracts)). The applicant in the present case did not volunteer to go to the NAP headquarters. 70. The Court further notes that the applicant was guarded by police officers continuously and that at no point during the journey from his home to Bucharest was he allowed to leave of his own free will. He was also guarded by police officers while waiting at the NAP headquarters.", "71. The Court therefore considers that the applicant was under the authorities’ control throughout the entire period, and concludes that he was deprived of his liberty within the meaning of Article 5 § 1 of the Convention. (c) Whether the applicant’s deprivation of liberty was compatible with Article 5 § 1 of the Convention 72. The Court must now determine whether the applicant was deprived of his liberty “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. The words “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.", "While it is normally in the first place for the national authorities, notably the courts, to interpret and apply domestic law, the position is different in relation to cases where failure to comply with the law entails a breach of the Convention. This applies, in particular, to cases in which Article 5 § 1 is at stake and the Court must then exercise a certain power to review whether national law has been observed (see Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000-III). In particular, it is essential, in matters of deprivation of liberty, that the domestic law define clearly the conditions for detention and that the law be foreseeable in its application (see Zervudacki v. France, no. 73947/01, § 43, 27 July 2006, Creangă, cited above, § 101).", "73. The applicant was taken from his home at about 9.15 a.m. on 8 February 2011 on the basis of an order to appear before the investigation authorities. The order was issued on the basis of Articles 183 and 184 of the CCP, as in force at the material time. 74. The Court notes that according to Article 183 § 1, an individual could be brought before a criminal investigation body or a court on the basis of an order to appear, if, having been previously summonsed, he or she had not appeared and an interview or his or her presence was necessary.", "Pursuant to Article 183 § 2, an offender or a defendant could be exceptionally brought before the courts on the basis of an order to appear even before being summonsed, if the criminal investigation body or the court considered the measure necessary for the determination of the case, and provided reasons why. 75. In this connection, the Court observes that the prosecutor’s order of 7 February 2011 (see paragraph 9 above) issued on the basis of Article 183 § 2 of the CCP contained reasons justifying the measure (contrast Ghiurău v. Romania, no. 55421/10, § 85, 20 November 2012). 76.", "The Court further notes that, under Article 183 §§ 3 and 4 of the CCP, the person appearing by virtue of the order to appear shall be heard immediately and be available to the judicial authorities only for such time as is required to question him or her. In this connection, the Court notes that although the applicant arrived at the NAP headquarters at 9.20 p.m., he was not questioned by a prosecutor until after almost eleven hours. 77. As results from the prosecutor’s order of 7 February 2011, the applicant and his ninety-three other colleagues were summonsed to appear before the NAP as suspects (“învinuiți”) as a criminal investigation had been opened in the case in respect of all of them on 3 February 2011. Therefore, the Court considers that the lawfulness of the applicant’s deprivation of liberty must be examined under Article 5 § 1 (c) of the Convention.", "78. As regards the Government’s submission that the order of the suspects’ questioning had been determined not only by the priorities of the inquiry, but also by the time of arrival of the defence lawyers, the Court notes on the basis of the material available to it that the applicant’s lawyer had arrived at the NAP headquarters at about 12.27 a.m. on 9 February 2011; however, the applicant was not invited to give a statement in the presence of his lawyer until 8.15 a.m. 79. Under Romanian law, there are only two preventive measures entailing a deprivation of liberty: police custody and pre-trial detention. In the present case, however, neither of those measures was applied to the applicant before 10.55 p.m. on 9 February 2011. 80.", "The Court is conscious of the constraints arising in a criminal investigation and does not deny the complexity of the proceedings instituted in the instant case, which required a unified strategic approach, in a large‑scale case involving a significant number of people. However, with regard to liberty, the fight against corruption cannot justify recourse to arbitrariness and areas of lawlessness in places where people are deprived of their liberty (see Creangă, cited above, § 108). 81. Having regard to the foregoing, the Court considers that even from the applicant’s arrival at the NAP headquarters at 9.20 p.m. on 8 February 2011, the prosecutor had a sufficiently strong suspicion to justify the applicant’s deprivation of liberty for the purposes of the investigation, and that Romanian law provided for the measures to be taken in that regard, namely placement in police custody or pre-trial detention. However, the prosecutor decided only at a very late stage, after almost thirteen hours, to place the applicant in custody.", "82. Accordingly, the Court considers that the applicant’s deprivation of liberty between 9.20 p.m. on 8 February 2011 until 8.15 a.m. on 9 February 2011, had no basis in domestic law and that there has therefore been a violation of Article 5 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 83. Lastly, the applicant complained under Article 5 § 3 of the Convention that the Bucharest Court of Appeal did not provide sufficient reasons for his pre-trial detention and the two subsequent extensions of his detention.", "84. 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 complaint 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 85.", "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 86. The applicant did not claim any award in respect of pecuniary damage. As regards non-pecuniary damage, the applicant claimed EUR 5,000. 87.", "The Government contended that the amount claimed by the applicant in respect of non-pecuniary damage was excessive and that the mere acknowledgement of a violation of the Convention would represent in itself a just satisfaction. 88. The Court awards the applicant EUR 5,000 in respect of non‑pecuniary damage. B. Costs and expenses 89.", "The applicant also claimed EUR 100 for the costs and expenses incurred in connection with his correspondence with the Court. 90. The Government submitted that such an amount could be awarded to the applicant if a violation of the Convention was found. 91. 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 100 for the proceedings before the Court. C. Default interest 92. 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 concerning Articles 3 and 5 § 1 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; 3. Holds that there has been a violation of Article 5 § 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, 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), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 100 (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; Done in English, and notified in writing on 16 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıJosep CasadevallDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF TUMANOV v. RUSSIA (Application no. 38911/07) JUDGMENT STRASBOURG 11 October 2016 This judgment is final but it may be subject to editorial revision. In the case of Tumanov 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 20 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38911/07) 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 Valeriy Vladimirovich Tumanov (“the applicant”), on 31 July 2007.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 16 March 2015 the complaints concerning length and review of pre-trial detention were communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1984 and is detained in Saint-Petersburg. 5. On 22 April 2004 he was arrested on suspicion of murder. 6. On 24 April 2004 the Vyborgskiy Federal District Court of Saint-Petersburg authorised the applicant’s pre-trial detention.", "He remained in custody pending investigation and trial. 7. On 7 February 2005 the District Court extended the applicant’s pre‑trial detention. The court referred to the gravity of charges, the applicant’s character, lack of permanent residence in Saint-Petersburg, and risk of absconding or re-offending. 8.", "On 7 April 2005 the District Court returned the case to the prosecutor and extended the applicant’s detention without specifying any reasons. 9. On 15 September 2005, 21 October 2005 and 15 December 2005 when extending pre-trial detention, the District Court reproduced the grounds for detention described above. 10. On 2 March 2006 the Saint-Petersburg City Court quashed the detention order of 15 December 2005 and remitted the case for a fresh examination.", "11. On 16 March 2006, 22 March 2006 and 21 June 2006 the District Court extended the applicant’s detention referring to the gravity of charges, absence of permanent residence, his character, possibility of absconding and committing crimes. The applicant and his lawyer did not attend the hearing on 21 June 2006. 12. On 30 June 2006 the Vyborgskiy District Court of Saint-Petersburg convicted the applicant of murder and theft.", "13. On 31 January 2007 the Saint-Petersburg City Court upheld his conviction on appeal. As regards the applicant’s appeal against the detention order of 21 June 2006, the court noted that the lower court had failed to ensure the applicant’s and his lawyer’s presence at the hearing of 21 June 2006. However, in view of the applicant’s conviction, it discontinued the appeal proceedings finding them unnecessary. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 14. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and 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.” 15. The Government stated that the applicant had failed to comply with the six months’ rule in respect of the complaint.", "His pre-trial detention ended on 30 June 2006, while he submitted his application to the Court on 31 July 2007. 16. The applicant did not comment. A. Admissibility 17. The Court reiterates that, as a general rule, the six-month time-limit provided for by Article 35 § 1 of the Convention starts to run, in connection with a period of pre-trial detention, from the date on which the charge is determined by a court at first instance (see Daktaras v. Lithuania (dec.), no.", "42095/98, 11 January 2000). However, where the applicant had challenged the lawfulness of his pre-trial detention in separate proceedings, in which a final decision was delivered after his conviction at first instance, the six-month time-limit runs from the date of that decision (see Popov v. Russia, no. 26853/04, § 153, 13 July 2006). 18. In this connection, the Court notes that the final decision concerning the latest extension of the applicant’s pre-trial detention was delivered on 31 January 2007.", "The application was lodged on 31 July 2007. Accordingly, it was introduced within six months of the final decision. 19. 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 20. The Court notes that the period to be taken into consideration lasted from 22 April 2004, the date of the applicant’s arrest, to 30 June 2006, the date of his conviction. It amounted, accordingly, to two years, two months, and eight days.", "21. The Court has already, on numerous occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts had extended an applicant’s detention whilst essentially relying on the gravity of the charges and merely using stereotypical formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; 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). 22.", "Having regard to its case-law and to the facts of the present case, the Court considers that its earlier findings hold true in the present case. By failing to address specific facts or consider alternative preventive measures, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify him being remanded in custody for two years and two months. There has been, accordingly, a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 23.", "The applicant complained that on 21 June 2006 neither he nor his lawyer had attended the detention hearing whereas the prosecutor had been present and had made submissions to the court. He relied on Article 5 § 4 of the Convention which provides: “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.” 24. The Government did not comment. 25. The applicant maintained his complaint.", "A. Admissibility 26. 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 27. The Court will examine the merits of the applicant’s complaint under Article 5 § 4 of the Convention in the light of the applicable general principles set out in, among others, the case of Idalov (see Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, with further references). 28. Turning to the circumstances of the present case, the Court observes, and it is not disputed by the Government, that the applicant did not have an opportunity to present his arguments on the extension of his detention either before the first-instance or appeal court.", "Neither the applicant nor his lawyer was summoned to attend the hearing on 21 June 2006 when the court extended the applicant’s pre-trial detention until 22 September 2006. While they were present at the appeal hearing held on 31 January 2007, the appeal court discontinued the proceedings refusing to consider the applicant’s complaint against the detention order of 21 June 2006 on the merits. 29. The Court considers that, in such circumstances, the applicant was deprived of an effective review of the lawfulness of his continued detention, being unable to present his case effectively at any stage of the proceedings (compare, Vladimir Solovyev v. Russia, no. 2708/02, §§ 134-39, 24 May 2007).", "The Court therefore finds that there has been a violation of Article 5 § 4 of the Convention. III. 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.” 31. 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 complaints under Article 5 §§ 3 and 4 concerning the excessive duration and review of pre-trial detention admissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention.", "Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF MILANKOVIĆ AND BOŠNJAK v. CROATIA (Applications nos. 37762/12 and 23530/13) 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 Milanković and Bošnjak v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Julia Laffranque,Paul Lemmens,Valeriu Griţco,Ksenija Turković,Stéphanie Mourou-Vikström,Georges Ravarani, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 15 March 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "37762/12 and 23530/13) 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 two Croatian nationals, Mr Vladimir Milanković and Mr Drago Bošnjak (“the applicants”), on 29 May 2012 and 29 March 2013 respectively. 2. The first applicant was represented by Mr M. Umićević, a lawyer practising in Zagreb, and the second applicant was represented by Mr D. Rešetar, a lawyer practising in Osijek. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicants complained, in particular, of a lack of relevant and sufficient reasons for their prolonged pre-trial detention, contrary to Article 5 § 3 of the Convention. 4. On 8 November 2013 the first applicant’s complaint was communicated to the Government, and on 17 July 2013 the second applicant’s complaint was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1962 and 1958 respectively and live in Sisak. A. Criminal proceedings against the applicants 6. On 20 June 2011 the Sisak-Moslavina Police Department (Policijska Uprava Sisačko-moslavačka; hereinafter: the “police”) lodged a criminal complaint against the applicants and one other person, alleging that in 1991 and 1992 they had committed war crimes against the civilian population in the area of Sisak and Banovina. 7.", "Having collected extensive evidence in the course of the preliminary investigation, on 22 June 2011 the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku) requested an investigating judge of the Osijek County Court (Županijski sud u Osijeku) to open an investigation in respect of the applicants on suspicion of war crimes against the civilian population, as alleged in the criminal complaint lodged by the police. 8. The investigating judge questioned the applicants in connection with the request of the Osijek County State Attorney’s Office. Both applicants denied the allegations against them. 9.", "On 22 June 2011 the investigating judge opened an investigation in respect of the applicants on suspicion of war crimes against the civilian population. The investigating judge found, on the basis of the available material, that there was a reasonable suspicion that the first applicant, acting in his capacity as commander of police combat units in the area of Sisak, had ordered and carried out arbitrary arrests and ill-treatment of civilians, and that he had failed to prevent, supress and punish arbitrary arrests and searches and seizures, as well as ill-treatment and killings perpetrated by his subordinates. With regard to the second applicant, the investigating judge found that there was a reasonable suspicion that, as a member of a special police unit of the Sisak police, he had organised a group which had carried out arbitrary arrests, ill-treatment and killings. 10. During the investigation the investigating judge heard evidence from the applicants and questioned numerous witnesses.", "He also obtained a number of relevant forensic reports on the crime-scene examinations, autopsies and ballistic expertise, and voluminous evidence and documentation concerning the actions of the police units in Sisak at the relevant time. 11. On the basis of the evidence obtained during the investigation, on 16 December 2011 the Osijek County State Attorney’s Office indicted the applicants in the Osijek County Court on charges of war crimes against the civilian population. The first applicant was charged with twenty-four counts of arbitrary arrests, ill-treatment and the killing of civilians, and the second applicant with four counts of ill-treatment and the killing of civilians. The relevant part of the indictment concerning the applicants’ participation in those events reads: “I.", "Defendant Vladimir Milanković in the period between July 1991 and June 1992, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of a part of the local Serbian population and the Yugoslav People’s Army in the conflict on the Constitutional and territorial integrity of the Republic of Croatia, ... as a commander of the police units in the wider area of Sisak and Banovina ... authorised thereby to give orders to all police units and responsible for [securing] compliance with and application of the laws of war and international humanitarian law relative to the protection of civilian persons on that territory and for the humane treatment of prisoners of war, aware that, due to the conflict and occupation of an important part of Banovina and the terrorising and expulsion of the non-Serbian population from the occupied territories, intolerance towards the Serbian citizens of Sisak was growing, that the security situation in the city was ... extremely complex, that inter-ethnic relations were very tense, that there was a perception amongst the Croatian and other non-Serbian citizens of Sisak that all Serbs were collectively responsible for the war, ... at the same time aware that the police units under his command were mostly composed of members of the local population affected by the suffering, that amongst the members of his subordinate police units there were some individuals who had been previously in conflict with the law, while the members of the reserve police units had not been instructed about or trained on all the obligations arising from the norms of international laws of war and humanitarian law, aware that in the Sisak area members of his subordinate units frequently and without any legal basis carried out searches [and seizures] in the houses and flats of persons of Serbian origin, ... who were, in the course of these unlawful actions, often arrested ... although aware that the arrested persons were subjected to unlawful actions, that during questioning they were accused of collaboration with the enemy, offended, humiliated and coerced, that some of them were physically and psychologically ill-treated and that grave bodily injuries were inflicted on them, and that already on 4 August 1991, during one such intervention ... V.B. [was arrested and subsequently] brutally beaten by a number of unknown members of the reserve police unit ..., and that the numerous injuries he had sustained led to his death the same evening in the Sisak hospital, although aware that in the above-noted circumstances, if he failed to take timely and adequate measures, the members of his subordinate units would continue their unlawful actions against the citizens of Sisak of Serbian origin and their inhumane treatment of prisoners of war, although under the commonly recognised rules of international laws of war and humanitarian customary law relative to the protection of civilian persons, and the command responsibility for the acts of subordinates in times of armed conflict, contrary to Articles 3 § 1 (a) and (c), 13, 27, 31 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), Articles 75, 86 and 87 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) and Article 3 § 1 (a) and (c) and Article 13 of the Third Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, he was required to take measures to prevent, supress and punish such unlawful actions, he failed to do so. On the contrary, by using his authority as commander of the police units, he prevented the taking of necessary measures to identify the direct perpetrators and thereby condoned the unlawful actions of his subordinates and encouraged them to take such actions, accepting that they would continue with their actions and condoning their consequences. Meanwhile he also personally participated in ill-treatment and attacks on certain civilians and ordered the unlawful detention of a number of civilians of Serbian origin ... II. Defendant Drago Bošnjak in the second half of August 1991, ..., as a member of the special police unit V. of the Sisak Police Department, together with, at present, unknown members of that unit, ..., in order to carry out coercion and revenge on citizens of Serbian origin, contrary to Articles 3 § 1 (a) and (c), 13, 27 and 32 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), organised and led a group of unknown members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin ...” 12.", "The applicants objected to the indictment. On 27 January 2012 a three-judge panel of the Osijek County Court confirmed the existence of a reasonable suspicion that they had committed the offences listed in the indictment, and sent the case to trial. 13. At a hearing held on 21 May 2012 before the Osijek County Court the applicants pleaded not guilty to the charges. 14.", "In the further course of the proceedings a number of hearings were held before the Osijek County Court, notably on 11-13 June; 2-4 and 9-11 July; 4-5 and 17-19 September; 9-10 and 15-17 October; 5, 7, 19, 20-21 November, 11-12 December 2012; as well as on 4-5 and 18-20 February; 18-20 March; 29 April; 14 and 28 June; 26 August; 29 September; and 14-16 October 2013. Several witnesses were questioned and voluminous evidence was examined. 15. The closing hearing was held on 2 December 2013. By a judgment of 9 December 2013 the Osijek County Court found the first applicant guilty as charged and sentenced him to eight years’ imprisonment.", "It acquitted the second applicant on the grounds of lack of evidence. 16. The first applicant challenged the first-instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), alleging a number of substantive and procedural flaws. The Osijek County State Attorney’s Office also lodged an appeal before the Supreme Court, challenging the acquittal of the second applicant and complaining that the sentence given to the first applicant was lenient. 17.", "On 10 June 2014 the Supreme Court upheld the acquittal of the second applicant and increased the first applicant’s sentence to ten years’ imprisonment. The judgment of the Osijek County Court thereby became final. B. Decisions on the applicants’ detention during the investigation 18. On 20 June 2011 the applicants were arrested in connection with the criminal complaint lodged against them by the police (see paragraph 6 above).", "19. On 22 June 2011 the investigating judge ordered the applicants’ pre-trial detention for one month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). The relevant part of the decision reads: “As an investigation has been opened in respect of the defendants concerning the offences at issue, the general condition [related to the existence of reasonable suspicion] for ordering detention against ... the second defendant Vladimir Milanković and the third defendant Drago Bošnjak has been met. ... A request for the questioning of 232 witnesses has been made. Most of these witnesses live in the Sisak area and most of them still work or have worked as police officers ... who were subordinate to the second defendant Vladimir Milanković.", "Specifically, in the period at issue the second defendant Vladimir Milanković was a deputy to the Chief of the Sisak Police Department ... and the real commander of the entire police force [in the Sisak area]. The records of the police interviews show that several witnesses who should be questioned [during the investigation] are in fear of the second defendant because they gave statements concerning the impugned actions ... and the second defendant was their superior in the period at issue. Furthermore, amongst the witnesses – including victims who have been ill-treated or are family members of the victims, there is a fear of the defendant and the available material in the case file shows that the witnesses have been threatened ... There is therefore a risk of collusion, [that is to say a risk] that the defendant could, if at large, hinder the investigation by influencing the witnesses. Thus detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified.", "Furthermore, since the defendant ... has been charged with individual and command responsibility for the unlawful deprivation of liberty and ill-treatment of thirty-eight civilians of Serbian origin and the killing of thirty-one persons of Serbian origin from the Sisak area, all of which was perpetrated in a particularly brutal manner, including entire families irrespective of the sex or age [of the victims], and in view of the fact that the criminal offence at issue carries a sentence of more than twelve years’ imprisonment, and also the circumstances described in [the decision on opening of the investigation], ... it follows that detention under Article 102 § 1 (4) of the Code of Criminal Procedure is justified. Detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure is also justified in respect of the third defendant Drago Bošnjak. ... A number of witnesses who should be questioned during the investigation, and who were members of unit V., have given different statements about the [relevant] events from those given by the defendant ... which suggests that there is a risk that if at large he could hinder the conduct of the investigation by influencing these witnesses ... The same circumstances which have been stated above concerning the first and the second defendants accordingly apply to the third defendant with regard to the existence of a risk that if at large they could continue with threats to the mentioned witnesses, who have already been threatened several times concerning their statements against the defendants in the proceedings at issue. Thus the detention under Article 102 § 1 (2) of the Code of Criminal Procedure is justified.", "In respect of the third defendant, reasons for detention under Article 102 § 1 (4) of the Code of Criminal Procedure also exist. In particular, he is suspected of individual responsibility in the commission of war crimes against the civilian population and arbitrary arrests, ill-treatment and the killing of two families Vi. and T. in a highly brutal manner. The description of the offences [referred to in the decision on opening of the investigation] suggests that the circumstances of the offences were particularly serious. The offences were motivated by revenge and ethnic discrimination and were committed in a highly brutal manner against civilians and entire families ...", "Detention under Article 102 § 1 (4) of the Code of Criminal Procedure is therefore justified.” 20. The applicants appealed against the decision of the investigating judge before a three-judge panel of the Osijek County Court, arguing that it lacked the relevant reasoning. 21. On 5 July 2011 a three-judge panel of the Osijek County Court dismissed the applicants’ appeals as unfounded, endorsing the reasoning of the investigating judge. In particular it noted the following: “There is therefore a reasonable suspicion that the defendants committed the offences alleged [in the decision on opening of the investigation] and thus the general condition for ordering pre-trial detention under Article 102 § 1 of the Code of Criminal Procedure has been met.", "The impugned decision contains sufficient reasoning as to the existence of a reasonable suspicion, and the appeal arguments, concerning the manner in which the offences were committed or the extent of the criminal wrongdoing relate to something which will be examined during the proceedings. At this stage of the proceedings the existence of a reasonable suspicion is a sufficient condition for ordering pre-trial detention ... and when examining an appeal against the decision ordering detention, the second-instance court is not authorised to examine the facts with regard to the actual existence of the offences at issue or the criminal responsibility of the perpetrator. The justification for pre-trial detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure in respect of the defendants follows from the material in the case file. In this respect the impugned decision provided relevant and detailed reasons, which this second-instance panel accepts. ...", "Furthermore, the appeal arguments that in the case at issue the same purpose of the detention could be achieved by one of the alternative measures under Article 90 of the Code of Criminal Procedure cannot be accepted ... In view of all the circumstances of the case, this panel finds that detention under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure is necessary and the only appropriate measure for the prevention of collusion, especially given the particular gravity of the offences at issue.” 22. On 19 July 2011 the investigating judge extended the applicants’ detention for a further two months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that some more witnesses needed to be questioned and that some of them had been threatened with regard to their statements in the criminal proceedings at issue. The investigating judge also reiterated the previous findings concerning the gravity of the charges against the applicants.", "23. The applicants appealed against that decision and on 1 August 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, reiterating its previous arguments. 24. On 19 September 2011 the investigating judge extended the applicants’ detention for a further three months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He held that thus far, out of 232 witnesses, sixty-one had been questioned and that the remainder should be questioned within a period of three months.", "The investigating judge also reiterated the specific circumstances of the case justifying detention on the grounds of gravity of the charges. 25. The applicants challenged that decision, arguing that their continued detention was not justified. On 30 September 2011 a three-judge panel of the Osijek County Court dismissed their appeals as ill-founded, endorsing the findings of the investigating judge. 26.", "On 28 October 2011 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), contending that his pre-trial detention was not based on relevant and sufficient reasons. 27. On 11 November 2011 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Osijek County Court. The Constitutional Court in particular stressed: “The Constitutional Court reiterates its opinion, on which the appellant relies in his constitutional complaint, that the mere existence of a ‘reasonable suspicion’ is not sufficient after a certain lapse of time to justify pre-trial detention. It is necessary in such instances, (even under) the case-law of the European Court [of Human Rights], to ascertain the conditions for a possibility [of detention]: a) the existence of ‘relevant and sufficient’ reasons justifying [the detention], and b) whether the competent criminal justice authorities displayed the necessary diligence in the conduct of the proceedings.", "... Since Article 102 § 1 (4) of the Code of Criminal Procedure does not explicitly provide for a legitimate aim of detention, as provided for in the other relevant provisions on detention, it is particularly important that the competent criminal justice authorities correctly establish the necessity of applying Article 102 § 1 (4) of the Code of Criminal Procedure ... In view of the findings of the Osijek County Court, and taking into account the sentence of imprisonment which can be imposed in this specific case, as well as the gravity of the charges, the Constitutional Court finds that the decisions of the investigating judge and the three-judge panel of the Osijek County Court comply with the relevant opinions and requirements when extending the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure ...” C. The first applicant’s detention pending trial 28. Following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), on 19 December 2011 a three-judge panel of that court extended the first applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “There is a reasonable suspicion (and therefore the existence of the general condition for pre-trial detention) that the accused Vladimir Milanković and Drago Bošnjak committed the [war crimes against the civilian population].", "... The second condition [for detention] under Article 102 § 1 (4) of the Code of Criminal Procedure has also been met. This follows from the indictment against the accused Vladimir Milanković and Drago Bošnjak, which describes the physical and mental ill-treatment of the detained civilians, who were beaten until they lost consciousness, subjected to such brutality as to cause bodily harm, arbitrary arrests and beatings. [The accused are suspected of] shooting and bombing family houses, locking civilians in basements without windows or light, taking civilians to unknown locations and shooting them or killing them with hard or sharp objects, and the killing of the entire V. family and part of the T. family out of revenge and ethnic discrimination ... Therefore both defendants are suspected of particular cruelty and mercilessness ..., which, in view of the number of [victims] and the consequences of such conduct, the impugned offences in their entirety significantly surpass the usual circumstances pertinent to such grave offences.", "This justifies detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Vladimir Milanković and Drago Bošnjak ... The preventive measures [under the Code of Criminal Procedure], in view of the specific circumstances of the offences at issue, could not achieve the purpose of detention ...” 29. The first applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the necessity of and the lack of relevant and sufficient reasons for his continued detention. 30. On 13 January 2012 the Supreme Court dismissed the first applicant’s appeal, upholding the decision of the Osijek County Court.", "The relevant part of the decision reads: “The impugned conduct of both accused, which includes ill-treatment and other extreme forms of inhumane treatment of civilians, and in the case of the accused Vladimir Milanković also of prisoners of war, some of whom were killed, as well as the failure to prevent such conduct by [Vladimir Milanković’s subordinates] ... suggests a particularly high level of brutality, mercilessness and unimaginable cruelty. Taking also into account that the seriousness of the impugned conduct of both accused on account of its intensity, recurrence and modality, as well as the period in which it took place, significantly surpasses the usual circumstances and consequences of such offences, which are in themselves particularly grave, [the Supreme Court finds] that the circumstances of the offence are particularly grave [justifying detention] under Article 102 § 1 (4) of the Code of Criminal Procedure. The appellate arguments of both accused that the purpose of detention could be achieved by alternative preventive measures cannot be accepted ... as there is public interest justifying the restriction of the accused’s right to personal liberty, guaranteed under the Constitution and the European Convention on Human Rights. The fact that the impugned offences took place twenty years ago does not diminish their gravity and their moral public condemnation ... In particular, the conclusion as to the existence of particularly grave circumstances [of the offences] follows from the specific facts and the conduct with which the accused are charged, and they significantly surpass the usual circumstances related to the commission of such offences.", "The appellate arguments challenging the existence of a reasonable suspicion, and the assessment of evidence, are not relevant for the decision on detention, as at this stage of the proceedings the existence of a reasonable suspicion follows from the indictment. The second-instance panel, when examining an appeal against a decision on detention, cannot examine the factual findings or the criminal responsibility of the accused.” 31. The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint with the Constitutional Court. He argued that his continued detention had been arbitrary and contrary to the Constitution and the Convention. 32.", "On 2 March 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint as unfounded. It reiterated the necessity of examining in detail all the relevant circumstances of the case when ordering and extending pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraph 27 above), noting in particular: “The Constitutional Court accepts the findings of the Supreme Court ... that detention is justified by the public interest in the case. The Supreme Court correctly stated that the fact that the impugned offences took place twenty years ago does not diminish their gravity or their moral public condemnation ...” 33. On 9 March 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 34.", "The first applicant appealed against that decision to the Supreme Court. On 4 April 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that, in the particular circumstances of the case, his detention had not been disproportionate or unjustified. 35. On 4 June 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on the seriousness of the specific charges against him and finding that the overall duration of his detention had not been excessive. 36.", "The first applicant challenged that decision before the Supreme Court, reiterating his previous arguments. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest related to his remand in custody prevailed over his right to liberty. 37. The first applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing in particular that his continued detention was not based on relevant and sufficient reasons. 38.", "On 26 July 2012 the Constitutional Court dismissed the first applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court. 39. On 27 August 2012 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him. 40. The first applicant appealed against that decision to the Supreme Court, invoking his state of health related to an injury to his right hip and challenging his continued pre-trial detention.", "41. On the basis of medical documentation submitted by the first applicant, on 26 September 2012 the Supreme Court found that the relevant information concerning his health had not been known to the first-instance court when extending his detention; it thus remitted the case and ordered the first-instance court to examine the matter. 42. On 17 October 2012 a three-judge panel of the Osijek County Court, relying on an expert report which indicated that there was no imminent risk to the first applicant’s health or necessity for urgent surgery, extended the first applicant’s detention. 43.", "The first applicant appealed against that decision before the Supreme Court. On 15 November 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the Osijek County Court had correctly established all the relevant circumstances of the case warranting the extension of his detention. 44. The first applicant challenged the decision of the Supreme Court before the Constitutional Court, arguing that his continued detention was no longer reasonable or justified. On 8 January 2013 the Constitutional Court dismissed his complaint as ill-founded, upholding the decision of the Supreme Court.", "45. On 14 January 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on the grounds that, in the particular circumstances of the case at hand, there was nothing calling into question the necessity of his continued detention. 46. The first applicant appealed against that decision to the Supreme Court and on 30 January 2013 the Supreme Court dismissed his appeal as ill-founded. The Supreme Court held as follows: “It is therefore, in the view of this court, justified to remand the accused Vladimir Milanković in custody under Article 102 § 1 (4) of the Code of Criminal Procedure ...", "In view of the fact that the purpose of detention under the cited provision is to prevent persons whose actions provoke particular moral condemnation from being at large, the appeal arguments, according to which the decision of the first-instance court with regard to the necessity of detention lacks the relevant reasoning, cannot be accepted.” 47. The first applicant challenged that decision before the Constitutional Court. On 15 March 2013 the Constitutional Court dismissed his complaint, endorsing the findings of the Supreme Court. 48. On 28 March 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments.", "49. The first applicant challenged that decision before the Supreme Court. On 17 April 2013 the Supreme Court dismissed his appeal on the grounds that there was a persisting public interest warranting his detention. 50. On 14 June 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its findings as to the particular gravity of the charges against him.", "51. The first applicant appealed against that decision to the Supreme Court and on 5 July 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the findings of the Osijek County Court. 52. The first applicant then lodged another constitutional complaint before the Constitutional Court, challenging his continued detention. On 26 August 2013 the Constitutional Court accepted his complaint and remitted the case to the Osijek County Court on the grounds that it had failed to indicate in sufficient detail the specific reasons warranting the first applicant’s continued detention.", "The Constitutional Court explained the relevant principles in the following manner: “Under Article 102 § 1 (4) of the Code of Criminal Procedure on the purpose and aim of detention, and bearing in mind the [Court’s] case-law, which the Constitutional Court accepts, detention on the grounds of ‘particularly grave circumstances’ of an offence ... cannot by itself serve as a purpose. The consequences of the fact that a criminal offence is particularly grave and that its social dangerousness and the ‘extent’ of society’s condemnation are expressed through the possibility of imposing a (long) sentence, are reflected both subjectively and objectively. A defendant facing serious charges and a possibility of incurring a long sentence inevitably has a subjective [incentive] to escape and/or to hinder the proper conduct of the proceedings and/or to reoffend. However, objectively ... there is a possibility of ‘disturbance of the public’, which requires additional care and protection of the public interest. ... ...", "Accordingly, the extension of detention under Article 102 § 2 (4) of the Code of Criminal Procedure cannot be grounded on a simple repetition of the description of the offence imputed [to a defendant] ... but requires an analysis and a detailed reasoning of all the facts and circumstances, particularly those related to the personality of the defendant, the public interest in his or her remand in custody, as well as the conduct and the results of the proceedings.” 53. On 2 September 2013 a three-judge panel of the Osijek County Court examined the specific circumstances of the case and extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “The release of the accused Vladimir Milanković in respect of whom there is a reasonable suspicion that he has committed the offences at issue, would create public disturbance, particularly amongst members of the Serbian minority, specifically those who were the victims of these offences in the area of Sisak. It should be borne in mind that this concerns not only Sisak, as a small community, but also the surrounding rural areas where the consequences of the war are still present and where the process of normalisation of mutual relations and peaceful coexistence of the citizens, irrespective of their ethnic background, is still ongoing. Thus, the release of the accused from detention would not only disturb the population [of this area] but would also diminish [citizens’] confidence in the judiciary and the social [order] as such.", "This is especially so given that the mission of the judiciary is not only prosecution, establishing of guilt and punishment of the perpetrators of criminal offences, but also the [creation of a sense] of justice and rule of law from the perspective of citizens.” 54. The first applicant appealed against that decision to the Supreme Court, challenging the extension of his detention. On 27 September 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 55. The first applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court.", "On 7 November 2013 the Constitutional Court dismissed the complaint as ill-founded. The relevant part of the decision reads: “... the Constitutional Court accepts the fact that the Supreme Court, in compliance with the decision ... of 26 August 2013, in the impugned decision provided reasons justifying the necessity of detention under Article 102 § 1 (4) of the Code of Criminal Procedure in the circumstances of the present case. In particular, the Supreme Court provided reasons showing that in view of the local circumstances in Sisak and the [Court’s] case-law relevant to the prevention of disturbance to public order (in the terminology of the Supreme Court: public disturbance), the appellant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure was justified. ... ... For these reasons the Constitutional Court finds that the competent courts provided sufficient reasons for their decisions, as required by the decision of the Constitutional Court ... of 26 August 2013. ...” 56.", "On 26 November 2013 a three-judge panel of the Osijek County Court extended the first applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 57. Following the first applicant’s conviction at first-instance on 9 December 2013 (see paragraph 15 above), he was remanded in custody pending a final judgment. D. The second applicant’s detention pending trial 58. On 19 December 2011, following the filing of the indictment against the applicants in the Osijek County Court (see paragraph 11 above), a three-judge panel of that court extended the second applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure on the grounds of gravity of the charges (see paragraph 28 above).", "59. The second applicant appealed against that decision to the Supreme Court, challenging the necessity of his detention and complaining of a lack of relevant and sufficient reasons for ordering it. On 13 January 2012 the Supreme Court dismissed his appeal, upholding the decision of the Osijek County Court (see paragraph 30 above). 60. On 9 March 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments (see paragraph 33 above).", "61. The second applicant challenged that decision before the Supreme Court. On 4 April 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that, in the particular circumstances of the case, his detention was not disproportionate or unjustified (see paragraph 34 above). 62. The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, arguing that his continued detention was not justified.", "On 31 May 2012 the Constitutional Court dismissed his constitutional complaint as ill-founded on the grounds that the Osijek County Court and the Supreme Court had provided relevant and sufficient reasons for his continued detention. 63. On 4 June 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). They relied on the particularly grave circumstances of the specific charges against him and found that the overall duration of his detention had not been excessive (see paragraph 35 above). 64.", "The second applicant challenged that decision before the Supreme Court. On 29 June 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that the public interest in his being remanded in custody prevailed over his right to liberty (see paragraph 36 above). 65. On 27 August 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous findings as to the gravity of the charges against him (see paragraph 39 above). 66.", "The second applicant challenged that decision before the Supreme Court. On 26 September 2012 the Supreme Court dismissed his appeal as ill-founded, endorsing the decision of the Osijek County Court. 67. On 21 November 2012 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “It is alleged in the confirmed indictment that there is a reasonable suspicion that the accused Drago Bošnjak, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin.", "Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared. The alleged conduct of the accused, especially given the intensity and recurrence of the acts as well as the period in which they took place, was in itself particularly merciless and cruel. In the view of this court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure.” 68.", "The second applicant appealed against that decision to the Supreme Court, arguing that his detention was not justified. On 7 December 2012 the Supreme Court dismissed his appeal as ill-founded. The relevant part of the decision reads: “... the finding of the first-instance court that the grounds for the continued detention of the accused Drago Bošnjak under Article 102 § 1 (4) of the Code of Criminal Procedure still apply is correct. The confirmed indictment shows a relevant degree of reasonable suspicion that the accused committed the offence under Article 120 § 1 of the Criminal Code. Thus the general statutory condition under Article 102 § 1 of the Code of Criminal Procedure has been met.", "There is a reasonable suspicion that the accused, in the second half of August 1991, while defending the wider area of Sisak and Banovina from armed attacks carried out by paramilitary formations of part of the local Serbian population and the Yugoslav People’s Army, as a member of special police unit V. of the Sisak Police Department, together with several unidentified members of that unit, organised and led a group of unidentified members of the said unit with whom he carried out unlawful arrests, ill-treatment and the killing of persons of Serbian origin. Five members of the Vi. family as well as [a certain] N.T. were killed, while [N.T.’s] sons Z. and B. were taken to an improvised detention camp and beaten up, after which they disappeared. Contrary to the appeal arguments, the behaviour of the accused described above, particularly given the intensity and number of impugned acts and the period in which they took place, was in itself particularly merciless and cruel.", "In the view of this second-instance court, the particularly grave circumstances of the offence surpass the usual circumstances and consequences of such offences and thus justify the detention under Article 102 § 1 (4) of the Code of Criminal Procedure. The remaining appeal arguments concern the assessment of evidence and the proceedings and are not decisive for the decision on detention. They are a subject of discussion before the first-instance court. In addition, the detention of the accused Drago Bošnjak does not raise an issue under the principle of proportionality with regards to the gravity of the offence, the sentence which could be expected and the necessity of detention.” 69. The second applicant lodged a constitutional complaint against the decision of the Supreme Court, challenging the necessity of his detention.", "On 31 January 2013 the Constitutional Court dismissed it as ill-founded. The relevant part of the decision reads: “Bearing in mind all the circumstances of the present case enumerated in the impugned decisions, the fact that there is a reasonable suspicion that the appellant (in detention since 20 June 2011) ‘committed an offence under Article 120 § 1 of the Criminal Code by which a general statutory condition under Article 102 § 1 of the Code of Criminal Procedure’ has been satisfied, and ‘in particular the intensity and recurrence of the impugned acts’, the Constitutional Court finds that, notwithstanding the presumption of the appellant’s innocence (and the fact that he has been in detention for nineteen months) the compelling public interest outweighs the accused’s right to liberty. Therefore, the Constitutional Court finds that the detention ‘with regard to the gravity of the offence and the sentence which could be expected’ is entirely proportionate to the legitimate aim pursued, and that the impugned decision does not limit the rights or freedoms of the appellant contrary to [the Constitution].” 70. On 5 February 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments. 71.", "The second applicant appealed to the Supreme Court, challenging the existence of relevant and sufficient reasons for his detention. On 27 February 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 72. The second applicant challenged the decision of the Supreme Court by lodging a constitutional complaint before the Constitutional Court. On 18 April 2013 the Constitutional Court dismissed his complaint as ill-founded on the grounds that the lower courts, when extending his detention, had provided relevant and sufficient reasons.", "73. On 26 April 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), relying on its previous reasoning. 74. The second applicant appealed against that decision before the Supreme Court. On 17 May 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court.", "75. The second applicant challenged that decision before the Constitutional Court, arguing that his continued detention had been excessive and disproportionate. 76. On 11 July 2013 the Constitutional Court, having examined the second applicant’s constitutional complaint, remitted the case to the Osijek County Court on the grounds that the impugned decisions on detention lacked the relevant reasoning. The Constitutional Court reiterated its case-law relevant to the requirements for ordering and extending pre-trial detention on the grounds of gravity of the charges under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraph 52 above).", "77. On 17 July 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous findings concerning the specific circumstances of the offences with which the second applicant was charged. 78. The second applicant appealed against that decision to the Supreme Court. On 31 July 2013 the Supreme Court dismissed his appeal as ill-founded, pointing out the following: “It goes without saying that the release of a person, in respect of whom there is a reasonable suspicion that he has committed the impugned acts, would consequently create a public disturbance, in particular by the national minorities, amongst whom there are also family members of the victims of the conduct at issue, which took place during the war in the Sisak area.", "This is all the more so since [Sisak] is a small community which has been seriously affected by the war and where the long and difficult process of normalisation of mutual relations and peaceful coexistence is ongoing.” 79. The second applicant lodged a constitutional complaint before the Constitutional Court against the decision of the Supreme Court, challenging the reasonableness of his continued detention. 80. On 27 September 2013 the Constitutional Court dismissed the second applicant’s constitutional complaint, finding that his detention so far had been based on relevant and sufficient reasons. However, the Constitutional Court stressed: “In view of the findings [with regard to the possibility of ordering detention on the grounds of the gravity of the charges] and the length of the appellant’s continued detention, as well as the length of the criminal proceedings and the expected termination of the main hearing, and in view of the fact that the detention was ordered twenty years after the alleged commission of the offences with which the appellant has been charged, the Constitutional Court finds that the validity of the findings of the Supreme Court [with regard to the avoidance of public disturbance] has reached its temporal limits.", "In particular, every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty ... It therefore follows from the circumstances of the present case that a further extension of detention on the grounds of a risk of public disturbance could lead to a violation of the appellant’s constitutional right to liberty. It is time therefore for the competent court to [re]examine the justification for the appellant’s continued detention in view of this new fact.” 81. On 30 September 2013 a three-judge panel of the Osijek County Court extended the second applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating that in view of the specific charges held against him, his release from detention could create a public disturbance. 82.", "The applicant appealed against that decision to the Supreme Court, arguing that his detention was no longer justified. On 25 October 2013 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Osijek County Court. 83. On 2 December 2013 a three-judge panel of the Osijek County Court, anticipating the pronouncement of the first-instance judgment acquitting the second applicant (see paragraph 15 above), ordered his immediate release from detention. The second applicant was released on 9 December 2013.", "84. Meanwhile, the second applicant lodged a constitutional complaint before the Constitutional Court challenging the extension of his detention by the Osijek County Court on 30 September 2013, which had been upheld by the decision of the Supreme Court on 25 October 2013 (see paragraphs 81-82 above). 85. On 13 January 2014 the Constitutional Court found that the extension of the applicant’s detention from 30 September to 9 December 2013 (see paragraphs 81-82 above) had violated his right to liberty under Article 22 of the Constitution. The relevant part of the decision reads: “... in the impugned decisions [the Osijek County Court and the Supreme Court] failed to cite any new reason satisfying the Constitutional Court that the temporal limits [for detention based on the necessity to prevent public disturbance] had not been attained, but they nevertheless extended the appellants detention.", "Moreover, seventy days after the first-instance court had extended the appellant’s detention by means of the impugned decision, and forty-five days following the confirmation of the lawfulness of such decision by the Supreme Court, the competent criminal court terminated the criminal proceedings against the appellant at first instance, acquitting him. Thus in the appellant’s case what the Constitutional Court indicated in its decision ... of 27 September 2013 was confirmed: that ‘every further reliance on the risk of public disturbance as a ground for extending the appellant’s detention could ... turn that ground for detention into a strong basis [for detention], which would mean in practice a constitutionally unacceptable and prohibited obligatory deprivation of liberty’. The Constitutional Court does not find such conduct by the competent courts acceptable since the liberty of a person is an essential value protected by the Constitution. ... It follows that for the period of validity of the impugned decisions of the Osijek County Court and the Supreme Court (between 30 September 2013 and 9 December 2013) the appellant’s right to liberty, guaranteed under Article 22 of the Constitution, has been violated.", "Lastly, the Constitutional Court should also point out that there has been a flagrant violation of the appellant’s constitutional right to liberty in the period between 2 December 2013 and 9 December 2013. ... The Constitutional Court finds that from the perspective of the appellant’s constitutional right to liberty it is irrelevant that the [Osijek County Court] in its decision of 2 December 2013 to terminate the detention referred to the (forthcoming) judgment of 9 December 2013 by which the appellant was acquitted. From the perspective of the appellant’s right to liberty, it is exclusively relevant that in the operative part of the decision of 2 December 2013 [the Osijek County Court] ordered that the appellant should be ‘immediately released’, but that the court order was not executed until seven days later. ...", "In these circumstances the seven days of the appellant’s detention (between 2 and 9 December 2013) should a priori be considered as a flagrant violation of his right to liberty, guaranteed under Article 22 of the Constitution.” 86. In October 2014, after he had been finally acquitted, the applicant instituted the friendly settlement procedure with the State concerning the compensation for his unjustified detention. Following an unsuccessful arrangement with the Ministry of Justice (Ministarstvo pravosuđa) over the amount of compensation, the applicant lodged a civil action for damages in the Osijek Municipal Court (Općinski sud u Osijeku). On 15 October 2015, on the basis of the State’s partial admission of the claim, the Osijek Municipal Court adopted a partial judgment and awarded him 108,900 Croatian kunas (HRK; approximately 14,300 euros) in non-pecuniary damage plus the applicable statutory interest. This partial judgment became final on 5 November 2015, and the Osijek Municipal Court commissioned an expert report in order to determine the possible extent of the State’s responsibility for the applicant’s suffering in detention.", "These proceedings are still pending. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 1. Constitution 87.", "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 22 “Personal freedom and integrity are inviolable. No one shall be deprived of his liberty save in accordance with the law, and any deprivation of liberty must be examined by a court.” Article 25 “ ... Anyone who has been unlawfully deprived of liberty or convicted shall have a statutory right to compensation or a public apology.” 2. Criminal Code 88.", "The relevant provision of the Criminal Code (Osnovni krivični zakon Republike Hrvatske, Official Gazette nos. 53/1991, 39/1992, 91/1992 and 31/1993) provides: War Crimes against the Civilian Population Article 120 “(1) Whoever, in breach of the rules of international law during war, armed conflict or occupation, orders ... the killing, torture or inhuman treatment of civilians; ... the infliction of grave suffering on or injuries to the bodily integrity or health of civilians; ... measures of fear and terror against civilians or the taking of hostages, ... illegal arrests ... shall be sentenced to not less than five years’ imprisonment or ... twenty years’ imprisonment.” 3. Code of Criminal Procedure 89. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, 178/2004 and 115/2006) reads as follows: General Provisions on Detention Article 101 “(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.", "(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist. (3) When deciding on detention, in particular its duration, a court shall take into consideration the proportionality between the seriousness of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention. (4) The judicial authorities conducting criminal proceedings shall proceed with particular urgency when the defendant is in detention, and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.” Grounds for Ordering Detention Article 102 “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: ... 2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion; ... 4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, when detention is justified by the modus operandi or other particularly grave circumstances of the offence; ...” Appeal against a decision ordering, lifting or extending a custodial measure Article 110 “(1) A defendant, defence counsel or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof.” Proceedings concerning a claim for damages and securing of other rights of wrongfully convicted or unjustifiably arrested persons Article 478 “... (3) A claim for compensation shall be lodged against the Republic of Croatia.” Article 480 “(1) The right to compensation shall be recognised also in respect of a person: 1. who has been in pre-trial detention but against whom criminal proceedings were either not instituted or were discontinued by a final decision, or who was finally acquitted ... ... 3. who has been arrested or detained on the basis of erroneous or unlawful conduct on the part of a state body, ...” B. Relevant practice 1. Relevant practice concerning the grounds for pre-trial detention 90.", "In its decision no. U-III-3698/2003 of 28 September 2004, the Constitutional Court examined the conditions under which pre-trial detention could be ordered and extended under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads: “Before every extension of pre-trial detention, [the competent court] must examine all the circumstances of the case so as to establish whether the grounds for detention still persist. The decision on detention must be reasoned and based on rational grounds justifying such a measure – with the aim of establishing that the detention is a necessary legal measure securing the presence of the defendant (the accused) during the proceedings or that it is necessary and justified because it is obvious in the circumstances that the protection of an important public interest is so relevant that it outweighs, irrespective of the presumption of innocence, the constitutional principle of freedom.” 91. On 28 July 2010 the Constitutional Court, in case no.", "U-III-3804/2010, dismissed a constitutional complaint lodged by an appellant who had been detained pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on charges of war crimes against the civilian population. The relevant part of the decision reads: “[T]he offence under Article 120 § 1 of the Criminal Code is one of the gravest criminal offences. In the circumstances of the present case, given the manner in which the offence was committed, the severity of the likely sentence and the particularly grave consequences of the crime, the proceedings would in principle be complex and lengthy. The Constitutional Court therefore finds that the impugned decision of the Supreme Court is in compliance [with the Constitution and the relevant law].” 92. In its decision no.", "Kž 174/11-4 of 8 April 2011, the Supreme Court explained the underlying purpose of pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) in the following manner: “The purpose of pre-trial detention under Article 102 § 4 (2) of the Code of Criminal Procedure is not to prevent the defendant from hindering the proceedings, as is the case under Article 102 § 1 (1), (2) and (3) of the Code of Criminal Procedure. The distinct purpose of pre-trial detention under this provision is to prevent persons whose actions provoke particular moral condemnation from remaining at large, which could be condemned by the public. Thus it would diminish the reputation of the criminal justice system and the public’s faith in it. ...” 2. Relevant practice concerning compensation for unjustified detention 93.", "In decision no. U-I-2023/2002 of 7 December 2005 the Constitutional Court noted: “[Article 25 § 4 of the Constitution] provides that anyone who has been unlawfully deprived of his liberty shall be entitled to compensation and a public apology. It follows that anyone who has been deprived of his liberty contrary to the law has a right to compensation for pecuniary and non-pecuniary damage, under the conditions and procedure established by law. The Constitution does not set out the conditions under which a person can claim damages. It was left for the lawmaker to regulate those conditions.” 94.", "In decisions nos. U-III-1839/2006 of 7 May 2009 and U-III- 2710/2010 of 25 April 2013 the Constitutional Court confirmed the availability of the remedy for unlawful or unjustified detention under Article 480 of the Code of Criminal Procedure. 95. In decision no. U-III-1839/2006 of 7 May 2009 the Constitutional Court pointed out that a distinction should be made between the possibility of obtaining damage for allegedly unjustified detention, related to the existence of relevant reasons for detention, and the possibility of obtaining damage when the defendant had been detained but was subsequently acquitted.", "The relevant part of the decision reads: “The Constitutional Court points out that for the assessment of a claim for damages for unjustified deprivation of liberty under Article 480 § 1 (1) of the Code of Criminal Procedure it is irrelevant [to assess] the reasons for which the detention had been ordered, its lawfulness or the reasons for which the proceedings were discontinued. In application of the cited provision what is relevant is the outcome of the proceedings (that criminal proceedings would not be instituted against the person who had been detained or that the proceedings were finally discontinued or that the person was finally acquitted or the charges against him or her were dismissed).” C. Relevant domestic legal theory 96. In an article entitled “Duration of Detention in the Light of International Standards and Domestic Law and Practice” (Trajanje pritvora u svjetlu međunarodnih standarda te domaćeg prava i prakse) Dr Z. Đurđević and D. Tripalo explained that it was the settled practice of the domestic courts to order pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) only in the context of specific criminal offences which were of a particularly serious nature, in terms of the manner in which they had been perpetrated or their specific consequences. They also noted that, although it was not expressly stated in the relevant domestic law, a historical and comparative interpretation of the relevant provisions of the Code of Criminal Procedure led to the conclusion that the underlying reason for ordering pre-trial detention on the grounds of gravity of the charges was to protect public safety and legal order in cases of the most serious crimes; or, more precisely, to protect the public from great disturbance and to ensure public confidence in the functioning of the judiciary (Z. Đurđević and D. Tripalo, “Trajanje pritvora u svjetlu međunarodnih standarda te domaćeg prava i prakse”, 13(2) Hrvatski ljetopis za kazneno pravo i praksu (2006), pp. 573-576).", "III. RELEVANT INTERNATIONAL MATERIAL A. Council of Europe 97. The relevant part of Committee of Ministers Recommendation Rec(2006)13 to member states of 27 September 2006 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse provides: “II. The use of remand in custody Justification 6.", "Remand in custody shall generally be available only in respect of persons suspected of committing offences that are punishable by imprisonment. 7. A person may only be remanded in custody where all of the following four conditions are satisfied: a. there is reasonable suspicion that he or she committed an offence; and b. there are substantial reasons for believing that, if released, he or she would either (i) abscond, or (ii) commit a serious offence, or (iii) interfere with the course of justice, or (iv) pose a serious threat to public order; and c. there is no possibility of using alternative measures to address the concerns referred to in b.; and d. this is a step taken as part of the criminal justice process. 8. [1] In order to establish whether the concerns referred to in Rule 7b.", "exist, or continue to do so, as well as whether they could be satisfactorily allayed through the use of alternative measures, objective criteria shall be applied by the judicial authorities responsible for determining whether suspected offenders shall be remanded in custody or, where this has already happened, whether such remand shall be extended. [2] The burden of establishing that a substantial risk exists and that it cannot be allayed shall lie on the prosecution or investigating judge. 9. [1] The determination of any risk shall be based on the individual circumstances of the case, but particular consideration shall be given to: a. the nature and seriousness of the alleged offence; b. the penalty likely to be incurred in the event of conviction; c. the age, health, character, antecedents and personal and social circumstances of the person concerned, and in particular his or her community ties; and d. the conduct of the person concerned, especially how he or she has fulfilled any obligations that may have been imposed on him or her in the course of previous criminal proceedings.” B. Case-law of the international criminal tribunals 1. International Criminal Tribunal for the former Yugoslavia 98. In the Order denying a motion for provisional release, in the case of The Prosecutor v. Tihomir Blaškić, no.", "IT-95-14, on 20 December 1996 a Trial Chamber of the ICTY held as follows: “CONSIDERING that both the letter of this text and the spirit of the Statute of the International Tribunal require that the legal principle is detention of the accused and that release is the exception; that, in fact, the gravity of the crimes being prosecuted by the International Tribunal leaves no place for another interpretation even if it is based on the general principles of law governing the applicable provisions in respect of national laws which in principle may not be transposed to international criminal law; ...” 99. In the case of The Prosecutor v. Rahim Ademi, no. IT-01-46-PT, the relevant part of the Trial Chamber’s order on a motion for provisional release of 20 February 2002 reads: “12. In addition to those that are still included, Rule 65(B) originally included a requirement that provisional release could be ordered by a Trial Chamber “only in exceptional circumstances.” Under this rule it seemed that detention was considered to be the rule and not the exception. However, some decisions issued by Trial Chambers concluded that the fact that the burden was on the accused and that he or she had to show that exceptional circumstances existed before release could be granted, was justified given the gravity of the crimes charged and the unique circumstances in which the Tribunal operated.", "13. The requirement to show “exceptional circumstances” meant that in reality Trial Chambers granted provisional release in very rare cases. These were limited to those where for example, very precise and specific reasons presented themselves which leant strongly in favour of release. Thus, for example, Trial Chambers, before the amendment was adopted, accepted that a life-threatening illness or serious illness of the accused or immediate family members constituted exceptional circumstances justifying release, while illnesses of a less severe nature did not. As stated, the burden remained on an accused at all times to demonstrate to the satisfaction of the Trial Chamber that such circumstances existed.", "Should the Trial Chamber conclude that they did not, release would not be ordered. 14. After amendment of the rule, an accused no longer needed to demonstrate that such “exceptional circumstances” existed. Trial Chambers seem to have taken two approaches to the new provision. Most Trial Chambers have continued to find that the amendment did not change the other requirements in the Rule and that provisional release was not now the norm.", "They considered that the particular circumstances of each case should be assessed in light of Rule 65(B) as it now stood. The burden still remained on the accused to satisfy the Trial Chamber that the requirements of Rule 65(B) had been met. This was justified by some given the specific functioning of the Tribunal and absence of power to execute arrest warrants. The second approach seems to have been the following. It has been concluded that based on international human rights standards, “de jure pre-trial detention should be the exception and not the rule as regards prosecution before an international court.” The Trial Chamber in question referred to the fact that, at the Tribunal, in view of its lack of enforcement powers, “pre-trial detention de facto seems to be...the rule.” In addition, it stated that one must take account of the reference to serious crimes.", "Nevertheless, it found that, “any system of mandatory detention on remand is per se incompatible with Article 5(3) of the Convention (see Ilijkov v. Bulgaria , ECourtHR, Decision of 26 July 2001, para. 84). Considering this, the Trial Chamber must interpret Rule 65 with regard to the factual basis of the single case and with respect to the concrete situation of the individual human being and not in abstracto.” 2. International Criminal Tribunal for Rwanda 100. In its decision on a defence motion for release in the case of The Prosecutor v. Théoneste Bagosora et al., no. ICTR-98-41-T, on 12 July 2002 a Trial Chamber of the International Criminal Tribunal for Rwanda noted the following: “27.", "The Chamber notes that in certain circumstances, six years of pre-trial detention may be a factor in the consideration of exceptional circumstances warranting the release of an accused. However, the length of current or potential future detention of the Accused cannot be considered material in these circumstances because it does not mitigate in any way that the Accused, who is charged with the grave offences coming under the subject matter jurisdiction of this Tribunal, which offences carry maximum term of imprisonment of his life, may be a flight risk or may pose a threat to witnesses or to the community if he were to be released. Detention under Rule 65 is intended to ensure the safety of the community and the integrity to the trial process. The Chamber observes that the Accused even while in custody found the opportunity to intentionally absent himself from the trial proceedings of 2 April 2002.” 3. International Criminal Court 101. The relevant part of the Decision of a Pre-Trial Chamber on the application for the interim release of Thomas Lubanga Dyilo of 18 October 2006, in the case of The Prosecutor v. Thomas Lubanga Dyilo, no.", "ICC‐01/04‐01/06, reads: “CONSIDERING that since pre‐trial detention cannot be extended to an unreasonable degree; that reasonableness cannot be assessed in abstracto but depends on the particular features of each case; and that to assess the reasonableness of the detention, it is particularly important to assess the complexity of the case; ...” THE LAW I. JOINDER OF THE APPLICATIONS 102. The two applications in the present case (nos. 37762/12 and 23530/13) raise the same issues. The Court therefore finds that they should be joined pursuant to Rule 42 § 1 of the Rules of Court. II.", "ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (c) AND 3 OF THE CONVENTION 103. The applicants complained that the national courts had acted arbitrarily when extending their pre-trial detention and in particular that their continued detention had been excessive and had not been based on relevant and sufficient reasons. They relied on Article 5 §§ 1 (c) and 3 of the Convention. 104. The Court, being the master of characterisation to be given in law to the facts of the case (see, for instance, Margaretić v. Croatia, no.", "16115/13, § 75, 5 June 2014), finds that, in so far as the applicants’ complaints are not inadmissible (see paragraph 113 below), they fall to be examined under 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 1. The first applicant’s complaint 105. The Court notes that the first 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 any other grounds.", "It must therefore be declared admissible. 2. The second applicant’s complaint 106. The Government submitted that the second applicant could no longer claim to be a victim of a violation of Article 5 of the Convention, given that the Constitutional Court had expressly recognised a violation of his right to liberty related to his continued pre-trial detention. According to the Government, it therefore remained open for the second applicant to seek damages for his allegedly unjustified detention, as provided for under the relevant domestic law.", "Similarly, the applicant could claim compensation for the overall period he had spent in detention given that he was eventually acquitted. The Government further provided documents showing that in fact subsequently the applicant had availed himself of that possibility and he had been accordingly awarded an adequate compensation of damages. 107. The second applicant maintained that he had been a victim of a violation of the Convention related to his unjustified pre-trial detention. 108.", "The Court reiterates that under Article 34 of the Convention it “may receive applications from any person ... 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”. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 179, ECHR 2006‑V; Burdov v. Russia, no.", "59498/00, § 30, ECHR 2002-III; and Trepashkin v. Russia, no. 36898/03, § 67, 19 July 2007). 109. The Court has repeatedly held 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 (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Margaretić, cited above, § 77).", "110. The Court notes in the case at issue that in its decision of 13 January 2014 the Constitutional Court expressly found a violation of the second applicant’s right to liberty related to the lack of relevant and sufficient reasons for his continued pre-trial detention in the period between 30 September and 9 December 2013, including the flagrant unlawfulness of his detention between 2 and 9 December 2013 (see paragraph 85 above). However, the decision of the Constitutional Court did not cover the entire period of the second applicant’s detention. Indeed, by a decision of 27 September 2013 the Constitutional Court, after having examined all the relevant circumstances of the case, found that the second applicant’s detention in the period preceding its examination had been based on relevant and sufficient reasons (see paragraph 80 above). 111.", "The Court therefore finds that the findings of the Constitutional Court of 13 January 2014 undoubtedly represent a decision in the second applicant’s favour, by which the relevant national authorities expressly acknowledged a breach of his rights, guaranteed under Article 5 §§ 1 (c) and 3 of the Convention, for the period between 30 September and 9 December 2013. On the other hand, in view of the Constitutional Court’ findings of 27 September 2013, it would follow that the Constitutional Court, as the highest court in Croatia, considered that the second applicant’s detention in the period following his arrest until 30 September 2013 had been based on relevant and sufficient reasons. 112. The Court further notes that following his acquittal by the Osijek County Court on 9 December 2013, which was upheld by the Supreme Court (see paragraphs 15-17 above), the second applicant brought a civil action in the Osijek Municipal Court seeking damages for his allegedly unjustified detention during the criminal proceedings before the Osijek County Court. By a judgment of 15 October 2015, which became final on 5 November 2015, the Osijek Municipal Court awarded the applicant HRK 108,900 (approximately 14,300 euros) in non-pecuniary damage plus the applicable statutory interest (see paragraph 86 above).", "However, the Osijek Municipal Court made no acknowledgment in the judgment concerned that the length of the applicant’s detention had been excessive or unlawful (see further paragraphs 89 and 95 above). 113. In these circumstances, although the Osijek Municipal Court in its judgment of 15 October 2015 did not expressly acknowledge the breach of the applicant’s rights under Article 5, the Court considers, given the explicit findings of the Constitutional Court for the period between 30 September and 9 December 2013 (see paragraph 110 above), that it can be inferred that for the period at issue the applicant received acknowledgment of the breach of his rights under Article 5 of the Convention and that he received an appropriate redress. Accordingly, with regard to the period of his detention between 30 September and 9 December 2013 the applicant has lost his victim status. His complaint in this respect should be therefore declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "114. On the other hand, with regard to the second applicant’s complaint about the excessive length and lack of relevant and sufficient treasons for his pre-trial detention following his arrest until 30 September 2013, the Court notes that there has been no acknowledgment either express or implied, by any of the competent domestic authorities that the applicant’s detention had been excessive (see Labita v. Italy [GC], no. 26772/95, § 143, ECHR 2000‑IV). The Court therefore finds that the second applicant can still claim to be a victim in respect of his complaint under Article 5 § 3 of the Convention for the period of his pre-trial detention between 20 June 2011, the day when he was first deprived of liberty (see paragraph 18 above), and 30 September 2013 (see paragraph 113 above). The Government’s objection in this respect should thus be rejected.", "115. The Court notes that the remainder of the second 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 any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ arguments (a) The applicants (i) The first applicant 116. The first applicant contended that his pre-trial detention had not been based on relevant and sufficient reasons and that it had been disproportionate in the circumstances. In particular, the domestic courts had ordered and several times extended his pre-trial detention solely on the grounds of gravity of the charges, without making a relevant assessment of the circumstances of the case. Moreover, in the first applicant’s view, the domestic courts’ decisions lacked the relevant reasoning as to the existence of a reasonable suspicion that he had committed the offence at issue, which had made his detention in itself unlawful and unjustified.", "117. The first applicant further argued that the domestic courts’ concept of the gravity of the charges had been unclear and that their reasoning had been arbitrary given that there was nothing to suggest that his release from detention would disturb the public order. The first applicant also stressed that in view of his state of health and his personal situation, the overall length of his detention had been excessive and unjustified. (ii) The second applicant 118. The second applicant submitted that his pre-trial detention had been based only on a reasonable suspicion that he had committed war crimes against the civilian population.", "The domestic courts’ reliance on the gravity of the charges had been general and abstract and had not been supported by an assessment of all the particular circumstances of the specific offences with which he had been charged. In his view, there had been nothing to justify the fear that his release from detention would disturb the public order, since a number of witnesses from the Serbian national minority had essentially testified in his favour. 119. The second applicant also contended that the Osijek County Court and the Supreme Court had unjustifiably ignored the instructions of the Constitutional Court concerning the necessity of his continued detention, in particular with regard to the possibility of disturbance of the public order. In his view, such conduct on the part of the competent courts had rendered the overall period of his detention unlawful and unjustified.", "(b) The Government 120. The Government argued that throughout the applicants’ detention there had been a reasonable suspicion that they had committed the offences with which they had been charged. Their detention had initially been based on the grounds of a risk of collusion and the gravity of the charges. The assessment of the risk of collusion had been based on the possibility that they might try to influence the witnesses and thus hinder the proper conduct of the proceedings. However, once the witnesses had been questioned, the applicants’ detention was no longer extended on that ground.", "121. Concerning the extension of the applicants’ detention on the grounds of gravity of the charges, the Government stressed that the relevant domestic law and practice were clear in terms of the requirements which needed to be met so that pre-trial detention could be ordered on grounds of the gravity of the charges. The competent courts were in particular required to carry out a detailed and specific assessment of the gravity of the charges, that is to say the manner in which the offence had allegedly been committed and its consequences, as required under the Court’s case-law in Šuput (see Šuput v. Croatia, no. 49905/07, 31 May 2011). 122.", "The Government contended that the crimes with which the applicants were charged concerned particularly serious circumstances of war crimes against the civilian population, capable of causing significant disturbance in the local community where those crimes had occurred. In such circumstances, the applicants’ detention in relation to such serious charges against them had been necessary and justified. The Government also pointed out that the case against the applicants was particularly complex, which in their view justified the overall length of the applicants’ detention. They stressed that the domestic courts had been diligent in their conduct of the proceedings in the applicants’ case. 2.", "The Court’s assessment (a) General principles 123. The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see, for instance, McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X). 124. The Court has repeatedly held that the question whether a period of detention is reasonable, under the second limb of Article 5 § 3, cannot be assessed in abstracto.", "Whether it is reasonable for an accused person to remain in detention must be assessed in each case. Continued detention can 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 (see, among other authorities, W. v. Switzerland, 26 January 1993, Series A no. 254‑A; Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI; and Idalov v. Russia [GC], no. 5826/03, § 139, 22 May 2012).", "125. The presumption is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused person to trial within a reasonable time or granting him or her provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references).", "126. It falls in the first place to the national judicial authorities to ensure that in a given case the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the evidence for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and the facts cited by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita, cited above, § 152). 127.", "The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001). 128.", "The persistence of a reasonable suspicion that the person arrested 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 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, amongst many others, Idalov, cited above, § 140; see also, B. v. Austria, 28 March 1990, § 42, Series A no. 175; Toth v. Austria, 12 December 1991, § 67, Series A no. 224; Contrada v. Italy, 24 August 1998, § 54, Reports 1998-V; I.A.", "v. France, 23 September 1998, § 102, Reports 1998-VII; and Krikunov v. Russia, no. 13991/05, § 36, 4 December 2014). (b) Application of these principles to the present case 129. The Court notes that the first applicant was arrested and taken into custody on 20 June 2011 (see paragraph 18 above) and that he was convicted at first instance on 9 December 2013 (see paragraph 15 above). 130.", "According to the Court’s well-established case-law, in determining the length of detention 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 he is released (see, for example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November 2008) or when the charge was determined, even if only by a court of first instance (see Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007). 131. Accordingly, the total period of the first applicant’s detention to be taken into consideration amounts to two years, five months and nineteen days.", "132. The Court further notes, in view of its findings above (see paragraphs 113-114 above), that the total period of the second applicant’s detention to be examined, between 20 June 2011 and 30 September 2013, amounts to two years, three months and ten days. (i) Grounds for detention 133. The Court observes that in the period between 20 June and 19 December 2011, during the investigation of the allegations that the applicants had committed war crimes against the civilian population, in addition to the existence of a reasonable suspicion that they had committed the crimes at issue, they were detained on the grounds of risk of collusion by suborning witnesses and the gravity of the charges (see paragraphs 18-24 above). On 19 December 2011, after they had been indicted in the Osijek County Court on charges of war crimes against the civilian population, their detention was extended on the grounds of gravity of the charges related to the possibility of public disturbance, which was the basis for continuing to remand them in custody until the first applicant’s conviction and the second applicant’s release on 9 December 2013.", "134. The Court notes that the reasonable suspicion on which the domestic courts based their decisions followed from the extensive evidence obtained during the investigation as well as the statements of numerous witnesses questioned during the proceedings (see, for instance, paragraphs 10 and 19 above). Throughout the period of the applicants’ pre-trial detention, when ordering and extending their detention the domestic courts cited the existence of a reasonable suspicion that they had committed the crimes at issue. A three-judge panel of the Osijek County Court cited the same reasons when confirming the indictment against them (see paragraph 12 above). 135.", "In view of the findings of the domestic courts, which are based on reasonable and convincing grounds (see, by contrast, Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 97, 22 May 2014), and the evidence available before it, the Court accepts that throughout the period of the applicants’ detention under consideration a reasonable suspicion existed that they had committed the war crimes against the civilian population. 136. In these circumstances the Court will examine whether the other grounds cited by the judicial authorities continued to justify the applicants’ deprivation of liberty during the investigation and trial. (α) The applicants’ detention during the investigation 137.", "The Court notes that in the six-month period between 20 June and 19 December 2011, during the investigation of the allegation that the applicants had committed war crimes against the civilian population, the national courts justified their pre-trial detention on the grounds not only of the nature of the crimes allegedly committed, but also of the risk that, if at large, they might suborn witnesses who needed to be questioned during the investigation. 138. In this connection, the Court reiterates that detention on the grounds that pressure might be brought to bear on witnesses can be accepted at the initial stages of the proceedings (see Jarzyński v. Poland, no. 15479/02, § 43, 4 October 2005). In the long term, however, the requirements of the investigation do not suffice to justify the detention of a suspect, as in the normal course of events the risks alleged diminish over time as inquiries are completed, statements are taken and verifications are carried out (see Clooth v. Belgium, 12 December 1991, § 44, Series A no.", "225). Moreover, the risk of the accused hindering the proper conduct of the proceedings cannot be relied upon in abstracto; it has to be supported by factual evidence (see Becciev v. Moldova, no. 9190/03, § 59, 4 October 2005). 139. In the present case, at the initial stages of the applicants’ detention, the investigating judge, and a three-judge panel of the Osijek County Court reviewing his decisions, noted the exact number of witnesses to be questioned during the investigation and the reasons for suggesting that there was a risk that the applicants might suborn them.", "In particular, they pointed out the existence of a possibility that the applicants might contact the witnesses, and the fact that some of the witnesses had already been approached and threatened in connection with their statements in the criminal proceedings at issue. The domestic courts therefore held that there was a risk that, if at large, the applicants could further influence the witnesses and thus hinder the proper conduct of the proceedings (see paragraphs 19 and 21 above; and compare, by contrast, Mikalauskas v. Malta, no. 4458/10, § 121, 23 July 2013). 140. However, as the investigation advanced and the witnesses were questioned, the investigating judge, relying on the risk of collusion, clearly stated the number of witnesses who still needed to be questioned (see paragraphs 22 and 24 above), and after the completion of the investigation, the applicants’ detention was no longer extended on those grounds (see paragraph 28 above).", "141. It follows that the applicants’ detention during the investigation in the period in question was based on relevant and sufficient reasons. (β) The applicants’ detention pending trial 142. The Court observes that in their decisions to extend the applicants’ pre-trial detention from 19 December 2011 to 9 December 2013, the national courts, – apart from the persisting reasonable suspicion that the applicants had committed the war crimes against the civilian population – relied only on the nature and gravity of the charges at issue, associated with the possibility of public disturbance. 143.", "In this connection, the Court has repeatedly held that although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, 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 (see, amongst many others, Ilijkov, cited above, § 81; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X; Belevitskiy, cited above, § 101 ; Getoš-Magdić v. Croatia, no. 56305/08, § 85, 2 December 2010; and Sigarev v. Russia, no. 53812/10, § 53, 30 October 2014). 144.", "This is particularly true in instances in which detention is ordered or extended by relying on the gravity of the charges without providing any relevant explanation pertinent to the particular circumstances of a case (see, for instance, Orban v. Croatia, no. 56111/12, § 58, 19 December 2013). It also applies in cases where the characterisation in law of the facts, and thus the sentence faced by the accused, is determined by the prosecution without judicial review of whether the evidence obtained supports a reasonable suspicion that the accused has committed the alleged offence (see Ilijkov, cited above, § 81; Veliyev v. Russia, no. 24202/05, § 148, 24 June 2010; and by contrast, J.M. v. Denmark, no.", "34421/09, § 62, 13 November 2012); likewise, where remand in custody is associated with a system of mandatory detention, which is per se incompatible with Article 5 § 3 of the Convention (see Rokhlina v. Russia, no. 54071/00, §§ 66-67, 7 April 2005), or where the gravity of the charges or the severity of the sentence are relied on as the decisive factor to justify unreasonably protracted periods of pre-trial detention (see, for example, Jėčius v. Lithuania, no. 34578/97, § 94, ECHR 2000‑IX; and Sutyagin v. Russia, no. 30024/02, §§ 142-143, 3 May 2011). 145.", "However, in some instances concerning particularly serious crime, the nature and gravity of the charges against a defendant is a factor weighing heavily against his or her release and in favour of remanding him or her in custody(see, for instance, Van der Tang v. Spain, 13 July 1995, §§ 61-63, Series A no. 321; Dudek v. Poland, no. 633/03, § 38, 4 May 2006; and Kusyk v. Poland, no. 7347/02, § 38, 24 October 2006). Indeed, regard to the gravity of the charges may lead to the conclusion that some other related legitimate grounds for detention exist, such as the protection of public order from disturbance (see Letellier v. France, 26 June 1991, § 51, Series A no.", "207; I.A. v. France, cited above, § 104), or the public’s sense of justice (see J.M., cited above, § 62). 146. Accordingly, in the cases of Getoš-Magdić and Šuput (both cited above) concerning complaints about prolonged pre-trial detention in criminal proceedings on charges of war crimes against the civilian population, where the extension was based solely on the gravity of the charges, the Court attached particular significance to the seriousness of the crime at issue and the nature and gravity of the charges against the applicants. It observed, in particular, that Article 102 § 1 (4) of the Code of Criminal Procedure did not provide for mandatory remand in custody and that the domestic courts had examined in detail the particular seriousness of the specific circumstances of the case.", "Thus, given that the detention on the grounds of gravity of the charges had not lasted excessively long in the circumstances, and in view of the seriousness of the crime at issue and the nature and gravity of the charges against the applicants, the Court considered that the domestic authorities’ reliance solely on the gravity of charges was a relevant ground for the applicants’ detention (see Getoš-Magdić, cited above, §§ 80-91, and Šuput, cited above, §§ 101-10). 147. Against the above background, the present case is distinguishable from the Court’s case-law in which it found that the domestic courts’ reliance on the gravity of the charges or the severity of the sentence as the decisive factor to justify long periods of remand in custody had breached Article 5 § 3. This conclusion is based on the following reasons. 148.", "The Court firstly notes, as it observed in Getoš-Magdić and Šuput, that Article 102 § 1 (4) of the Code of Criminal Procedure, on which the domestic courts relied when extending the applicants’ detention, provided for a possibility of detention where a reasonable suspicion existed that the defendant had committed a criminal offence carrying a sentence of at least twelve years’ imprisonment and where detention was justified by the manner in which the crime had been committed or other particularly serious circumstances (see paragraph 89 above). That provision therefore did not provide for mandatory detention; nor was it applied to that effect in the applicants’ case (compare Getoš-Magdić, cited above, §§ 82-84, and Šuput, cited above, §§ 103-05). 149. The applicants’ detention was rather extended under Article 102 § 1 (4) of the Code of Criminal Procedure on the grounds that they were charged with a very serious crime, carrying a sentence of twenty years’ imprisonment (see paragraphs 88 and 89 above), and by the courts’ reliance on the specific elements of the charges against them. In particular, the national courts repeatedly explained in detail the charges against the applicants.", "150. With regard to the first applicant the domestic courts cited considerations such as the fact that the charges concerned the first applicant’s actions and omissions in his capacity as commander of the police units in the wider area of Sisak and that they were related to physical and mental ill-treatment of detained civilians, some of whom had been beaten with such severity as to cause bodily harm, arbitrary arrests, shooting and bombing of family houses, locking civilians in basements without windows or light, and taking civilians to unknown locations and shooting them or killing them with hard or sharp objects. All of the above was associated with an element of ethnic hatred (see paragraph 28 above). With regard to the second applicant, the domestic courts in particular took into account the fact that he was charged with belonging to an organised group of people who, as members of a special police unit, carried out unlawful arrests, ill-treatment and the killing of people of Serbian origin, including five members of the same family. He was also charged with the killing of another man and the arbitrary abduction of his sons (see paragraphs 67 and 68 above).", "151. It follows that the reasons relied on by the national authorities cannot be said to have been stated in abstracto, nor can it be said that at any point they ordered or extended the applicants’ detention on identical or stereotypical grounds, using some pre-existing template or formalistic and abstract language (compare Getoš-Magdić, cited above, § 86; and Šuput, cited above, § 107; and, by contrast, Fırat v. Turkey, no. 37291/04, § 24, 30 June 2009). 152. In this connection, the Court also observes that, unlike some other legal systems where the sentence faced by the accused is determined by the prosecution without any judicial review (see, for example, Artemov v. Russia, no.", "14945/03, § 77, 3 April 2014), in the Croatian legal system although the public prosecution is responsible for drawing up the indictment, it is for the domestic courts to verify regularly during the pre-trial detention the existence of a reasonable suspicion that the offence at issue was committed. In so doing, they must review whether the particular charges against the accused are supported by the relevant evidence (see, for instance, paragraphs 12 and 28-30, 67-68 and 89 above; compare J.M., cited above, § 62). 153. Furthermore, the Court notes that when reviewing the applicants’ continued detention on the grounds of gravity of the charges, the domestic courts stressed that, in view of the seriousness of the specific charges against them, their remand in custody was necessary in order to maintain the public order (see, by contrast, Orban, cited above, § 61). The domestic courts in particular relied on the fact that the crimes at issue provoked public condemnation and if the perpetrators remained at large, public order would be disturbed (see paragraphs 30-32, 46, 52 and 59 above).", "They justified such findings by the fact that those crimes had been committed against the Serbian minority in the relatively small community of Sisak, where the consequences of the war were still felt and the process of normalisation of the relations between the ethnic communities was still ongoing. In these circumstances, the domestic courts held that if the applicants, as persons suspected of having committed war crimes against the civilian population, were released from detention, it could cause public disturbance and diminish the public’s trust in the judicial system, as well as undermine the process of securing a peaceful coexistence of the local population (see paragraphs 53, 55, 78 and 80 above). 154. In this connection the Court notes that although considerations such as the prevention of social disturbance and the protection of public order were not expressly stated in the relevant domestic law (see Peša v. Croatia, no. 40523/08, § 103, 8 April 2010), they are generally seen as underlying reasons for ordering and extending pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure (see paragraphs 92 and 96 above).", "The Court also notes that the prevention of a threat to public order is commonly seen as a legitimate ground for detention (see paragraph 97 above), and as such is accepted in the Court’s case-law (see, for example, Peša, cited above, § 101; and J.M., cited above, § 62), and in international criminal-law practice (see, for instance, paragraph 100 above). Indeed, given the specific nature of the charges of war crimes against civilian population, this ground for detention appears particularly pertinent to the cases involving charges of such grave breaches of fundamental human rights, which in the general public commonly provoke particular moral condemnation (see paragraph 92 above). 155. However, as the Court explained for the first time in the Letellier case (cited above), this ground can be regarded as relevant and sufficient only if it is based on facts capable of showing that the accused’s release would threaten public order. In addition, detention will continue to be legitimate only if public order remains threatened; its continuation cannot be used to anticipate a custodial sentence (see Letellier, cited above, § 51; I.A., cited above, § 104; and Kemmache v. France (no.", "1 and no. 2), 27 November 1991, § 52, Series A no. 218). 156. In the present case, the conclusions of the domestic courts were based on the specific facts pertinent to the concrete charges against the applicants, and in particular their effects on the victims and the local community at issue.", "Given that the national courts are best placed to assess the effects associated with the perpetration of war crimes against the civilian population on the public in the context of post-conflict reconciliation in a society, it is reasonable to assume that there was a risk of social disturbance and a threat to public order in the event that the alleged perpetrators of those crimes were released, which must have reasonably persisted during the period in which the applicants were detained pending trial (compare Tomasi v. France, 27 August 1992, § 91, Series A no. 241‑A). This is especially so given that the crimes at issue amounted to a negation of the very foundations of the Convention, which produce the long-lasting effects (see the approach in Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 150-51, ECHR 2013; see further Marguš v. Croatia [GC], no. 4455/10, § 133, ECHR 2014 extracts).", "157. Lastly, the Court acknowledges that the relevant issues pertaining to the duration of and grounds for the applicants’ detention were also examined by the national courts, in particular by the Supreme Court and the Constitutional Court, which carried out a detailed assessment of all the relevant circumstances of the case and addressed the specific concerns related to the applicants’ continued detention (see paragraphs 52-55 and 80-85 above). (ii) Conduct of the proceedings 158. It remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. 159.", "In this regard, the Court observes that the criminal case at issue was very complex, requiring the collection and examination of voluminous documentation and evidence, including a number of reports on the crime-scene investigations, autopsies and ballistic expertise, and the questioning of some 200 witnesses (see paragraphs 10 and 19 above). 160. The Court also notes that the domestic authorities diligently conducted all the relevant procedural actions during the investigation and that the trial progressed regularly without any unexplained periods of delay (see paragraphs 13-15 above). There is therefore nothing before the Court which would allow it to criticise the domestic authorities for failing to observe “special diligence” in the handling of the applicants’ case. 161.", "Against the above background, and in the particular circumstances of the present case, the Court finds that the applicants’ pre-trial detention, throughout the period under the Court’s scrutiny, was based on relevant and sufficient reasons, with due observance of the requirement of “special diligence” in the proceedings. 162. The Court therefore finds that there has been no violation of Article 5 § 3 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 163.", "The first applicant complained, invoking Article 6 § 2 of the Convention, that in extending his pre-trial detention the national courts had breached his right to the presumption of innocence. 164. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court considers that this part of the first applicant’s 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Joins the applications; 2. Declares the complaint of the first applicant and the complaint of the second applicant for the period between 20 June 2011 and 30 September 2013, concerning the length and reasoning for their pre-trial detention, under Article 5 § 3 of the Convention, admissible and the remainder of the applications inadmissible; 3. Holds that there has been no violation of Article 5 § 3 of the Convention. Done in English, and notified in writing on 26 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrarPresident" ]

[ "FOURTH SECTION CASE OF MARTIKÁN v. SLOVAKIA (Application no. 30036/06) JUDGMENT STRASBOURG 20 January 2009 FINAL 20/04/2009 This judgment may be subject to editorial revision. In the case of Martikán v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Ján Šikuta,Mihai Poalelungi,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 16 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30036/06) 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, Mr Ján Martikán (“the applicant”), on 14 July 2006.", "2. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 3. On 3 April 2008 the President of the Fourth 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 § 3).", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1974 and lives in Snežnica. A. Proceedings concerning the applicant’s action 5. On 13 March 1998 the applicant filed an action with the Čadca District Court.", "He claimed compensation in a labour dispute. On 11 September 1998 the case was transferred to the Považská Bystrica District Court. 6. In the period following the Constitutional Court’s judgment of 14 February 2006 (see below) the Považská Bystrica District Court held three hearings. It also requested the Čadca District Court to hear witnesses and twice urged it to do so.", "7. On 15 March 2007 the Považská Bystrica District Court granted the applicant’s claim. The judgment became final on 12 May 2007. B. Constitutional proceedings 8.", "On 14 February 2006 the Constitutional Court found that the Považská Bystrica District Court had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay and his right under Article 6 § 1 of the Convention to a hearing within a reasonable time. 9. The Constitutional Court held that the case was not complex. Although the applicant had to a certain extent contributed to the length of the proceedings through insufficient cooperation, that had not influenced the overall length of the proceedings. Delays imputable to the Považská Bystrica District Court had amounted to a total of 4 years.", "10. The Constitutional Court awarded the applicant SKK 40,000 (the equivalent of 1,066 euros at that time) as just satisfaction in respect of non-pecuniary damage. It ordered the reimbursement of the applicant’s legal costs and ordered the Považská Bystrica District Court to avoid any further delay in the proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 11.", "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...” 12. The Government did not contest that argument but argued that the application was inadmissible for the reasons set out below. A. Admissibility 13. The Government objected that, in respect of the proceedings examined by the Constitutional Court, the applicant could no longer claim to be a victim of a violation of his right to a hearing within a reasonable time. They argued that the Constitutional Court had expressly acknowledged such a violation and the amount of just satisfaction awarded and paid without undue delay was not manifestly inadequate in the circumstances of the case.", "They further argued that the Constitutional Court’s finding had a preventive effect as no further delays had occurred in the subsequent period. In any event, the applicant had not exhausted domestic remedies as it had been open to him to lodge a fresh complaint with the Constitutional Court in that respect. 14. The applicant disagreed and argued that the amount of just satisfaction granted by the Constitutional Court was disproportionately low in the circumstances of the case. He further argued that he was not obliged to have recourse again to the constitutional remedy.", "15. The Court notes that at the time of the Constitutional Court’s judgment the proceedings had been pending for 7 years, 11 months and 5 days. The Constitutional Court awarded the applicant the equivalent of EUR 1,066 as just satisfaction in respect of the proceedings examined by it and ordered the District Court to avoid any further delay in the proceedings. 16. The amount awarded by the Constitutional Court cannot be considered as providing adequate and sufficient redress to the applicant in view of the Court’s established case-law (see Scordino v. Italy (no.", "1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-..., and Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006-...). 17. In view of the above, in respect of the proceedings up to the Constitutional Court’s judgment, the Court concludes that the applicant did not lose his status as a victim within the meaning of Article 34 of the Convention.", "18. Since the compensatory effect produced by the decision of the Constitutional Court did not satisfy the criteria applied by the Court, the applicant was not required, for the purposes of Article 35 § 1 of the Convention, to use again the remedy under Article 127 of the Constitution in respect of the proceedings subsequent to the Constitutional Court’s judgment (see the recapitulation of the relevant principles in Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007). 19. In this context the Court also considers it relevant that the present application was introduced without substantial delay after the Constitutional Court’s judgment (see Španír v. Slovakia, no.", "39139/05, § 47, 18 December 2007, and Weiss v. Slovakia, no. 28652/03, § 33, 18 December 2007). The application, accordingly, cannot be rejected for non-exhaustion of domestic remedies. 20. The period to be taken into consideration began on 13 March 1998 and ended on 15 March 2007.", "The proceedings have thus lasted for more than 9 years and 2 months for one level of jurisdiction. 21. 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 22. 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). The Court reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no.", "230-D, p. 39, § 17). 23. 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, ibid.). 24. Having examined all the material submitted to it and having regard to its case-law on the subject and the nature of the dispute, 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, at the time of the Constitutional Court’s judgment the proceedings had been pending for almost 8 years before a single instance. Following the Constitutional Court’s judgment the proceedings continued for 1 year and almost 3 months but no substantial delay occurred during that period. 25. The Court concludes that the overall length of the period under consideration was incompatible with the applicant’s right to a hearing within a reasonable time. 26.", "There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. 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 28.", "The applicant claimed 2,900 euros (EUR) in respect of non-pecuniary damage. 29. The Government considered the claim exaggerated and left the matter to the Court’s discretion. 30. The Court considers that the applicant must have sustained non-pecuniary damage.", "Ruling on an equitable basis, and having regard to its case-law on the subject, the particular circumstances of the case and the fact that the applicant obtained partial redress in the proceedings before the Constitutional Court, it awards EUR 2,700. B. Costs and expenses 31. The applicant also claimed EUR 119 for the costs and expenses incurred before the Court. 32.", "The Government had no objection to the award of a demonstrably incurred sum for translation costs and requested the Court to dismiss the remainder as the applicant failed to support his claim by any evidence. 33. 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 applicant, who was not represented by a lawyer, the sum claimed in full, i.e. EUR 119 for the proceedings before the Court.", "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 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: (i) EUR 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 119 (one hundred and nineteen 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 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF VELEČKA AND OTHERS v. LITHUANIA (Applications nos. 56998/16 and 3 others) JUDGMENT STRASBOURG 26 March 2019 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 Velečka and Others v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Jon Fridrik Kjølbro, President,Paulo Pinto de Albuquerque,Faris Vehabović,Egidijus Kūris,Iulia Antoanella Motoc,Georges Ravarani,Marko Bošnjak, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 12 February 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos.", "56998/16, 58761/16, 60072/16 and 72001/16) 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 four Lithuanian nationals, Mr Saulius Velečka (“the first applicant”), Mr Norbertas Tučkus (“the second applicant), Mr Audrius Petkauskas (“the third applicant”) and Mr Tadas Petrošius (“the fourth applicant”), on 24 and 29 September, 4 October, and 25 November 2016 respectively. 2. The applicants were represented by Mr K. Ašmys, Ms I. Botyrienė and Mr L. Belevičius, lawyers practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, most recently Ms L. Urbaitė. 3.", "On 16 October 2017 complaints concerning Article 5 § 3 of the Convention regarding the length of the applicant’s detention, Article 8 § 1 of the Convention concerning the lack of conjugal visits, and Article 13 of the Convention concerning lack of an effective remedy for the Article 8 § 1 complaint, were communicated to the Government and the remaining parts of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1971, 1975, 1974 and 1981 respectively and are detained in Marijampolė and Kybartai Correctional Facilities. 5.", "It was suspected that the first applicant, together with the other applicants, had previously agreed to carry out criminal activities, using firearms, as members of a criminal organisation. In May 2011 the pre-trial investigation opened. It was suspected that criminal activities had been planned in Lithuania, Russia, Ukraine, Latvia, the United Kingdom, the Netherlands and Spain. 6. In the context of that investigation, the applicants were arrested on 22 January 2013.", "7. The first applicant was questioned and officially notified that he was suspected of being a member of and the leader of a criminal organisation that possessed and distributed large amounts of narcotic and psychotropic substances. He was also suspected of having property with a value of more than 500 times the amount of the minimum standard of living (“MSL” ‑ didesnį negu 500 MGL vertės turtą) (approximately 18,825 euros (EUR)) registered in the names of other individuals, which could not have been acquired lawfully. The other applicants were questioned and officially notified that they were suspected of creating and participating in a criminal organisation that possessed and distributed large amounts of narcotic and psychotropic substances. The applicants were also suspected of having property with a value of more than 500 MSL registered in the names of other individuals, which could not have been acquired lawfully.", "A. Mr Saulius Velečka 1. The applicant’s detention on remand (a) The applicant’s detention during the pre-trial investigation 8. On 23 January 2013 the Vilnius City District Court authorised the applicant’s detention on remand for three months. The court considered that the testimony of witnesses in the case, identification reports, expert conclusions, and other data such as information from the authorities of Poland and Russia, were sufficient to hold that the applicant might have committed the criminal offences of which he was suspected. The court noted that it could only impose arrest if it was impossible to achieve the objectives of Article 119 of the Code of Criminal Procedure, namely to ensure that the suspect, the accused or the convicted person participated in the proceedings, to prevent interference with the pre-trial investigation or with the examination of the case before the court, or with the execution of the sentence, and to prevent the commission of further criminal acts by other, less restrictive measures.", "The court considered that the applicant was suspected of having committed deliberate criminal offences categorised as serious and very serious, and one crime of medium severity, which could lead to imprisonment of more than one year, which was enough to justify measures being taken against the risk of absconding. Also, some of the offences the applicant was suspected of could lead to life imprisonment. The risk of absconding was strengthened by the fact that the applicant had connections in European Union countries, Russia, Ukraine, and the United States, and had planned and committed crimes outside the territory of Lithuania. Moreover, he had already been found guilty of criminal offences in Lithuania and Germany, and it was possible that he would commit new ones. Lastly, the court noted that the pre-trial investigation was still ongoing, was very complex, and the applicant’s detention was necessary to ensure his attendance during the proceedings.", "9. From then on, the applicant’s detention was regularly extended for three months. The last decision to extend the applicant’s detention for three months at the pre-trial stage was adopted by the Vilnius Regional Court on 17 April 2014. 10. The grounds relied on by the domestic courts extending the applicant’s detention were repeated, additionally mentioning new procedural actions that had to be performed or other details.", "For example, on 18 April 2013 the Vilnius City District Court noted that even though the applicant was married and had a family and a permanent place of residence, these circumstances were not enough to ensure that the applicant would not abscond. On 17 July 2013 the Vilnius Regional Court held that the factual information, including the testimony of witnesses in the case, identification reports, restrictive measures, expert conclusions, items necessary for the investigation, and information received from the authorities of Poland, Belarus, Ukraine, the United Kingdom and Russia, were sufficient to hold that the applicant might have committed the criminal offences of which he was suspected. Also, the case was complex and wide-ranging; there were over forty suspects in the case; the offences had been committed in the territories of Lithuania, European Union member States, Ukraine, Belarus, and Russia; legal cooperation requests had been sent to Russia, Ukraine, the Netherlands and the United Kingdom. Also, numerous investigative actions had been taken since the last extension of the applicant’s detention: existing suspects had been further questioned; new suspects had been arrested and questioned; restrictive measures had been either imposed or extended; expert conclusions had been received; large-scale replies had been received from the authorities of Russia, Ukraine and the United Kingdom; these replies had been translated into Lithuanian; and searches had been carried out, as well as other investigative actions. On 13 August 2013 the Court of Appeal observed that the pre-trial investigation was intense; its length depended on the objective circumstances and complexity of the case.", "On 21 October 2013 the Vilnius Regional Court noted that on 16 May 2013 another pre-trial investigation had been joined to the current one. On 15 November 2013 the Court of Appeal decided to strike the ground that the applicant might abscond out of the list of grounds on which the applicant had been detained. The court added that the applicant had some health issues but that medical assistance was available for him in the Prison Hospital, which he had already received. The court also considered that in the case at hand the criminal offences had been committed over a period of at least four years by a criminal organisation, the most serious form of complicity, and had involved the territories of multiple countries. Many procedural actions had been carried out, including the sending of legal assistance requests to Russia, Belarus, Ukraine, the Netherlands and the United Kingdom.", "Furthermore, the suspects and witnesses had been questioned again, eyewitnesses had been identified, new suspects had been arrested and questioned, recognitions had taken place, authorities of Russia and the United Kingdom had been addressed, the Vilnius City District Court had been approached with requests for searches, tasks to examine certain items had been resourced, and expert conclusions received. On 21 January and 17 April 2017 and the Vilnius Regional Court observed that additional information had been received from Spain and several legal assistance requests had been sent to Russia, Belarus, Ukraine, Poland, the Netherlands and the United Kingdom. 11. On 30 June 2014 the bill of indictment was drawn up. (b) The applicant’s detention during his trial 12.", "On 2 July 2014 the bill of indictment and the case were referred to the Vilnius Regional Court for examination on the merits, but on 11 July 2014 the Court of Appeal transferred the case for examination on the merits to the Klaipėda Regional Court, because judges of the Vilnius Regional Court had participated in the investigative actions. 13. On 10 July 2014 the Vilnius Regional Court extended the applicant’s detention for a further three months. From then on, the applicant’s detention was extended every three months, until 22 July 2016. The courts constantly held that this measure was not too strict in the circumstances of the present case.", "The courts considered that bail, requested by the applicant, would not remove the threat to the criminal process or to the interests of society, the State, or to other people. They also indicated that the case file kept growing, and that by January 2016 it had reached over 130 volumes. On 16 May 2016 the Court of Appeal noted that the length of the pre-trial detention could not exceed two-thirds of the most serious sentence a person risked incurring. In the present case this requirement had not been breached. 14.", "On 22 July 2016 the Klaipėda Regional Court decided not to extend the applicant’s detention. The court referred to the Court’s practice and held that the persistence of a reasonable suspicion that the person arrested had committed an offence was a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer sufficed. Formal arguments that a person might abscond, commit new offences or interfere with the execution of justice were not enough to extend detention. Prolonged detention could only be possible in exceptional cases when other less restrictive measures were not enough. In the present case, the applicant was arrested on 22 January 2013; at this time his detention had lasted for three years and six months.", "In 2016 for objective reasons only three hearings had taken place in the criminal case, and other hearings had been scheduled for 25 October, 29 November, and 13, 21 and 22 December 2016. A further extension of the applicant’s detention could therefore be assessed as a violation of Article 5 § 3 of the Convention. The court took into account the fact that EUR 30,000 had been paid as bail. It ordered his documents to be confiscated and placed him under intense supervision by ordering him to wear an electronic ankle bracelet. The applicant was also prohibited from leaving his home for six months unless related to the court hearings.", "The applicant was released immediately. 15. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant. The court observed that the lower court had not examined whether the grounds to detain the applicant had disappeared. The court held that although the applicant had a family (he married for a second time while detained), a place of residence, and sufficient income, he had been found guilty of an offence in the past, which was a negative character trait.", "Moreover, the nature and scale of the alleged criminal activities allowed for the conclusion that the applicant had connections abroad. There was therefore a risk that he might abscond. Taking into account the nature of the offences, there was a risk that the applicant might commit further crimes. Although the court acknowledged that the applicant had been detained for a very long time (more than three years and six months), it reiterated that the public interest outweighed the right to individual liberty. The scope of the case (thirteen accused and 139 volumes of material) and the complexity of the investigation justified the applicant’s continued detention.", "The court noted that examination of the criminal case had not continued after the previous hearing on 29 February 2016 and that the break in proceedings was scheduled to last until 25 October 2016. However, a hearing due on 16 June 2016 had not taken place, because two of the accused had not been present, while the state of health of another two accused had caused another break. The court further observed that twenty-four hearings had taken place in 2015, and concluded that the examination of the case had been intensive. The court ordered the applicant’s detention for three months from the date of his arrest. 16.", "On 3 November 2016 the Klaipėda Regional Court extended the applicant’s detention for a further three months. The court held that the examination of the case was speedy, but that the process had been protracted for reasons unconnected with the work of the court, such as delay in expert reports and illnesses of the accused. The court also indicated that a search for L.P., who was one of the accused, had been announced. From then on the applicant’s detention was extended every three months. The last decision, by which the applicant’s detention was extended for three months, was adopted on 3 November 2017 by the Klaipėda Regional Court.", "The courts observed the growing volume of the case material, the need to order psychiatric examinations for several of the accused, and the international element of the case. On 12 June 2017 the Court of Appeal disagreed with the arguments of the applicant’s lawyer that examination of the criminal case had become protracted because of the ineffective organisation of the trial court’s work. The court held that the hearings had been scheduled in advance and that examination of the case had become protracted for objective reasons (some hearings had not taken place because of the state of health of the accused, requests from the accused and their lawyers, and the additional questioning of witnesses). The court noted that none of the hearings had been cancelled or postponed because of negligence or inaction on the part of the judges. The court was of the view that the Klaipėda Regional Court had examined the criminal case with sufficient due diligence.", "Finally, the court held that the Court’s judgment in Lisovskij v. Lithuania (no. 36249/14, 2 May 2017) was not final and could be changed by the Grand Chamber. On 30 August 2017 the Court of Appeal found that although for thirty-three months in total there had been no hearings, the breaks had taken place for reasons unconnected with the work of the courts, and it had not been possible to speed up the proceedings. The court observed that during the hearing of 2 December 2015 it had been announced that the next hearing would take place on 29 February 2016 because there needed to be a psychiatric examination of two of the accused. On 19 January 2016 the results of the psychiatric examination were received but it had been decided that the court’s questions could not be answered, and a new psychiatric examination was ordered by a decision of the Klaipėda Regional Court of 29 February 2016.", "The results were received on 8 and 15 June 2016. The criminal case had not been examined in the hearings that took place on 16 June and 25 October 2016 because some of the accused and their lawyers had failed to appear. On 29 November 2016 the examination of the evidence had continued. The court considered that the breaks in the proceedings had taken place because of both justified and unjustified failure of the parties to the proceedings to appear, prior commitments of the court, or of the parties to the proceedings, and other circumstances. Nevertheless, the court considered that the hearings had been scheduled at regular intervals and the length of the proceedings was justifiable.", "The court referred to Lisovskij (cited above) but stated that the factual circumstances of that case and the present one were different. Finally, the court held that the examination of the evidence in the criminal case was now complete, and that the case was at the stage of closing statements, however, new circumstances could be revealed at that stage and there was a necessity to further extend the applicant’s detention. On 11 December 2017 the Court of Appeal indicated that a search for one of the accused, L.P. had been announced in 2016 and that he had been found and transferred from Sweden to Lithuania on 18 January 2017. 17. On 20 December 2017 the Klaipėda Regional Court found the applicant guilty of organising or leading a criminal organisation, unlawful production, acquisition, storage, transportation forwarding, selling or otherwise distributing category I precursors of narcotic and psychotropic substances, and smuggling and unlawful possession of narcotic or psychotropic substances for the purpose of distribution, and sentenced him to fourteen years and six months’ imprisonment.", "The court noted that the issue of the length of the applicant’s detention had been examined by the Court. The court further noted that because of the length of the examination of the criminal case the sentence imposed was lower than the average for such offences. The court also stated that according to the practice of the Court, a more lenient sentence could be imposed to compensate for the length of a restrictive measure, and this would deprive a person of his or her victim status. The court did not, however, further elaborate on that issue and did not refer to any cases of the Court. 18.", "On 18 January 2018 the criminal case was referred for examination at the Court of Appeal. It appears that at the date of the latest information available to the Court (24 August 2018) those proceedings were still pending. 19. The applicant is currently serving his sentence in Marijampolė Correctional Facility. 2.", "The applicant’s visits 20. On 23 July 2015 the applicant asked the Lukiškės Remand Prison authorities to grant him a visit with his future spouse on the day of their wedding in August 2015, without supervision and with physical contact. On 2 September 2015 Lukiškės Remand Prison replied that visits to remand detainees took place without physical contact. Lukiškės Remand Prison indicated that the applicant could appeal to the director of the Prison Department. It appears that the applicant did not appeal against the decision.", "21. On 8 May 2017 the applicant lodged a claim before the Vilnius Regional Administrative Court, raising, among other issues, the complaint that he could not have long-stay visits while detained in Lukiškės Remand Prison between 1 January 2016 and 26 September 2016. On 13 November 2017 the Vilnius Regional Administrative Court held that remand detainees could receive an unlimited number of visits from their relatives and other people, but that visits had to be approved in writing by the prosecutor of the court carrying out the pre-trial investigation. One visit could not exceed two hours. In the present case there was no information that the applicant had applied for a visit or that he had been refused such visits.", "The court therefore dismissed this complaint as unfounded. The proceedings before the Supreme Administrative Court are still ongoing. 22. It appears from the information provided by the Government that during the applicant’s detention in Lukiškės Remand Prison the applicant was granted twenty-seven short visits in 2014, ninety-nine short visits in 2015, and sixty-four short visits in 2016. During the applicant’s detention in Šiauliai Remand Prison, between 9 August 2016 and 1 January 2017 he was granted seventy-six short visits.", "After the change of domestic law on 1 January 2017 (see Čiapas v. Lithuania (dec.), no. 62564/13, § 11, 4 July 2017), the applicant was granted ten long-stay visits with physical contact. B. Mr Norbertas Tučkus 1. The applicant’s detention (a) The applicant’s detention during the pre-trial investigation 23. On 23 January 2013 the Vilnius District Court authorised the applicant’s detention for three months.", "The court relied on very similar reasons as for the first applicant (see paragraph 8 above). The court added that the fact of the applicant’s being married and having children was not sufficient to establish that his ties to society minimised the risk of absconding. Moreover, the applicant was unemployed, thus there was a risk that he might commit new crimes. 24. From then on the applicant’s detention was regularly extended for three months.", "The last decision to extend the applicant’s detention at the pre-trial stage was taken on 17 April 2014. The courts when extending the applicant’s detention relied on various reasons. They noted that although the applicant had a permanent place of residence, children, and a family, these circumstances did not render it unnecessary to keep him in detention. And the applicant had previous convictions: this was a negative character trait and showed that he was not keen on following the laws and general ethical norms. The courts also relied on the complexity of the case and the investigative actions that needed to be performed.", "On 13 August 2013 the Court of Appeal decided to remove the ground that the applicant might interfere with the proceedings if released. On 21 October 2013 the Vilnius Regional Court noted that the offences had been well planned and had been committed not only in Lithuania but also in other countries. On 19 November 2013 the Court of Appeal observed that on 16 May 2013 another pre-trial investigation was joined to the present one. On 20 January 2014 the Vilnius Regional Court held that there were over fifty suspects in the case, and that legal cooperation requests had been sent to Russia, Belarus, Ukraine, Poland, the Netherlands, Spain and the United Kingdom. The circle of suspects and the offences were continuing to increase.", "Also, numerous investigative actions had been taken since the applicant’s detention had last been extended: suspects had been further questioned, new suspects had been arrested and questioned, witnesses had been questioned, searches of several suspects had been announced and carried out, restrictive measures had been imposed or extended, searches had been performed, items necessary for the investigation had been taken, tasks for experts had been appointed, some expert conclusions had been received, and wide-ranging replies on some of the issues had been received from the authorities of Russia and Spain. 25. On 30 June 2014 the bill of indictment was drawn up. (b) The applicant’s detention during his trial 26. On 10 July 2014 the Vilnius Regional Court extended the applicant’s detention for a further three months.", "From then on, the applicant’s detention was regularly extended for three months, until 22 July 2016. The courts observed that the case file kept increasing in volume: there was a huge number of witnesses. The applicant’s requests to be released on bail were dismissed. 27. On 22 July 2016 the Klaipėda Regional Court decided not to extend the applicant’s detention.", "The court relied on identical arguments to those made in the case of the first applicant, and ordered the same restrictive measures (see paragraph 14 above). 28. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant. The court relied on very similar arguments to those made in the first applicant’s case (see paragraph 15 above). The court added that although the applicant had a family and a place of residence, he was unemployed before his arrest, thus he had no strong ties with Lithuania and might abscond.", "The court ordered the applicant’s detention for three months from the date of his arrest. 29. From then on the applicant’s detention was regularly extended every three months. The last decision to extend the applicant’s detention was adopted on 3 November 2017 by the Klaipėda Regional Court. The courts constantly underlined the complexity of the case and its international element.", "On 12 June 2017 the Court of Appeal dismissed the applicant’s appeal. The court held that Lisovskij (cited above), referred to by the applicant, was not final and could still be changed. The court stated that the criminal case was extremely complex, had 147 volumes, and the offences had been committed in Lithuania, other European Union member States, and also third States. Hearings had been scheduled on 11, 12, and 25 November and 9 December 2014; 19 and 20 January, 24 February, 16, 18, 30, and 31 March, 1 and 13 April, 3, 4, 5, and 19 May, 1 and 2 June, 13 and 14 July, 16 and 19 October, 10 and 11 November, and 1 and 2 December 2015; 29 February, 16 June, 25 October and 29 November 2016; 17 February, 17 March, 3 and 11 April, and 3 and 16 May 2017; and had also been scheduled on 30 June and 3, 11 and 12 July 2017. The court held that some of the hearings had been adjourned for reasons unconnected with its work: on 16 March 2015 the victim, A.P., had failed to appear, and had subsequently been placed under arrest for one month in order to ensure his attendance.", "On 2 April 2015 the court had ordered that seven witnesses be brought to the hearing, while an adjournment had taken place on 14 and 15 April 2015 because of the state of health of one of the accused. On 3 June 2015 the court had ordered one witness to pay a fine and ordered the authorities to bring him to the hearing. A hearing due on 16 October 2015 had not taken place because the applicant was ill. During a hearing on 19 October 2015 one of the accused had been questioned but it had been found that he had experienced a head injury the month before. Another accused’s health was also questionable, thus an expert opinion had been ordered by the court on 20 October 2015. Another expert report had been ordered on 29 February 2016.", "The hearing set for 25 October 2016 was postponed because one of the accused, L.P., had breached the requirements of his restrictive measure and had been arrested in Sweden, while two other accused had health issues. The other hearings had taken place in accordance with the schedule. On 30 August 2017 the Court of Appeal dismissed the applicant’s appeal. The court dismissed the arguments of the applicant’s lawyer that the applicant’s detention had been extended on identical grounds to those given by the courts. The court stated that the mere fact that the arguments given by the courts had been similar or identical did not mean that the reasons to extend the detention had been arbitrary.", "The court considered that the first-instance court had complied with the requirement of requisite diligence, and made a reasoned conclusion. Moreover, the case was extremely complex, and had 150 volumes of material at that time. The examination of the accused had been protracted for reasons unconnected with the work of the court: the necessity to carry out certain investigative actions; failure of the parties to the proceedings to appear, for both justified and unjustified reasons; and prior commitments on the part of the parties to the proceedings and the court. The regional court had taken the necessary measures (fines, summons, and other measures) to ensure that the proceedings were not protracted. The court referred to the case-law of the Court, and observed that the exceptional circumstances could justify the length of the pre-trial detention.", "Such circumstances in the present case were: the danger presented by the applicant, his supposed role in the offences of which he was accused, and the nature of the offences. As mentioned by the other courts, the applicant was accused of setting up a criminal organisation using firearms that had committed offences designated as both very serious and serious within the territories of several States. The applicant’s detention was thus justified. On 22 November 2017 the Court of Appeal dismissed the applicant’s appeal. The court observed that the argument of the applicant’s lawyer, that the applicant was never the cause of cancellation or adjournment of the hearings, was not justified, because on 16 October 2015 the hearing did not take place because the applicant refused to attend because of the conditions of detention in custody.", "Also, the court noted that the next hearing was scheduled for 7 December 2017 and the closing statements would be pronounced at that hearing, which meant that the case would be determined soon. 30. On 20 December 2017 the Klaipėda Regional Court found the applicant guilty of involvement in the criminal activities of a criminal organisation, unlawful production, acquisition, storage, transportation forwarding, selling or otherwise distributing category I precursors of narcotic and psychotropic substances, smuggling, and unlawful possession of narcotic or psychotropic substances for the purpose of distribution, and sentenced him to thirteen years’ imprisonment. The court gave the same reasoning as regards the length of the examination of the criminal case as in the first applicant’s case (see paragraph 17 above). 31.", "On 18 January 2018 the criminal case was referred for examination at the Court of Appeal. It appears that at the date of the latest information available to the Court (24 August 2018) those proceedings were still pending. 32. The applicant is currently serving his sentence in Marijampolė Correctional Facility. 2.", "The applicant’s visits 33. It appears from the information provided by the Government that between 24 January 2013 and 22 July 2016 the applicant was detained in Lukiškės Remand Prison, and between 9 August 2016 and 1 December 2017 he was detained in Šiauliai Remand Prison. 34. On 25 May 2015 the applicant asked the Lukiškės Remand Prison to allow him to have long-stay visits without supervision. On 23 June 2015 the prison authorities replied that long-stay visits were not available for remand detainees, and that the applicant could have short visits of up to two hours, without physical contact.", "35. The applicant lodged a claim, complaining about, among other issues, the lack of long-stay visits between 31 October and 5 November 2008 and between 24 January 2013 and 17 August 2015. On 6 February 2017 the Panevėžys Regional Administrative Court dismissed the part of the applicant’s complaint covering the period between 31 October and 5 November 2008 because he had missed a three-year limitation period. The court held that no long-stay visits were allowed for remand detainees under domestic law but that the applicant had received forty-three short visits between 24 January 2013 and 17 August 2015. However, in compensation for inadequate conditions of detention the applicant had received EUR 5,800 for 671 days of insufficient personal space at his disposal and other material conditions of detention.", "On 14 March 2018 the Supreme Administrative Court referred to the case of Varnas v. Lithuania (no. 42615/06, 9 July 2013) and held that the applicant’s rights had been breached with regard to the authorities’ refusal to allow him long-stay visits. The court increased the compensation to EUR 7,300. 36. The applicant lodged another claim, complaining about the lack of both long and short visits between 17 August 2015 and 22 July 2016.", "On 25 July 2017 the Vilnius Regional Administrative Court held that the applicant had not provided any evidence that he had asked the prison administration for a visit. As a result, this part of the claim was dismissed. The applicant submitted an appeal, which is still pending before the Supreme Administrative Court. 37. It appears that the applicant received thirteen short visits in 2014, eighteen short visits in 2015 and eleven short visits in 2016.", "Between 9 August 2016 and 1 January 2017 the applicant had fifteen short visits. After the entry into force of the new regulation on 1 January 2017, the applicant was granted ten long-stay visits with physical contact. It appears that the applicant did not ask for more short visits, nor did he argue that he had been refused them. C. Mr Audrius Petkauskas 1. The applicant’s detention (a) The applicant’s detention during the pre-trial investigation 38.", "On 24 January 2013 the Vilnius District Court authorised the applicant’s detention for three months. The court considered essentially the same arguments as those in the cases of the first and the second applicants (see paragraphs 8 and 23 above). The applicant’s having a family, children, a permanent place of residence and employment was not sufficient to establish that his ties to society minimised the risk of absconding. 39. From then on, the applicant’s detention was regularly extended for three months.", "The last decision to extend the applicant’s detention at the pre‑trial stage was taken on 17 April 2014. The courts relied on the necessity to carry out additional investigative measures, the complexity of the case, and the international element. On 13 August 2013 the Court of Appeal removed the risk of absconding from the list of grounds on which the applicant had been detained. On 23 October 2013 the Vilnius Regional Court added that on 16 May 2013 another pre-trial investigation was joined to the current one. In further decisions extending the applicant’s detention on remand the courts took into account that the offences had been committed over a period of at least four years by the criminal organisation, and had involved the territories of multiple countries.", "The courts identified the investigative actions that had been carried out and indicated that more investigative actions would have to be carried out. 40. On 30 June 2014 a bill of indictment was drawn up. (b) The applicant’s detention during his trial 41. On 2 July 2014 the bill of indictment and the case were referred to the Vilnius Regional Court for examination on the merits, but on 11 July 2014 the Court of Appeal transferred the case for examination on the merits to the Klaipėda Regional Court, because the judges of the Vilnius Regional Court had taken part in the investigative actions.", "42. On 10 July 2014 the Vilnius Regional Court extended the applicant’s detention for a further three months. From then on, the applicant’s detention was constantly extended for three months until 22 July 2016. The courts relied on the complexity of the case, the applicant’s character, and the nature of the offences. 43.", "On 22 July 2016 the Klaipėda Regional Court approved an application by the applicant for a variation in the restrictive measure regime. The court found that for reasons unconnected with the work of the courts only three hearings in the criminal case against the applicant had taken place, further hearings were not scheduled until October-December, and a further extension of the applicant’s detention could be assessed as a violation of Article 5 § 3 of the Convention. The other arguments were very similar to those pronounced in the cases of the first and second applicants, and the restrictive measures were the same (see paragraphs 14 and 27 above) 44. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant. The court relied on the same arguments as in the cases of the first and second applicants (see paragraphs 15 and 28 above).", "The court ordered the applicant’s detention for three months from the date of his arrest. 45. On 3 November 2016 the Klaipėda Regional Court extended the applicant’s detention for a further three months. From then on, the applicant’s detention was regularly extended for three months. The last decision to extend the applicant’s detention was adopted on 3 November 2017 by the Klaipėda Regional Court.", "The courts relied on the complexity of the case and the international element, and noted that the court examining the criminal case on the merits had put maximum efforts into ensuring that the examination of the case was speedy; despite this the process had been protracted for unconnected reasons. On 12 June 2017 the Court of Appeal held that there was no unjustified delay in the proceedings. It reiterated the reasons given by the Court of Appeal on 12 June 2017 in the second applicant’s case (see paragraph 29 above). It added that the Court’s judgment in Lisovskij (cited above), referred to by the applicant, was not final and that the factual circumstances of that case were different. On 30 August 2017 the Court of Appeal held that the length of the applicant’s detention was justified by the applicant’s character, the seriousness of the offences, the extreme complexity of the case (thirteen accused, many witnesses, many episodes of criminal activity, 150 volumes of evidence) as well as by the public interest, which was justified under the Court’s case-law.", "The court did not agree that the proceedings in the criminal case had been conducted passively: the hearings had been scheduled in advance and the schedule had been intense. The breaks in the proceedings had been announced because of failure of the parties to the proceedings to appear, because of absconding, and because of the necessity to carry out special investigations. 46. On 20 December 2017 the Klaipėda Regional Court found the applicant guilty of unlawful deprivation of liberty, robbery, organising or leading a criminal organisation, unlawful production, acquisition, storage, transportation, forwarding, selling or otherwise distributing category I precursors of narcotic and psychotropic substances, seizure of a seal, stamp or document or use of a stolen seal, stamp or document, and sentenced him to thirteen years’ imprisonment. The court gave the same reasoning as regards the length of the examination of the criminal case as in the first applicant’s case (see paragraph 17 above).", "47. On 18 January 2018 the criminal case was referred for examination at the Court of Appeal. It appears that at the date of the latest information available to the Court (24 August 2018) those proceedings were still pending. 48. By a decision of 8 February 2018 the Court of Appeal granted the applicant’s request to allow him to start serving the sentence imposed on him by the judgment of the Klaipėda Regional Court of 20 December 2017.", "49. The applicant started serving his sentence in Kybartai Correctional Facility on 22 February 2018. 2. The applicant’s visits 50. It appears from the information provided by the Government that between 4 February 2013 and 22 July 2016 the applicant was detained in Lukiškės Remand Prison and between 9 August 2016 and 1 December 2017 in Šiauliai Remand Prison.", "51. In May 2016 the applicant submitted a complaint to the Vilnius Regional Administrative Court concerning, among other, the fact that he could not receive long-stay visits. On 3 August 2016 the Vilnius Regional Administrative Court stated that the applicant’s complaint was abstract: it was not clear whether he had asked the prison authorities for a long-stay visit or named a person from who he wanted to receive such a visit. 52. The applicant lodged an appeal, but on 24 March 2017 informed the Supreme Administrative Court that he did not want his appeal to be examined, and asked for the appellate proceedings to be terminated.", "On 26 April 2017 the Supreme Administrative Court allowed the applicant’s claim. 53. On 29 August 2016 the applicant asked the Šiauliai Remand Prison authorities to allow him to receive a long-stay visit from his wife. On 30 August 2016 the prison authorities replied that the domestic law did not allow remand prisoners long-stay visits. The applicant did not appeal against this decision.", "54. It appears from the information provided by the Government that while detained in Lukiškės Remand Prison in 2014 the applicant had sixteen short visits, in 2015 he had twenty short visits and in 2016 he had ten short visits. It appears that in while detained in Šiauliai Remand Prison 2016 the applicant had four short visits and in 2017 he had eight short visits. On 24 June and 9 August 2017 the applicant was allowed to receive visits without physical separation. On 11 January, 25 February, 13 April, 18 May, 18 July and 17 October 2017 the applicant was allowed to receive long-stay visits from his wife.", "D. Mr Tadas Petrošius 1. The applicant’s detention (a) The applicant’s detention during the pre-trial investigation 55. On 23 January 2013 the Vilnius City District Court authorised the applicant’s detention for two months from 22 January 2013. The court relied on essentially the same arguments as in the cases of the first three applicants (see paragraphs 8, 23 and 38 above). The court further stated that the applicant had a family, a five-month-old child, and a permanent place of residence.", "He had also been diagnosed with Hepatitis C, but none of these circumstances meant that he could not be detained. 56. On 19 March 2013 and 15 May 2013 the Vilnius City District Court extended the applicant’s detention for a further two months. The court held that it was possible that realising the severity of the penalty the applicant might make use of his connections outside the territory of Lithuania and abscond. The fact that the applicant had a child was not sufficient to hold that the applicant would not abscond; nor were the applicant’s health issues.", "If medical treatment was necessary, the applicant would have to approach the prison authorities, who were obliged to ensure the proper provision of medical services. Also, the applicant was suspected of committing well‑organised crimes that had an international element. He was suspected of being one of the leaders of a criminal organisation. It was also suspected that the applicant had been receiving income from his criminal activities, because although he had several business certificates he had not been engaging in any activity in that respect, and had not received income from them. 57.", "From then on, the applicant’s detention was regularly extended for three months. The last decision to extend the applicant’s detention for three months at the pre-trial stage was adopted by the Vilnius Regional Court on 18 April 2014. The courts relied on the international element, the complexity of the case, and the need to carry out investigative actions. 58. The applicant’s lawyer asked the Prosecutor General’s Office to release the applicant from detention and to impose a less restrictive measure on him.", "The prosecutor refused, because the applicant was facing a sentence of life imprisonment. The prosecutor also stated that the grounds for keeping the applicant in detention persisted. Also, in the context of the present case, another suspect was released from detention twice: he committed further offences and had to be detained again. 59. On 30 June 2014 the bill of indictment was drawn up.", "(b) The applicant’s detention during his trial 60. On 2 July 2014 the bill of indictment and the case were referred to the Vilnius Regional Court for examination on the merits, but on 11 July 2014 the Court of Appeal transferred the case for examination on the merits to the Klaipėda Regional Court, because the judges of the Vilnius Regional Court had taken part in the investigative actions. 61. On 10 July 2014 the Vilnius Regional Court extended the applicant’s detention for a further three months; from then on the applicant’s detention was extended every three months until 22 July 2016. The courts relied on the complexity of the case, the applicant’s character, the nature of the offences, and the international element of the case.", "62. On 22 July 2016 the Klaipėda Regional Court decided to release the applicant on bail and to place him under intense supervision. It relied on the same reasons as in the cases of the first three applicants and applied the same restrictive measures (see paragraphs 14, 27 and 43 above). 63. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant on essentially the same grounds as in the case of the first three applicants (see paragraphs 15, 28 and 44 above).", "The court ordered the applicant’s detention for three months from the date of his arrest. 64. On 3 November 2016 the Klaipėda Regional Court extended the applicant’s detention for a further three months. From then on, the applicant’s detention was regularly extended every three months. The last decision on that matter was adopted by the Klaipėda Regional Court on 3 November 2017.", "On 12 June 2017 the Court of Appeal dismissed an appeal by the applicant. The court analysed the requisite diligence criteria established in Lisovskij (cited above), which was referred to by the applicant’s lawyer. The court held that while very long periods of detention did not automatically violate Article 5 § 3, exceptional circumstances were usually required to justify them. In the case at hand, those special circumstances were the dangerousness of the applicant’s character, the nature and extent of the criminal offences, the fact that the offences had been committed by a criminal organisation that possessed firearms, and the fact that the offences had an international element. The court examining the criminal case had taken all the necessary measures to ensure that there were no unjustified delays in the criminal proceedings.", "Although no hearings had taken place from 2 December 2015 to 29 November 2016 there had been objective reasons for this: it had been announced during the hearing on 20 October 2015 that no hearing would take place on 19 January 2016 because one of the judges had a hearing in another case; on 2 December 2015 the court had announced that there would be a break until 29 February 2016 because there was to be a psychiatric examination of two of the accused on 19 January 2016; an additional expert report was commissioned for the same two accused on 29 February 2016; and there was a further adjournment (the results of the expert report were received on 8 and 17 June 2016); the hearing on 16 June 2016 did not take place because one of the accused was sick and another had been arrested in Sweden; and there was no hearing on 25 November 2016 because three of the accused had failed to appear (one of them had been arrested in Sweden and his transfer to Lithuania was to take place on 18 January 2017). Further hearings had been scheduled for 30 June 2017, while the questioning of two witnesses and closing speeches had been scheduled for 3, 11 and 12 July 2017. The court concluded that the examination of the criminal case had not been unreasonably protracted. On 30 August 2017 the Court of Appeal held that the absence of close social ties, the number of offences committed, their international element, their severity, their nature, and the fact that the applicant risked a very severe sentence, all increased the risk of absconding. It was also probable that the applicant would commit new crimes if released.", "Also, the court held that the closing speeches had already commenced in the criminal case, and the court examining the case was obliged to make sure that the case was examined as quickly as possible. 65. On 20 December 2017 the Klaipėda Regional Court found the applicant guilty of organising or leading a criminal organisation, unlawful production, acquisition, storage, transportation or forwarding, selling or otherwise distributing category I precursors of narcotic and psychotropic substances, and smuggling, and sentenced him to thirteen years’ imprisonment. The court gave the same reasoning as regards the length of the examination of the criminal case as in the first applicant’s case (see paragraph 17 above). 66.", "On 18 January 2018 the criminal case was referred for examination at the Court of Appeal. It appears that at the date of the latest information available to the Court (24 August 2018) those proceedings were still pending. 67. By a decision of 30 January 2018 the Court of Appeal granted the applicant’s request to be allowed to start serving the sentence imposed on him by the judgment of the Klaipėda Regional Court of 20 December 2017. 68.", "The applicant started serving his sentence in Kybartai Correctional Facility on 22 February 2018. 2. The applicant’s visits 69. The applicant received ten short-term visits while detained in Lukiškės Remand Prison between 4 February 2013 and 18 August 2014. The applicant received 122 short visits while detained in Kaunas Remand Prison between 18 August 2014 and 22 July 2016.", "The applicant received forty-four short visits while detained in Šiauliai Remand Prison between 9 August 2016 and 1 December 2017. It appears that neither the applicant nor his partner applied to the relevant prisons for a long-stay visit. 70. Between January and August 2017 the applicant received six long‑stay visits from his partner; from January 2017 the applicant was allowed seven visits with physical contact. E. Conduct of the criminal proceedings during the applicants’ detention 71.", "From the applicants’ arrest on 22 January 2013 until the completion of the pre-trial investigation on 30 June 2014 (see paragraphs 6, 11, 25, 40 and 59 above) the authorities carried out a number of investigative actions, such as: personal searches of all the applicants and other suspects as well as various home searches; questioning all the applicants, other suspects and witnesses; sending legal cooperation requests to Spain, Russia, the Netherlands, Ukraine, and Belarus; crime scenes were visited several times; items taken during the searches examined; a number of chemical, biological, dactyloscopic and ballistic investigations set up; items necessary for the investigation taken; a number of recognitions from pictures were achieved; a detailed description of the characteristics of the accused were received; numerous decisions on limitations of property taken; a criminal conduct simulation model and secret surveillance were set up and carried out; one search was announced, and several eyewitness identifications conducted. 72. According to the information in the Court’s possession, between the transfer of the case to the court for examination on the merits on 2 July 2014 (on 11 July 2014 the Court Appeal solved a jurisdictional issue and decided that the case had to be examined by the Klaipėda Regional Court, so the case was transferred to that court on 21 July 2014) and the first-instance judgment on 20 December 2017, a total of fifty-one hearings were coordinated in advance and scheduled; ten of those hearings were either cancelled or adjourned: (a) In 2014 four hearings were scheduled and held: on 11, 12 and 25 November and on 9 December; (b) In 2015 twenty-five hearings were scheduled, two of them were adjourned (on 14 April the hearing was adjourned because of the health state of one of the accused, R.V., and on 16 October the hearing was adjourned because the second applicant refused to be taken to the hearing from custody) and one was cancelled (on 15 April because of the health of R.V.). Hearings were held on 19 and 20 January; 24 February; 16, 18, 30 and 31 March; 1 and 13 April; 4, 5 and 19 May; 1, 2 and 3 June; 13 and 14 July; 19 October; 10 and 11 November; and 1 and 2 December; (c) In 2016 four hearings were scheduled; three of them were adjourned (on 29 February because of requests for psychiatric examinations of two of the co-accused, R.V. and K.L.", "; on 16 June because the co-accused R.V. and K.L. failed to appear; and on 25 October because the co-accused R.V., K.L., L.P. and two defence lawyers failed to appear). The only hearing in 2016 was held on 29 November 2016; (d) In 2017 eighteen hearings were scheduled; four of them were cancelled (on 3 July because one of the accused was being treated in a psychiatric hospital and failed to appear together with his lawyer; on 3 August because the applicants’ defence lawyers and two other lawyers were not ready to present their closing statements; on 17 October because one lawyer requested that the hearing not be held; and on 13 November because the chairman decided that the hearing would not be held). Hearings were held on 17 February; 17 March; 3 and 11 April; 3 and 16 May; 30 June; 11 and 12 July; 6, 9 and 27 October; 10 November; and 7 December.", "73. During the forty-one hearings which were held, the court examined the evidence, heard testimony from the witnesses and the accused, played audio and video recordings, ordered psychiatric examinations, and heard the closing statements. II. RELEVANT DOMESTIC LAW AND PRACTICE 74. For relevant domestic law regarding detention, house arrest and the conduct of criminal proceedings, see Lisovskij v. Lithuania, (no.", "36249/14, §§ 45-54, 2 May 2017). 75. For relevant domestic law regarding prison visits, see Varnas v. Lithuania (no. 42615/06, §§ 58-61, 9 July 2013), and Čiapas v. Lithuania, ((dec.), no. 62564/13, §§ 10-14, 4 July 2017).", "76. Article 1311 § 1 of the Code of Criminal Procedure provides that intense supervision is a suspect’s control by electronic supervision measures. Article 1311 § 3 provides that the authority imposing the intense supervision decides on the conditions of that measure. 77. At the material time, Article 22 of the Law on Pre-trial Detention (Suėmimo vykdymo įstatymas) provided that remand detainees could have an unlimited number of visits from relatives and other people.", "However, the administration of the facility allowed such visits only with the written consent of a prosecutor or a court. If consent was not given, the detainee had to be provided with a reasoned decision. Visits could not exceed two hours in length. 78. Article 2 § 2 of the Law on Enforcement of Detention provides that when certain investigative actions or actions concerning the examination of a case have to be performed, remand detainees can be relocated from a remand prison to a police detention facility for up to fifteen days.", "79. In cases unrelated to those of the applicants, the Supreme Administrative Court has held that direct application of the Convention means that its provisions can be relied on directly before the courts of the Republic of Lithuania, and that the Convention has priority if domestic law conflicts with it (decisions of 14 April 2008, no. A-575-164/08 and of 18 April 2008, no. A-248-58/08). 80.", "In a case unrelated to that of the applicants, the Supreme Administrative Court relied on the Court’s interpretation in the case of Varnas (cited above) and awarded a detainee compensation of EUR 2,000 for both his conditions of detention and the lack of long-stay visits since 2009 (decision of 19 April 2016, no. A-618-552/2016). In another case unrelated to that of the applicant, the Supreme Administrative Court also relied on the Court’s interpretation in the case of Varnas (cited above) and held that the public authorities should apply Article 8 of the Convention. The Supreme Administrative Court acknowledged that the refusal on the basis of domestic law to grant long‑stay visits to remand detainees was not justified by objective and reasonable grounds for treating remand detainees and convicted inmates differently. As a result, the Supreme Administrative Court awarded the detainee in that case compensation of EUR 1,000 for the period between July 2013 and April 2015 (decision of 8 September 2016, no.", "A-850-662/2016). THE LAW I. JOINDER OF THE APPLICATIONS 81. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court). II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 82.", "The applicants complained of excessive length of their detention. They relied on Article 5 § 3 of the Convention, the relevant parts of which read: “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 83. The Government submitted that the applicants had failed to exhaust domestic remedies as regards the duration of their detention. The Government referred to the case of Ščensnovičius v. Lithuania (no.", "62663/13, 10 July 2018), and claimed that in their complaints to the appellate court in the criminal case against them the applicants had failed to raise the issue of length of detention. In the Government’s opinion, this precluded the domestic courts from acknowledging the alleged infringement of the Convention. 84. The Government also submitted that the applicants could still raise the issue of the length of their detention because in the criminal case against them only the first-instance judgment had been adopted. The Government thus considered that to consider the applicants’ complaints at this stage would be premature.", "85. The Court observes at the outset that the Government only raised their objections in their comments on the applicants’ observations and claims for just satisfaction. It reiterates that, under Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 52, 15 December 2016). The Government did not refer to any circumstances which might have precluded them from raising the objection in a timely manner.", "They made reference only to the case of Ščensnovičius (cited above), but the reference was made to the general circumstances determining the person’s victim status. Moreover, the Court cannot discern any exceptional circumstances that could have released the Government from their obligation to raise their preliminary objection in their observations on the admissibility and merits of the case of 30 March 2018. Consequently, the Government are estopped from raising their preliminary objection of non-exhaustion of domestic remedies or alleged prematurity of the examination of the applicants’ complaint, which objection must therefore be dismissed (see Khlaifia and Others, cited above, §§ 53-54). 86. 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 applicants 87.", "The applicants submitted that their continued detention had been excessively long and unsubstantiated. They stated that the domestic courts had extended their detention quasi-automatically, repeating almost identical grounds in all their decisions. The applicants referred to the judgment in Lisovskij v. Lithuania (no. 36249/14, 2 May 2017), and stated that the complexity of the case the nature of the offences, or the number of suspects could not justify the length of their detention. The applicants also stated their belief that the international element of the offences could not constitute grounds to keep them detained, because all the necessary investigative actions requiring international legal assistance had taken place during the pre-trial investigation.", "88. The applicants also argued that the authorities had failed to show due diligence when hearing their case. The first three applicants stated that at first they had been placed in Lukiškės Remand Prison and later in Šiauliai Remand Prison; they had had to be transferred to the Klaipėda Regional Prison every time there was a hearing. As for the fourth applicant, he had been placed in Kaunas Remand Prison and later in Šiauliai Remand Prison, and had had to be transferred to Klaipėda. Because Klaipėda only has a police station, and because of the rule that detainees cannot be held in a police station for more than five days, the hearing schedule was not efficient.", "The applicants were not satisfied with the hearing schedule in general, and stated their belief that there were significant periods of inaction on the part of the domestic courts. They were particularly concerned with the period between 2 December 2015 and 29 November 2016, when no hearings took place. According to the applicants, there were thirty-seven months in total when no actions were taken by the courts. The applicants also stated their belief that because they had been acquitted of certain charges this automatically meant that their detention had not been justified. (b) The Government 89.", "The Government submitted that the criminal case at issue concerned organised crime, and that activities were carried out on the territories of multiple States, including European Union member States, as well as Ukraine, Belarus, and Russia. This was an important factor for the substantiation of the finding that a longer period of detention was justifiable. The Government noted the broad scope of the case: it had involved fifty suspects, thirteen of whom were charged, eighty-five witnesses, six victims, and a large number of investigative actions. As regards the decisions on detention, they had not been adopted automatically but had been based on careful consideration of each individual case and were well reasoned. More specifically, the decisions had been based on the strong likelihood that the applicants had committed the offences at issue.", "The decisions had also been based on relevant and sufficient reasons – the risk they would abscond, the risk they would reoffend, and the risk they would obstruct the course of the proceedings. The courts referred to the specific facts of the case and the circumstances related to the applicants’ personalities, and did not use arguments that were general and abstract. Also, when deciding whether to extend the applicants’ detention, the courts carried out checks as to whether the grounds were still present. 90. The Government submitted that the authorities had acted with due diligence, and provided a timeline of the court hearings scheduled in the criminal proceedings.", "They argued that the hearings before the Klaipėda Regional Court were held regularly and with short intervals, as there were at least two or three hearings scheduled per month. The only longer breaks were those between 14 July and 16 October 2015; between 2 December 2015 and 16 June 2016; between 16 June and 29 November 2016; and between 29 November 2016 and 17 February 2017. However, these breaks were because of the refusal of some of the co-accused to give statements; the need to obtain an expert opinion on the mental state of two of the co‑accused; the medical examination needed for one of the accused; and the absence of the accused L.P., who had had to be brought back to Lithuania under the European Arrest Warrant. The Government submitted that only eleven out of fifty scheduled court hearings in the criminal case had not taken place, for reasons attributable to the court or national authorities. It was the Government’s view that the court had taken all the necessary measures to speed up the proceedings: for example, the case against L.P., who had fled to Sweden, was separated from the applicants’ case.", "Also, the remand measures for the co-accused who had failed to appear at hearings had been replaced with more severe ones; one witness was questioned using audio and visual measures; and fines or attendance at a court hearing were imposed on the witnesses who had failed to appear. Finally, after all the co‑accused, witnesses and victims had given their testimony, the judgment had been adopted in less than six months, which could be considered a short period of time considering the complexity of the case. The Government referred to the case of Lisovskij (cited above) and argued that unlike that case, in the applicant’s case the authorities had taken appropriate measures to schedule the hearings more efficiently and to ensure shorter intervals between them. 91. The Government also stated that, contrary to the applicants’ allegations that no international dimension existed during the examination of the criminal case, numerous replies were received from foreign authorities; legal-aid requests were sent to the foreign authorities.", "Also, the court had to examine the information received from the foreign authorities and to decide whether to grant that information the status of evidence. 92. Finally, the Government referred to the applicants’ submission that the time period when remand detainees could be relocated from a remand prison to a territorial police station in order for certain investigative actions to be taken or to ensure their attendance at court was five days. The Government referred to the provisions of domestic law, and stated that this time period was in fact fifteen days (see paragraph 78 above). 2.", "The Court’s assessment (a) General principles 93. The applicable general principles regarding the right to be tried within a reasonable time have been summarised in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, ECHR 2016 (extracts)). (b) Application of the general principles to the present case (i) Period to be taken into consideration 94. The Court firstly notes that the applicants were all detained in the context of one criminal process and they were all co-accused.", "The applicants’ alleged criminal activities were considered by the domestic courts in one set of proceedings. 95. The Court notes that the applicants’ detention started on 22 January 2013 when they were arrested (see paragraph 6 above). They were detained for the purposes of Article 5 § 3 of the Convention until their conviction by the Klaipėda Regional Court on 20 December 2017 (see paragraphs 17, 30, 46 and 65 above). Although to date that conviction has not become final, the Court reiterates that the period to be taken into consideration for the purposes of Article 5 § 3 ends on the day when the criminal charge is determined, even if only by a court of first instance.", "From 20 December 2017 the applicants were detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a), and therefore that period of their detention falls outside the scope of Article 5 § 3 (Lisovskij, cited above, § 69 and the references therein). 96. The Court further notes that during the period from 22 July to 5 August 2016 the applicants’ detention was replaced by bail, seizure of documents and close supervision for six months, which meant that the applicants could not leave their homes unless for a purpose related to the court proceedings (see paragraphs 14, 27, 43 and 62 above). In this connection the Court reiterates that where detention is broken into several non-consecutive periods and applicants are free to lodge complaints about detention while they are at liberty, those non‑consecutive periods should be assessed separately (see Lisovskij, cited above, § 70, and the references therein). 97.", "The Court has already stated that conditions of house arrest under Lithuanian law differ rather significantly from those which it has previously assessed (ibid., § 71). However, taking into account the particularly restrictive conditions of the intense supervision in the present case (compare and contrast Lisovskij, cited above, § 71) and in view of the fact that the applicants were again arrested in two weeks, the Court considers that the applicants’ detention from 22 January 2013 to 20 December 2017 should be viewed as a single period and that the period from 22 July to 5 August 2016 should be considered as deprivation of liberty (see Buzadji, cited above, §§ 103-05). 98. Accordingly, the period of the applicants’ detention to be considered in the present case was four years, ten months and twenty-eight days (from 22 January 2013 to 20 December 2017). (ii) Reasonableness of the length of detention 99.", "At the outset the Court observes that such inordinate length of detention on remand is already a matter of grave concern and requires the domestic authorities to put forward very weighty reasons in order for it to be justified (see Dragin v. Croatia, no. 75068/12, § 112, 24 July 2014 and the cases cited therein). 100. The Court sees no reason to doubt the findings of the domestic courts that during the entire period under consideration there was a reasonable suspicion that the applicants had committed the offences with which they had been charged (see paragraphs 8, 23, 38 and 55 above). Although the applicants argued to the contrary, the Court reiterates that “reasonable suspicion” requires the presence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Gusinskiy v. Russia, no.", "70276/01, § 53, ECHR 2004‑IV, and the cases cited therein) and the facts which raise a suspicion justifying arrest under Article 5 of the Convention do not need to be of the same level as those necessary to bring charges or secure a conviction (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300‑A, and Şahin Alpay v. Turkey, no. 16538/17, § 104, 20 March 2018). The Court considers that that level was reached in the applicants’ case. It must therefore examine whether the other grounds given by the judicial authorities justified the applicants’ deprivation of liberty.", "101. In this connection the Court notes that after the arrest, the first three applicants’ detention was authorised for three months and then extended for three months every time, and that the fourth applicant’s detention was at first authorised for two months, was extended twice for two months, and then extended for three months every time (see paragraphs 8‑10, 13, 15‑16, 23‑24, 26, 28‑29, 38‑39, 42, 44‑45, 55‑56, 57, 61, 63 and 64 above). The courts extending the applicants’ detention relied on: (1) the risk of the applicants’ absconding, based on the nature and the severity of the crime they were suspected of committing and their connections abroad for the first and the fourth applicants (see Lisovskij, cited above, § 76 and the references therein; Gábor Nagy v. Hungary (no. 2), no. 73999/14, § 70, 11 April 2017; and Podeschi v. San Marino, no.", "66357/14, § 151, 13 April 2017) (2) the risk of the applicants’ reoffending, based on the seriousness of the charges against the applicants; some of the applicants’ prior convictions; the facts that some of the applicants were unemployed, and the fourth applicant was not married (see Lisovskij, cited above, § 76; Gábor Nagy, cited above, § 74; and Podeschi, cited above, § 150); (3) the particular complexity and large, constantly increasing volume of the case file, resulting from the large number of charges, defendants and witnesses (see Lisovskij, cited above, § 76); (4) the need to request international legal assistance in the case (see paragraph 71 above, compare and contrast Lisovskij, cited above, § 80). 102. The Court considers that the Lithuanian courts thoroughly assessed all the relevant factors and based their decisions on the particular circumstances of the applicants’ case, their personal and financial situation, their criminal histories, and their connections abroad. The reasons relied upon by the domestic courts cannot be said to have been stated in abstracto. They included some of the reasons which, according to the Court’s case‑law, may justify pre-trial detention (see Buzadji, cited above, § 88) as well as other reasons which are relevant for the assessment of the duration of the period in detention (see Lisovskij, cited above, § 80, and the references therein).", "It cannot be said that they ordered or extended the applicants’ detention on identical or stereotypical grounds, using a pre‑existing template or formalistic and abstract language (see Lisovskij, cited above, § 77, and the references therein; compare and contrast Trifković v. Croatia, no. 36653/09, § 125, 6 November 2012, and Baksza v. Hungary, no. 59196/08, § 38, 23 April 2013); moreover, there was no blind or automatic decision to extend the applicants’ detention, and a thorough review of the relevant circumstances was carried out. Thus, the Court is satisfied that the domestic courts did not use “general and abstract” arguments for the applicants’ continued detention, and that their reasons were relevant and sufficient. However, the assessment of the “relevant and sufficient” reasons cannot be detached from the actual length of pre-trial detention.", "Accordingly, it remains to be ascertained whether the judicial authorities displayed requisite diligence in the conduct of the proceedings (see Gábor Nagy, cited above, § 77). 103. The Court reiterates that the applicants were held in pre-trial detention for almost five years (see paragraph 98 above). The length of this period raises a concern in itself. It is true that during the pre-trial investigation, which lasted for almost a year and six months after the applicants’ arrest (see paragraph 71 above), the authorities carried out a number of investigative measures, including multiple requests for legal assistance from foreign countries (see paragraph 71 above).", "During that period, in their decisions to extend the applicants’ detention on remand the domestic courts also relied on the need to carry out additional investigative actions (see paragraphs 10, 24, 39 and 57 above). In that connection, the Court notes that the applicants did not elaborate on the issue of the length of their detention on remand during the pre-trial investigation. Having regard to that and the fact that the pre-trial investigation concerned multiple criminal offences allegedly committed by a criminal organisation, and was thus of considerable complexity and involved an international element, the Court is of the view that the actions of the domestic authorities during that period could be considered as falling within the standard of requisite diligence under Article 5 § 3 of the Convention. Accordingly, it remains to be ascertained whether the judicial authorities exercised requisite diligence in the conduct of the criminal proceedings against the applicants and whether the domestic courts duly assessed the course of these proceedings. 104.", "After the case was transferred to the first-instance court for examination on the merits, the applicants remained in detention for another three years, five months and nineteen days (from 2 July 2014 to 20 December 2017 – see paragraph 72 above), during which period fifty‑one hearings were scheduled in advance. The hearings were scheduled on a monthly (or nearly monthly) basis, or even more frequently (see paragraph 72 above). However, bearing in mind that at the start of the court proceedings the applicants had already been detained for one and a half years, the Court is not convinced that the scheduling of hearings displayed sufficient diligence on the part of the authorities (see Lisovskij, cited above, § 79, and the references therein). The Court furthermore notes that ten of those hearings were cancelled or adjourned mainly for different procedural reasons, only two of which were imputable to the applicants: on 16 October 2015 the hearing was adjourned because the second applicant refused to be taken to the hearing from custody and on 3 August 2017 because the applicants’ defence lawyers were not ready to present their closing statements (see paragraph 72 above). As a result of repeated adjournments or cancellations, there were several long periods when no hearings were held: although the case was transferred for examination on the merits on 2 July 2014, the first hearing only took place on 11 November 2014; there was a break between 14 July and 19 October 2015; between 2 December 2015 and 29 November 2016; between 29 November 2016 and 17 February 2017; and between 12 July and 6 October 2017.", "In that connection, the Court notes that the Government’s submissions on the breaks in the proceedings are not accurate and contradict the information in the Court’s possession (see paragraphs 72 and 90 above). The Court further observes that although some of the shorter breaks in the proceedings could be justified by various procedural reasons (see paragraph 72 above), the period between 2 December 2015 and 29 November 2016, when no hearings took place, raises particular concern and the Government have hardly provided any reasons to justify the absence of the hearings during that period. 105. While the Court accepts the Government’s submission that the criminal proceedings against the applicants were complex and wide‑ranging, it nonetheless considers that neither their complexity nor the fact that they concerned organised crime can justify detention of such length as in the present case. The Court also accepts that the investigation was additionally complicated by the need to obtain evidence from abroad, since the criminal organisation had operated in a number of countries (see Łaszkiewicz v. Poland, no.", "28481/03, § 61, 15 January 2008; Ereren v. Germany, no. 67522/09, § 62, 6 November 2014; Merčep v. Croatia, no. 12301/12, § 110, 26 April 2016). However, it does not appear that any measures were taken to speed up the proceedings, considering the gaps between the hearings (see paragraph 72 above). The Court observes that hearings were adjourned or cancelled mainly because of the need to carry out investigations of the state of health of several of the co-accused or because of the absences of some of the co-accused, their lawyers, or sometimes the applicants themselves.", "The Court acknowledges that in certain circumstances this could be justified; however, in the present case the Government have not provided any information of the attempts on the part of the domestic authorities to fix a tighter and more efficient hearing schedule in order to avoid repeated adjournments or cancellations (see Lisovskij, cited above, § 80). In such circumstances, the Court considers that the domestic authorities did not display requisite diligence in the conduct of the criminal proceedings against the applicants during the lengthy period of their detention. 106. Accordingly, there has been a violation of Article 5 § 3 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 107. The applicants complained under Article 8 that not being allowed long-stay visits had caused them intolerable mental and physical suffering. Article 8 provides as follows: “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.” Admissibility 1.", "Mr Saulius Velečka (a) The parties’ submissions 108. The Government separated two periods as regards the applicant’s long-stay visits: between 2 February 2013 and 1 January 2016, and between 1 January and 26 September 2016. They considered that as regards the second period the case was still being examined by the domestic courts, and thus the applicant’s complaint regarding that period was premature. As regards the first period, the Government submitted that on 23 July 2015 the applicant asked the Lukiškės Remand Prison authorities for a long-stay visit from his wife. On 2 September 2015 he received a reply that remand detainees could only receive visits without physical contact.", "It was the Government’s view that the applicant should have appealed against this decision, which he failed to do. 109. The Government also submitted that after the judgment in Varnas v. Lithuania (no. 42615/06, 9 July 2013) the provisions of the Convention and domestic law conflicted with each other. According to the Government, in accordance with the practice of the Supreme Administrative Court the applicant had been able to rely on the provisions of the Convention directly before the domestic courts (see paragraph 79 above).", "110. The Government also argued that the domestic courts had established an effective domestic compensatory remedy, specifically that the Supreme Administrative Court had taken account of differences in treatment between remand detainees and convicted people when it came to long-stay visits, and had found violations and awarded compensation (see paragraph 80 above). Had the applicant formulated his complaints properly, he could have received compensation as well, as did the second applicant (see paragraph 35 above). The Government stated that the judgment in Varnas (cited above) had been in effect for two years when the applicant had submitted his application to the Court, and thus it had been clear that new domestic remedies would be incorporated into the State’s judicial system. 111.", "The applicant referred to different periods: between 6 February 2013 and 26 September 2016 and between 9 August 2016 and 1 December 2017. He argued that there were no facilities in Lukiškės Remand Prison for long-term visits. He thus submitted that a complaint to the domestic courts would not have been successful. (b) The Court’s assessment 112. The Court will examine the applicant’s complaint about the lack of long-stay visits between 2 February 2013 (the date he had indicated) and 1 January 2016.", "(i) The period between 1 January 2016 and 26 September 2016 113. The Court observes that on 8 May 2017 the applicant lodged a claim before the Vilnius Regional Administrative Court, raising, among other issues, the complaint that he could not have long-term visits while detained in Lukiškės Remand Prison between 1 January and 26 September 2016. His claim was examined by the first-instance court on 13 November 2017. The proceedings before the Supreme Administrative Court are still pending (see paragraph 21 above). In these circumstances, the Court is satisfied that the complaint is premature and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.", "(ii) The period between 2 February 2013 and 1 January 2016 114. The Court notes that the applicant only asked for a long-stay visit once (see paragraph 20 above) and never appealed against the refusal of the prison administration to grant him such a visit. His complaint to the domestic courts was submitted in 2017, and was abstract: he did not indicate whether he had asked for a visit at any time between 1 January and 26 September 2016, the period he had complained about. The applicant had twenty-seven short visits in 2014, ninety-nine short visits in 2015 and sixty‑four short visits in 2016. During the applicant’s detention in Šiauliai Remand Prison, between 9 August 2016 and 1 January 2017 he was granted seventy-six short visits (see paragraph 22 above).", "It appears that the applicant did not ask for more short visits or argue that he had been refused them. 115. The applicant therefore cannot be said to have suffered from a lack of long-stay visits. It follows that the applicant cannot claim to be a victim of an alleged violation of Article 8 of the Convention in so far as he complained about the lack of long-stay visits from his wife (for the principles concerning victim status, see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)).", "116. Having regard to the above, the Court finds this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4. 2. Mr Norbertas Tučkus (a) The parties’ submissions 117.", "The Government separated three periods as regards the applicant’s long‑stay visits: between 31 October and 5 November 2008 and between 24 January 2013 and 17 August 2015; between 17 August 2015 and 22 August 2016; and between 9 August 2016 and 1 January 2017. The Government submitted that for the first period the applicant could no longer claim to be a victim of a violation of the Convention because the violation of Article 8 of the Convention had been expressly acknowledged by the domestic courts and the applicant had received compensation (see paragraph 35 above). For the second period, the Government submitted that the case was still being examined by the domestic courts, and thus the applicant’s complaint regarding that period was premature. Lastly, as regards the third period, the Government argued that the applicant had not asked for long‑stay visits during that period. 118.", "The applicant submitted that that there were no facilities in Lukiškės Remand Prison for long-term visits. He thus submitted that a complaint to the domestic courts would not have been successful. He also submitted that the compensation he had received for the period between 31 October 2008 and 17 August 2015 had not been sufficient. (b) The Court’s assessment 119. The Court finds that it is not necessary to address all the issues raised by the parties, because the complaint is in any event inadmissible for the following reasons.", "(i) The period between 31 October and 5 November 2008 120. The Court notes that the period between 31 October and 5 November 2008 appeared for the first time in the Government’s submissions before the Court. The applicant did not raise this complaint in his initial application. Consequently, the Court will not examine the alleged lack of long-stay visits during that period. (ii) The period between 24 January 2013 and 17 August 2015 121.", "The Court reiterates that an applicant’s status as a “victim”, within the meaning of Article 34 of the Convention, depends on whether the domestic authorities have acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006-V, and Michalák v. Slovakia, no. 30157/03, § 127, 8 February 2011). 122.", "The Court observes that in the present case the Supreme Administrative Court expressly acknowledged the violation of Article 8 and awarded him compensation for the lack of long-stay visits (see paragraph 35 above). 123. The Court therefore concludes that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the alleged violation of his rights under Article 8 of the Convention for the period between 24 January 2013 and 17 August 2015. 124. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention.", "It must therefore be rejected pursuant to Article 35 § 4. (iii) The period between 17 August 2015 and 22 August 2016 125. The Court refers to its conclusions regarding the first applicant (see paragraph 113 above) and holds that the complaint regarding the period between 17 August 2015 and 22 August 2016 is premature and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. (iv) The period between 9 August 2016 and 1 January 2017 126. The Court notes that between 9 August 2016 and 1 January 2017 the applicant had fifteen short visits.", "The Court further notes that he never complained about the lack of long-stay visits before the domestic courts and never asked for more short visits or argued that he had been refused them. 127. In these circumstances, the Court refers to its conclusion above (see paragraph 115 above), and holds that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4. 3.", "Mr Audrius Petkauskas (a) The parties’ submissions 128. The Government distinguished two periods as regards the applicant’s long-stay visits: between 4 February 2013 and 22 July 2016, when the applicant was detained in Lukiškės Remand Prison, and between 29 August 2016 and 1 January 2017, when the applicant was detained in Šiauliai Remand Prison. The Government submitted that for the first period the applicant had not applied to the prison authorities for a long-stay visit. Although he had complained to the domestic courts about the lack of long‑stay visits, the first-instance court found that the complaint was too abstract; he then asked the Supreme Administrative Court not to examine his appeal. It was the Government’s view that the applicant had failed to exhaust domestic remedies for this part of his complaint.", "As regards the second period, the Government observed that although the applicant had asked the Šiauliai Remand Prison authorities for a long-stay visit from his wife, he had failed to appeal against the response of the prison authorities. In that connection, the Government reiterated their arguments above (see paragraphs 109 and 110 above). 129. The applicant argued that there were no facilities in Lukiškės Remand Prison for long-stay visits. He withdrew his appeal because he was convinced that a complaint to the domestic courts would not have been successful.", "(b) The Court’s assessment 130. The Court will examine the two periods referred to by the Government together, and finds that it is not necessary to address all the issues raised by the parties, because the complaint is in any event inadmissible, for the following reasons. 131. The Court notes that as regards the first period, the applicant had failed to properly formulate his complaints before the first-instance court and had then withdrawn his appeal. As regards the second period, he had only asked for a long-stay visit once, and had never complained before the domestic courts about being refused it.", "During the period he complains about, he had had fifty-eight short visits in total. It appears that the applicant never asked for more short visits or argued that he had been refused them. 132. The Court reiterates its conclusion above (see paragraph 115 above) and holds that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4.", "4. Mr Tadas Petrošius (a) The parties’ submissions 133. The Government submitted that the applicant had never asked the prison authorities for long-stay visits, nor did he complain about the lack of long-stay visits before the domestic courts. The Government noted that the exercise of a person’s right to a long-stay visit depended on his or her wishes. In the absence of such wishes, the prison authorities could not be obliged to arrange a long-stay visit.", "134. The applicant argued that there were no facilities in Lukiškės Remand Prison for long-stay visits. He thus submitted that a complaint to the domestic courts would not have been successful. (b) The Court’s assessment 135. The Court notes that the applicant received 176 short visits in total during the period which he complains about.", "It appears that the applicant neither asked for more short visits nor argued that he had been refused them: he also did not request long-stay visits. 136. The Court refers to its conclusion above (see paragraph 115 above) and holds that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4. IV.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 137. The applicants further complained that they had not had an effective remedy for complaining about the violation of their rights to respect for their family life, that is, a remedy that would grant them long‑stay visits. They relied on Article 13 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.” 138. The Government repeated their above arguments that the applicants had had at their disposal an effective remedy for redressing the alleged violation of their right to respect for their family life (see paragraphs 108‑110, 117, 128 and 133 above).", "139. The applicants also repeated their arguments above that the remedy would not have been successful (see paragraphs 111, 118, 129 and 134 above). 140. The Court reiterates that in accordance with its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. However, given its above findings, according to which the applicants’ main complaint under Article 8 of the Convention is inadmissible (see paragraphs 115-116,126-127, 131-132 and 135-136 above), the Court considers that their related complaint under Article 13 of the Convention cannot be considered “arguable” within the meaning of the Court’s case-law.", "It follows that this complaint is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 141. 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 142. The applicants claimed 40,000 euros (EUR) each in respect of non‑pecuniary damage.", "143. The Government considered the amount excessive, unreasoned and unsubstantiated. 144. The Court considers that the applicants undoubtedly suffered distress and frustration in view of their prolonged detention. However, it considers the amounts claimed by them excessive.", "Making its assessment on an equitable basis, the Court awards the each of the applicants EUR 6,600 in respect of non‑pecuniary damage. B. Costs and expenses 145. The applicants did not submit any claim in respect of costs and expenses. The Court therefore makes no award under this head.", "C. Default interest 146. 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 concerning Article 5 § 3 admissible and the remainder of the applications inadmissible; 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 each of the applicants, within three months, EUR 6,600 (six thousand six hundred euros), plus any tax that may be chargeable to the applicants, 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 26 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliJon Fridrik KjølbroRegistrarPresident" ]

[ "FOURTH SECTION CASE OF RUSU AND OTHERS v. ROMANIA (Application no. 57991/15 and 10 others - see appended list) JUDGMENT STRASBOURG 12 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Rusu and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Vincent A. De Gaetano, President,Georges Ravarani,Marko Bošnjak, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 21 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania 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 Romanian 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. In applications nos. 484/16 and 20974/16, the applicants also raised other complaint 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. In applications nos.", "57991/15, 11412/16 and 20974/16, the Government raised a preliminary objection of non-compliance with the sixmonth time-limit, claiming that the applicants’ complaints regarding their initial detention were lodged out of the time. 8. In application no. 57991/15, the Government pointed out that the applicant’s complaint regarding his initial detention in Rahova Prison, which ceased on 22 October 2013 by his transfer to another prison facility in respect of which he did not raise any complaint, was lodged with the Court on 25 January 2016, that is, more than six months after the transfer. 9.", "With regard to application no. 57991/15, the Court notes at the outset that the exception raised by the Government refers in part to the same period of detention as the one already examined by the Court in its judgment Oprea and Others v. Romania ([Committee], no. 54966/09, 18 June 2015). In that judgment, the Court considered that the applicant’s conditions of detention in Bacău Police Arrest and Bacău Prison, for the period between 13 May 2011 and 18 June 2015, the date when the judgment was delivered, were inadequate and disclosed a breach of Article 3 of the Convention. Taking into account the above considerations and referring to its case-law (see Vojnović v. Croatia (dec.), no.", "4819/10, 26 June 2012), the Court finds that this part of the application no. 57991/15, regarding the applicant’s conditions of detention before 18 June 2015, is essentially the same as a matter that has already been examined by the Court and must be rejected in accordance with Article 35 § 2 (b) of the Convention. 10. The Court observes that in application no. 11412/16 the applicant’s complaint regarding his initial detention in Maramureș County Police Arrest, which ceased on 5 September 2008 by his transfer to another prison facility in respect of which he did not raise any complaint, was lodged with the Court on 16 March 2016, that is, more than six months after the transfer.", "11. The Court further observes that in application no. 20974/16 the applicant’s complaint regarding his initial detention in Iași Prison, which ceased on 25 May 2015 by his transfer to another prison facility in respect of which he did not raise any complaint, was lodged with the Court on 28 April 2016, that is, more than six months after the transfer. 12. Therefore, the Court accepts the Government’s objection and finds that the parts of the applications nos.", "11412/16 and 20974/16 were lodged outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 13. 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, Muršić v. Croatia [GC], no.", "7334/13, §§ 96‑101, ECHR 2016). 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 Muršić, cited above, §§ 122‑141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑159, 10 January 2012). 14. In the leading case of Rezmiveș and Others v. Romania, nos.", "61467/12 and 3 others, 25 April 2017, the Court already found a violation in respect of issues similar to those in the present case. 15. Having examined all the material submitted to it, as well as the Government’s objections concerning the continuous situation of the applicants’ conditions of detention in some of the cases, 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. 16.", "These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. REMAINING COMPLAINTS 17. In applications nos. 484/16 and 20974/16 the applicants also raised other complaints under other provisions of the Convention.", "18. The Court considers that, in light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in the Articles 34 and 35 of the Convention or do not disclose any appearance of violation of the rights and freedoms enshrined in the Convention and Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19.", "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.” 20. Regard being had to the documents in its possession and to its case‑law (see, in particular, Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017), the Court considers it reasonable to award the sums indicated in the appended table. 21. 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 concerning the inadequate conditions of detention, as set out in the appended table, admissible and the remainder of the applications nos. 57991/15, 484/16, 11412/16 and 20974/16 inadmissible; 3. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4.", "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 12 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtVincent A. De Gaetano Acting 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 Sq. m. per inmate Specific grievances Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 57991/15 25/01/2016 Cătălin-Bogdan Rusu 19/09/1981 Petronela Rusu Săvinești Rahova Prison, Iaşi Prison, Vaslui Prison 18/06/2015 pending More than 2 years and 11 months and 7 days 1.2-2.6 m² overcrowding, infestation of cell with insects/rodents, inadequate temperature, mouldy or dirty cell, lack of or inadequate hygienic facilities, lack or inadequate furniture, lack of fresh air, lack of or insufficient natural light, poor quality of food, lack of or insufficient physical exercise in fresh air 3,000 484/16 29/01/2016 Fănel-Pantelie Safta 30/10/1978 Slatina Police Arrest 18/09/2014 to 19/11/2014 2 months and 2 days Craiova Prison 19/11/2014 pending More than 3 years and 6 months and 6 days 1.2-3.9 m² 1.2-2.1 m² lack of or inadequate hygienic facilities, no or restricted access to running water, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air overcrowding, lack or inadequate furniture, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air 3,000 1417/16 21/01/2016 Ionuţ Paţachia 12/09/1985 Craiova Prison 30/04/2014 pending More than 4 years and 25 days 1.2-1.7 m² overcrowding, lack of or inadequate hygienic facilities, lack of fresh air, infestation of cell with insects/rodents 3,000 7484/16 26/02/2016 Constantin Mihuţ 09/06/1992 Ovidiu Chiriac Brașov Miercurea Ciuc Prison 14/01/2016 pending More than 2 years and 4 months and 11 days 1.5-1.6 m² overcrowding, poor quality of food, lack or inadequate furniture, lack of fresh air, lack of or insufficient natural light, lack of or insufficient physical exercise in fresh air 3,000 11412/16 16/03/2016 Mircea Varodi 08/10/1960 Gherla Prison 19/03/2009 to 30/03/2018 9 years and 12 days 2.3-2.9 m² overcrowding (save for the period of 17/06/2009 - 30/06/2009), lack of or inadequate hygienic facilities, lack of fresh air, lack of or insufficient natural light, poor quality of food, lack or inadequate furniture, small courtyard 5,000 14133/16 31/03/2016 Aurel-Ioan Stoica 11/07/1986 Aiud Prison 12/04/2010 pending More than 8 years and 1 month and 14 days 1.3-2.6 m² overcrowding (save for the periods of 21/05/2010-16/11/2010, 08/07/2015- 09/10/2015), infestation of cell with insects/rodents, poor quality of food 5,000 15423/16 11/03/2016 Cătălin-Florin Coitu 04/06/1974 Alina Coitu Onești Bacău Prison, Vaslui Prison, Galați Prison 11/06/2015 to 27/04/2016 10 months and 17 days 1.6-2.4 m² overcrowding (save for the period of 22/10/2015-27/04/2016), lack of or inadequate hygienic facilities, lack or inadequate furniture 1,000 20974/16 28/04/2016 Marcel Purav 04/09/1972 Iași Prison 16/10/2015 pending More than 2 years and 7 months and 10 days infestation of cell with insects/rodents, lack or inadequate furniture, lack of or insufficient electric light 3,000 21676/16 16/05/2016 Ștefan Bolovan 25/07/1975 Craiova Prison 25/05/2001 pending More than 17 years and 1 day 1.1 - 2.2 m² overcrowding, bunk beds, lack or inadequate furniture, infestation of cell with insects/rodents, lack of or inadequate hygienic facilities, lack of or insufficient physical exercise in fresh air, small courtyard 5,000 26357/16 03/05/2016 Marius-Paul Graure 31/10/1984 Timiș County Police Arrest 12/03/2009 to 24/03/2009 13 days Timișoara Prison, Arad Prison 24/03/2009 pending More than 9 years and 1 month and 25 days 2.5 m² lack of or inadequate hygienic facilities, lack of fresh air overcrowding, lack of fresh air, infestation of cell with insects/rodents, poor quality of food, lack of or insufficient physical exercise in fresh air, small courtyard 5,000 42087/16 05/08/2016 Marin Arcuşan 18/05/1986 Ovidiu Chiriac Brașov Brașov County Police Arrest, Codlea Prison, Rahova Prison, Mărgineni Prison, Aiud Prison, Miercurea Ciuc Prison 19/07/2011 pending More than 6 year(s) and 10 month(s) and 7 day(s) 1.2-2.4 m² overcrowding (save for the period of 22/07/2014-22/08/2014), lack of or insufficient natural light, lack of fresh air, lack of or inadequate hygienic facilities, infestation of cell with insects/rodents, lack or inadequate furniture, poor quality of food, small courtyard 5,000 [1]. Plus any tax that may be chargeable to the applicants." ]

[ "THIRD SECTION CASE OF REÇBER v. TURKEY (Application no. 52895/99) JUDGMENT STRASBOURG 2 February 2006 FINAL 02/05/2006 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 Reçber v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrL.", "Caflisch,MrR. Türmen,MrsM. Tsatsa-Nikolovska,MrV. Zagrebelsky,MrsA. Gyulumyan,MrDavid Thór Björgvinsson, judges, and Mr V. Berger, Section Registrar, Having deliberated in private on 12 January 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 52895/99) 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, Ms Aysel Reçber (“the applicant”), on 13 September 1999. 2. The applicant was represented by Ms Nurhan Baylav, a lawyer practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 10 March 2004 the Court (Third Section) decided to communicate the application to the Government. In a letter of 12 March 2004, the Court informed the parties that in accordance with Article 29 §§ 1 and 3 of the Convention it would decide on both the admissibility and merits of the application. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1954 and lives in İstanbul. 5. On 14 December 1995 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel İdare Müdürlüğü) expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot and the relevant amount was paid to her when the expropriation took place. 6.", "Following the applicant’s request for increased compensation, on 20 February 1998 the Gebze Civil Court of First-instance awarded her an additional compensation of 3,189,159,368 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision. 7. On 24 November 1998 the Court of Cassation upheld the judgment. 8. On 2 March 1999 the Court of Cassation rejected the applicant’s request for rectification.", "9. On 6 October 1999 the Kocaeli Provincial Private Administration paid the amount of TRL 7,049,472,900 to the applicant, interest included. 10. On 13 September 1999 the applicant lodged an application with the Court. 11.", "After the application was communicated to the Government, the applicant was requested to submit her observations on the merits of the case and also her just satisfaction claims until 9 September 2004. However, she failed to submit her observations within the required time-limit. She did not request any extension of time, either. 12. By registered letter of 29 May 2005 the applicant was informed that the Court had not received her observations and just satisfaction claims and that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.", "13. On 7 June 2005 the applicant submitted her observations on the merits of the case. However, she failed to submit her claims for just satisfaction. II. RELEVANT DOMESTIC LAW AND PRACTICE 14.", "The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 15.", "The applicant complained that the additional compensation for expropriation, which she had obtained from the authorities after more than two years and two months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey. She relied on Article 1 of Protocol No. 1, which reads insofar as relevant 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.” A. Admissibility 16. The Government submitted that the applicant had not exhausted domestic remedies as required by Article 35 of the Convention, since she had failed to make proper use of the remedy available to her under Article 105 of the Code of Obligations.", "Under that provision, she would have been eligible for compensation for the loss allegedly sustained as a result of the delay in payment of the additional compensation had she established that the loss exceeded the amount of default interest. The Government further claimed that the damage allegedly suffered by the applicant had been caused by the legal interest rates. They argued that in the course of the proceedings before the domestic courts the applicant had already agreed to the application of the legal interest rates to her case and that therefore she could not be said to have raised her Convention grievances before the domestic authorities. 17. As to the first limb of the Government’s submissions, the Court observes that it dismissed a similar objection in the case of Aka (cited above, §§ 34-37).", "It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection. 18. As to the second limb of the Government’s submissions, the Court notes that the legal interest rates applied to State debts are prescribed by law. Thus, it is obvious that even if the applicant had raised his complaint concerning the legal interest rates before the domestic authorities, she would not have been compensated (see Çiloğlu and Others v. Turkey, no. 50967/99, § 19, 28 October 2004).", "19. The Court considers that, in the light of its findings in Turkish cases similar to the present one (see, among other authorities, the aforementioned Aka judgment) and of all the evidence before it, this application requires examination on the merits and that there are no grounds for declaring it inadmissible. B. Merits 20. The Court has found a violation of Article 1 of Protocol No.", "1 in a number of cases that raise similar issues to those arising here (see Aka, cited above, p. 2682, §§ 50-51). 21. Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying for the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner a loss additional to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicant has had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.", "22. Consequently, there has been a violation of Article 1 of Protocol No. 1. II. 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 Court points out that, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with any relevant supporting documents within the time-limit fixed for the submission of the applicant’s observations on the merits and that failure to comply with these requirements may result in the Chamber’s rejection of the claim in whole or in part. 25. In the instant case, on 12 July 2004, after receiving the Government’s observations on the admissibility and merits of the application, the applicant was invited to submit her observations and her claims for just satisfaction by 9 September 2004. On 29 May 2005 the applicant was informed that the Court had not received her observations and just satisfaction claims and that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.", "On 7 June 2005 she merely submitted her observations on the merits of the case and failed to submit her claims for just satisfacion. In these circumstances, the Court makes no award under Article 41 of the Convention. 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; 3. Dismisses the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. ZupančičRegistrarPresident" ]

[ "FIRST SECTION CASE OF SIGLFIRÐINGUR EHF v. ICELAND (Application no. 34142/96) JUDGMENT STRASBOURG 30 May 2000 In the case of SIGLFIRÐINGUR EHF v. Iceland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:[Note1] MrsE. Palm, President,MrsW. Thomassen,MrGaukur Jörundsson,MrR. Türmen,MrC.", "Bîrsan,MrJ. Casadevall,MrR. Maruste, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 23 May 2000, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34142/96) against Iceland 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 Icelandic company, Siglfirðingur ehf (“the applicant company”), on 3 December 1996.", "2. The applicant company was represented by Mr Johannes B. Björnsson, a lawyer practising in Reykjavík, Iceland. The Icelandic Government (“the Government”) were represented by their Agent, Ms Björg Thorarensen, Director at the Ministry of Justice and Ecclesiastical Affairs. 3. The applicant company complained, firstly, under Article 6 § 1 of the Convention that it did not receive a fair hearing by an independent and impartial tribunal before the Labour Court.", "Secondly, it complained that, since it had not been able to obtain a review by a superior court of a fine imposed by the Labour Court, there had also been a violation of Article 2 § 1 of Protocol No. 7 to the Convention. On 21 October 1998 the Court (First Section) decided to give notice of the second complaint to the Government and invited them to submit their observations on its admissibility and merits. The Government submitted their observations on 4 January 1999, to which the applicant company replied on 25 February 1999. 4.", "On 7 September 1999 the Court declared the complaint under Article 2 § 1 of Protocol No. 7 admissible and declared the remainder of the application inadmissible. 5. On 23 March 2000, after an exchange of correspondence, the Section Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. At a meeting with the Section Registrar on 12 May 2000 the applicant company’s representative and the Agent of the Government agreed to reach a friendly settlement and submitted a joint formal declaration setting out the terms.", "THE FACTS 6. The applicant company was operating Icelandic fishing vessels, which were registered in Siglufjörður. One of its fishing vessels, a trawler named Siglir SI-250, was exclusively used for fishing outside Icelandic territorial fishing limits. The terms of employment of the crew on board Siglir were governed by a particular agreement between them and the applicant company. The applicant company generally paid wages in accordance with the collective agreements concluded between the Federation of Icelandic Fishing Vessel Owners (FIFVO) and the Icelandic Sailors’ Federation (ISF).", "However, the operation of the Siglir fell outside the applicant company’s membership of the FIFVO. Therefore, the collective agreements between the FIFVO and the ISF did not apply. 7. On 3 May 1995 the ISF notified the FIFVO of its decision to strike in order to press for the conclusion of a new collective agreement. The strike lasted from 24 May until 15 June 1995.", "8. While the sailors were striking, the applicant company decided to send its ship to sea on 2 June 1995 and ordered the crew to report on board. Four of the crew members refused to go out with the vessel, as they considered themselves to be on strike. Their employment was terminated and other crew members were engaged in their place. 9.", "For this reason the Icelandic Federation of Labour (IFL) took legal action against the applicant company before the Labour Court. 10. By judgment delivered of 10 June 1996 the Labour Court found that the applicant company had violated Sections 4 and 18 of the Labour Relations Act and ordered it to pay ISK 500,000 in fine to the State Treasury and ISK 100,000 in legal costs to the IFL. 11. It appears that pursuant to Section 67 of the Labour Relations Act there existed no possibility of challenging this decision by applying to the Supreme Court.", "THE LAW 12. On 12 May 2000 the Court received the following declaration from the Government and from the applicant company’s representative: “The Government of Iceland and Siglfirðingur Ltd. have reached the following agreement in full and final settlement of the applicant’s claim. 1.That the Icelandic Government would pay Siglfirðingur Ltd., on an ex gratia basis, a global sum of ISK 1.600.000.-, covering both legal costs and loss of opportunity. 2.That Siglfirðingur Ltd. undertakes, following payment of the stated amount and without being entitled to damages or other payments from the Icelandic State Treasury, to withdraw its application to the European Court of Human Rights and not to take legal action against the Republic of Iceland on account of the above matter before the courts of Iceland or international tribunals. 3.The above settlement is without prejudice to the question of liability under the Convention.", "4.Amendments of the contested provisions of the Labour Relations Act No. 80/1938 have been prepared. A new Bill amending the Act, which provides for the possibility to have decisions of the Labour Court concerning fines reviewed by the Supreme Court has already been approved by the Government and has been presented to the Althing. The Bill is expected to be adopted by the Althing next autumn. 5.We further undertake not to request the reference of the case to the Grand Chamber under Article 43 (1) of the Convention after the delivery of the Court’s judgment.” 13.", "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). 14. 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 30 May 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleElisabeth PalmRegistrarPresident [Note1]Apply Ju_Judges to the list of names and Ju_Names to the surname. Each line is to begin with a tab and end with a comma and manual line break (Shift+Return)." ]

[ "FIRST SECTION CASE OF GULYAYEV v. RUSSIA (Application no. 20023/07) JUDGMENT STRASBOURG 12 May 2010 FINAL 12/08/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gulyayev 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 22 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20023/07) 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 Vasiliy Fedorovich Gulyayev (“the applicant”), on 5 March 2007. 2. The applicant was represented by Mr A.N. Golovachev, a lawyer practising in Kursk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, representative of the Russian Federation before the European Court of Human Rights.", "3. On 17 November 2008 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). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1928 and lives in Kursk. 5. On 4 November 1992 the Presidium of the Kursk Regional Council of People's Deputies issued the applicant with a certificate showing that he had participated in mine cleaning in the Kursk Region in 1943-1948. 6. On 8 December 2000 the Kursk Social Security Office upon applicant's request exchanged the above certificate for a certificate of a war veteran.", "The new document made the applicant eligible for an increased pension. 7. In March 2005 the Kursk Social Security Office asked the Kursk Military Commission to remove the applicant's status as a war veteran on the ground that the police had established forgery of the war-time document, in which the applicant's name was mentioned. In May 2005 the Social Security Office stopped paying the increased pension to the applicant and decided to withhold the amount which it had overpaid in the preceding period. 8.", "The applicant challenged the discontinuation of payments as unlawful. The Social Security Office counterclaimed, seeking a court order for annulment of the veteran certificate. The Military Commission joined the proceedings as a co-defendant. 9. On 20 April 2006 the Leninskiy District Court of Kursk found for the applicant.", "It determined that the allegedly forged document had not been the basis for granting the applicant the veteran status and could not be invoked as a ground for annulment of the certificate. The discontinuation of payments had been therefore unlawful. 10. Neither the Social Security Office nor the Military Commission filed an ordinary appeal and the judgment became final and enforceable. 11.", "In September 2006 the Military Commission lodged an application for supervisory review of the judgment of 20 April 2006. 12. On 15 November 2006 the Presidium of the Kursk Regional Court granted the application, quashed the contested judgment and remitted the matter for a new examination by the District Court. In so doing, it held that the District Court had gone beyond the scope of the claims since it had found that the veteran certificate had been lawfully issued to the applicant, whereas the Social Security Office had not raised that issue. It also found that the District Court had not examined the administrative decision to suspend the monthly payments to the applicant and had not indicated the statute regulating seizure of certificates in court proceedings.", "13. On 29 December 2006 the Leninskiy District Court issued a new judgment. On the applicant's claim, it held that the discontinuation of payments had been lawful, but awarded the applicant the amount outstanding and interest on it. The District Court also granted the Social Security Office's counterclaim and annulled the veteran certificate on the ground that he had failed to produce any documents showing that he had taken part in mine cleaning prior to 9 May 1945 (the official date of the end of the war). II.", "RELEVANT DOMESTIC LAW 14. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03, et seq., §§ 33-42, 3 May 2007). THE LAW I. THE GOVERNMENT'S OBJECTION AS TO ABUSE OF PETITION 15.", "The Government submitted that the applicant had provided the Court with false information as to the lawfulness and good faith of the manner in which he had obtained the certificate of a war veteran. Such failure amounted to an abuse of the right of application within the meaning of Article 35 § 3 of the Convention which, insofar as relevant, reads as follows: “The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of application.” 16. The Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 53-54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; Varbanov v. Bulgaria, no.", "31365/96, § 36, ECHR 2000-X). 17. In the circumstances of the present case, the Court considers that the manner in which the applicant obtained the document does not have any bearing on the issue being examined. The Court therefore rejects the Government's objection. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF SUPERVISORY REVIEW 18. The applicant complained that the quashing of the judgment of 20 April 2006 by way of supervisory review had impaired the requirement of legal certainty as provided in Article 6 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 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 20. The Government argued that the supervisory review had been justified as it had intended to correct a “fundamental defect” in the judgment of the lower court. It further maintained that the Military Commission had failed to lodge an ordinary appeal for lack of financial means needed to pay a court fee. It also held that in any event the applicant's rights had not been violated as the judgment of 20 April 2006 had been fully enforced prior to the quashing.", "21. The applicant maintained his claims. 22. 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, 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, among many other authorities, Brumărescu v. Romania [GC], no.", "28342/95, § 61, ECHR 1999-VII; Ryabykh v. Russia, no. 52854/99, §§ 51-52, 24 July 2003). 23. The Court found on numerous occasions that the quashing of final and binding judgments by way of supervisory review under the Code of Civil Procedure as in force at the material time infringed the principle of legal certainty and was only justified in exceptional circumstances (see Protsenko v. Russia, no. 13151/04, §§ 29-34, 31 July 2008; Tishkevich v. Russia, no.", "2202/05, §§ 24-27, 4 December 2008) 24. Turning to the present case, the Court observes that the judgment of 20 April 2006 was set aside by way of supervisory review on the ground that the lower court considered of its own motion the question of lawfulness of the applicant's veteran certificate (see paragraph 12 above). The arguments put forward by the authorities do not warrant the conclusion that this discloses a fundamental defect warranting the departure from the principle of legal certainty. 25. Furthermore, in the Russian legal system such defects could have been cured in the appeal proceedings.", "Thus, a situation where the final judgment in the applicant's favour was called into question could have been avoided, had the Military Commission lodged an ordinary appeal within the statutory ten-day time-limit (see Zvezdin v. Russia, no. 25448/06, § 30, 14 June 2007). The Government's argument concerning a lack of financial means necessary to lodge an appeal is unsupported by any evidence. The Court notes that even if this fact had proved true, the appellant was free to request a deferment or payment by instalments of the court fee, in accordance with Section 333.41 of the Tax Code of Russia of 5 August 2000. 26.", "As for the Government's contention that the judgment had been fully enforced prior to the quashing, the Court considers that this fact did not by itself efface the effects of legal uncertainty the applicant had to endure after the judgment of 20 April 2006 had been quashed. Nor did so the fact that the applicant's claim was granted as a result of the proceedings following the quashing (see Zasurtsev v. Russia, no. 67051/01, § 51, 27 April 2006). 27. There has accordingly been a violation of Article 6 § 1 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 10,000 euros (EUR) in respect of non-pecuniary damage.", "30. The Government noted that the applicant had failed to substantiate his allegedly excessive and unreasonable claims. 31. The Court finds that the applicant has suffered non-pecuniary damage as a result of the violation found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the case and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 32. The applicant also claimed 13,000 Russian roubles (RUB) (EUR 312) for the costs and expenses incurred before the domestic courts and RUB 13,700 (EUR 329) for those incurred before the Court. 33. The Government asserted that the claimed costs were unreasonable.", "34. As regards the costs and expenses incurred before the domestic courts, in support of his claim the applicant submitted an agreement for provision of legal assistance in the proceedings before the Presidium of the Kursk Regional Court and subsequent round of proceedings for RUB 10,000, the lawyer's bill for RUB 13,000, and two receipts for the amounts of RUB 10,000 and RUB 3,000. The Court observes that the lawyer's bill was not itemised and thus finds it impossible to determine whether the amount of RUB 3,000 was incurred necessarily. 35. As regards the costs and expenses incurred before the Court, in support of his claim the applicant submitted the lawyer's bill for RUB 10,000 and corresponding receipts, as well as two powers of attorney with notary fees charged in the amount of RUB 300 and 400, respectively.", "The Court notes that the applicant failed to submit any supporting documents to account for the remaining amount of RUB 3,000. 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 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 500 covering costs under all heads. 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. Dismisses the Government's objection as to abuse of petition; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 6 § 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, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 500 (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 12 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF KOPRIVICA v. MONTENEGRO (Application no. 41158/09) JUDGMENT (Merits) STRASBOURG 22 November 2011 FINAL 22/02/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Koprivica v. Montenegro, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,David Thór Björgvinsson,Päivi Hirvelä,Zdravka Kalaydjieva,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 41158/09) 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 Veseljko Koprivica (“the applicant”), on 31 July 2009. 2. The applicant was represented by Mr R. Prelević, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin.", "3. The applicant complained under Article 10 of the Convention that the final civil court judgment rendered against him breached his right to freedom of expression. 4. On 10 May 2010 the President of the Fourth 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 1948 and lives in Podgorica. 6. The facts of the case, as submitted by the parties, may be summarised as follows.", "A. The article and ensuing civil proceedings 7. On 24 September 1994 an article, entitled “16”, was published in a Montenegrin weekly magazine, the Liberal, in circulation at the time, which was opposed to the Government. The article, which appeared to have been written by a special correspondent from The Hague, reported that many journalists from the former Yugoslavia were going to be tried for incitement to war before the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), including sixteen journalists from Montenegro. The article named the two ICTY officials who had allegedly prepared the file and then went on to list the names of the sixteen journalists in question.", "The applicant in the present case was the editor-in-chief of the Liberal and its founder was a prominent opposition party at the time. 8. On 27 October 1995 one of the sixteen journalists whose name had appeared in the article (“the plaintiff”), and who had himself been an editor of a major State-owned media outlet, filed a compensation claim against the applicant and the magazine’s founder. The plaintiff claimed that the assertions contained in the article, which were later repeated through other media both within the country and abroad, were untrue and that they were harmful to his honour and reputation. He enclosed a copy of a Serbian daily newspaper, the Politika, published on 27 September 1994, in support of his claim that the assertions had been transmitted by other media.", "9. On 29 May 2002 the ICTY informed the Court of First Instance (Osnovni sud) in Podgorica that it had no information whatsoever concerning the plaintiff. 10. In the course of the civil proceedings, the applicant maintained that he had relied on the information provided by the magazine’s special correspondent. Commenting on the ICTY’s statement, however, the applicant said: “I’m not interested in there being no proceedings against [the plaintiff], the contents of the ICTY ... letter, or whether [the plaintiff] is on that list.", "I have personally witnessed [his] work as the editor-in-chief of the [media outlet in question] during the reporting on the Dubrovnik operation ....”. 11. On 17 May 2004 the Court of First Instance ruled partly in favour of the plaintiff, ordering the applicant and the magazine’s founder, jointly, to pay him the sum of 5,000 euros (“EUR”) for the non-pecuniary damage suffered. On the basis of the ICTY’s statement, the court found that the published assertions had not been true and, in particular, that the applicant had not been interested in their veracity. The court refused to hear the author of the article, considering it unnecessary in the light of the information provided by the ICTY.", "It considered that the applicant’s proposal that the author be heard was also aimed at delaying the proceedings as the applicant did not know his exact address. In any event, the author had not mentioned in his text the number of the case file, dates or any other data which would in a convincing manner support the veracity of the information. The court held that the applicant should not have allowed the publishing of untrue information, as it represented a misuse of freedom of expression, and that he should have attempted to check its accuracy first instead of trusting his correspondent unreservedly. The court further held that personal beliefs and convictions could not justify the publishing of such information and concluded that the assertions in question had harmed the honour and the reputation of the plaintiff. 12.", "Both the plaintiff and the applicant appealed against the judgment. The plaintiff, in particular, complained that the compensation awarded was too low. The applicant, for his part, disputed that he, as the editor-in-chief, should be held responsible for the publishing of information of dubious veracity. He submitted that the information was of particular importance to the public and proposed additional evidence, namely that the court hear a colleague of his as an additional witness, as he was present when the fax with the impugned information was received and whom he consulted on whether to publish the information or not, as well as to see a documentary film broadcast in 2004 by the same media outlet whose editor-in-chief in the early 1990s had been the plaintiff himself, and which allegedly contained an unfavourable reference to the plaintiff and his work at the time. The applicant concluded that, in any event, the damages awarded were too high.", "13. On 14 March 2008 the High Court (Viši sud) in Podgorica increased the amount of damages to EUR 10,000 and assessed the litigation costs at EUR 5,505. In so doing, it endorsed the reasoning of the Court of First Instance, adding that the applicant should have focused on the accuracy of the information in question rather than having it published as soon as possible. The court took the view that the veracity of the assertions could not be established by the applicant consulting the article’s author or another colleague but only by reliable evidence, which was lacking in this case. It further held that, according to the legislation in force at the time the article was published, the editor-in-chief, inter alia, could also be held responsible for publishing untrue information (see paragraph 32 below).", "The court made no reference to the documentary film referred to by the applicant. 14. On 6 November 2008 the Supreme Court (Vrhovni sud) in Podgorica amended the High Court’s judgment, reducing the damages and costs awarded to EUR 5,000 and EUR 2,677.50, respectively. B. Enforcement proceedings 15.", "On 5 June 2009 the Court of First Instance ordered the payment of the amounts awarded by the High Court. 16. On 17 November 2009 the Court of First Instance issued a further order, specifying that payment should be made by regular transfers of one half of the applicant’s salary (zarada) which he was earning in another magazine. 17. On 17 November 2010, following a request by the applicant, the Court of First Instance terminated (obustavio) the enforcement of the High Court’s judgment.", "At the same time, it confirmed that the amount owed was the one awarded by the Supreme Court, to be paid by regular transfers of one half of the applicant’s salary to the plaintiff. 18. By 14 October 2011 the applicant had paid to the plaintiff EUR 852.99 in total. C. Other relevant facts 19. It would appear that as of March 2005 the founder of the magazine ceased to exist, leaving the applicant as the only remaining debtor.", "20. The applicant’s pension between 2004 and 2008 ranged between EUR 170 and EUR 300 per month. 21. The average monthly income in Montenegro when the relevant domestic decisions were rendered was EUR 195 in 2004 and EUR 416 in 2008. Financial brokers had the highest incomes, these being on average EUR 345 in 2004 and EUR 854 in 2008.", "[1] 22. There are no copies of any articles relating to the impugned information published by other media in the case file except for a copy of part of the article published in the Politika (see paragraph 8 above). 23. On an unspecified date after the impugned article had been published another journalist from the list of the sixteen lodged a private criminal action (privatna krivična tužba) against the applicant for defamation (kleveta). On 20 September 1995 the Court of First Instance found the applicant guilty and ordered him to pay a fine of 800 dinars (YUD) and costs in the amount of YUD 100.", "On 23 November 1999 the High Court rejected the criminal action as the prosecution had become time-barred in the meantime. There is no information in the case file whether other journalists whose names appeared in the article instituted proceedings, either civil or criminal, against the applicant. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no.", "1/07) 24. The relevant provisions of the Constitution read as follows: Article 47 “Everyone is entitled to freedom of expression .... Freedom of expression can be limited only by the right of others to dignity, reputation and honour ....” Article 147 §§ 1 and 2 An Act ... cannot have a retroactive effect. Exceptionally, certain provisions of an Act can have retroactive effect, if required by the public interest .... Article 149 “The Constitutional Court shall ... (3) ... [rule on a] ... constitutional appeal ... [lodged in respect of an alleged] ... violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted ...” 25. The Constitution entered into force on 22 October 2007.", "B. Constitutional Court Act of Montenegro (Zakon o Ustavnom sudu Crne Gore; published in OGM no. 64/08) 26. Section 34 provides, inter alia, that while decisions upon a constitutional appeal may be published in the Official Gazette, they must be published on the website of the Constitutional Court. 27.", "Sections 48 to 59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision. 28. This Act entered into force in November 2008. C. Rules of the Constitutional Court of Montenegro (Poslovnik Ustavnog suda Crne Gore; published in OGM no.", "33/09) 29. Rule 93(2) provides that public access to the work of the court is to be ensured, inter alia, by publishing its decisions in the Official Gazette of Montenegro and on the website of the court. D. Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 29/78, 39/85, 45/89, 57/89 and the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - no. 31/93) 30.", "Section 198 regulated responsibility for pecuniary damage caused by an individual’s harming another person’s reputation or asserting or disseminating untrue allegations where that individual knew or should have known that these allegations were untrue. 31. Under sections 199 and 200, inter alia, anyone who had suffered mental anguish as a consequence of damage to his honour or reputation could, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which might be capable” of affording adequate non-pecuniary compensation. E. Public Information Act (Zakon o javnom informisanju; published in the Official Gazette of the Republic of Montenegro no. 56/93) 32.", "Section 62 provided that if untrue information, which harmed another’s honour or reputation, was published in the media (javno glasilo), an interested person would be entitled to sue the relevant author, editor-in-chief, founder and publisher for financial compensation. F. Media Act (Zakon o medijima; published in OGRM nos. 51/02 and 62/02 and OGM no. 46/10) 33. Section 20 of the Act provides that if a person’s honour or integrity is harmed by information published in the media, that person may file a compensation claim against the author and the founder of the particular medium in question.", "34. This Act entered into force in 2002. G. The relevant domestic case-law[2] 35. As of 21 July 2011 a total of 705 constitutional appeals would appear to have been examined by the Constitutional Court: 351 of them were rejected on procedural grounds (odbačene), 333 were rejected on the merits (odbijene), in three cases the proceedings were terminated (obustava postupka), and in four cases examination was adjourned. By the same date, fourteen constitutional appeals had been accepted, the first one having been accepted on 8 July 2010; this decision was published in the Official Gazette on 26 November 2010.", "36. A single document containing 77 decisions rendered in 2009 was posted on the website of the Constitutional Court on an unspecified date in 2010. Another single document containing 205 decisions, out of 337 rendered in 2010, was posted on the website on an unspecified date after 17 May 2011. By 21 July 2011 none of 291 decisions rendered in 2011 has been made public on the Constitutional Court’s website. 37.", "By the same date thirteen decisions had been published in the Official Gazettes and in these thirteen constitutional appeals were accepted. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 38. The applicant complained, under Article 10 of the Convention, that his right to freedom of expression had been breached as a result of the final civil court judgment rendered against him. 39.", "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... 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....” A. Admissibility 1. The parties’ submissions 40.", "The Government maintained that the applicant had failed to exhaust all effective domestic remedies. In particular, he had failed to lodge a constitutional appeal. 41. The applicant asserted that a constitutional appeal was not an effective domestic remedy. He maintained that proceedings following a constitutional appeal lasted too long, two years on average.", "He further contended that even if such an appeal were to be upheld, the Constitutional Court could only quash the impugned decision and order that the case be re-examined, while he would have to institute another set of proceedings in order to obtain just satisfaction for any damage caused by the decision held to run counter to constitutional provisions. 2. Relevant principles 42. The Court reiterates 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.", "43. 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. However, 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 the requirement (see, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV). 44. 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 Akdivar and Others, cited above, § 69). 3. The Court’s assessment 45. The Court notes that following their introduction in October 2007, constitutional appeals had been systematically rejected or dismissed until July 2010, when the first decision upholding such an appeal was rendered, which decision was published more than four months later. 46.", "The Court further notes that by 31 July 2009, the date on which the applicant lodged his complaint with this Court, no constitutional appeal had been upheld, nor had any decision rendered thereupon been made available to the public, even though the constitutional appeal had already existed for roughly one year and nine months. Such a situation continued until an unspecified date in 2010, with the majority of decisions not having been made public even afterwards. As the applicant had filed his application with the Court before any decision of the Constitutional Court was published and because the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged, the Court considers that the applicant was not obliged to exhaust this particular avenue of redress before turning to Strasbourg (see, mutatis mutandis, Vinčić and Others v. Serbia, no. 44698/06 et seq. § 51, 1 December 2009, as well as Cvetković v. Serbia, no.", "17271/04, § 41, 10 June 2008). Therefore, the Government’s objection in this regard must be dismissed. The Court might in future cases reconsider its view if the Government demonstrate, with reference to concrete published decisions, the efficacy of the remedy, with the consequence that applicants may be required first to exhaust that remedy before making an application to the Court (see, mutatis mutandis, Burden v. the United Kingdom [GC], no. 13378/05, §§ 43-44, 29 April 2008). 47.", "The Court notes that the applicant’s 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. (a) The applicant’s submissions 48. The applicant maintained that the domestic courts’ judgments were not in accordance with the law, as the courts should have applied the Media Act of 2002, which did not provide for the responsibility of the editor-in-chief, as well as sections 198 and 199 of the Obligations Act, which provided other forms of redress (see paragraphs 30, 31, 33 and 34 above).", "49. The applicant reiterated that the domestic courts had rejected all the evidence proposed by him in order to establish whether he had acted in good faith, and whether any public interest had been served in publishing the article in question. In particular, they had refused to hear the witnesses he had proposed or to view the documentary film (see paragraph 13 above). 50. He further submitted that, at the time, there had been no official contacts between the ICTY and the then Federal Republic of Yugoslavia (FRY), of which Montenegro had been a part; nor had there been any Internet connection available in Montenegro.", "In view of this, he had entirely depended on the special correspondent and his own sound judgment of his opponent’s editorial policy. Furthermore, the plaintiff himself had made no attempt whatsoever to deny the information in issue. 51. He maintained that his statement as cited in the judgment of the Court of First Instance (see paragraph 10 above) was rather the domestic judge’s interpretation of what he had said at a hearing when he had not been represented by a professional lawyer. What he had meant was that anyone who had observed the plaintiff’s editorial policy at the relevant time could have easily believed that the ICTY was investigating his role.", "52. Finally, the applicant submitted that the compensation awarded was disproportionate, having regard to his modest income at the time (see paragraph 20 above). (b) The Government’s submissions 53. The Government submitted that the domestic decisions were in accordance with the law, as the Constitution prohibited retroactive implementation of legislation, and there was no legal ground for the implementation of the legislation passed in 2002 (see paragraph 24 above). 54.", "They reiterated that freedom of expression was not an absolute right but was limited to a significant extent, including in the interest of the protection of the honour and reputation of others. 55. The Government maintained that Article 10 provided not only for the freedom of the media to inform the public but also for the right of the public to be properly informed, this being particularly important with regard to the ICTY and war crimes proceedings, being issues of the broadest public interest. They agreed that while a public debate about issues important for society, including editorial policy, in particular during the war, was fully legitimate in a democratic society, it was nevertheless unacceptable to misinform the public by publishing assertions that international criminal proceedings were pending against someone when that was not the case. 56.", "They maintained that the information in question was clearly a statement of fact, which had proved to be absolutely inaccurate (see paragraph 9 above), and that its aim was to discredit the plaintiff. The domestic courts had reliably established that the applicant had not been acting in good faith, as the information was nothing more than an undated typed list of names containing no explanation which might lead to the conclusion that the ICTY was in any way interested in the listed journalists. 57. They pointed to the unprofessional attitude of the applicant in his failure to check the veracity of the information, in particular his lack of interest in its accuracy (see paragraph 10 above). The domestic courts had legitimately refused to hear the witnesses proposed by him, and had duly explained why.", "In the Government’s opinion, the applicant had not proved in the domestic proceedings that the correspondent had indeed had such a status in the Liberal or that he was the author of the article. 58. They contested the assertion that the applicant’s statement had not been quoted correctly, as he had never before made any objections to the court’s record, even though he had been legally represented. 59. Lastly, they doubted that a pension was the applicant’s only income.", "60. The Government concluded that the interference of the domestic courts with the applicant’s right to freedom of expression in this particular case had pursued a legitimate aim and that the compensation awarded was proportionate to this aim, in particular in view of the fact that the information in question had been further transmitted by news agencies throughout the former Yugoslavia, as well as Radio Free Europe, and thus made available to a large number of people. 2. The relevant principles 61. The Court emphasises the essential function fulfilled by the press in a democratic society.", "Although the press must not overstep certain bounds, particularly 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. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Dalban v. Romania [GC], no. 28114/95, § 49, ECHR 1999-VI). 62. It is in the first place for the national authorities to assess whether there is a “pressing social need” for a restriction on freedom of expression and, in making that assessment, they enjoy a certain margin of appreciation (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos.", "21279/02 and 36448/02, § 45, ECHR 2007-...). In cases concerning the press, the State’s margin of appreciation is circumscribed by the interest of a democratic society in ensuring and maintaining a free press. The Court’s task in exercising its supervisory function is to look at the interference complained of in the light of the case as a whole and to determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether the measure taken was proportionate to the legitimate aim pursued (see Vogt v. Germany, 26 September 1995, § 52, Series A no. 323; and Jerusalem v. Austria, no. 26958/95, § 33, ECHR 2001-II).", "63. A careful distinction needs also to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 98, ECHR 2004‑XI, and Kasabova v. Bulgaria, no. 22385/03, § 58 in limine, 19 April 2011).", "64. Article 10 of the Convention does not, however, guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when there is a question, as in the instant case, of attacking the reputation of named individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, 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 in order to provide accurate and reliable information in accordance with the ethics of journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no.", "21980/93, § 65, ECHR 1999-III; as well as Rumyana Ivanova v. Bulgaria, no. 36207/03, § 61, 14 February 2008, and Kasabova v. Bulgaria, cited above, § 63). 65. Finally, the amount of compensation awarded must “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the plaintiff in question (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49 Series A no. 316-B; Steel and Morris v. the United Kingdom, no.", "68416/01, § 96, ECHR 2005 - II, where the Court held that the damages “awarded ... although relatively moderate by contemporary standards ... [were] ... very substantial when compared to the modest incomes and resources of the ... applicants ...” and, as such, in breach of the Convention; see also Lepojić v. Serbia, no. 13909/05, § 77 in fine, 6 November 2007, where the reasoning of the domestic courts was found to be insufficient given, inter alia, the amount of compensation and costs awarded equivalent to approximately eight average monthly salaries). 3. The Court’s assessment 66. Turning to the present case, the Court considers that the final civil court judgment undoubtedly constituted an interference with the applicant’s right to freedom of expression.", "In view of the relevant provisions of the Obligations Act and the prohibition on retroactive implementation of Acts under the Montenegrin Constitution, the Court is satisfied that the interference was “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraphs 24, 30 and 31 above). The Court does not consider that section 198 of the Obligations Act, invoked by the applicant (see paragraph 30 above), was applicable in the present case, as it concerned compensation for pecuniary damage. The Court further accepts that the impugned judgment was adopted in pursuit of a legitimate aim, namely “for the protection of the reputation” of another. What remains to be resolved, therefore, is whether the interference was “necessary in a democratic society”. 67.", "In this latter connection, the Court considers that the impugned article was clearly based on an allegation of fact and as such susceptible to proof. It must therefore be examined whether there were any special grounds in the particular circumstances of the present case for requiring the applicant as the editor-in-chief of the magazine to verify whether the information, which was allegedly defamatory of the plaintiff, had a basis in fact. The Court notes in this connection that the information amounted to a serious accusation against the plaintiff, the more so given the sensitivity of the regional context at the material time. On that account, the Court considers that particular diligence was required before transmitting the information to the public. Furthermore, the situation must be examined as it presented itself to the applicant at the material time, rather than with the benefit of hindsight on the basis of the information contained in the ICTY letter obtained in the course of the domestic proceedings a long time thereafter (see paragraph 9 above, see also Bladet Tromsø and Stensaas v. Norway, cited above, § 66 in fine).", "68. The Court observes that the inaccuracy of the information published was, in substance, the main reason why the domestic courts awarded damages. The applicant, for his part, submitted that it was impossible for him to check the accuracy of the special correspondent’s dispatch, as there was no Internet connection or official contacts between the FRY and the ICTY at the relevant time. The domestic courts themselves established only in 2002 that the information was untrue, namely six years and seven months after the domestic proceedings had been instituted. However, it is unclear whether this was due to the domestic courts’ inactivity in this regard or because it had been impossible to establish the veracity of the information earlier.", "69. The Court considers that, in the absence of official contacts and Internet, there was no reason for the applicant not to try at least to contact the ICTY himself by other means (telephone, fax, mail) in order to double-check the existence of a factual basis for the allegation. The Court is aware that news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see, inter alia, Bozhkov v. Bulgaria, no. 3316/04, § 48, 19 April 2011, and the authorities cited therein). However, in the present case, the article was not published in a daily newspaper, but in a weekly magazine, which gave the applicant more time for double-checking.", "In addition, the applicant’s statement made during the domestic proceedings clearly implies that he was not concerned with verifying the truth or reliability of the information before publishing it (see paragraph 10 above). 70. While the Government expressed a doubt that the correspondent was the author of the article, the Court observes that the applicant proposed in the course of the domestic proceedings that the courts hear both the correspondent as well as another journalist who was present on the magazine’s premises when the impugned information was received by fax (see paragraphs 57, 11, 12 and 13 above, in that order). However, the courts refused to hear the witnesses proposed. 71.", "Even though it can be argued that in the particular circumstances of the instant case the applicant should have personally taken steps to verify the accuracy of the impugned information, the Court considers that the person best placed to check the accuracy was the special correspondent. It is significant that at all times the applicant maintained that he had confidence in the professionalism of the magazine’s special correspondent and, on that account, requested the domestic courts to hear the special correspondent. The courts refused to do so (see paragraphs 11 and 49 above). The applicant was thus denied an opportunity to attempt to clarify the situation. The Court recalls that it is not, in principle, incompatible with Article 10 to place on the defendant in libel proceedings the burden of proving to the civil standard the truth of defamatory statements.", "However, this is subject to the proviso that the defendant must be allowed a realistic opportunity to do so (see Kasabova v. Bulgaria, cited above, § 58 in limine, and the relevant autorities cited therein). 72. While noting the above considerations, the Court is prepared to accept that the applicant failed to take adequate steps to verify the impugned information, while also acknowledging that the domestic courts, for their part, took a rather restricted approach to the matter by refusing the applicant’s proposals to hear relevant witnesses. However, the Court does not consider it necessary to take a firm stance on these matters, because it is in any event of the view that the damages awarded against the applicant were disproportionate (see, mutatis mutandis, Kasabova v. Bulgaria, cited above, § 68). 73.", "In particular, the Court finds that the damages and costs awarded were very substantial when compared to the applicant’s income at the time, being roughly twenty-five times greater than the applicant’s pension (see paragraphs 14 and 20 above; see also Tolstoy Miloslavsky v. the United Kingdom, cited above; and Lepojić v. Serbia, cited above, § 77 in fine). While the Government contested that the applicant’s pension was his only income, they failed to submit any evidence to the contrary (see paragraph 59 above). The Court notes that the enforcement order of 17 November 2009 implies that the applicant at that time worked for another magazine (see paragraph 16 above). However, there is no information in the case file that he was also working at the time when the domestic judgments were rendered. In any event, the Court considers that the damages and costs he was ordered to pay to the plaintiff were very substantial even when compared to the highest incomes in the respondent State in general (see paragraph 21 above, see also, mutatis mutandis, Sorguç v. Turkey, no.", "17089/03, § 37, ECHR 2009‑... (extracts)). 74. In conclusion, the Court finds that the award of damages and costs in the present case were disproportionate to the legitimate aim served (see, mutatis mutandis, Steel and Morris v. the United Kingdom, cited above, § 97). It follows that the interference with the applicant’s right to freedom of expression was not “necessary in a democratic society”. 75.", "There has therefore been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. The relevant provision of this Article reads as follows: Article 41 “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.” 77. The applicant claimed EUR 7,667.50 in respect of pecuniary damage, this amount corresponding to damages and legal costs awarded against him in the domestic proceedings, and EUR 5,000 in respect of non-pecuniary damage.", "He also claimed EUR 593 for the costs and expenses incurred before the Court. 78. The Government contested the claim in respect of pecuniary and non-pecuniary damage. In particular, they maintained that there was no causal link between the damage and the possible violation of Article 10. Finally, the domestic judgment had not been enforced yet and the applicant had not paid the amounts awarded.", "The Government left the applicant’s claim in respect of the costs and expenses to the assessment of the Court. 79. The Court considers that this question is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the parties (Rule 75 § 1 of the Rules of Court). 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 that the question of the application of Article 41 of the Convention is not ready for decision and accordingly (i) reserves the said question in whole; (ii) invites the parties to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (iii) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on 22 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident [1] The data are taken from the website of the Statistics Agency of Montenegro on 21 July 2011 http://www.monstat.org/cg/page.php?id=24&pageid=24 .", "[2] The data are based on the Bulletins and Statements (Saopštenja) published by the Constitutional Court on its website by 21 July 2011 (http://www.ustavnisudcg.co.me/aktuelnosti.htm) and the Official Gazettes." ]

[ "SECOND SECTION CASE OF KINAY AND KINAY v. TURKEY (Application no. 31890/96) JUDGMENT (Friendly Settlement) STRASBOURG 26 November 2002 This judgment is final but it may be subject to editorial revision. In the case of KINAY and KINAY v. Turkey, 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, judges,MrF. Gölcüklü, ad hoc judge,andMrT. L. Early, Deputy Section Registrar, Having deliberated in private on 5 November 2002 , Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "31890/96) 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 two Turkish nationals, Mrs Makbule Kınay and Mr Ramazan Kınay (“the applicants”), on 21 May 1996. 2. The applicants were represented by Mrs Bedia Buran, Mrs Naciye Kaplan and Mrs Filiz Köstak, all lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3.", "Relying on Articles 3, 5, 6, 8, 13 and 14 of the Convention the applicants complained about their alleged eviction from their village and destruction of their home and possessions by security forces in the state of emergency region of Turkey. 4. Following communication of the application to the Government by the Commission, the case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28).", "The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 1). 5. On 30 May 2000, having obtained the parties’ observations, the Court declared the application admissible. 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. 7. On 29 April 2002, after an exchange of correspondence, the Registrar suggested to the parties that they reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 6 June 2002 and on 29 August 2002 the applicants and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 8.", "The applicants were both born in 1956 and they are currently living in Istanbul. 9. The facts of the case, as submitted by the parties, may be summarised as follows. A. Applicants’ version of the facts 10. Until 18 September 1994 the applicants lived in the Dirimpınar village of the Malazgirt district in the province of Muş.", "11. On an unspecified date, while the applicant Ramazan Kınay was serving a prison sentence in Diyarbakır prison, the mayor of the village (muhtar) told the villagers and the applicant Makbule Kınay that their houses would be burned by security forces. Following this information, some of the villagers removed their belongings from their houses. 12. On 18 September 1995, at about 8 p.m., security forces, composed of 50-60 village guards, special team members and gendarmes, arrived in the applicants’ village.", "Some members of the security forces conducted a search of the applicants’ house. They seized the valuables belonging to Makbule Kınay. They manhandled and insulted her as well as her three children. Then they poured gas on the applicants’ house and set it on fire together with its contents. 13.", "Makbule Kınay recognised the village guards who had burned her house as being from the Nurettin village of the Malazgirt district. 14. Following the burning of her house, Makbule Kınay moved to her relatives’ house in the Bulanık district of Muş. She then moved to İstanbul as a result of intimidation by the security forces. She later learnt that 75 tons of barley had been collected from their fields by the village guards.", "15. On 15 March 1995 Ramazan Kınay was conditionally released. On 30 November 1995 Ramazan Kınay filed a petition with the Üsküdar Chief Public Prosecutor’s office in İstanbul for submission to the Public Prosecutor’s office in Malazgirt. In his petition, he complained about the burning of his and his relatives’ houses by village guards. He requested permission to return to his village and compensation for the losses.", "16. No investigation was carried out into the applicants’ complaints. B. Government’s version of the facts 17. The applicant Ramazan Kınay was convicted of membership of the PKK. He was serving a prison sentence at the time of the alleged events.", "18. The authorities carried out an investigation into the applicants’ allegations of destruction of their property and their forced eviction from the village. 19. On 5 December 1997 the Malazgirt Gendarme Commander took statements from the mayor of the Dirimpınar village. In his statements, the latter denied the applicants’ allegations.", "He stated that there were families still living in the village and that the applicant Makbule Kınay moved out of the village of her own free will. 20. According to the records of the Land Registry, the applicants are the owners of 10,56 acres of land. 21. Subsequent to the investigation carried out by the authorities, it was understood that, at the relevant time, there were no village guards or operations being carried out in the region.", "THE LAW 22. On 29 August 2002 the Court received the following declaration from the Government: “1. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicants an all-inclusive amount of EUR 59,000 (fifty nine thousand euros) with a view to securing a friendly settlement of their application registered under No 31890/96. This sum, which also covers legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by the applicants and/or their duly authorised representative. This sum shall be payable within three months from the date of 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 settlement of the case. 2. The Government regret the occurrence of individual cases of destruction of home, property and possessions resulting from the acts of agents of the State in south-east Turkey, obliging civilians to leave their villages, and of failure by the authorities to carry out effective investigations into the circumstances surrounding such events, as in the case of the applicants, Makbule and Ramazan Kınay, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such acts and to remedy such failures. 3. It is accepted that such acts and failures in the applicants’ case constituted a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No.", "1 and, given the circumstances of the destruction and the emotional suffering entailed, of Article 3 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the individual rights guaranteed by these Articles – including the obligation to carry out effective investigations – are respected in the future. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of destruction of property in circumstances similar to those of the instant application and in more effective investigations being carried out. 4. The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context.", "To this end, necessary co-operation in this process will continue to take place. 5. Finally, the Government undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court’s judgment. ” 23. On 6 June 2002 the Court received the following declaration signed by the applicants’ representative: “1.", "We note that the Government of Turkey are prepared to pay us ex gratia the sum of EUR 59,000 (fifty nine thousand euros) with a view to securing a friendly settlement of our application registered under no. 31890/96. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by us. The sum shall be payable, free of any taxes which may be applicable, within three months from the date of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. 2.", "We accept the proposal and waive any further claims against Turkey in respect of the facts of this application. We declare that this constitutes a final settlement of the case. 3. This declaration is made in the context of a friendly settlement which the Government and we have reached. 4.", "We further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court’s judgment.” 24. 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). 25. 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 26 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. EarlyJ.-P. CostaDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF SCHWABEL v. AUSTRIA (Application no. 34927/12) JUDGMENT STRASBOURG 9 November 2017 This judgment is final but it may be subject to editorial revision. In the case of Schwabel v. Austria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Nona Tsotsoria, President,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 19 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application against Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the date indicated in the appended table. 2.", "The applicant was represented by Mr H. Schmid, a lawyer practising in Graz. 3. The application was communicated to the Austrian Government (“the Government”). THE FACTS 4. The applicant and the relevant details of the application are set out in the appended table.", "5. The applicant complained of the excessive length of civil proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6. The applicant complained that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement.", "He 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 ...” 7. 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 Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 8. In the leading cases of Holzinger v. Austria (no.", "2), no. 28898/95, §§ 26-29, 30 January 2001, the Court already found a violation in respect of issues similar to the one 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 this complaint. 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.", "10. The complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 11. 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.” 12.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Rambauske v. Austria, no. 45369/07, §§ 16 and 32, 28 January 2010), the Court considers it reasonable to award the sums indicated in the appended table. 13. 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 it discloses a breach of Article 6 § 1 of the Convention concerning the excessive length of civil proceedings; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, 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 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtNona Tsotsoria Acting Deputy RegistrarPresident APPENDIX Application raising complaints under Article 6 § 1 of the Convention (excessive length of civil proceedings) No.", "Application no.Date of introduction Applicant name Date of birth / Date of registration Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Amount awarded for non-pecuniary damage per household (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2] 34927/12 04/06/2012 Rüdiger Schwabel 24/12/1944 Schmid Helmut Graz 04/10/2001 09/12/2011 10 year(s) and 2 month(s) and 6 day(s) 3 level(s) of jurisdiction 5,600 2,000 [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants." ]

[ "FIRST SECTION CASE OF CHEMBER v. RUSSIA (Application no. 7188/03) JUDGMENT STRASBOURG 3 July 2008 FINAL 01/12/2008 In the case of Chember 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 12 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7188/03) 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 a Russian national, Mr Yevgeniy Vitalyevich Chember (“the applicant”), on 3 February 2003. 2.", "The applicant, who had been granted legal aid, was represented before the Court by Ms O. Mikhaylova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant complained that he had been subjected to inhuman and degrading treatment and punishment during his military service. 4.", "On 14 January 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. 5. The Government objected to the 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 1982 and lives in Shakhty in the Rostov Region. A. The applicant’s military service 7.", "On 19 and 23 December 2000 the applicant was examined by two medical commissions and found to be in good health and fully fit for military service. 8. On the basis of the medical reports, the decision was made to call the applicant up for two years of mandatory military service in the Ministry of Internal Affairs forces. 9. The applicant was assigned to serve in military unit no.", "5464 in Kislovodsk. In the unit he was allegedly harassed and ill-treated by senior conscripts and the unit sergeant on account of his Moldovan ethnic origin. 10. According to the applicant, in late January 2001 he attended a drivers’ training course. In the car park the commander told the applicant and three other conscripts to take the back axle of a ZIL lorry to another place.", "The applicant injured his spine and later on the same day he was also severely beaten and kicked by senior conscripts for failing to bring the axle close enough to the lorry. On the course the following morning he asked for medical assistance, but the commander refused his request. The applicant did not complain about these events to a prosecutor or any other official. 11. On 8 February 2001 the applicant was transferred to military unit no.", "6794 in Astrakhan (later renumbered as no. 3025). According to the applicant, a medical officer noted his complaint of pains in his knees, but did not prescribe any treatment. It subsequently transpired during an inquiry that the applicant had complained about recurrent pains in his knees to his superior, Lieutenant D., who had exempted him from physical exercise (see paragraph 20 below). 12.", "In March 2001 Junior Sergeant Ch., the platoon commander, made the applicant and other servicemen do 350 knee bends outdoors as punishment for their failure to scrub the barracks spotless. Lieutenant D. was present but did not contradict the order. After several hundred knee bends, the applicant collapsed and other soldiers took him by the armpits and dragged him into the medical unit. 13. Between 6 and 26 March 2001 the applicant received emergency treatment in military unit no.", "52218, and then in unit no. 3057 until 17 April 2001. He could not stand on his own and crawled out of bed propping himself up on the bedposts. 14. Between 17 April and 23 May 2001 the applicant was treated in the neurosurgery clinic of the Rostov-on-Don State Medical University.", "When he was discharged he was diagnosed with a “closed injury of the spine combined with an impairment of blood circulation at the level of the lower thoracic part of the spinal cord” and found unfit for work. 15. On 5 June 2001 the medical commission of military unit no. 3057 examined the applicant at the request of the commander of unit no. 6794 and diagnosed him with “consequences of an acute interruption to the blood flow to the spinal cord in the form of cicatrical-commissural epiduritis, arachnoiditis with a disturbance of the flow of cerebrospinal fluid and minor impairment of sensitivity in the lower extremities”.", "It also established that the condition had been “acquired during military service” and discharged the applicant as “partially fit for military service”. 16. On 28 June 2001 the applicant was discharged on account of his disability. B. Criminal investigation 17.", "On an unspecified date the applicant’s mother complained to the military prosecutor of Rostov-on-Don of an abuse of power committed by Lieutenant D. and Junior Sergeant Ch. 18. On 10 May 2001 her complaint was forwarded to the military prosecutor of the Astrakhan garrison who in turn sent it on 21 May 2001 to the military prosecutor of the Caspian Fleet. 19. In their observations on the admissibility and merits of the case, the Government enclosed copies of statements by Lieutenant D. and Junior Sergeant Ch., as well as by Privates A.L., A.Sh.", "and V.P., who had started their service on 1 February 2001. 20. On 22 May 2001 Lieutenant D. stated as follows: “In February 2001 Private Chember was transferred to our unit ... He was assigned to serve in my sub-unit, that is, in the first platoon of the seventh company. Since his transfer into our unit he has started complaining about recurrent pains in his knees.", "On that ground I exempted him from physical exercise; he stayed within the premises of the company and did not go anywhere. Some two weeks later Private Chember was sent for treatment to the sanitary unit because of acute pains in his knees; I cannot tell why it happened. Some time later he was transferred to a hospital in another town ... I have never applied any unlawful methods to Private Chember.” 21. On the same date Junior Sergeant Ch.", "testified as follows: “I have known Private Chember since February 2001; he served in the seventh company of military unit 6794, in which I acted as the section commander. I point out that Chember often went to the medical unit. I do not know what he complained about. Every time I acted as the officer-on-duty in the platoon, Chember was usually in for treatment in the medical unit. I think he complained about pains in his legs.", "I did not know Chember very well because he was not from my platoon ...” 22. In their similarly worded statements, Privates A.L., A.Sh. and V.P. indicated that the applicant had complained about his “weak legs” since his arrival at military unit no. 6794, that for that reason he had been exempted from physical exercise and squad drill, and that he had often been treated in the medical unit for pains in his legs.", "23. On 31 May 2001 Captain S., a senior investigator with the military prosecutor’s office of the Caspian Fleet, issued a decision not to initiate criminal proceedings. The reasoning read as follows, in full: “The inquiry established that the fact of abuse of power by Lieutenant D. and Junior Sergeant Ch. had not actually taken place in reality. It follows from the statement by Lieutenant D. that Private Chember serves under his command.", "Neither he nor Junior Sergeant Ch. ever abused their power over or used violence against Private Chember or any other military personnel of unit 6794. It follows from the statement by Junior Sergeant Ch. that neither he nor Lieutenant D. ever abused their power over or used violence against Private Chember or any other military personnel of unit 6794. All the servicemen of the seventh company of military unit 6794 – where Chember serves – have been questioned.", "They stated that no one had harassed Private Chember, and that neither Junior Sergeant Ch. nor Lieutenant D. had ever abused their power over him or any other military personnel of unit 6794. Thus, the inquiry has established that Junior Sergeant Ch. and Lieutenant D. did not abuse their power over Private Chember or any other military personnel of unit 6794, and accordingly no criminal case may be instituted against them because there was no criminal offence.” The decision indicated that an appeal against it lay to a higher prosecutor or to a court. 24.", "On 30 September 2002 the applicant’s mother complained to a higher prosecutor. She wrote, in particular, that her son had never had pains in his knees. She also pointed out that the investigator had not heard the soldiers P., S., C. and Sh., who had been eyewitnesses to the ill-treatment. 25. On 8 October 2002 Colonel M., the military prosecutor of the Caspian Fleet, replied that her complaint could not be examined because the materials of the inquiry had been forwarded, on 8 August 2002, to the Shakhty Town Court.", "He indicated that the complaint would be considered upon the return of the materials. The applicant did not receive any further information concerning that complaint. C. Civil proceedings 26. On 17 March 2002 the applicant lodged a civil action against military units nos. 3025 and 5464 and the North Caucasian Command of the Ministry of Internal Affairs forces for compensation for non-pecuniary damage.", "He submitted that the injury he had received during his military service caused him physical pain, restricted his day-to-day activities, impaired his career and life plans, and brought feelings of frustration and injustice. 27. The applicant and his counsel asked the court to appoint a forensic medical examination with a view to determining the origin and nature of his injuries. 28. On 9 April 2003 the Shakhty Town Court of the Rostov-on-Don Region refused their request by an interim decision: “Having heard the parties and studied the case materials, the court finds that the request is unsubstantiated ... because the period when the injury was received is stated in the medical record and that is the period of military service.", "The establishment of the origin and nature of existing diseases will not help to find those responsible or [to elucidate] the circumstances. The case file contains the decision not to initiate criminal proceedings against Sergeant Ch. and Lieutenant D., dated 31 May 2001.” 29. On the same day the Town Court delivered judgment, by which the applicant’s claim was dismissed. The Town Court examined medical evidence produced by the applicant and interviewed his fellow serviceman P. who confirmed that Junior Sergeant Ch.", "had forced the applicant and other conscripts to do 350 or more knee bends and that the applicant had collapsed during that exercise. It found as follows: “Assessing the collected evidence as a whole, the court finds that the claim is unsubstantiated ... because the [applicant] did not show that the damage to his health had been caused by servicemen of the [Ministry of Internal Affairs]; according to his own statements, he fell ill because of excessive (in his opinion) physical activity (physical exercises, carrying the axle of a ZIL lorry in his hands) and because of ill-treatment by senior conscripts and by Sergeant Ch. However, the case materials contain the decision not to initiate criminal proceedings against Sergeant Ch. and Lieutenant D., dated 31 May 2001 ... because there was no indication of a criminal offence. Under the current laws, one of the mandatory conditions for tort liability for non-pecuniary damage is the fault of the tortfeasor ...” 30.", "The applicant appealed against the interim decision and judgment of 9 April 2003. 31. On 25 June 2003 the Rostov Regional Court dismissed his appeal: “The [first-instance] court dismissed the claim because it established that the defendants’ liability for causing damage to the [applicant’s] health had not been proven. The [regional] court finds this conclusion correct. On 31 May 2001 an investigator ... refused to initiate criminal proceedings ...", "The causal link between the defendants’ actions and the [applicant’s] disability is not established. Experts may not establish the causal link between the defendants’ actions and consequences thereof, only a court is competent to do so.” D. Pension claims 32. Following the applicant’s discharge, on 29 August 2001 he was diagnosed with a second-category disability and became entitled to a civilian disability pension. 33. The applicant unsuccessfully attempted to claim a military pension.", "On 21 May, 11 June, 29 July and 25 December 2002, his mother received negative responses from the Central Military Medical Commission of the Ministry of Internal Affairs. The claims were rejected because he had not produced documents showing that he had injured his spine during military service. According to these replies, the report of 5 June 2001 only established that the condition had been diagnosed during his military service and not that it had been acquired during his military service. E. Experts’ report submitted by the Government 34. In their observations on the admissibility and merits of the case, the Government submitted a report produced by two medical experts (one military and one civilian) on 10 March 2005.", "The report had been commissioned by the assistant to the Chief Military Prosecutor on 9 March 2005 with a view to determining the nature of the applicant’s disability, its causes and origin. The experts made their findings on the basis of the criminal case file and the applicant’s medical records of 2001. In particular, they found as follows: “It transpires from the available medical documents that Mr Chember’s conditions were chronic. Having regard to Mr Chember’s young age, his medical history (pains in the legs from the age of ten), and chronic development of the condition, the osteochondrosis of the lumbar spine was contracted in childhood as a result of a metabolic disturbance (dystrophy) ... The existing inflammatory processes in the spine (epiduritis and arachnoiditis) could have appeared ... as a complication of an infectious disease that Mr Chember may have contracted in childhood, such as influenza, tonsillitis, pharyngitis, and so on.", "These spinal conditions were also of a chronic and continued nature ... which is confirmed by the presence of cicatrical-commissural epiduritis and commissural arachnoiditis, and complaints of pains in the legs from the beginning of military service and before conscription. No objective confirmation that these conditions had been caused by trauma could be found in the available medical records or case-file materials. Mr Chember’s diseases were chronic and continuing and could have been caused by hereditary factors (according to the materials, his uncle suffered from a similar condition) ...” II. RELEVANT DOMESTIC LAW A. Civil Code 35.", "The general provisions on liability for damage read as follows: Article 1064 – General grounds giving rise to liability for damage “1. Damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage ... 2. The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his own ...” B. The Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (in force until 1 July 2002) 36. Complaints about the acts or decisions of a prosecutor may be lodged with a higher prosecutor (Article 220).", "Within three days of receipt of a complaint, the prosecutor must examine it and give a response to the complainant (Article 219). C. The Code of Criminal Procedure of the Russian Federation (in force after 1 July 2002) 37. If criminal proceedings are discontinued at the stage of the investigation, a victim or a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 38.", "The applicant complained that he had been subjected to inhuman and degrading treatment and punishment while in military service in breach 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 39. The Court observes that the ill-treatment in military unit no. 5464 in Kislovodsk allegedly took place in January 2001 and that the applicant did not ask for any inquiry to be carried out into these events at a later date. Since the application was lodged on 3 February 2003, the complaint concerning these events has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 40.", "The Court considers that the complaint concerning the alleged ill-treatment in military unit no. 6794 (3025) in Astrakhan is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Alleged ill-treatment during military service (a) The parties’ submissions 41. The Government denied that the applicant had been subjected to any form of ill-treatment in military unit no. 6794. Referring to the experts’ report of 10 March 2005 (see paragraph 34 above), they maintained that the applicant’s disability had been caused by a chronic condition which had existed before the conscription but had been diagnosed for the first time during military service.", "As regards the text of the certificate of 5 June 2001, the Government clarified that the description of a condition as “acquired during military service” also included situations, such as the applicant’s, where a condition existed before the conscription but its aggravation or complication during military service rendered the serviceman unfit for further service. The applicant had not told the medical officers on the draft commission about his knee condition. 42. The applicant submitted that in the specific context of military service the Government had both positive and negative obligations under Article 3 of the Convention. The positive obligation consisted in ascertaining that individuals drafted for military service are sufficiently healthy and fit for such service.", "The superficial medical examination carried out by the drafting commission in his case had proved to be insufficient to diagnose the condition which had led to his discharge and disability. Furthermore, as regards the negative obligation under Article 3, the applicant pointed out that military servicemen were hierarchically subordinate to their commanders and under the full control of the State authorities. His superiors had forced him to do physical exercise for which there was no military requirement, namely 350 knee bends. That excessive exercise had brought about an aggravation of his condition and disability. His account of the facts had been corroborated by the testimony of his fellow serviceman P. before the domestic courts.", "(b) Establishment of the facts 43. The Court observes that the facts relating to the applicant’s service in military unit no. 6794 in Astrakhan are not in dispute between the parties. 44. The applicant arrived at that military unit in February 2001.", "It transpires from his own submissions, as well as from the statements by his commanders and fellow servicemen, that he suffered from pains in his knees. On account of his knee condition, Lieutenant D., his immediate commander, exempted him from physical exercise and squad drill (see the written depositions by Lieutenant D. and other soldiers in paragraphs 20 and 22 above). It also appears that on several occasions the applicant was treated for the knee condition in the medical unit. 45. In March 2001 Junior Sergeant Ch., in the presence of Lieutenant D., ordered the applicant, among others, to do 350 knee bends as punishment for a failure to clean the barracks.", "The applicant collapsed during the exercise and was taken to a hospital for emergency treatment. Private P. who had been ordered to do the same, confirmed these events before the Town Court (see paragraph 29 above). 46. Following treatment in a civilian hospital, the applicant was diagnosed with a closed injury of the spine, discharged from military service on medical grounds and designated as having a second-degree disability. (c) Assessment of the severity of ill-treatment 47.", "The Court’s task is to establish whether the facts, as established above, disclose a violation of the guarantee against torture, inhuman and degrading treatment or punishment under Article 3 of the Convention. 48. The Court reiterates 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, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "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, 18 January 1978, § 162, Series A no. 25). 49. The Court has consistently stressed that 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 (see Kudła v. Poland [GC], no.", "30210/96, §§ 92-94, ECHR 2000-XI). Mandatory military service often involves such an element, as do measures depriving a person of his liberty. However, many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill-treatment when they occur in the armed forces, provided that they contribute to the specific mission of the armed forces in that they form part of, for example, training for battlefield conditions (see, mutatis mutandis, Engel and Others v. the Netherlands, 8 June 1976, § 57, Series A no. 22). 50.", "Nevertheless, the State has a duty to ensure that a person performs military service in conditions which are compatible with respect for his human dignity, that the procedures and methods of military training do not subject him to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline and that, given the practical demands of such service, his health and well-being are adequately secured by, among other things, providing him with the medical assistance he requires (see, mutatis mutandis, Kılınç and Others v. Turkey, no. 40145/98, § 41, 7 June 2005, and Álvarez Ramón v. Spain (dec.), no. 51192/99, 3 July 2001). The State has a primary duty to put in place rules geared to the level of risk to life or limb that may result not only from the nature of military activities and operations, but also from the human element that comes into play when a State decides to call up ordinary citizens to perform military service. Such rules must require the adoption of practical measures aimed at the effective protection of conscripts against the dangers inherent in military life and appropriate procedures for identifying shortcomings and errors liable to be committed in that regard by those in charge at different levels (see Kılınç and Others, cited above, § 41 in fine).", "51. According to the Court’s constant approach, treatment is considered “inhuman” if it is premeditated, applied for hours at a stretch and causes either actual bodily injury or intense physical or mental suffering (see, as a classic authority, Denmark, Norway, Sweden and the Netherlands v. Greece (the “Greek case”), nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission’s report of 5 November 1969, Yearbook 12, and also Kudła, cited above, § 92). The question whether the purpose of the treatment was to make the victim suffer 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 the Greek case, cited above, and also Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III).", "52. Even though challenging physical exercise may be part and parcel of military discipline, the Court reiterates that, to remain compatible with Article 3 of the Convention, it should not go beyond the level above which it would put in danger the health and well-being of conscripts or undermine their human dignity. In the present case the applicant – who was known to have painful knees – was ordered to do 350 knee bends which appears to be a particularly demanding workout. However, the Court sees no need to determine in abstracto whether that particular order was compatible with the requirements of Article 3, for it will have regard to the following elements of the case which it considers crucial for its assessment of compliance with Article 3. 53.", "The applicant was ordered to do knee bends as punishment for insufficiently thorough cleaning of the barracks. The order emanated from his acting commander Junior Sergeant Ch. It was tacitly endorsed by the higher commander Lieutenant D. who was present at the scene but did not contradict the order. It follows that the treatment complained of was applied on the applicant deliberately. 54.", "It is obvious from the statements collected in the framework of the domestic inquiry that both Lieutenant D. and Junior Sergeant Ch. were well aware of the applicant’s knee-related health problems from the moment of his arrival at the military base (see paragraphs 20 and 21 above). As noted above, Lieutenant D. had previously granted the applicant exemption on health grounds from physical exercise and squad drill. Notwithstanding their awareness of the applicant’s specific health problems, the commanders forced the applicant to do precisely the kind of exercise that put great strain on his knees and spine. In these circumstances, the Court cannot but find that the treatment was both deliberate and calculated to cause the applicant physical suffering.", "The severity of the punishment cannot obviously be accounted for by any requirements of military service or discipline or said to have contributed to the specific mission of the armed forces (compare Engel, cited above, § 57). 55. As regards the consequences of the punishment at issue, the Court notes that the applicant collapsed on the spot and lost control of his legs. Despite the emergency treatment he received first in a military and then in a civilian hospital, the injury resulted in long-term damage to his health. The applicant was discharged from military service and assigned the second category of disability.", "56. Assessing the above elements as a whole, the Court finds that in the present case the applicant was subjected to forced physical exercise to the point of physical collapse. This punishment was applied deliberately by his commanders, in full knowledge of the applicant’s specific health problems and without there being any military necessity which might have called for that course of action. The Court is of the opinion that in these circumstances that punishment caused the applicant intense physical suffering and went beyond the threshold of a minimum level of severity. 57.", "Having regard to the above considerations, the Court finds that the applicant was subjected to inhuman punishment in breach of Article 3 of the Convention. There has therefore been a violation of that provision under its substantive limb. 2. Alleged inadequacy of the investigation 58. The Government submitted that the investigation into the applicant’s complaints had been effective.", "Although the military prosecutor of the Caspian Fleet had not given a response to the applicant’s mother’s complaint, such a response was no longer needed after the Shakhty Town Court had issued its judgment on 9 April 2003. 59. The applicant pointed out that no criminal case had been instituted on his complaint. The statements obtained from servicemen had therefore no evidential value because the servicemen had not been formally heard as witnesses or warned about liability for perjury. The investigator had not examined the applicant, his fellow serviceman P. or other soldiers who had been eyewitnesses to the ill-treatment.", "His mother had never received a response to her complaint to the military prosecutor of the Caspian Fleet. 60. In the present case the Court has found above that the applicant collapsed following strenuous exercise ordered by his immediate superior Junior Sergeant Ch. with the tacit approval of Lieutenant D. as punishment for his failure to clean the barracks. Irrespective of whether that sudden deterioration of the applicant’s health was due to a trauma or a complication of a previously undiagnosed condition, the gravity of the injury gave rise to an “arguable claim” of ill-treatment.", "61. The Court reiterates 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 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 into 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 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 of Judgments and Decisions 1998‑VIII) 62. The Court notes at the outset that the investigation cannot be described as sufficiently thorough. The investigator did not commission a medical examination of the applicant or, for that matter, refer to any medical documents he could have obtained.", "The only named witnesses mentioned in the investigator’s decision were Lieutenant D. and Junior Sergeant Ch., that is, the applicant’s commanders against whom his complaint had been directed. It is impossible to establish the relevance of statements of other witnesses who had not been identified in the decision by their names or rank. Even their number is uncertain: the Government submitted three statements by other servicemen, whereas the investigator’s decision referred to “all the servicemen of the seventh company”, that is, a hundred individuals. Furthermore, it transpires that the investigator had not questioned those soldiers who could have been eyewitnesses to the alleged ill-treatment, such as the applicant’s fellow serviceman P. 63. The Court further finds that the applicant’s right to participate effectively in the investigation was not secured.", "The investigator did not hear him in person; the applicant’s version of events was not even mentioned in his decision. Since no criminal proceedings were instituted, the applicant was not able to claim formally the status of a victim or exercise the procedural rights attaching to that status. 64. Finally, the Court considers that the supervising prosecutor’s failure to give a response on the substance of the complaint addressed to him was a breach of the rules of criminal procedure which eroded the adequacy of the investigation as a whole. Although such an appeal was not an “effective remedy” within the meaning of Article 35 of the Convention because it did not give the person employing it a personal right to the exercise by the State of its supervisory powers (see, for example, Belevitskiy v. Russia, no.", "72967/01, § 59, 1 March 2007), in the Russian legal system it was an important procedural guarantee allowing the supervising prosecutor to redress the shortcomings in the initial inquiry carried out by subordinate investigators. The person lodging such an appeal could not take part in its examination but he was nevertheless entitled to obtain information on the decision taken on the appeal (see paragraph 36 above). The Government did not deny that the military prosecutor Colonel M. had not examined the merits of the applicant’s mother’s complaint relating to the decision not to institute criminal proceedings. They claimed that the response had no longer been necessary or required, following the Town Court’s judgment in the proceedings for damages. To the Court, the fallaciousness of that argument is evident.", "First, the Town Court accepted the findings contained in the investigator’s decision without any independent review of the matter, and later the supervising prosecutor declined to review the decision because it had already been endorsed by the Town Court. The applicant thus found himself in a vicious circle of shifted responsibility where no domestic authority was capable of reviewing and remedying the shortcomings of the inquiry carried out by the investigator Captain S. 65. Having regard to the above failings of the Russian authorities, the Court finds that the inquiry carried out into the applicant’s allegations of ill-treatment was not thorough, adequate or efficient. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 66. The Court further decided to examine proprio motu whether in the circumstances of the case the applicant had an effective remedy in civil law for his complaint of ill-treatment during military service, as required by 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.” A. Admissibility 67. 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 68. The Government claimed that there had been no violation of the applicant’s rights under Article 13 of the Convention. 69. The applicant submitted that in the Russian legal system there exists the possibility of seeking institution of criminal proceedings or lodging a civil claim for damages.", "He had made use of the latter remedy, which had proved to be ineffective because he had been required to prove the fault of State officials. Such a burden of proof is impossible to satisfy in the absence of an effective criminal investigation. 70. The Court reiterates that 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 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. Thus, in cases of suspicious death or ill-treatment, given the fundamental importance of the rights protected by Articles 2 and 3, 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 acts of ill-treatment (see Cobzaru v. Romania, no. 48254/99, §§ 80-82, 26 July 2007; Anguelova v. Bulgaria, no. 38361/97, §§ 161-62, ECHR 2002‑IV; and Süheyla Aydın v. Turkey, no.", "25660/94, § 208, 24 May 2005). 71. The Court has already found that the State authorities were responsible for the inhuman punishment inflicted on the applicant by his commanders in March 2001. The applicant therefore had an “arguable claim” for the purposes of Article 13 and the authorities were under an obligation to carry out an effective investigation into his allegations against the military officials. For the reasons set out above no effective criminal investigation can be considered to have been carried out in accordance with Article 13, the requirements of which are broader than the obligation to investigate imposed by Article 3 (see Cobzaru, cited above, § 83, and, mutatis mutandis, Buldan v. Turkey, no.", "28298/95, § 105, 20 April 2004, and Tanrıkulu v. Turkey [GC], no. 23763/94, § 119, ECHR 1999-IV). Consequently, any other remedy available to the applicant, including a claim for damages, had limited chances of success and could be considered as theoretical and illusory, and not capable of affording redress to the applicant. While in theory the civil courts have the capacity to make an independent assessment of fact, in practice the weight attached to a preceding criminal inquiry is so important that even the most convincing evidence to the contrary furnished by a plaintiff would be discarded and such a remedy would prove to be only theoretical and illusory (see Menesheva v. Russia, no. 59261/00, § 76, ECHR 2006-III, and Corsacov v. Moldova, no.", "18944/02, § 82, 4 April 2006). This is illustrated by the fact that the Town and Regional Courts in the instant case dismissed the applicant’s claim for damages by reference to the lack of any finding of guilt in the investigator’s decision (see paragraphs 29 and 31 above). The courts simply endorsed the investigator’s opinion that the applicant’s claim was unmeritorious, without assessing the facts of the case. 72. The Court further notes the peculiar feature of Russian criminal law which made the possibility of lodging a civil claim for damages against the putative tortfeasor conditional on the grounds on which the criminal proceedings were discontinued.", "A decision to discontinue proceedings on the ground that the alleged offence was not committed legally bars access to a civil court on the basis of a claim for damages arising out of the same event (see paragraph 37 above). By operation of those legal provisions, the decision not to institute criminal proceedings against the applicant’s commanders on the ground that no offence had been committed (see paragraph 23 above) debarred the applicant from suing the military staff for damages in a civil court. 73. The Court therefore finds that the applicant has been denied an effective remedy in respect of his complaint of ill-treatment during military service. Consequently, there has been a violation of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. 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.” 75. The Court points out that 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”. 76.", "On 12 April 2005 the Court invited the applicant to submit a claim for just satisfaction by 31 May 2005. He did not submit any such claim. 77. In such circumstances the Court would usually make no award. In the present case, however, the Court has found a violation of the applicant’s right not to be subjected to inhuman punishment.", "Since this right is of absolute character, the Court finds it exceptionally possible to award the applicant 10,000 euros in respect of non-pecuniary damage (compare Igor Ivanov v. Russia, no. 34000/02, § 50, 7 June 2007, and Mayzit v. Russia, no. 63378/00, §§ 87-88, 20 January 2005), plus any tax that may be chargeable. 78. 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 concerning the ill-treatment in military unit no. 6794 (3025) in Astrakhan and the absence of a civil-law remedy admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the inhuman treatment of the applicant in military unit no. 6794 (3025) in Astrakhan; 3.", "Holds that there has been a violation of Article 3 of the Convention on account of an ineffective investigation into the ill-treatment to which the applicant was subjected; 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 from 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, to be converted into Russian roubles at the rate applicable at the date of the 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 3 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF ERBEY v. TURKEY (Application no. 29188/02) JUDGMENT (on the merits) STRASBOURG 10 March 2009 FINAL 14/09/2009 This judgment may be subject t to editorial revision. In the case of Erbey 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 2 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 29188/02) 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 Cemil Erbey (“the applicant”), on 23 May 2002.", "2. The applicant was represented by Mr E. Şahin, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3. On 12 June 2007 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). 4. By a letter dated 28 November 2008 the applicant's representative informed the Court that the applicant had died on 21 August 2008 and that his heirs, Ms Hatice Erbey, Mr Mehmet Erbey and Ms Emine Sönmez (Erbey), wished to pursue his application. The Government had no comments on this request. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1926 and lived in İzmir. 6. On 23 February 1998 the applicant bought a plot of land (plot no. 536 in the Ulucak village, in the Menemen district of İzmir) from the heirs of V.G.", "7. On 13 July 1999 the Ministry of Agriculture (“the Ministry”) brought an action before the Menemen Civil Court, requesting the annulment of the title deed of the applicant to plot no. 536 and its registration in the Treasury's name, claiming that it had had actual possession of this land since 1966. The Ministry primarily relied on Article 38 of the Expropriation Act (Law no. 2942).", "The Ministry also alleged that an expropriation had been effected in relation to the said land in 1966 and that V.G. had received compensation for it. However, the land register had not been amended due to an administrative error. 8. On 20 December 2000 the Menemen Civil Court accepted the request of the Ministry of Agriculture and ordered that the land be registered in favour of the Treasury in accordance with Article 38 of Law no.", "2942. In its judgment, the first-instance court noted that the Ministry had been in actual possession of this land for more than twenty years and that the applicant had been aware of this fact when he had bought the plot. 9. The applicant appealed. 10.", "On 17 September 2001 the Court of Cassation upheld the judgment of 20 December 2000. 11. The applicant requested rectification of the decision of 17 September 2001. 12. On 24 December 2001 the Court of Cassation dismissed the applicant's request.", "13. On 4 January 2002 the Court of Cassation's decision was served on the applicant. 14. On 10 April 2003 the Constitutional Court annulled Article 38 of Law no. 2942.", "II. RELEVANT DOMESTIC LAW 15. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006). THE LAW I. LOCUS STANDI 16.", "The Court notes that the applicant died on 21 August 2008 and that his heirs, namely Ms Hatice Erbey, Mr Mehmet Erbey and Ms Emine Sönmez (Erbey), expressed their wish to pursue the application. The Government did not contest the applicant's heirs' standing before the Court. Consequently, the Court holds that these heirs have standing to continue the present proceedings in the applicant's stead. However, Mr Cemil Erbey will continue to be referred to as the applicant. II.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 17. The applicant complained that the deprivation of his land without compensation amounted to a violation of Article 1 of Protocol No. 1. 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 20. The Government maintained that the impugned plot had been expropriated in 1966 and compensation had been paid to V.G., the owner of the land at the material time. In view of this expropriation, which had been effected long before its purchase by the applicant, the Government argued that the applicant had never had a legitimate property right to the land in question. To support their allegations, the Government submitted a document dated 13 September 1966, which notified V.G.", "through the notary public of the expropriation decision and further informed him that the relevant compensation would be deposited at a public bank. 21. The applicant contested these submissions. He argued that the expropriation of the plot had never been completed as alleged by the Government as the expropriation compensation had never been deposited with the bank and hence the title deed register had never been amended in favour of the Treasury. 22.", "The Court observes in the first place that despite its allegations concerning the expropriation of the disputed plot, the Government cannot produce any evidence to prove that any payment was made in relation to this expropriation to finalise it. In these circumstances, and bearing in mind the ownership status at the title deed register prior to the judgment of the Menemen Civil Court on 20 December 2000, the Court believes that there is not enough evidence to conclude that the impugned land was effectively expropriated by the Ministry at any point. 23. Secondly, the Court observes that regardless of whether any expropriation was effected in 1966 or not, the Menemen Civil Court relied on no reasons other than section 38 of Law no. 2942 in ordering the registration of the land in favour of the Treasury.", "In these circumstances, the Court cannot but conclude that the applicant was the legal owner of the disputed land up until the judgment of the Menemen Civil Court and that he was deprived of his land within the meaning of Article 1 of Protocol No. 1, pursuant only to section 38 of Law no. 2942. 24. In this connection, the Court notes that according to section 38 of Law no.", "2942, applications for compensation for deprivation of property had to be made within twenty years of the date the property was occupied. By applying this provision retrospectively, the national courts deprived the applicant of any possibility of obtaining compensation for the annulment of his title deed. The Court observes at this point that, since the application was lodged with the Court, section 38 of Law no. 2942 has been annulled by the Constitutional Court as being unconstitutional. In its judgment dated 10 April 2003, the Constitutional Court held that limiting an individual's right to property, by maintaining that the right to bring an action against the de facto occupation of the disputed property lapses, and requiring that the property must be transferred to the authorities twenty years after that occupation, was contrary to the Constitution.", "Moreover, referring to the case-law of the Court, it held that depriving individuals arbitrarily of their right to property and their right to compensation was contrary to the principle of the rule of law. 25. The Court takes into consideration the judgment of the Constitutional Court and acknowledges its reasoning. Nevertheless, it notes that the judgment of the Constitutional Court did not have retroactive effect and therefore did not provide the applicant with a procedure capable of redressing the effects of a possible violation of the Convention. Consequently, it considers that the matter has not been resolved within the meaning of Article 37 § 1 (b) of the Convention (see Börekçioğulları (Çökmez) and Others, cited above, § 41).", "26. The Court considers that the application of Article 38 of Law no. 2942 to the applicant's case had the consequence of depriving him of the possibility to obtain damages for the annulment of his title. Although such an interference was founded on legislation that was valid at the material time, it could only be described as arbitrary, in so far as no compensation procedure capable of maintaining the fair balance which had to be struck between the demands of the general interest of the community and the requirement of the protection of the individual's fundamental rights had been put in place (see Akıllı v. Turkey, no. 71868/01, § 33, 11 April 2006).", "27. Accordingly, the Court concludes that there has been a violation of Article 1 of Protocol No. 1. 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 6,500,000 euros (EUR) in respect of pecuniary damage. He did not submit any documents in support of his claim. 30.", "The Government contested this claim. 31. In the circumstances of the case, the Court considers that the question of the application of Article 41 is not ready for decision and must be reserved, due regard being had to the possibility of an agreement between the respondent State and the applicant's heirs. B. Costs and expenses 32.", "The applicant did not claim any costs and expenses. Accordingly, no award is made under this head. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that the applicant's heirs, namely Ms Hatice Erbey, Mr Mehmet Erbey and Ms Emine Sönmez (Erbey), have standing to continue the present proceedings in the applicant's stead; 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 the question of the application of Article 41 of the Convention is not ready for decision; accordingly, (a) reserves the said question; (b) invites the Government and the applicant's heirs to submit, within six months from the date of notification of the judgment, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on 10 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident" ]

[ "SECOND SECTION CASE OF ÖMER GÜNER v. TURKEY (Application no. 28338/07) JUDGMENT STRASBOURG 4 September 2018 FINAL 04/12/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ömer Güner v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Ledi Bianku,Işıl Karakaş,Nebojša Vučinić,Valeriu Griţco,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 3 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28338/07) 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 Ömer Güner (“the applicant”), on 26 June 2007. 2. The applicant was represented by Mr Ç. Bingölbalı, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3.", "The applicant alleged, in particular, that he had been denied a fair trial in that he had been deprived of legal assistance and convicted on the basis of evidence taken under duress and in the absence of a lawyer, including his own statements given during the preliminary investigation stage. He further alleged that the fact that part of his conviction had allegedly rested on the periodicals found in his possession had violated his rights under Article 10 of the Convention. 4. On 28 May 2014 the Government were informed of the above complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5.", "On 17 February 2017 the Vice-President of the Second Section invited the Government to submit further observations, if they so wished, following the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016). 6. The Government objected to the examination of the application by a Committee. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1969 and lives in Aydın. 8. At the material time, the applicant was the manager of a hotel in Kuşadası. 9.", "On 10 July 2002 at 4.50 a.m. the applicant was arrested by police officers from the counter-terrorism unit of the İzmir Security Directorate in connection with an operation conducted against an illegal organisation, namely the Bolşevik Parti – Kuzey Kürdistan / Turkiye (Bolshevik Party –North Kurdistan/Turkey). According to the arrest report, which was signed by the applicant, the police found eighty-eight left-wing books and periodicals in his room. Those books were seized by the police with a view to ascertaining whether they were illegal. 10. On 11 July 2002 at approximately 2.15 a.m. the applicant took part in an identity parade in the absence of a lawyer.", "The applicant identified another co-accused, a certain M.B., and stated that he had allowed him to stay in his hotel free of charge without registering him in the hotel’s guestbook. 11. On the same day at 1.10 p.m. the applicant was interviewed by the police in the absence of a lawyer. The applicant was asked, inter alia, what his ideology was, for how long he had been reading the periodical Çağrı that had been found and seized in his place of work, and which other meetings or demonstrations – held within a democratic platform – he had participated in. The applicant explained that he regularly bought the periodical Çağrı from a newspaper kiosk and enjoyed reading it.", "This periodical, which was sold legally, was supportive of leftist ideas. He also stated that he was friends with Mehmet Desde (who was the applicant in Desde v. Turkey, no. 23909/03, 1 February 2011) and E.Y., whom he had met when he had been in Germany. The applicant had allowed them to stay in his hotel and use his car when they had needed a vehicle. The applicant admitted that he had expressed his wish to be involved in the activities of the Bolshevik Party, but Mehmet Desde, who had connections in the organisation, had never replied to him.", "12. On 13 July 2002 the applicant was questioned by the public prosecutor again in the absence of a lawyer. He admitted to having lent his car to Mehmet Desde and to having provided him with accommodation in his hotel. However, he denied any affiliation with the illegal organisation. Following his questioning, the applicant was released.", "13. Although Mehmet Desde used his right to remain silent before the police, he made statements before the public prosecutor in the absence of a lawyer, where he stated that he had stayed in the applicant’s hotel for two days and had borrowed the applicant’s car. 14. On 6 September 2002 the public prosecutor at the İzmir State Security Court lodged a bill of indictment against the applicant together with nine other co-accused. The prosecutor charged the applicant with aiding and abetting an illegal organisation, Bolşevik Parti – Kuzey Kürdistan/Türkiye –, under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act as in force at the material time.", "15. On 24 October 2002, at the first hearing in the case, the applicant, who was represented by a lawyer, denied the charges against him. He maintained that he had not been involved in any illegal activity. He further stated that Mehmet Desde, E.Y. and M.B.", "had come to his hotel as guests and that they had not gathered with an ulterior motive. The applicant also stated that he had lent his car to Mehmet Desde and M.B. when they had told him that they wanted to drive to another coastal town. When asked about his statements before the police, the applicant denied them, alleging that they had been obtained through coercion and torture by the police as a result of which he had been pressured to sign his statement. At the end of that hearing, the trial court asked the applicant to make additional defence submissions given that his actions might be reclassified as assisting members of a terrorist organisation under section 7 (1) and (2) of Law no.", "3713. He reiterated his previous defence submissions. 16. At the hearing held on 24 July 2003, the applicant made his defence submissions in relation to the merits of the case and denied the allegations against him. He further stated that his only mistake had been not registering Mehmet Desde and M.B.", "in his hotel’s guestbook. At the same hearing the İzmir State Security Court convicted the applicant of aiding and abetting a terrorist organisation under section 7 (2) of Law no. 3713 as then in force and sentenced him to ten months’ imprisonment and a fine. Having regard, inter alia, to the statements of the applicant as well as of the other co-accused, the “written evidence” and the content of the case file as a whole, the trial court concluded that the applicant had committed the offence of aiding and abetting a terrorist organisation by allowing the other co-accused, namely Mehmet Desde, E.Y. and M.B., to stay in his hotel without registering them in his hotel’s guestbook and by lending his car to those people.", "Furthermore, the trial court listed the periodicals found in the applicant’s possession as evidence in the “written evidence” part of its judgment. 17. On 8 April 2004 the Court of Cassation quashed the judgment, holding that in rendering its judgment the first-instance court should have taken into account the recent amendments made to section 7 of Law no. 3713. 18.", "In the meantime, pursuant to Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the İzmir Assize Court. 19. On 12 October 2004 the İzmir Assize Court convicted the applicant once again under section 7 (2) of Law no.", "3713 as then in force and sentenced him to ten months’ imprisonment and a fine. Having regard, inter alia, to the statements of the applicant as well as of the other co-accused, the “written evidence” and the content of the case file as a whole, it held that the applicant had committed the offence of aiding and abetting a terrorist organisation by allowing the other co-accused, namely Mehmet Desde, E.Y. and M.B., to stay in his hotel without registering them in his hotel’s guestbook and by lending his car to those people. It listed the periodicals found in the applicant’s possession as evidence in the “written evidence” part of its judgment. 20.", "On 13 December 2004 the applicant appealed. 21. While the appeal proceedings were pending before the Court of Cassation, in 2005 the new Criminal Code of Criminal Procedure came into force. By a decision dated 10 November 2005, the Principal Public Prosecutor at the Court of Cassation sent the case file back to the first‑instance court and requested that the latter reconsider the case in the light of the amendments made to the Code of Criminal Procedure. The case was accordingly transferred back to the İzmir Assize Court.", "22. The public prosecutor before the İzmir Assize Court submitted his opinion on the merits of the case and requested the acquittal of the applicant and his co-accused on the grounds that the organisation which they had allegedly founded did not correspond to the definition of a terrorist organisation under section 7 (1) of Law no. 3713. Consequently, he considered that the applicant’s acts could not be characterised as aiding and abetting an illegal organisation under section 7 (2) of the same Law. 23.", "On 16 March 2006 the İzmir Assize Court convicted the applicant and sentenced him to ten months’ imprisonment and a fine under section 7(2) of Law no. 3713 as then in force. Having considered the structure, methods, purpose and activities of the said organisation, the court concluded that it could be categorised as a terrorist organisation, contrary to the submissions of the accused and the public prosecutor in charge of the investigation. It noted that even though the members of the organisation had not resorted to physical violence, they had used “psychological duress” (manevi cebir), such as issuing threats, in order to achieve their aims. The trial court considered that the aim of the organisation was to start an uprising with a view to replacing the democratic regime with a totalitarian Marxist and Leninist regime.", "Thus, the fact that the organisation in question had not resorted to violence was not considered problematic with regard to categorising it as a terrorist organisation. It went on to state that the periodicals Çağrı and Güney had been the legal media outlets of the organisation. The trial court further held that the applicant had admitted to the allegations in his statements to the police. Moreover, having regard, inter alia, to the statements of the applicant as well as of the other co-accused persons, the “written evidence” and the content of the case file as a whole, it held that the applicant had committed the offence of aiding and abetting a terrorist organisation by allowing the other co-accused persons, namely Mehmet Desde, E.Y. and M.B., to stay in his hotel without registering them in his hotel’s guestbook.", "Again, it listed the periodicals found in the applicant’s possession as evidence in the “written evidence” part of its judgment. 24. On 23 March 2006 the applicant appealed against the judgment. 25. On 5 October 2006 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, inter alia, that the objections of the lawyers concerning the use of police statements to convict the co-defendants should be rejected as irrelevant and unsubstantiated.", "However, the Principal Public Prosecutor also submitted that the Division should quash the judgment of the İzmir State Security Court on account of the legislative amendments to Law no. 3713. 26. On 25 December 2006 the Court of Cassation upheld the judgment of 16 March 2006 stating that the lawyers’ objections in respect of the applicant and two other co-defendants were irrelevant and unsubstantiated. The applicant maintains that he only became aware of the judgment in April 2007.", "There is nothing in the case file to indicate that the applicant became aware of the judgment on the date of delivery. II. RELEVANT DOMESTIC LAW 27. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, ECHR 2008).", "28. On 15 July 2003 Law no. 4928 repealed section 31 of Law no. 3842. The restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was thus lifted.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION 29. The applicant alleged that he had been denied legal assistance during the preliminary investigation stage. He further alleged that he had been convicted on the basis of statements taken under duress and in the absence of a lawyer, including his own statements given during the preliminary investigation stage. 30.", "The Court decides to examine the complaint under Article 6 §§ 1 and 3 (c) 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 ... 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; ...” 31. The Government contested the applicant’s claims. 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. 33. The applicant alleged that he had been deprived of legal assistance during the preliminary investigation stage and that his statements taken in the absence of a lawyer had been used by the trial court to convict him.", "The applicant further complained that Mehmet Desde’s statements allegedly taken under duress and in the absence of a lawyer had formed part of the evidence on which the court had based its judgment. 34. As concerns the applicant’s first contention, referring to the Court’s judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), the Government submitted that they were aware of the Court’s case-law under Article 6 § 3 (c) of the Convention. 35.", "As regards the applicant’s second contention, the Government maintained that in the absence of a medical report, it could not be proven beyond reasonable doubt that Mehmet Desde’s statements had been taken under duress. The Government further indicated that Mehmet Desde had not given any statement to the police and had exercised his right to remain silent. Moreover, Mehmet Desde had at no time throughout the proceedings made any statement directly targeting or accusing the applicant. That is why the domestic court also had not relied on Mehmet Desde’s statements when convicting the applicant. Lastly, the Government submitted that the applicant had not raised any objection to Mehmet Desde’s statements either during the proceedings before the trial court or in his appeal application.", "Accordingly, they invited the Court to either reject the applicant’s complaint or to hold that there had been no violation on that basis. 36. The Court notes at the outset that the applicant’s access to a lawyer was restricted by virtue of Law no. 3842 and was as such a systemic restriction applicable at the time of the applicant’s arrest (see Salduz, cited above, § 56). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant’s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant’s defence rights (ibid., § 58, and see Ibrahim and Others v. the United Kingdom ([GC], nos.", "50541/08 and 3 others, § 274, ECHR 2016). In that connection, the Court notes that in convicting him, the first-instance court relied on the applicant’s statements to the police. Moreover, it did not examine the admissibility of evidence at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see Bayram Koç v. Turkey, no. 38907/09, § 23, 5 September 2017).", "37. As concerns the use of evidence allegedly obtained under duress and in the absence of a lawyer, the Court notes that it has already found that it was unable to establish whether Mehmet Desde had indeed been subjected to ill-treatment during the custody period (see Desde v. Turkey, no. 23909/03, §§ 93-105 and 130, 1 February 2011). It therefore considers that the examination of this part of the application should be confined to the use by the trial court of Mehmet Desde’s statements made in the absence of a lawyer. 38.", "In that connection, while it is true that Mehmet Desde availed himself of his right to remain silent before the police, he gave a statement to the public prosecutor in the absence of a lawyer and stated that he had stayed in the applicant’s hotel for two days and had borrowed the applicant’s car. Considering that the trial court sentenced the applicant on the basis of “allowing [the] terrorist organisation’s members to stay in his hotel without registering them in the hotel’s guestbook” for the offence of aiding and abetting a terrorist organisation, the Court is unable to accept the Government’s view that Mehmet Desde had not made any statements incriminating the applicant. The Court further observes that the trial court admitted those statements to the case file without examining their admissibility. Thus, in the present case, it cannot be concluded that the applicant was not affected by the use of such evidence in securing his conviction. 39.", "As regards the Government’s argument that the applicant did not object to the use of Mehmet Desde’s statements, the Court reiterates its finding in Desde (cited above, § 130 and 132) that the domestic courts failed to give any response to Mehmet Desde’s repeated requests for the removal of his and the other co-accused’s statements taken in the absence of a lawyer. That being the case, the Court considers that the Government have failed to demonstrate how an objection of the same kind by the applicant would have had a different outcome in the same trial and in respect of the same type of evidence, specifically Mehmet Desde’s statements taken in the absence of a lawyer, which formed part of the evidence against the applicant. 40. Accordingly, the Court finds that the procedural safeguards provided for in Turkish law did not operate in the present case to prevent the use of the statements obtained in the absence of a lawyer. 41.", "The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 42. The applicant complained that his conviction, to the extent that it had been based on the legal books and periodicals found in his possession, had violated his right to freedom of expression. 43.", "The Government submitted that the sentences imposed on the applicant had had a legal basis, specifically section 7 (2) of Law no. 3713. The interference had pursued legitimate aims within the meaning of Article 10 § 2 of the Convention, namely the protection of national security, territorial integrity or public safety and the prevention of disorder and crime. According to the Government, the domestic courts referred to “the list of confiscated books and periodicals which were in the possession of the accused Ömer Güner”. Having regard to the particular circumstances of the case, they left the final assessment in respect of the necessity of the interference to the discretion of the Court.", "44. The Court considers that this complaint is admissible. However, having regard to the facts of the case and its finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention above, the Court considers that it has examined the main legal question raised in the present application. It concludes therefore that there is no need to give a separate ruling on the applicant’s complaint under Article 10 of the Convention (see, mutatis mutandis, Seyithan Demir v. Turkey, no. 25381/02, § 47, 28 July 2009).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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 46. The applicant claimed 4,000 euros (EUR) in respect of pecuniary damage, the amount being the value of his car that had been confiscated in the course of the criminal proceedings.", "He further claimed EUR 50,000 in respect of non-pecuniary damage, submitting that he had been forced to shut down his hotel as a result having been portrayed as a criminal by the press. 47. The Government contested those claims, submitting that they were excessive. 48. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "As for the non-pecuniary damage, the Court considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Salduz, cited above, § 72). It further considers that the finding of a violation constitutes sufficient just satisfaction (see Dvorski v. Croatia [GC], no. 25703/11, § 117, ECHR 2015) in respect of non-pecuniary damage. It therefore rejects the applicant’s claim. B.", "Costs and expenses 49. The applicant also claimed EUR 31 for translation costs incurred before the Court. In support of that claim, the applicant submitted an invoice for translation. 50. The Government pointed out that the applicant had failed to provide any documents in support of his claim under this heading.", "51. 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 claimed in full. C. Default interest 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 violation of Article 6 §§ 1 and 3 (c) of the Convention; 3. Holds that there is no need to examine the complaint under Article 10 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the 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 in accordance with Article 44 § 2 of the Convention, EUR 31 (thirty-one euros), plus any tax that may be chargeable to the applicant, 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; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıRobert Spano Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF WOJTAS-KALETA v. POLAND (Application no. 20436/02) JUDGMENT STRASBOURG 16 July 2009 FINAL 16/10/2009 This judgment may be subject to editorial revision. In the case of Wojtas-Kaleta 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,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 23 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 20436/02) 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 Helena Wojtas-Kaleta (“the applicant”), on 6 October 2001.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant alleged a breach of her right to freedom of expression guaranteed by Article 10 of the Convention as a result of a reprimand imposed on her by her employer, a public television company. 4.", "On 17 September 2007 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). 5. Third-party comments were received from the Helsinki Foundation for Human Rights, 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 FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1943 and lives in Wrocław. 7. The applicant was a journalist employed by Telewizja Polska Spółka Akcjna (TVP), the Polish public television company. On 1 April 1999 Gazeta Wyborcza, a national newspaper, published an article reporting that two classical music programmes had been taken off the air.", "The article cited well-known composers, critics and journalists who had expressed their concerns about the lack of support for classical music and about the fact that the quality of public television programmes was being negatively affected as a result of fierce competition from private broadcasters. The article also quoted an opinion which had been expressed by the applicant in an interview in her capacity as the President of the Polish Public Television Journalists’ Union (Syndykat Dziennikarzy Polskich Telewizji Polskiej). The relevant part of the article read as follows: “... Ms Kaletowa, the President of the Polish Public Television Journalists’ Union said: ‘We have received the decision very badly, especially as the new programme proposals are not concrete. Director K. stated that the changes were not aimed at getting rid of classical music but, on the contrary, at creating new possibilities for it. I take this statement at face value, although no steps have been taken so far which could confirm these good intentions’.” 8.", "The applicant also signed an open letter addressed by 34 representatives of cultural and artistic circles in Wrocław to the board of TVP. The letter stated that classical music was a common value and a pillar of national identity and that the lack of a stable and coherent policy with respect to the broadcasting of classical music constituted a threat to culture and to the amateur music movement. By way of example, the authors mentioned two music programmes which had been discontinued and replaced by “pseudo-musical kitsch”. The open letter read, inter alia: “Everybody involved in music is deeply concerned by the marginalisation of culture and music in our country and, in particular, in our region. Music is the heritage of the nation.", "It is also the universal language of art, spoken by citizens throughout the world. Music constitutes one of the pillars of our national identity and we must preserve and disseminate both the work of previous centuries and of modern times. Chopin, Szymanowski, Górecki, Lutosławski, Kilar or Penderecki are composers of whom we are proud. ... All these achievements are seriously jeopardised. There is a lack of money and no stable and coherent policy of protection and no systematic co-operation with the media.", "As regards regional television, despite the principles governing the public TV’s mission, concerts, magazines, cultural and music programmes, such as ‘MAK’, ‘TUBA’, ‘Meeting Classical Music’ are disappearing and air time is being polluted by violence and pseudo-musical kitsch. The NSZZ Solidarność Trade Union and the representatives of cultural and artistic circles ... protest against these measures.” 9. On 15 April 1999 the applicant was reprimanded in writing by her employer for failing to observe the company’s general regulation no. 14 § 2, which required her to protect her employer’s good name (see paragraph 18 below). The applicant argued in her appeal of 20 April 1999 to the Regional Director of TVP that when commenting on the employer’s decision she had been acting in her capacity as the president of a trade union.", "The employer stated in reply that the comments in question did not refer to matters which could fall within the trade union’s scrutiny. In addition, the open letter which the applicant had signed contained untrue and tendentiously presented information that was harmful to the company’s good name. The reprimand was to be kept in her records for a period of up to one year, depending on the applicant’s behaviour. 10. The applicant unsuccessfully objected to the reprimand.", "She argued that as a member of the trade union she had a right to criticise measures impairing the rights of employees. 11. On 13 May 1999 the applicant lodged a claim against TVP with the Wrocław District Court, requesting that the reprimand be withdrawn. She alleged that the reprimand had been an act of revenge by her employer for her trade-union activity and disagreed with the assessment made of her behaviour. 12.", "By a judgment of 9 January 2001 the Wrocław District Court dismissed her claim. The court agreed with the employer’s arguments that the issue of changes in television programming was not a matter on which the trade union could comment and that the applicant had failed to observe the obligation of loyalty imposed on her as an employee. The court found that the applicant was guilty of having behaved in an unlawful manner and that this was a necessary and sufficient prerequisite for the disciplinary measure imposed on her. 13. The applicant appealed, pleading a violation of the applicable provisions of the Trade Unions Act, read in conjunction with Article 54 of the Polish Constitution guaranteeing freedom of expression.", "She submitted, inter alia: “The lower court has breached [inter alia] Article 54 of the Constitution in that it accepted that the applicant, as the President of the Polish Public Television Journalists’ Trade Union, was not entitled to make comments to the press and to sign the open letter concerning the situation in its regional branch, despite the fact that she was acting in the employees’ interest, in compliance with her legal obligations and without harming the employer’s good name. [The letter] had a close connection with the programming changes which were to the detriment of the musical culture in Lower Silesia, but, first and foremost, also infringed the material and moral interests of the employees who could lose their jobs and broadcasting time.” 14. On 10 April 2001 the Wroclaw Regional Court upheld the contested judgment. It stated that the applicant’s comments had not been aimed at the protection of employees’ rights in connection with her function in the trade union but had taken the form of an assessment of the changes in programming policy. It concluded that the applicant had acted to the detriment of the employer and had thus breached her obligation of loyalty.", "Consequently, the employer had been entitled to impose the reprimand on her. II. RELEVANT DOMESTIC LAW 15. Article 54 of the Constitution provides: “1. The freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone.", "2. Preventive censorship of means of social communication and licensing of the press shall be prohibited.” 16. The rights and obligations of employees are governed by the Labour Code. Pursuant to Article 108 of the Code, a reprimand may be imposed on an employee for a failure to observe regulations concerning the organisation of work, work safety and hygiene regulations, fire-protection regulations or regulations governing working hours. Under Article 111, the nature of the breach concerned, the degree of the employee’s guilt and previous work record shall be taken into consideration.", "17. Section 21(1) of the Broadcasting Act of 29 December 1992 (ustawa o radiofonii i telewizji) reads: “Public radio and television shall carry out their public mission by providing, on terms laid down in this Act, the entire society and its individual groups with diversified programme services and other services in the area of information, journalism, culture, entertainment, education and sports which shall be pluralistic, impartial, well balanced, independent and innovative, and marked by high quality and integrity of broadcasting”. Section 21(3) of the Act provides: “Programme services of public radio and television should: (1) be guided by a sense of responsibility for the content of the message and by the need to protect the good reputation of public radio and television; (2) provide reliable information about the vast diversity of events and processes occurring in Poland and abroad; (3) encourage an unconstrained development of citizens’ views and the formation of public opinion; (4) enable citizens and their organisations to take part in public life by expressing diversified views and approaches as well as by exercising their right to social supervision and criticism; (5) assist the development of culture, science and education, with special emphasis on Polish intellectual and artistic achievements; (6) respect the Christian system of values, being guided by the universal principles of ethics; (7) strengthen family ties; (7a) promote healthy life-styles; (8) contribute to combating social pathologies.” 18. Under Regulation no. 14 of the TVP Employees Regulations the employee has a duty to uphold the company’s good name.", "19. Section 10(1) of the Press Act (Prawo prasowe) provides: “The journalist’s task is to serve the nation and the State. When carrying out this task a journalist should act in compliance with ethical standards and principles of social co-existence, within the limits set by law.” 20. Under section 10(2) of the Act a journalist who is also an employee is obliged to follow the broadcasting policy chosen by his or her employer, as set out in a statute or a regulation. III.", "RELEVANT NON-CONVENTION MATERIAL 21. Recommendation CM/Rec(2007)3 of the Council of Europe Committee of Ministers to member states on the remit of public service media in the information society, adopted on 31 January 2007, provides, inter alia: “Member states have the competence to define and assign a public service remit to one or more specific media organisations, in the public and/or private sector, maintaining the key elements underpinning the traditional public service remit, while adjusting it to new circumstances. This remit should be performed with the use of state-of-the-art technology appropriate for the purpose. These elements have been referred to on several occasions in Council of Europe documents, which have defined public service broadcasting as, amongst other things: a) a reference point for all members of the public, offering universal access; b) a factor for social cohesion and integration of all individuals, groups and communities; c) a source of impartial and independent information and comment, and of innovatory and varied content which complies with high ethical and quality standards; d) a forum for pluralistic public discussion and a means of promoting broader democratic participation of individuals; e) an active contributor to audiovisual creation and production and greater appreciation and dissemination of the diversity of national and European cultural heritage. (...)” 22.", "As a reference point for all members of the public, public service media “should offer news, information, educational, cultural, sports and entertainment programmes and content aimed at the various categories of the public and which, taken as a whole, constitute an added public value compared to those of other broadcasters and content providers”. 23. Its paragraph 14 further provides: “Public service media should play an important role in promoting broader democratic debate and participation, with the assistance, among other things, of new interactive technologies, offering the public greater involvement in the democratic process. Public service media should fulfil a vital role in educating active and responsible citizens, providing not only quality content but also a forum for public debate, open to diverse ideas and convictions in society, and a platform for disseminating democratic values.” 24. Paragraph 20 reads: “Public service media should stimulate creativity and reflect the diversity of cultural activities, through their cultural programmes, in fields such as music, arts and theatre, and they should, where appropriate, support cultural events and performances.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 25. The applicant complained that her right to freedom of expression as provided for in Article 10 of the Convention had been breached. This provision 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 26. The Government acknowledged that the applicant had exhausted relevant domestic remedies. 27.", "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 a.", "The applicant 28. The applicant submitted that her right to freedom of expression had been breached. As a journalist, she had had a right and an obligation to comment on matters of public interest. That obligation applied with all the more force to issues concerning her workplace, given that she had been employed by the public television broadcaster. Her objective before the domestic courts had not been limited to having the reprimand annulled.", "She had also wished to obtain protection of the journalists’ right to comment on matters of public interest and considered that the programming line of the public television broadcaster should indubitably be qualified as such. 29. The applicant emphasised that she appreciated that the exercise of freedom of expression was not unlimited. However, she argued that the relevant restrictions should not have been applied to her case which involved defence of the public interest, namely journalistic freedom, effective social communication and the public’s right of access to information. 30.", "She further submitted that the Polish legislation, in particular section 1 of the Press Act, guaranteed freedom of expression to journalists, including the right to express various forms of criticism. Journalists were the guarantors of the public’s right of access to information. In practice, the citizens’ right to freedom of information was made effective through journalists being able to enjoy their rights in the exercise of their profession. In the applicant’s case, the courts had curtailed her freedom of expression, as they had regarded her merely as an employee and had referred only to her obligations as an employee, while disregarding her professional obligations as a journalist. b.", "The Government 31. The Government submitted that the applicant, as an employee, had been bound to comply with the regulations applicable at her workplace, and in particular with regulation no. 14, which made it one of her essential duties to preserve the company’s good name. In the case examined by the domestic authorities, the applicant’s interests had had to be balanced against the interests of her employer. The fact that the applicant was a journalist and her employer a public broadcaster should be irrelevant to the Court’s assessment.", "32. The applicant’s comments questioning the direction of changes in television programmes had presented her employer in a bad light. They had been reported in a national high-circulation newspaper and had reached a wide range of readers. It was not without significance that she had made her comments to a medium that competed with her employer. Furthermore, the open letter she had subsequently signed contained even harsher criticism of the public television broadcaster because it suggested that it had departed from the public mission it was required to fulfil.", "33. The Government submitted that on 21 March 1999 the applicant had been formally authorised by the Executive Board of the Polish Journalists’ Union to “act on behalf of the Union in an open forum and in dealings with the competent authorities and bodies in order to present facts and circumstances [that had caused] contentious situations to arise in the Wrocław Regional Public Television, in particular [in respect] of changes in the programming which allegedly had [had] an adverse impact on the ... musical culture.” However, the comments made by the applicant had concerned issues which had no impact on the rights and obligations of the employees of the public television broadcaster. They could not therefore be construed as having been made in defence of their labour rights and in her capacity as a trade-union activist. The concern for the best interests of the employer was incumbent on all employees, including trade-union activists. 34.", "The Government submitted that the applicant had regarded her statements as being made in her capacity as a trade-union activist. However, in the event that the Court were to accept that for the assessment of the case the fact that she had been a journalist was also relevant, they argued as follows. They acknowledged that the applicant’s concern about the lack of classical music in television programmes could also be regarded as a matter of general concern as music was a part of national identity and heritage and the applicant’s comments concerned the broadcasting policy of a public broadcasting company. However, they emphasised that the applicant was first and foremost an employee. She had therefore been obliged to respect the broadcasting policy chosen by her employer, as stated in the statute or regulations.", "35. Moreover, before going public, she should have used internal channels within the company and tried to raise the issues which she had later addressed in her public statements. 2.The third party’s submissions 36. The intervener submitted that the right to freedom of speech in the workplace could legitimately be restricted, regard being had to the employer’s interests. An employee had a special duty towards its employer and therefore the exercise of his or her freedom of expression could be restricted.", "Such restriction was in general in compliance with the Convention, unless it infringed upon the principle of proportionality. 37. It argued that the scope of free speech in the workplace was broader for a trade-union activist than for an ordinary employee. That was necessitated by the special function of trade unions, namely the protection of the employees’ interests and rights. 38.", "It further argued that limits of freedom of speech at the workplace could be broader where a public employer was concerned. Such institutions should be subject to careful public scrutiny due to their public function or to the fact that they managed public property. Since TVP was a public broadcaster, it could not be treated as a typical private employer, although in strictly technical terms it was a joint stock company. Guarantees of the employee’s freedom of speech should be stronger in such public institutions. 39.", "TVP’s mission was defined by the Public Radio and Television Act (see paragraph 17 above). Certain parts of its broadcasting time had to be assigned to news and current-affairs programmes, to education, art and culture and to family, child and youth-related programmes. The public broadcaster was obliged to support culture, science and education as well as to engage in the debate on matters of public concern. The main goal of these provisions was to prevent the commercialisation of programming and policy dictated first and foremost by commercial considerations. It was common knowledge in Poland that TVP had become increasingly commercialised.", "That had undermined its public-service rationale. It had often been the case that it had defined its policies primarily by reference to business efficiency rather than to its mission. Although gradual commercialisation of the programmes of public broadcasters could be said to be unavoidable, the laws on public television and radio, taken together with the fact that public broadcasters derived benefits from mandatory licence fees paid by all users, required keeping standards compatible with their public mission. Hence, actions taken by employees in order to enforce compliance with that mission should be afforded particularly strong legal protection. 40.", "The intervener further emphasised that the employee’s duty of loyalty did not entail an absolute prohibition of criticism of the employer. It aimed essentially at protecting information relevant to its business efficiency. A private employer generally could discipline an employee as it saw fit within limits imposed by law and by the prohibition of discrimination. However, the circumstances under which public employers could discipline employees for the exercise of their right to freedom of expression were more restrictive. 3.", "The principles established by the Court’s case-law 41. The fundamental principles in this sphere are well established in the Court’s case-law and have been summed up as follows (see, among other authorities, Jersild v. Denmark, cited above, p. 23, § 31; Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998‑VI,; Sokołowski v. Poland, no. 75955/01, § 41, 29 March 2005; and Guja v. Moldova [GC], no. 14277/04, § 69, ECHR 2008‑...): “(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...” 42. The Court further reiterates that Article 10 applies also to the workplace and that civil servants also enjoy the right to freedom of expression (see, Vogt, Vogt v Germany, 26 September 1995, § 53, Series A no. 323; Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999-VII; Ahmed and Others v the United Kingdom, 2 September 1998, § 56, Reports 1998-VI; Fuentes Bobo v. Spain, no.", "39293/98, § 38, 29 February 2000; and Guja v. Moldova, cited above, § 52). 43. The Court observes that the present case bears a certain resemblance to the case of Fuentes Bobo v. Spain, referred to above, in which it found a violation of Article 10 in respect of a journalist who had publicly criticised the programming changes of a public television broadcaster. Likewise, in the present case, the applicant, a journalist, criticised publicly the conduct of her employer which was also a public, State-owned broadcasting company. It therefore raises a problem of how the limits of loyalty of journalists working for such companies should be delineated and, in consequence, what restrictions can be imposed on them in public debate.", "In this context, the Court is mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see Vogt v. Germany, cited above, § 53; Ahmed and Others v. the United Kingdom, cited above, § 55; and De Diego Nafría v. Spain, no. 46833/99, §37, 14 March 2002). 4. Application of those principles to the facts of the case 44. The Court notes that it was common ground between the parties that the imposition of the reprimand constituted an interference with the applicant’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "Furthermore, there was no dispute that the interference was prescribed by law and pursued a legitimate aim, namely the “protection of the reputation or rights of others” within the meaning of Article 10 § 2. The dispute in the case relates therefore solely to the question whether the interference was “necessary in a democratic society.” 45. Given that the applicant exercised her freedom of expression and that that freedom applies also in the workplace (see paragraph 43 above), the Court considers that it is not necessary to draw a distinction between the applicant’s role as an employee of a public television company, a trade-union activist and a journalist and to make a separate analysis of the scope of that freedom which she could legitimately enjoy in each of these roles. However, the Court is of the view that the applicant’s combined professional and trade-union roles must be taken into consideration for the purposes of examining whether the interference complained of was necessary in a democratic society. 46.", "Moreover, the Court, having regard to the role played by journalists in society and to their responsibilities to contribute to and encourage public debate, considers that the obligation of discretion and constraint cannot be said to apply with equal force to journalists, given that it is in the nature of their functions to impart information and ideas. The Court notes that the issues involved in the present case can be said to have been of public interest and concern. It reiterates 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 v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV) and considers that the programming policy of public media is a matter of such interest.", "47. Where a State decides to create a public broadcasting system, the domestic law and practice must guarantee that the system provides a pluralistic audiovisual service. It is a well-known fact that after the collapse of the Communist regime the mass media in Poland in the 1990s underwent massive and rapid changes, brought about essentially by the disappearance of the State’s monopoly on broadcasting. However, the legislature decided to maintain public television. As a result, it started to operate in the context of commercial competition with many new and private broadcasters which provoked a vigorous and ongoing public debate on its role in society and the obligations which its special status should entail.", "At the same time, under the applicable legislation the public television company was charged with a special mission including, among other things, assisting the development of culture, with special emphasis on Polish intellectual and artistic achievements (see paragraph 17 above). In the present case, the applicant argued, both in the interview which she gave for the purposes of the article published in Gazeta Wyborcza and in the subsequent open letter which she had co-signed, that the changes in the programme service of the public television company did not sit well with the role which public television should play in society. She referred to widely shared concerns that the quality of its music programmes was being negatively affected as a result of fierce competition with private broadcasters. In this connection, the Court notes the applicant’s argument that, as a journalist, she had a right and an obligation to comment on matters of public interest. In the Court’s view, in the particular context of the applicant’s case, her obligations of loyalty and constraint must be weighed against the public character of the broadcasting company she worked for.", "48. In that connection, the Court notes that the employer based the reprimand it issued to the applicant on a very wide interpretation of the employees’ obligation to protect its good name. It acted on the assumption that the mere fact that the applicant had participated in a public debate concerning its programming policy and had criticised it was sufficient to establish that she had been acting to her employer’s detriment, in breach of her obligations. 49. The courts, when examining the applicant’s request for that reprimand to be set aside, endorsed the employer’s conclusions.", "However, the Court observes that they took no note of the applicant’s argument that she had been acting in the public interest. They limited their analysis to a finding that her comments amounted to acting to the employer’s detriment. As a result, they did not examine whether and how the subject matter of the applicant’s comments and the context in which they had been made could have affected the permissible scope of her freedom of expression. Such an approach would have been compatible with the Convention standards (see, among many other authorities, Sokołowski v. Poland, no. 75955/01, judgment of 29 March 2005, § 47).", "50. Another factor relevant to the balancing exercise which the Court is required to carry out is the authenticity of the information disclosed to the public. It is open to the competent State authorities to adopt measures intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236, and Guja v. Moldova, cited above, § 75). However, in the present case it was not asserted by the employer or later established by the courts that the applicant’s comments had been devoid of any factual basis (compare and contrast De Diego Nafría v. Spain, no.", "46833/99, 14 March 2002, § 40, where the Court found no violation of Article 10 of the Convention relying, inter alia, on the fact that the applicant’s allegations lacked any factual basis). Moreover, not only the applicant’s statements relied on a sufficient factual basis, but also, in part, amounted to value judgments, the truth of which is not susceptible of proof (see, for instance, Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II; Sokołowski v. Poland, cited above, § 48). 51. It is also relevant to note that it has never been alleged that the applicant’s comments could reasonably be seen as a gratuitous personal attack on another, or that an intention to offend could be ascribed to her them.", "The Court notes that the tone of the impugned statements was measured and that she did not make any personal accusations against named members of the management (compare and contrast, De Diego Nafría v. Spain, cited above, §§ 35-36). Furthermore, it is also relevant that the applicant’s good faith was never challenged either by the employer or by the domestic authorities involved in the proceedings (see Guja v. Moldova, cited above, §§ 92–94, mutatis mutandis). 52. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the applicant’s professional obligations and responsibilities as a journalist and of the duties and responsibilities of employees towards their employers, and having weighed up the other different interests involved in the present case, the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression was not “necessary in a democratic society”. 53.", "Accordingly, there has been a violation of Article 10 of the Convention. III. 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.” 55. The applicant did not submit a claim for damages or for the reimbursement of legal costs.", "She submitted that she only aimed at obtaining the Court’s judgment on grounds of principle. Accordingly, the Court considers that there is no call to award her any sum on that account. 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.", "Done in English, and notified in writing on 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza RegistrarPresident" ]

[ "FIFTH SECTION CASE OF MIKHAYLOVA AND OTHERS v. UKRAINE (Application no. 16475/02) JUDGMENT STRASBOURG 15 June 2006 FINAL 23/10/2006 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 Mikhaylova and Others 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 22 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16475/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 16 Ukrainian nationals: Ms Zoya Petrovna Mikhaylova, Ms Anna Vasilyevna Didorchuk, Ms Klavdiya Grigoryevna Khodakova, Ms Tatyana Alekseyevna Bondarenko, Ms Yelena Mikhaylovna Vaskevich, Ms Anna Nikolayevna Shandurskaya, Ms Yelena Nikolayevna Khlusevich, Ms Galina Vasilyevna Savchenko, Mr Aleksandr Petrovich Gaydachuk, Mr Vladimir Vasilyevich Ostapenko, Mr Nikolay Nikolayevich Litvinov, Mr Nikolay Nikolayevich Vaypan, Mr Nikolay Ivanovich Starodubets, Ms Yelena Anatolyevna Zavina, Mr Tofik Kadyr Ogly Ibragimov, Ms Lyusya Ivanovna Ibragimova (“the applicants”) on 26 March 2002. 2. The applicants were represented by Mr Igor Petrovich Pogasiy.", "The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Z.Bortnovska, Mrs V.Lutkovska and Mr Y.Zaytsev. 3. On 24 October 2003 the Court decided to communicate 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 1 April 2006 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly constituted Fifth Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. Ms Zoya Petrovna Mikhaylova was born in 1944.", "Ms Anna Vasilyevna Didorchuk was born in 1955. Ms Klavdiya Grigoryevna Khodakova and Ms Galina Vasilyevna Savchenko were born in 1951. Ms Tatyana Alekseyevna Bondarenko was born in 1950. Ms Yelena Mikhaylovna Vaskevich was born in 1961. Ms Anna Nikolayevna Shandurskaya and Ms Yelena Nikolayevna Khlusevich were born in 1962.", "Mr Aleksandr Petrovich Gaydachuk was born in 1963. Mr Vladimir Vasilyevich Ostapenko was born in 1970. Mr Nikolay Nikolayevich Litvinov was born in 1976. Mr Nikolay Nikolayevich Vaypan was born in 1949. Mr Nikolay Ivanovich Starodubets was born in 1947.", "Ms Yelena Anatolyevna Zavina was born in 1964. Mr Tofik Kadyr Ogly Ibragimov was born in 1954. Ms Lyusya Ivanovna Ibragimova was born in 1958. All applicants reside in the city of Kirovograd, Ukraine. 6.", "In 2000-2001 the applicants instituted separate sets of proceedings in the Kirovskiy District Court of Kirovograd, seeking the recovery of salary arrears and other payments, from their former employer, the State-owned enterprise, Kirovogradskiy Lyvarnyi Zavod (“the KLZ”), or its subsidiary enterprises. Mr Ibragimov and Mrs Ibragimova filed also applications with the labour disputes commission of the KLZ to recover unpaid salary. 7. By a judgment of 27 June 2001, Ms Zoya Mikhaylova was awarded 4,684.81 Ukrainian hryvnas (UAH) in salary arrears from the KLZ. On 9 October 2001 the Court of Appeal of the Kirovograd Region upheld this judgment.", "The judgment remains unenforced. On 11 April 2002 the Kirovskiy District Court of Kirovograd rejected the applicant’s complaint against the Bailiffs’ Service for the non-enforcement of the judgment in her favour. 8. By a judgment of 11 July 2001, Ms Anna Didorchuk was awarded UAH 2,736 in salary arrears from the KLZ. The judgment remains unenforced.", "9. By a judgment of 4 April 2000, Ms Klavdiya Khodakova was awarded UAH 1,075.90 in salary arrears from the KLZ subsidiary enterprise “Lyvarne Vyrobnytstvo”. The judgment remains unenforced. 10. By a judgment of 7 September 2001, Ms Tatyana Bondarenko was awarded UAH 1,586.82 in salary arrears from the KLZ.", "In February 2003 the debt was partly (UAH 326) set off against the payment for communal charges. The rest of the judgment remains unenforced. 11. By a judgment of 7 September 2001, Ms Yelena Vaskevich was awarded UAH 1,242.07 in salary arrears and compensation for the payment delay from the KLZ. In February and April 2003 the debt was set off against the payment for communal charges.", "On 6 May 2003 the Bailiffs’ Service terminated the enforcement proceedings in view of the full enforcement of the judgment given in the applicant’s favour. 12. By a judgment of 20 June 2001, Ms Anna Shandurskaya was awarded UAH 1,324.98 in salary arrears from the KLZ. On 3 March 2004 the judgment was enforced. 13.", "By a judgment of 27 September 2001, Ms Yelena Khlusevich was awarded UAH 1,815.88 in salary arrears from the KLZ. The judgment remains unenforced. 14. By a judgment of 20 June 2001, Ms Galina Savchenko was awarded UAH 224.50 in salary arrears from the KLZ. The debtor enterprise maintained that in February 2003 the debt was set off against the payment for communal charges.", "The applicant challenges this statement. In June 2003 the Bailiffs’ Service returned the writ of enforcement to the applicant because of the lack of funds of the debtor enterprise. 15. By a judgment of 30 August 2001, Mr Aleksandr Gaydachuk was awarded UAH 809.74 in salary arrears from the KLZ. On 19 January 2004 the debt amount was transferred to the applicant by a postal order.", "16. By a judgment of 27 April 2001, Mr Vladimir Ostapenko was awarded UAH 100 and UAH 3,870.73 in salary arrears from the KLZ and from the KLZ subsidiary enterprise “Lyvarne vyrobnytstvo”, respectively. On 3 March 2004 the judgment was enforced. 17. By a judgment of 12 June 2001, Mr Nikolay Litvinov was awarded UAH 554.98 and UAH 493.25 in salary arrears from the KLZ and from the KLZ subsidiary enterprise “Pidrozdil okhorony “Strilets”, respectively.", "On 19 January 2004 the debt amount was transferred to the applicant by a postal order. 18. By a judgment of 18 April 2001, Mr Nikolay Vaypan was awarded UAH 144.85 and UAH 2,730.61 in salary arrears from the KLZ subsidiary enterprise “Promyslovets” and the KLZ subsidiary enterprise “Lyvarne vyrobnytstvo”, respectively. On 31 May 2001 the Court of Appeal of the Kirovograd Region upheld this judgment. In February 2003 the debt was partly set off (UAH 145) against the payment for communal charges.", "The rest of the judgment remains unenforced. 19. By a judgment of 15 May 2001, Mr Nikolay Starodubets was awarded UAH 1,786 in salary arrears from the KLZ subsidiary enterprise “Lyvarne vyrobnytstvo”. The judgment remains unenforced. 20.", "By a judgment of 15 May 2001, Ms Yelena Zavina was awarded UAH 793.68 in salary arrears from the KLZ subsidiary enterprise “Lyvarne vyrobnytstvo”. On 19 January 2004 the debt amount was transferred to the applicant by a postal order. 21. By a decision of 10 February 1998 the labour disputes commission awarded Mr Tofik Kadyr Ogly Ibragimov UAH 667.37 in salary arrears from the KLZ subsidiary enterprise “Lyvarne vyrobnytstvo”. By a judgment of 31 May 2001 he was awarded UAH 1,443 in salary arrears from the same enterprise.", "The decision and the judgment remain unenforced. 22. By a decision of 10 February 1998 the labour disputes commission awarded Ms Lyusya Ibragimova UAH 1,044 in salary arrears from the KLZ. By a judgment of 3 July 2001 she was awarded UAH 2,786.41 in salary arrears from the same enterprise. The decision and the judgment remain unenforced.", "23. In December 2002 the applicants instituted proceedings in the Kirovskiy District Court against the State Property Fund claiming compensation for material and moral damage inflicted by the non-enforcement of the judgments in their favour. On 29 May 2003 the court dismissed the applicants’ claims. On 23 October 2003 the Court of Appeal of the Kirovograd Region upheld this judgment. On 31 August 2005 the Supreme Court of Ukraine rejected the applicants’ cassation appeal.", "24. On 16 and 19 January 2004 Ms Mikhaylova, Ms Didorchuk, Ms Khodakova, Ms Bondarenko, Ms Khlusevich, Mr Vaypan, Mr Starodubets, Mr and Mrs Ibragimovy refused to receive the awarded amounts until the end of the examination of their case in the Supreme Court of Ukraine. The above amounts were transferred to the deposit account of the Bailiffs’ Service. II. RELEVANT DOMESTIC LAW 25.", "The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). THE LAW 26. The applicants complained about the State authorities’ failure to enforce the decisions of the labour disputes commission and the judgments of the Kirovskiy District Court in due time. They further complained about unfair hearings in their cases against State authorities following the non-enforcement of the judgments in their favour.", "The applicants finally complained that they were discriminated against because judgments adopted later in favour of other creditors had been enforced earlier than judgments in the applicants’ favour. The applicants invoked Articles 6 § 1, 13 and 14 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 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.” 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 ....” I. ADMISSIBILITY A. Non-enforcement of labour disputes commission decisions and court judgments 27. The Government raised objections regarding the applicants’ victim status and exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (cited above, §§ 23-33). The Court considers that the present objections must be rejected for the same reasons. 28.", "The Court concludes that the applicants’ complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the decisions of the labour disputes commission and the judgments of the Kirovskiy District Court raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this complaint inadmissible. For the same reasons, the applicants’ complaints under Article 13 of the Convention and Article 1 of Protocol No. 1 cannot be declared inadmissible. B.", "Other complaints 29. In so far as the applicants complained that they did not have a fair hearing contrary to Article 6 of the Convention, the Court notes that it is not called upon to examine alleged errors of facts and law committed by the domestic judicial authorities, insofar as no unfairness of the proceedings can be detected and the decisions reached cannot be considered arbitrary. Within the framework of the proceedings, the applicants were able to put forward all necessary arguments in defence of their interests, and the judicial authorities gave them due consideration. 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. 30.", "In so far as the applicants invoked Article 14 of the Convention, the Court notes that, to the extent that the applicants raised this issue before the domestic courts, their allegations are unsubstantiated and do not lay a basis for an arguable claim of a breach of this provision. 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. II. MERITS A. The applicants’ complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 31. In their observations, the Government contended that there had been no violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No. 1 (as in the cases of Romashov, cited above, § 37, and Sokur v. Ukraine, no. 29439/02, § 28, 26 April 2005). The Government maintained that the length of the enforcement proceedings in the applicants’ cases was reasonable and, moreover, had been caused by the critical financial situation of the debtor company and the Ukrainian economy in general.", "The Government further maintained that the Bailiffs’ Service performed all necessary actions and could not be blamed for the delay. The Government also insisted that the State could not be directly responsible for the debts of the State enterprise. 32. The applicants disagreed. 33.", "The Court notes that the decisions of the labour disputes commission and the judgments of the Kirovskiy District Court have remained unenforced for a considerable period of time. 34. 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, for instance, Romashov, cited above, §§ 39-46). 35.", "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. B. The applicants’ complaint under Article 13 of the Convention 36.", "The Government contended that the applicants had had effective channels of complaint on the same basis that they had argued that the applicants had not exhausted domestic remedies. Having rejected the latter argument above (at paragraph 27), the Court concludes that the applicants did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings (see Voytenko v. Ukraine, no. 18966/02, § 46-48, 29 June 2004). Accordingly, there has been a breach of this provision. III.", "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 the following amounts, including the judgment debts, in respect of pecuniary and non-pecuniary damage: - Ms Zoya Mykhaylova - UAH 33,370.69 (EUR 5,462.39); - Ms Anna Didorchuk - UAH 20,905.52 (EUR 3,421.99); - Ms Klavdiya Khodakova - UAH 21,758.31 (EUR 3,561.58); - Ms Tatyana Bondarenko - UAH 23,079.45 (EUR 3,777.83); - Ms Yelena Vaskevich - EUR 100,000; - Ms Anna Shandurskaya - UAH 21,232.42 (EUR 3,475.50); - Ms Yelena Khlusevich - UAH 26,669.00 (EUR 4,365.40); - Ms Galina Savchenko - UAH 19,980.46 (EUR 3,270.56); - Mr Aleksandr Gaydachuk - EUR 100,000; - Mr Vladimir Ostapenko - UAH 24,652.83 (EUR 4,035.38); - Mr Nikolay Litvinov - EUR 100,000; - Mr Nikolay Vaypan - UAH 21,866.89 (EUR 3,579.35); - Mr Nikolay Starodubets - UAH 22,639.05 (EUR 3,705.74); - Ms Yelena Zavina - EUR 100,000; - Mr Tofik Kadyr Ogly Ibragimov – UAH 23,871.85 (EUR 3,907.54); and - Ms Lyusya Ibragimova - UAH 26,760.11 (EUR 4,380.31). 39.", "The Government maintained that the applicants had not substantiated the amount claimed and submitted that the finding of a violation would constitute sufficient just satisfaction. 40. Insofar as Ms Mikhaylova, Ms Didorchuk, Ms Khodakova, Ms Bondarenko, Ms Khlusevich, Ms Savchenko, Mr Vaypan, Mr Starodubets, Mr and Mrs Ibragimovy claimed the amount awarded to them by the judgments at issue, the Court considers that the Government should pay them the outstanding debt in partial settlement of their pecuniary damage. As to the remainder of the applicants’ just satisfaction claims, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant the following amounts in respect of further pecuniary and non-pecuniary damage: - Ms Zoya Mykhaylova - EUR 600; - Ms Anna Didorchuk - EUR 900; - Ms Klavdiya Khodakova - EUR 1,800; - Ms Tatyana Bondarenko - EUR 600; - Ms Yelena Vaskevich - 400 EUR; - Ms Anna Shandurskaya - EUR 900; - Ms Yelena Khlusevich - EUR 600; - Ms Galina Savchenko - EUR 400; - Mr Aleksandr Gaydachuk - EUR 600; - Mr Vladimir Ostapenko - EUR 900; - Mr Nikolay Litvinov - EUR 900; - Mr Nikolay Vaypan - EUR 900; - Mr Nikolay Starodubets - EUR 900; - Ms Yelena Zavina - EUR 900; - Mr Tofik Kadyr Ogly Ibragimov - EUR 2,500; and - Ms Lyusya Ibragimova - EUR 2,500. B.", "Costs and expenses 41. Ms Mikhaylova, Ms Didorchuk, Ms Khodakova, Ms Bondarenko, Ms Shandurskaya, Ms Khlusevich, Ms Savchenko, Mr Ostapenko, Mr Vaypan, Mr Starodubets, Mr and Mrs Ibragimovy also claimed EUR 165 each for the costs and expenses incurred before the Court. 42. The Government considered that this amount was excessive. 43.", "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 requested sum of EUR 165 to Ms Mikhaylova, Ms Didorchuk, Ms Khodakova, Ms Bondarenko, Ms Shandurskaya, Ms Khlusevich, Ms Savchenko, Mr Ostapenko, Mr Vaypan, Mr Starodubets, Mr and Mrs Ibragimovy each for the proceedings before the Court. C. Default interest 44. 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 applicants’ complaints related to the enforcement of the decisions of the labour dispute commission and the court judgments in their favour under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No.1, and inadmissible the remainder of the application; 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 has been a violation of Article 1 of Protocol No.1; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, as follows: - to Ms Zoya Mykhaylova, the judgment debt still owed to her as well as EUR 765 (seven hundred sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Anna Didorchuk, the judgment debt still owed to her as well as EUR 1,065 (one thousand sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Klavdiya Khodakova, the judgment debt still owed to her as well as EUR 1,965 (one thousand nine hundred sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Tatyana Bondarenko, the judgment debt still owed to her as well as EUR 765 (seven hundred sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Yelena Vaskevich, EUR 400 (four hundred euros) for pecuniary and non-pecuniary damage; - to Ms Anna Shandurskaya, EUR 1,065 (one thousand sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Yelena Khlusevich, the judgment debt still owed to her as well as EUR 765 (seven hundred sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Galina Savchenko, the judgment debt still owed to her as well as EUR 565 (five hundred sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Mr Aleksandr Gaydachuk, EUR 600 (six hundred euros) for pecuniary and non-pecuniary damage; - to Mr Vladimir Ostapenko, EUR 1,065 (one thousand sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Mr Nikolay Litvinov, EUR 900 (nine hundred euros) for pecuniary and non-pecuniary damage; - to Mr Nikolay Vaypan, the judgment debt still owed to him as well as EUR 1,065 (one thousand sixty five euros) for non-pecuniary damage, costs and expenses; - to Mr Nikolay Starodubets, the judgment debt still owed to him as well as EUR 1,065 (one thousand sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Yelena Zavina, EUR 900 (nine hundred euros) for pecuniary and non-pecuniary damage; - to Mr Tofik Kadyr Ogly Ibragimov, the labour dispute commission decision and judgment debts still owed to him as well as EUR 2,665 (two thousand six hundred sixty five euros) for pecuniary and non-pecuniary damage, costs and expenses; - to Ms Lyusya Ibragimova, the labour dispute commission decision and judgment debts still owed to her as well as EUR 2,665 (two thousand six hundred sixty five euros) for pecuniary and non-pecuniary damage, 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, 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; 6.", "Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 15 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FOURTH SECTION CASE OF LISIAK v. POLAND (Application no. 37443/97) JUDGMENT STRASBOURG 5 November 2002 FINAL 05/02/2003 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 Lisiak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrA.", "Pastor Ridruejo,MrsV. Strážnická,MrR. Maruste,MrS. Pavlovschi, MrL. Garlicki, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 8 October 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 37443/97) against the Republic of Poland 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 Polish national, Mr Maciej Lisiak (“the applicant”), on 24 February 1997. 2. The applicant was represented by Mr S. Sikora, a lawyer practising in Bielsko-Biała. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs.", "3. The applicant alleged that his right to have a hearing within a “reasonable time” had not been respected. He alleged a breach of 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. It 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 of the Rules of Court.", "6. By a decision of 23 October 2001 the Court declared the application admissible. 7. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine), the parties replied in writing to each other’s observations. 8.", "On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section. THE FACTS THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1968 and lives in Bielsko-Biała. A.", "Facts before 1 May 1993 10. On 10 August 1991 the applicant was arrested by the police on suspicion of having committed homicide. On 12 August 1991 the Bielsko-Biała District Prosecutor (Prokurator Rejonowy) charged the applicant with homicide and uttering threats, and detained him on remand. 11. On 30 April 1992 the Bielsko-Biała Regional Prosecutor lodged a bill of indictment with the Bielsko-Biała Regional Court (Sąd Rejonowy).", "The applicant was indicted on the charges of homicide and uttering threats. 12. The trial began on 16 June 1992. 13. On 14 October 1992 Court quashed the order for the applicant’s detention and released him.", "The Regional Prosecutor appealed. The Katowice Court of Appeal dismissed the appeal on 4 November 1992. It held that a “reasonable suspicion” that the applicant had committed the offences with which he had been charged was no longer justified because S.U., the witness who had incriminated him in the investigation, had fundamentally changed his original testimony. 14. Between 16 June 1992 and 1 May 1993 the trial court held fourteen hearings.", "It heard evidence from twenty lay witnesses and one expert witness. B. Facts after 1 May 1993 15. Between 4 May 1993 and 25 May 1994 the Bielsko-Biała Regional Court held ten hearings and heard evidence from forty-one witnesses and two experts. It needed to rehear evidence from some witnesses several times.", "16. On 25 May 1994 the court acquitted the applicant on all charges. On 12 October 1994 the Bielsko-Biała Regional Prosecutor appealed against the acquittal. 17. The appeal was heard before the Katowice Court of Appeal on 9 March 1995.", "The court quashed the contested judgment and remitted the case to the Bielsko-Biała Regional Prosecutor, holding that a further investigation should be carried out. In particular, the Court of Appeal ordered the prosecutor to reconstruct the scene of the crime and to obtain evidence from experts in psychology. It considered that in order to assess the credibility of evidence given by S.U., the main prosecution witness, it was necessary to diagnose his personality and establish his perception skills. 18. On 12 May 1995 the Bielsko-Biała Regional Prosecutor asked the Institute of Forensic Experts (Instytut Ekspertyz Sądowych) in Cracow to prepare a comprehensive report on S.U.’s psychological profile.", "Furthermore, since in the course of the original investigation the prosecution had already obtained two, albeit inconsistent, reports from psychologists, the prosecutor also adduced copies of those reports and asked experts from the Institute to resolve contradictions. 19. The experts set the dates of the examination for 19 December 1995 and for 12 February 1996 respectively. However, S.U. did not keep his appointment for the examination on either of these dates.", "Eventually, he appeared before the experts on 9 May 1996 and was examined by them on that day. Their report was ready on 6 September 1996. 20. On 30 December 1996 the Bielsko-Biała Regional Prosecutor lodged a new bill of indictment with the Bielsko-Biała Regional Court. The applicant was again indicted on the charges of homicide and uttering threats.", "21. On 27 March 1997 the trial court remitted the case to the Bielsko-Biała Regional Prosecutor, holding that the prosecution had not complied with the orders given by the Katowice Court of Appeal on 9 March 1995. They had not, among other things, reconstructed the scene of the crime. 22. On 30 April 1997 the Bielsko-Biała Regional Prosecutor indicted the applicant on the same charges for the third time.", "23. The retrial started on 4 September 1997. The subsequent hearings were held on 4 November 1997, 6 January and 8 April 1998. On 12 February 1998 the court cancelled a hearing because the applicant was ill. 24. On 9 June 1998 the trial was adjourned since a new judge rapporteur had in the meantime been appointed and needed to study the case-file.", "25. The trial was to be resumed on 26 March 1999 but it was again postponed. The applicant was absent at that hearing. He was also absent at the hearing listed for 7 May 1999. The applicant’s lawyer informed the court that he had left for Greece in search of odd jobs and that he would be absent for some four months.", "In fact, the applicant returned after three weeks. Also, at that time, the court found that the witness S.U. had left his place of residence without indicating his new address and that his whereabouts were unknown. In the circumstances, the court stayed the proceedings. 26.", "On 7 November 2000, at the applicant’s request, the proceedings were resumed. In 2001 the Regional Court held three hearings. They took place on 20 April, 15 June and 31 October respectively. 27. Further hearings were scheduled for 4 January, 6 February, 6 March, 9 April and 14 May 2002.", "The court heard evidence from twenty witnesses. At the hearing held on 9 April 2002 the court, at the Regional Prosecutor’s request, ordered that evidence from a DNA identification test of several hairs found on the victim be obtained to determine whether they belonged to the applicant. However, on 13 May 2002, experts from the Forensic Laboratory of the Silesian Regional Police Headquarters informed the court that it was not possible for them to make any DNA identification of the specimens as they had to be analysed through a chondrosome test, which only the Cracow Institute of Forensic Experts or the Bydgoszcz Forensic Institute could carry out. On 20 May 2002 the court asked the Cracow Institute to make the relevant test and adjourned the trial sine die. In the meantime, the Regional Court had tried to establish the whereabouts of S.U., who was a homeless person.", "It appears that those efforts have so far been unsuccessful. The proceedings are pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant complained that his right to a “hearing within a reasonable time” had not been respected.", "He alleged a breach of Article 6 § 1 of the Convention, which in its relevant part provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. The parties’ arguments 1. The applicant 29. The applicant maintained that his trial, which had so far lasted more than eleven years, was excessively lengthy. There had, he asserted, been no explanation for the authorities’ continuous failure to determine the charges against him within a “reasonable time”.", "In particular, the applicant stressed that his case was not as complicated as it could prima facie appear. It was true that the prosecution had called numerous witnesses but only one of them, S.U. had been at the scene of the incident and could give a firsthand, although fragmentary, account of what had happened. The fact that S.U. had so many times changed his testimony that it was no longer believable and that the trial court had had to establish the facts of the case on the basis of inferences could not justify the delay in the proceedings.", "Indeed, the evaluation of conflicting evidence could not be considered an extraordinarily complicated task for the court but a normal exercise of its general power to accept or to reject evidence before it. 30. Moreover, the applicant went on to argue, the authorities had not made any significant efforts to accelerate the process of obtaining evidence. The proceedings had been adjourned frequently and there had been several too lengthy intervals between the hearings. In the applicant’s submission, the authorities had failed to act with due diligence in the conduct of the trial.", "Nor had they given much consideration to what was at stake for him in the proceedings. The principal charge against him was homicide, a charge that involved not only the risk of a particularly heavy penalty but also the inevitable stigma of murderer in the eyes of the others. He had been 23 years old when the proceedings had started and since then, for the subsequent eleven years, he had lived in constant anguish because his whole life had been marred by awaiting – so far in vain – the end of his trial. 31. The applicant further maintained that, except for his three duly justified absences from hearings, he had on no further occasion failed to appear before the court or had otherwise caused a postponement of the proceedings.", "Accordingly, his conduct could not delay significantly the determination of the charges against him. In view of the foregoing, the applicant asked the Court to find that the authorities had not respected his right to have his case heard within a “reasonable time”, as required under Article 6 § 1 of the Convention. 2. The Government 32. The Government, for their part, considered that in the applicant’s case there had been no breach of the “reasonable time” requirement laid down in Article 6 § 1.", "33. To begin with, the Government maintained that the case concerned very serious charges and that it was of an exceptional complexity. In that context, they stressed that the trial court had had to resolve a number of difficult questions relating to the assessment of evidence because the charges against the applicant had been based on circumstantial evidence and S.U., the only eye-witness, had given incoherent and discrepant testimony. Given these factors and the fact that important issues were at stake for the applicant in the proceedings, the court had to act with particular diligence so as to assess all the relevant material in conformity with the principle of in dubio pro reo. 34.", "Furthermore, the Government added, the magnitude of evidence, including expert evidence, obtained during the proceedings showed how difficult were tasks with which the authorities had been charged. According to the Government, the Regional Court had so far heard evidence from seventy lay witnesses. It had needed to rehear some witnesses several times as most of them, as well as the applicant and the victim himself, had been intoxicated on the material day. Also, with the passage of time, the process of obtaining evidence had become more and more cumbersome. In particular, owing to the length of time that had elapsed since the events, it had become more difficult for the court to establish the relevant facts on the basis of evidence from witnesses.", "The Regional Court had also encountered a number of difficulties in ensuring the appearance of certain witnesses. 35. The Government next asserted that the length of the proceedings had partly been attributable to the applicant’s conduct. They considered that his absence from hearings had caused a delay of some three months. First, on 12 February 1998, the hearing had been cancelled because he had been ill. Secondly, the trial had been postponed since he had not appeared at the hearings set for 26 March and 7 May 1999.", "36. On the other hand, the Government admitted that the conduct of the authorities had also caused the prolongation of the trial. There had, for instance, been several adjournments caused by the absence or illness of the judges or the fact that the new judge rapporteur had been appointed. Overall, the Government estimated that the authorities had been responsible for a delay of about ten months. 37.", "Yet, in the Government’s view, that interval did not in itself amount to a breach of the reasonable time requirement because the authorities had not on the whole failed to act with due diligence. The case had so far been heard by the courts at three instances and had twice been remitted to the prosecution authorities for a further investigation. The Regional Court had had recourse to all available means in order to ensure witnesses’ presence before it. For instance, it had on a number of occasions fined witnesses who had not appeared at hearings or ordered that the police bring some of them to the court. 38.", "In sum, the Government concluded that even though the total duration of the proceedings might at first sight appear to have been excessive, taking everything into consideration the applicant’s right to a hearing within a “reasonable time” had been respected. B. The Court’s assessment 1. Period to be taken into consideration 39. The Court notes that the proceedings began on 10 August 1991, when the applicant was charged with homicide and uttering threats and that, as it emerges from the material in its possession, they are still pending before the Bielsko-Biała Regional Court (see paragraphs 10 and 27 above).", "The total length of the applicant’s trial at the date of the adoption of this judgment accordingly amounts to 11 years, 1 month and 28 days. However, as Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect on 1 May 1993, the period before that date lies outside the Court’s jurisdiction ratione temporis. Consequently, the Court can only consider the period of 9 years and 5 months and 7 days which have elapsed since 1 May 1993, although it will have regard to the stage reached in the proceedings on that date (see, for instance, Kudła v. Poland [GC], no. 30210/96, ECHR- XII, §123). 2.", "Reasonableness of the length of the period in issue 40. The Court will assess the reasonableness of the length of the proceedings in the light of the particular 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 is at stake for the applicant has also to be taken into account (see the Kudła v. Poland cited above, § 124). 41. In the present case the Government heavily relied on the complexity of the case, maintaining that it was even exceptionally complicated.", "In the applicant’s submission, the case could seem difficult only on first appearance. He also stressed that the fact that the court had to deal with conflicting evidence could not in itself make the whole process inordinately complex (see paragraphs 33-34 above). 42. The Court observes that the volume of evidence obtained by the authorities was indeed considerable. That included several expert reports, the reconstruction of the scene of the crime and, given the number of witnesses involved in the proceedings, very abundant testimonial evidence (see paragraphs 14-15 and 17-18 above).", "The Court therefore accepts that the applicant’s case was certainly of more than average complexity. That, however, cannot justify the total, significant length of the trial. Nor can the fact that the court needed to establish the facts of the case on the basis of circumstantial evidence be seen as a factor absolving it from its principal obligation to determine the charges against the applicant within a “reasonable time”. 43. It is true that the Regional Court swiftly proceeded with the original trial, which began on 16 June 1992 and ended on 25 May 1994.", "During that time it held twenty-four hearings and heard abundant evidence. As regards the appellate proceedings, the Court notes that it took the Court of Appeal mere five months to hear the prosecutor’s appeal (see paragraphs 12 and 14‑17 above). In the circumstances, the Court finds that at the initial phase of the proceedings the authorities acted with the diligence required under Article 6 § 1. 44. The same does not, however, hold true in regard to the further procedure.", "In this connection, the Court notes that after the applicant’s acquittal was quashed on appeal and his case remitted to the Regional Prosecutor on 9 March 1995, the new and the third – as the second was likewise remitted – indictment was ready as late as 27 March 1997. In consequence, the retrial began only on 4 September 1997, that is to say after a lapse of some two and a half years (see paragraphs 17-23 above). 45. Even considering that the authorities cannot be held fully responsible for the delay in the preparation of the expert report as it was partly caused by the conduct of S.U., the Court does not find a convincing explanation as to why the carrying out of the Court of Appeal’s orders, drawing up the indictment and, subsequently, setting a date for the retrial should have taken such a considerable time. In that context, the Court would also point out that while it is for the national courts to assess the weight of evidence against an accused, and to decide whether he should be convicted or acquitted, in discharging their fact-finding functions those courts must, paying due regard the principle of the presumption of innocence, ensure that the process of gathering evidence against him does not last for an unreasonably long time.", "46. It has further to be noted that later, from 9 June 1998, when the new judge rapporteur was appointed, to 20 April 2001, when the trial restarted after its resumption, no hearing on the merits was held (see paragraphs 24‑26 above). Admittedly, that interval was – at least in some part – due to S.U.’s failure to appear before the court and the fact that the authorities could not detect his whereabouts. Also, the applicant himself was absent at the hearings scheduled for 26 March and 7 May 1999 (see paragraph 25 above). However, that lack of progress in the trial resulted in a delay of about two years and ten months.", "The Court does not find a sufficient justification for that delay, especially having regard to the importance of what – in terms of both criminal liability and psychological strain involved – was, and still is, at stake for the applicant in the proceedings (see paragraphs 30 and 33 in fine above). 47. Finally, the Court observes that on 20 May 2002 the Regional Court asked experts to carry out a DNA identification test and that since then the trial has been adjourned with no further hearing date being assigned (see paragraph 27 above). In the circumstances, it does not appear that the process of obtaining evidence in the applicant’s case will be terminated in a short time. 3.", "Conclusion 48. Accordingly, the Court cannot regard the period of time that elapsed in the instant case as reasonable. There has therefore been a violation of Article 6 § 1 of the Convention. II. APPLICATION 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 a total sum of 400,000 Polish zlotys for both pecuniary and non-pecuniary damage caused by the protracted length of the criminal proceedings against him. He maintained that on account of the inordinate length of his trial he had lost any prospects of finding a job because, given the nature of the charges against him and media attention given to his trial, nobody wanted to employ him. As to the psychological harm he had suffered, the applicant first stressed that, owing to the fact that he had been labelled as a murderer, he had lost his family since his wife together with his child had left him.", "He further submitted that for many years his life had been severed into two pieces, the first in which he tried to live a normal life and the second in which he defended himself against the unjustified charges and tried to clear his name. As a result, he lived in infamy and constant anguish. 51. The Government considered that the amount claimed was inordinately excessive. They asked the Court to rule that the finding of a violation would constitute in itself sufficient just satisfaction.", "In the alternative, they invited the Court to make an award of just satisfaction on the basis of its case-law in similar cases and national economic circumstances. 52. The Court’s conclusion, on the material before it, is that the applicant has failed to demonstrate that the alleged pecuniary damage was indeed caused by the excessive length of the criminal proceedings against him. Consequently, there is no justification for making any award to him under that head. 53.", "However, the Court accepts that the applicant has certainly suffered non-pecuniary damage – such as distress and frustration resulting from the undue prolongation of his trial – which is not sufficiently compensated by the finding of violation of Article 6 § 1 of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 under this head. B. Costs and expenses 54. The applicant did not submit any claim for costs and expenses involved in the proceedings before the Court.", "C. Default interest 55. The Court considers it appropriate that the rate of the default interest to be paid on outstanding amounts expressed in Euro should 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], no. 28957/97, § 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 (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 10,000 (ten 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 that amount; (b) that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable 3.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF SHTEYN (STEIN) v. RUSSIA (Application no. 23691/06) JUDGMENT STRASBOURG 18 June 2009 FINAL 18/09/2009 This judgment may be subject to editorial revision. In the case of Shteyn (Stein) v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 28 May 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 23691/06) 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 and German national, Mr Yevgeniy Mikhaylovich Shteyn (Stein[1]) (“the applicant”), on 23 May 2006.", "2. The applicant was represented by Mr E. Terbalyan and Mr K. Filippov, lawyers practising in Tomsk. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr A. Savenkov, former Representative and former acting Representative of the Russian Federation at the European Court of Human Rights respectively. 3. On 5 December 2007 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 of the Convention) and to grant priority treatment to the application (Rule 41 of the Rules of Court). On the same date, the German Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 (b). They chose not to avail themselves of this right. 4. The Russian Government objected to the priority treatment and the joint examination of the admissibility and merits of the application.", "Having considered the Government’s objections, the Court dismissed them. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1980 and is being detained in Remand Centre IZ-70/1 of Tomsk, Russia. A.", "The applicant’s detention 6. A Ms M named the applicant as her supplier of MDMA pills also known as “ecstasy”. On 9 December 2004 the Sovetskiy District Court of Tomsk authorised a search in the flat where the applicant was living. A pile of documents, cash and pills were seized. On the same day the applicant was arrested on suspicion of supplying 8.86 gm of MDMA to a Mr V (his co-accused in subsequent proceedings).", "By a decision of 10 December 2004, the Sovetskiy District Court of Tomsk authorised his detention. His detention was then extended on 4 February and 6 April 2005 until 9 April and 2 June 2005 respectively. His offer of a deposit of 150,000 Russian roubles (RUB) as surety for bail was refused. 7. On 18 May 2005 the applicant was charged with smuggling 77 gm of MDMA and 31 gm of amphetamine from Germany to Russia.", "His detention was extended on 31 May and 25 July 2005 until 2 August and 2 September 2005 respectively. 8. The investigator sought another extension, explaining that she needed more time to receive the forensic reports, list the full charges against the applicant and his co-accused, allow them to study the reports and other materials in the case file and draft a bill of indictment. On 31 August 2005 the Oktyabrskiy District Court of Tomsk decided to keep the applicant in detention until 2 December 2005 (that is for a total period of eleven months and twenty-four days). The court ruled in the following terms: “The time-limit for the preliminary investigation has not expired.", "The court grants the investigator’s request for an extension until 2 December 2005 so as to enable her to take certain investigative measures. The court takes into account the gravity of the charges, the exceptional complexity of the case in view of the number of persons involved in the drug trafficking and the close link between them. In addition, given that [the applicant] has both Russian and German nationality but has no permanent place of residence in Russia, the court finds that there are reasons to believe that he would abscond, fearing an eventual custodial sentence, and would then obstruct the proceedings...In view of the above, a less stringent measure of restraint would be inappropriate.” 9. On 25 October 2005 the applicant was charged with membership of a criminal gang, a further count of drug smuggling and a further count of supplying drugs committed as part of an organised group. 10.", "The investigator sought a further extension, stating in her request that the applicant’s guilt had been proven; however, it was impracticable to complete the investigation before 2 December 2005. On 30 November 2005 the Tomsk Regional Court extended his detention until 2 January 2006 and held as follows: “On 25 November 2005 investigator Matveyeva, having obtained approval from the Tomsk regional prosecutor, lodged a request dated 24 November 2005 asking the court to extend [the applicant’s] detention for one month, increasing the period of detention to twelve months and twenty-four days, that is until 2 January 2006...The accused was given access to the case file more than thirty days before the expiry of the maximum period of detention (28 October 2005). However, thirty days were not sufficient for the accused and the reasons for his detention persist. Thus, given the gravity of the charges, the specific circumstances of the case and his personality, as well as the lack of a permanent place of residence in Russia and the possibility that he would flee justice and resume his criminal activity, he should remain in detention.” The applicant appealed and sought his release on bail, referring to the fact that the investigation had been completed. The Supreme Court of the Russian Federation upheld the extension order on 27 February 2006.", "11. On 29 December 2005 the Regional Court extended the applicant’s detention for two months, reproducing the reasoning of the earlier orders. It held that the relevant period would end on 2 March 2006 and that the total period of detention would amount to fourteen months and twenty-four days. 12. On 23 January 2006 the applicant was committed for trial at the Regional Court.", "On 7 February 2006 the Regional Court decided to maintain the applicant in detention pending trial (see paragraph 57 below), endorsing the reasoning of the pre-trial detention orders. It did not set any time-limit. 13. On 13 February 2006 the judge held that a co-defendant’s (Mr Z) counsel had previously represented another person when the latter testified against the defendants. The judge concluded that Z’s defence rights had been affected, and returned the case to the prosecutor for “remedying the violation” with reference to Article 237 of the CCrP (see paragraph 58 below).", "Without setting any time-limit, the judge also decided to maintain the applicant in detention. The prosecution appealed against the decision to return the case to the prosecutor. The appeal was rejected by the Supreme Court on 27 April 2006. Having noted that the applicant did not challenge the above remand decision, the Supreme Court upheld the preventive measure. The case file was returned to the prosecutor and then the investigator on 29 and 31 May 2006 respectively.", "14. In the meantime, on 14 March 2006 the Supreme Court upheld the order of 29 December 2005 (see paragraph 11 above) in the following terms: “...the investigator’s extension request had been approved by the deputy Prosecutor General...In view of the gravity of the charges against Mr Sergeyev ...the Regional Court found no reasons for release... the detention was extended to allow him to study the case file.” 15. On 31 May 2006 the applicant asked the governor of the remand centre to release him, considering that there was no valid court order authorising his continued detention. The governor replied that the applicant’s detention was lawful under the order of 13 February 2006. 16.", "On 1 June 2006 the investigator removed Mr F, counsel for the applicant, from the proceedings on the ground that he had previously advised another party to the proceedings. The investigator appointed Mr S instead. On 2 June 2006 the Regional Court dismissed an objection by the applicant to this new counsel (see also paragraph 19 below). Having heard the parties, it extended, with reference to Article 109 of the CCrP, the applicant’s detention until 29 July 2006 so that the total period of detention under Article 109 of the CCrP would be sixteen months and twenty-four days. The court stated as follows: “...the reasons for the repeated extensions of [the applicant’s] detention still obtain; he has been charged with various offences...when he was arrested he had his permanent place of residence in Germany..., the court considers that if at large [the applicant] would abscond or continue his criminal activity...In view of the gravity of the charges against him and because the investigator needs more time, there are exceptional circumstances warranting the extension of [the applicant’s] detention...” 17.", "On 5 June 2006 the applicant appealed against that extension order. He submitted further statements of appeal on 7, 13 and 19 June 2006. According to the Government, copies of those statements were sent to “the other parties to the proceedings” for comment by 21 July 2006. On 26 July 2006 the detention file was dispatched from Tomsk to Moscow, where the Supreme Court is situated. The latter received it on 3 August 2006.", "On 22 September 2006 the Supreme Court upheld the extension order of 2 June 2006 endorsing its reasoning. It indicated that the detention order had been issued under Article 109 § 7 of the CCrP and the relevant request had to be approved by the regional prosecutor, which had been done. It accepted that the first-instance court had established the exceptional circumstances warranting an extension within the eighteen months’ statutory period. It appears that the applicant obtained a copy of the appeal decision on 23 November 2006. 18.", "In the meantime, on 26 July 2006 the Regional Court extended the applicant’s detention further to 29 September 2006 with reference to Article 109 § 7 of the CCrP. It appears that the judge refused to consider his offer of RUB 340,000 as surety for bail. On 7 September 2006 the prosecutor resubmitted the criminal case for trial. 19. On 19 September 2006 the judge returned it to the prosecutor again indicating that the applicant had not been afforded adequate time to choose counsel on 2 June 2006 (see paragraph 16 above).", "On 26 September 2006 the Regional Court extended the applicant’s detention until 29 November 2006. On an unspecified date the case was resubmitted to the Tomsk Regional Court for trial. On 9 November 2006 the Regional Court scheduled a preliminary hearing on 20 November 2006, in particular in order to decide on the detention issue. On the latter date, the judge returned the case to the prosecutor with reference to Article 237 of the CCrP and ordered that the applicant be kept in detention considering that he would abscond, if at large. 20.", "On 28 November 2006 the Regional Court adjourned the proceedings and decided to keep the applicant and co-accused Z in custody considering that they would abscond, if at large. The applicant appealed, contending that there had been no ascertainable facts confirming the risk that he would abscond and referring to his conditions of detention. It is unclear whether that appeal was examined. 21. On 11 December 2006 the Supreme Court upheld the detention order of 26 September 2006 (see paragraph 19 above), finding, inter alia, that the prosecution’s failure to observe the seven-day time-limit for lodging that extension request had not amounted to a serious breach of law which would warrant annulment of the order.", "22. On 4 May 2007 the Regional Court examined again the issue of the applicant’s detention. As the applicant’s new counsel T. was away from 23 April to 7 May 2007, the Regional Court appointed counsel K. for the duration of the detention hearing. According to the applicant, the hearing had initially been scheduled for 14 May 2007; he was unaware that it had been brought forward to 4 May; counsel T., who had been notified of that change only on 3 May 2007, was unable to attend. Nevertheless, the Regional Court extended the applicant’s detention until 7 August 2007 stating as follows: “...[the applicant’s] detention should be extended due to the gravity of the charges because prior to his arrest he had no stable work; he is acquainted with many witnesses and might therefore abscond, influence the witnesses or obstruct the proceedings.” On 16 July 2007 the Supreme Court upheld the detention order, reproducing verbatim the reasoning of the Regional Court.", "23. On 31 July 2007 the Regional Court rejected the applicant’s application for release and extended his detention until 7 November 2007 endorsing the previous orders and stating that it would be impracticable to complete the trial before 7 August 2007 because the trial court was attempting to secure the presence of witnesses residing in another region. The applicant’s counsel appealed on 8 August 2007. According to the Government, a copy of the statement of appeal was sent to “the other parties to the proceedings” for comment by 23 August 2007. The applicant submitted an additional statement of appeal on 15 August 2007.", "According to the Government, a copy was sent to the parties on 20 August 2007 for comment by 3 September 2007. On 4 September 2007 the detention file was dispatched to the Supreme Court. The latter received it on 14 September 2007. Due to a typographical error in the detention order of 31 July 2007, the Supreme Court returned the file to the Regional Court. The file was dispatched to the Supreme Court on 8 November 2007.", "It was received there on 16 November 2007. On 6 December 2007 the Supreme Court upheld the detention order of 31 July 2007. 24. In the meantime, on 6 November 2007 the Regional Court extended the applicant’s detention for three months, that is, until 7 February 2008. On 31 January 2008 the Regional Court indicated that it would be difficult to complete the trial before 7 February 2008 in view of the need to ensure the attendance of witnesses living in other towns or persons in detention.", "The judge accordingly extended the applicant’s detention for three months (until 7 May 2008) and held as follows: “...[the applicant’s] detention should be extended in view of the gravity of the charges relating to drug trafficking, which represents a high level of public danger. Taken into account also are the fact that [the applicant] had had no permanent occupation prior to [his] arrest; [he] is acquainted with many witnesses in the case and can thus flee justice, put pressure on the witnesses, obstruct the course of the proceedings. [The applicant] had had no lawful sources of income before his arrest, had previously been prosecuted for unlawful dealing in firearms; he had been granted bail instead of being placed in pre-trial detention; however he is being prosecuted again for even more serious offences. The matter relating to the conditions of detention in the remand centre is outside the jurisdiction of this court.” The applicant appealed indicating that between 1999 and 2004 he had been employed by a private company in Germany; that he had obtained employment soon after his arrival in Tomsk; that all witnesses in relation to the charges against him had already been examined at the trial; that he previously had respected the bail conditions. On 14 April 2008 the Supreme Court upheld the detention order.", "It indicated that after the expiry of the six-month period from the date when the case had been submitted to the trial court, the latter could extend the defendant’s detention pending trial. The applicant was accused of serious and very serious criminal offences. It held as follows: “The detention order indicates specific and real circumstances indicating that a less stringent measure of restraint would allow [the applicant] to flee justice, put pressure on the witnesses and obstruct the course of the proceedings.” 25. The applicant lodged an application for release indicating, inter alia, that his German passport had expired; that before his arrest he had been residing at the same address where the search had been carried in 2004. On 28 April 2008 the trial judge rejected the application for release and extended the applicant’s detention for three months.", "He relied on the same grounds as before, also referring to a forensic examination that had been ordered and completed, and to the necessity of completing the trial. The judge rejected as false a certificate produced by the applicant in order to confirm his previous residence in the town of Tomsk. 26. It appears that two of four defendants, including the applicant and co-accused Z, were kept in detention throughout the investigation and pending the trial. Co-accused L and V were at large.", "Most of the charges concerned defendants L and Z. 27. On 30 July 2008 the Regional Court convicted the applicant, apparently as charged, and sentenced him to twelve years’ imprisonment. B. Criminal proceedings against the applicant 28.", "As indicated above (paragraph 6), the applicant was arrested on 9 December 2004 on suspicion of drug trafficking. Between December 2004 and August 2005 the investigators identified further episodes of drug trafficking. The investigations were finalised in October 2005 and from 1 November 2005 to 11 January 2006 the applicant studied the case file. 29. On 23 January 2006 the case was sent to the Tomsk Regional Court for trial.", "On 13 February 2006 a judge in the Regional Court decided to return the case to the prosecutor on account of a violation of the procedural rights of the applicant’s co-accused. On 27 April 2006 the Supreme Court rejected an appeal by the prosecution and upheld that decision. 30. From 7 June to 9 August 2006 the applicant and his counsel again studied the case file. By an order of 16 August 2006, the Kirovskiy District Court decided that the applicant should complete his study of the case file within nine working days.", "31. Eventually, the trial started on 28 November 2006. Four persons, including the applicant, were, according to the Government, tried in relation to fifty episodes of criminal activity between 2002 and 2005. 32. According to the applicant, one hearing was held in December 2006, four in January 2007, seven in February 2007, three in March 2007, two in April 2007, two in May 2007, three in June 2007, one in July 2007, one in August 2007, two in September 2007, one in October 2007, four in November 2007, three in December 2007, four in January 2008, three in February 2008, four in March 2008, one in April 2008 and one in May 2008.", "33. Thirty-six persons were questioned as witnesses and voluminous written evidence was presented at the trial. On 11 September 2007 the prosecutor completed the presentation of evidence. The defence produced evidence from 2 October 2007 to 10 January 2008. On unspecified dates, the prosecutor dropped the charge of membership of a criminal gang in respect of the applicant and the charge of drug trafficking in relation to one episode.", "On 30 July 2008 the Regional Court convicted the applicant on the remaining charges and sentenced him to twelve years’ imprisonment. The applicant appealed. On 5 March 2009 the Supreme Court of Russia amended the trial judgment and reduced the applicant’s sentence to eleven years’ imprisonment. C. Conditions of detention 34. From 10 December 2004 to 11 April 2005 the applicant was detained in Remand Centre IZ-70/1 of Tomsk.", "From 11 to 25 April 2005 the applicant was kept in Tomsk Prison no. 3, part of which was used as a remand centre. He maintained that, after his arrival there, his head was shaven. A body search disclosed that the applicant had been in possession of a razor blade. On 12 April 2005 the governor of the remand centre ordered his placement in a punishment cell for ten days.", "35. Since 25 April 2005 the applicant has been in Remand Centre IZ-70/1. 1. The applicant’s account 36. The initial description of the conditions of detention made by the applicant in his application to the Court in 2006 is as follows: “The applicant spent seven months in a cell measuring five square metres and designed for two persons.", "The toilet was not separated from the living area and offered no privacy; there was no lavatory and the table was placed next to the toilet. The following five months he spent in a cell measuring eighteen square metres together with eleven to thirteen detainees. The detainees had to sleep in shifts because the cell had only eight beds. The radio and light remained on day and night. He was allowed to take a shower once a week.", "Subsequently, he was detained in a cell measuring seven square metres together with three to five detainees. The cell had only three beds and the detainees had to sleep in shifts. All cells were infested with lice and bugs.” 37. The applicant subsequently submitted that from 10 to 12 December 2004 he was kept in cell no. 90 housing six to eight persons.", "No mattresses, bedding or tableware were supplied. From 12 to 15 December 2004 he was in cell no. 33 together with another inmate. The lavatory was not separated from the living area; there was no sink so he had to wash himself using a tap above the lavatory. From 15 December 2004 to 11 April 2005 he shared cell no.", "41 with another detainee. The material conditions were similar to those in cell no. 33. From 25 April to 29 June 2005 the applicant was in cell no. 41 with another person.", "From 29 June to 11 October 2005 he was in cell no. 280 which then housed four to eleven persons. The cell had ten beds, one of which was used to store the detainees’ belongings. During the summer period the temperature in the cell reached +50 C. From 11 October to 8 December 2005 the applicant was in cell no. 267 which then housed ten to fourteen persons.", "The cell had nine beds, one of which was used to store the detainees’ belongings. The windows were covered with metal shutters barring access to natural light. During the winter period the temperature in the cell fell to +10 C. From 8 December 2005 to 10 January 2007 the applicant was kept in cell no. 184 which then housed three to five persons. It had three beds.", "From 10 January 2007 the applicant was in cell no. 183 which housed three to seven persons. The cell had six beds, one of which was used to store the detainees’ belongings. The lavatory was not separated from the living area, so the person using it could be watched by other detainees and male and female wardens. The lavatory was next to a bed.", "38. The applicant also indicated that there was no sink in cells nos. 33 and 41; the lavatories in cells nos. 33, 41 and 183 were not separated from the living area; the living space in cells nos. 33, 41, 267, 184 and 183 was particularly limited.", "The air in the cells was stuffy and filled with smoke. All cells were infested with lice, bedbugs and cockroaches. During the summer periods there were also gnats and flies, possibly because the building was next to a pigsty. The detainees had no alternative but to oppose the sanitary measures because of the difficulties of bearing the chemical odours and given the small size of the cells and lack of proper ventilation. 39.", "The applicant was not allowed to take a shower more than once per week. The distribution of items of hygiene started only in 2007. 40. The applicant submitted six colour photographs showing the interior of cell no. 183 situated in building no.", "4 of the remand centre: a lavatory and a sink were situated next to one set of three-tier bunk beds. The lavatory had no flushing system and no lid; it was not separated in any way from the remaining space of the cell. 2. The Government’s account 41. The Government submitted that according to its design capacity, the remand centre could house 1,550 inmates.", "Between 2004 and 2007 the number of inmates at the remand centre varied between 1,107 and 1,532 persons. 42. Between 10 December 2004 and 11 October 2005 the applicant was kept in cells nos. 33, 41, 90 and 280. From 10 to 12 December 2004 he was placed in cell no.", "90 measuring 22.5 square metres and then housing six persons (including the applicant). With reference to an extract of 13 December 2004 from the relevant logbook, the Government asserted that from 12 to 15 December 2004 the applicant had been alone in cell no. 33 measuring 4.6 square metres. With reference to an extract of 16 April 2005 from the relevant logbook, the Government asserted that from 15 December 2004 to 11 April 2005 he was in cell no. 41 measuring 4.6 square metres and then housing two persons (including the applicant); from 25 to 27 April 2005 he was alone in that cell; from 27 April to 29 June 2005 he shared the cell with another inmate.", "43. The applicant was also kept in cell no. 280 measuring 15.1 square metres and having ten beds. With reference to an extract of 26 September 2005 from the relevant logbook, the Government asserted that its cell population was as follows: From 29 June to 12 July 2005 – eleven persons; From 12 to 20 July 2005 – seven persons; From 20 to 26 July 2005 – six persons; From 26 to 28 July 2005 – seven persons; From 28 to 30 July 2005 – six persons; From 30 July to 9 August 2005 – seven persons; From 9 to 16 August 2005 – eight persons; From 16 to 20 August 2005 – nine persons; From 20 to 31 August 2005 – ten persons; From 31 August to 13 September 2005 – nine persons; From 13 to 26 September 2005 – ten persons; From 26 to 27 September 2005 – four persons; From 27 September to 5 October 2005 – eleven persons; From 5 to 11 October 2005 – ten persons. 44.", "Thereafter, from 11 October to 8 December 2005 the applicant was kept in cell no. 267 measuring eleven square metres and designed for nine detainees. From 8 December 2005 to 10 January 2007 he was kept in cell no. 184 measuring 8.5 square metres. From 10 January 2007 onwards he was in cell no.", "183 measuring 9.4 square metres and designed for six detainees. 45. The applicant was given an individual sleeping berth, a mattress, a pillow and a blanket. 46. The cells were equipped with a lavatory, which was separated from the living area by a partition of 1.4 or 1.5 metres in height and had a screen.", "In each cell the applicant was afforded enough space for movement or physical exercise. He was afforded access to various commodities, such as a dining table, lavatory or sink. 47. He was allowed access to a shower once per week for no less than fifteen minutes. He made no requests for more frequent access to a shower.", "48. During the relevant period(s) no bugs, cockroaches or rats had been detected in the cells. Neither had the detainees made any complaints in that respect. The appropriate sanitary measures were taken on a monthly basis. 49.", "The applicant was allowed a daily outdoor walk for no less than one hour. The walks were organised in the courtyards of the remand centre measuring from 22 to 43.6 square metres. 50. Radio broadcasting was accessible in the cells between 6 a.m. and 10 p.m. The volume could be increased or decreased from a point in each cell.", "51. The cells were equipped with artificial lights adapted for night supervision of the inmates and for prevention of suicide. All cells were equipped with mandatory ventilation which was properly functioning at the relevant time. The cell windows had small air vents. The metal shutters were removed from the windows in 2003.", "52. The remand centre had a centralised heating system which was properly functioning, including during the autumn and winter period. The temperature in the cells did not fall below +18 C. 53. The applicant underwent regular medical checks which confirmed that he was in good physical condition and had no infection or disease. 54.", "According to a certificate of 26 June 2008 issued by the remand centre, a new building no. 5 was constructed in 2004; building no. 2 was renovated in 2006 and 2007, including installations of lavatories, sinks and lights; the roof of building no. 4 was repaired in 2007; and the renovation in building no. 3 was completed in 2008.", "According to another certificate, cells nos. 33, 41, 90, 183, 184, 267 and 280 were and remain equipped with cold water taps and lavatories separated from the living area by a partition of 1.5 metres in height and a curtain. 55. Like the applicant, the Government submitted a faxed copy of photos, one of them showing a standard toilet with a curtain; a statement countersigned by a remand centre officer stated that it was cell no. 183.", "The other photos suggested that similar arrangements were made in cells nos. 33, 41, 184, 261 and 280. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Criminal Procedure (CCrP) 56.", "Pursuant to Article 109 § 1 of the Code, detention of an accused pending investigation should not exceed two months. It may, however, be extended to six months. Further extensions to up to twelve months are possible only in relation to persons accused of serious or very serious criminal offences, in view of the complexity of the case and if there are grounds justifying detention. An investigator’s request for extension must be approved by the regional prosecutor (§ 2). Further extension of detention beyond twelve months and up to eighteen months may be authorised only in exceptional circumstances in respect of persons accused of very serious offences, upon an investigator’s request approved by the Prosecutor General or his deputy (§ 3).", "Extension of detention beyond eighteen months is prohibited and the detainee must be released, unless the court decides to extend his detention to the date when the accused has finished studying the case file and the case has then been submitted for trial (§§ 4 and 8 (1)). After the completion of the investigation, an accused kept in detention must be provided with access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3(§ 5). If such access was given later than that, the detainee must be released after the expiry of the maximum period of detention (§ 6). If the thirty-day time-limit was complied with, but was insufficient for the accused, the investigator, with the approval of the regional prosecutor, may request the court to extend the accused’s detention. Such a request should be submitted no later than seven days before the expiry of the maximum detention period (§ 7).", "57. Under Article 255 of the Code, after a criminal case has been submitted for trial to a court, the latter may, on the party’s request or proprio motu, vary or annul a measure of restraint in respect of the defendant, including placement in custody or detention pending trial. The period of detention pending trial cannot normally exceed six months from the date when the case was submitted to a court and up to delivery of a judgment in the case. However, after the expiry of that period the trial court may extend the detention of a defendant charged with a serious or very serious offence. Each extension must not exceed three months.", "58. Under Article 237 of the Code, the trial judge can return the case to the prosecutor for defects impeding the trial to be remedied, for instance if the judge has identified serious deficiencies in the bill of indictment or a copy of it was not served on the accused. The judge must require the prosecutor to comply within five days and must also decide on a preventive measure in respect of the accused. By a federal law no. 226-FZ of 2 December 2008, Article 237 was amended to the effect that, if appropriate, the judge should extend the accused’s detention with due regard to the time-limits in Article 109 of the Code.", "B. Relevant judicial practice 59. By a ruling of 10 October 2003, the Plenary Supreme Court provided the courts with guidance on the application of international law, indicating, inter alia, that when deciding matters relating to detention they should take into account that under Article 5 § 3 of the European Convention, a detainee is entitled to trial within a reasonable time or to release pending trial (§ 14 of the Ruling). When deciding on the remand matter, the court should take into account the rights protected by Articles 3, 5, 6 and 13 of the Convention; when examining an application for release or a complaint about the extension of detention the courts should take into consideration the requirements of Article 3 of the Convention (§ 15). 60.", "By a ruling of 22 March 2005, the Constitutional Court examined various provisions of the CCrP concerning detention pending investigation and trial. It held, in particular, that a valid detention order continued to be in force within the time-limit set therein, even when the case progressed from one to another stage of proceedings (§ 3.2 of the Ruling). C. Criminal Code 61. Any period of pre-trial detention shall count towards the sentence of imprisonment (Article 72 § 3). D. Conditions of detention 62.", "Order no. 7, issued on 31 January 2005 by the Federal Service for the Execution of Sentences, deals with implementation of the “Remand centre 2006” programme. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 63. The applicant complained that the conditions of his detention in Tomsk Remand Centre amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. He also complained that he had been placed in a punishment cell in Tomsk Prison and that his head had been shaven. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 64. The Government considered that the applicant’s complaint had concerned only his detention from 25 April 2005 onwards, while he had had no objection to the conditions of detention in the same facility from 10 December 2004 to 11 April 2005.", "They conceded that the conditions during both periods had been identical. However, they concluded that the applicant had not complied with the six-month rule in respect of the first period. They also contended that he had not complained about the conditions to any public authority, while being represented by counsel in the criminal proceedings. In particular, he could have lodged a claim for compensation in respect of non-pecuniary damage. The Government acknowledged the insufficiency of cell space afforded to the applicant between December 2004 and mid-October 2005.", "However, they contended that the applicant had been given an individual sleeping berth and bedding. They submitted that the cell-space factor was an insufficient basis on which to conclude that there had been a violation of Article 3 of the Convention as regards Tomsk Remand Centre. As regards Tomsk Prison, the Government submitted that the applicant had been kept there from 11 to 25 April 2005. A body search disclosed that he had been in possession of a razor blade. He had therefore been placed in a punishment cell; his head had not been shaven.", "65. The applicant affirmed that he was complaining about the conditions of his detention from December 2004 onwards. He submitted that he had raised the matter with the detention judge and the prosecutor present at several detention extension hearings. The applicant’s mother had complained on his behalf to various public authorities such as the Regional Prosecutor’s Office and the Prosecutor General’s Office. However, those complaints had not been examined in substance.", "There had been no amelioration in the material conditions of detention; renovation works had started only in 2007. A. Admissibility 1. Tomsk Prison no. 3 66. The Court observes at the outset that the applicant made no complaint about the material conditions of his detention in Tomsk Prison from 11 to 25 April 2005.", "Even assuming that he complied with the six months rule and the exhaustion requirement, it has not been established that he was subjected to any proscribed treatment there in breach of Article 3 of the Convention. Neither is the mere fact of placement in a punishment cell as a penalty for having violated prison discipline sufficient to constitute degrading or inhuman punishment (see Costello-Roberts v. the United Kingdom, 25 March 1993, §§ 30-32, Series A no. 247‑C). 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. 2.", "Tomsk Remand Centre no. 70/1 (a) Exhaustion of domestic remedies 67. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law (see Guliyev v. Russia, no.", "24650/02, § 51, 19 June 2008, with further references). 68. The Court notes the Government’s argument that the applicant failed to lodge an action before a court complaining about the allegedly appalling conditions of his detention. The Court has already on a number of occasions examined the same objection by the Russian Government and dismissed it (see Guliyev, cited above, § 34). The Court sees no reason to depart from that finding in the present case.", "69. Thus, the Court concludes that the applicant’s complaint cannot be dismissed for failure to exhaust domestic remedies. (b) Continuing situation and six-month rule 70. The Court is satisfied that the applicant’s complaint concerned his detention in the remand centre from December 2004 onwards (see paragraph 36 above). However, it further observes that the applicant’s detention in this remand centre was interrupted from 11 to 25 April 2005, when he was kept in another detention facility.", "Having regard to the findings in paragraph 66 above and the applicable principles, the Court considers that this period was such as to bar the Court’s competence by virtue of the six-month rule in respect of the complaint regarding the conditions of detention from 10 December 2004 to 11 April 2005 (compare Benediktov, cited above, § 31; Igor Ivanov v. Russia, no. 34000/02, § 30, 7 June 2007; and Guliyev, cited above, §§ 31-33; see also, mutatis mutandis, Solmaz v. Turkey, no. 27561/02, §§ 32-37, ECHR 2007‑... (extracts)). 71. Furthermore, the Court observes that the applicant lodged before the Court a complaint about the conditions of his detention while still being in the same detention facility.", "He also remained there after notice of the application had been given to the respondent Government. Thus, it is open to the Court to examine the conditions of the applicant’s detention from 25 April 2005 onwards. 3. Conclusion on admissibility 72. The Court finds that the applicant’s complaint regarding the conditions of his detention in the remand centre 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 as regards the conditions of the applicant’s detention in the remand centre from 25 April 2005 onwards. B. Merits 73. The Court observes that the parties’ accounts of the conditions of detention differ.", "Some of the applicant’s allegations are not supported by sufficient evidence and have therefore not been proved beyond reasonable doubt. However, the Court does not consider it necessary to establish the truthfulness of each and every allegation made by the applicant. Instead, the Court will concentrate on the specific allegations that have not been disputed by the respondent Government, or those in respect of which the Government did not comment (see Trepashkin v. Russia, no. 36898/03, § 85, 19 July 2007). The Court will first examine the issue that lends itself to more or less precise quantification, namely the cell space afforded to the applicant during the various periods of his detention.", "74. The Government provided no information as to the source of their information regarding the cell population, except for certain short periods of the applicant’s detention in cells nos. 41 and 280. The Court observes, however, that it is common ground between the parties that between 25 April 2005 and 11 October 2005 the applicant was detained in conditions allowing for 1.37 to 2.51 square metres of cell space per detainee (except for several days in September 2005), including the space taken by the furniture. 75.", "As the Government made no submissions as to the number of persons detained with the applicant from 11 October 2005 onwards in cells nos. 267, 184 and 183, the Court will base its assessment on the numbers supplied by the applicant (see paragraphs 36 and 37 above). Therefore, the Court finds that during the relevant period he was afforded 0.78 to 1.7 square metres in those cells, including the space taken by the furniture. Moreover, the Court accepts the applicant’s assertion that when the number of detainees exceeded the number of beds in the cell, he had to sleep in shifts with other detainees. Even assuming that the cells were occupied up to their design capacity, the space afforded per detainee would still be insufficient.", "76. Furthermore, the applicant submitted six colour photographs allegedly showing the interior of cell no. 183. The lavatory and a sink were situated next to one of the beds; the pan had no flushing system and no lid, and was not separated in any way from the living area. The Government submitted a faxed copy of photos showing a standard toilet with a curtain.", "The Court will not concern itself with the way in which the applicant obtained the photographs. Its only concern is to determine whether they reflect the truth, and if so, to draw the appropriate conclusions from them (see Mathew v. the Netherlands, no. 24919/03, § 159, ECHR 2005‑IX). The Court has no reason to doubt that the photos submitted by the applicant showed the sanitary installations in one of the cells in which he was detained and finds that the sanitary arrangements were inappropriate. 77.", "Nothing in the parties’ submissions made in 2008 indicates that the applicant was transferred to another detention facility or that his situation was otherwise improved, except – probably – regarding sanitary installations. The Court notes with satisfaction some indications as to improvement of the general conditions of detention in various buildings of the remand centre between 2004 and 2008, as stated in the certificate of 26 June 2008 produced by the Government. However, the Court is unable to assess whether any of those improvements directly affected the applicant. Accordingly, the Court concludes that the applicant was kept in cramped conditions up to and including 2008. 78.", "Lastly, the Court observes that save for one hour of daily outdoor exercise, except on the days of court hearings, the applicant was confined to his cell and was not allowed any other out-of-cell activity. That factor adds to the problem of the insufficient cell space (see Karalevičius v. Lithuania, no. 53254/99, § 36, 7 April 2005, and Khudoyorov v. Russia, no. 6847/02, § 105, ECHR 2005-... (extracts)). 79.", "The Court has on many occasions found a violation of Article 3 of the Convention on account of the lack of personal space afforded to detainees (see Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III; Khudoyorov, cited above, §§ 104 et seq. ; Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no.", "63378/00, §§ 39 et seq., 20 January 2005; and Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI). 80. Having regard to its case-law on the subject and the material submitted by the parties, 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. Although in the present case there is no indication that the authorities intended to humiliate or debase the applicant, the Court finds that the fact that the applicant has been kept in cramped conditions is itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of anguish and inferiority capable of humiliating and debasing him.", "81. There has accordingly been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention, which the Court considers to be inhuman and degrading within the meaning of that provision. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 82. The applicant alleged that his detention between December 2004 and November 2006 had been unlawful for various reasons.", "He relied on Article 5 § 1 of the Convention: “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 83. The applicant argued in particular that his arrest had been unlawful. He also argued that under Article 109 § 3 of the CCrP, as in force in 2005 and 2006, the extension of the detention period beyond twelve months up to eighteen months could be allowed only with the approval by the Prosecutor General or his deputy.", "No such approval was sought or obtained for extending the applicant’s detention on and after 30 November 2005. The detention order of 13 February 2006 did not indicate a time-limit. There was no decision on the detention matter after the case was returned to the investigating and prosecuting authorities on 29 and 31 May 2006 respectively. An extension request was submitted too late. The remand order of 2 June 2006, which was based on that request, unlawfully extended his detention beyond the eighteen-month period of Article 109 of the Code.", "84. The Government submitted that under Article 109 §§ 3 and 4 of the CCrP the maximum period of detention pending the investigation was limited to eighteen months (see paragraph 56 above). However, Article 109 § 8 (1) allowed for an extension over eighteen months if the accused and his counsel required more time to study the case file. In the present case, the regional prosecutor, acting under Article 109 § 7, had consented to apply to a court for further extensions on such grounds in November 2005 and after the return of the case file to the authorities in 2006. After the criminal case was committed for trial, the detention matter was regulated by Article 255 of the Code (see paragraph 57 above), thus limiting this period of detention to six months until the delivery of a trial judgment.", "However, a court could extend that period on a number of occasions, but each time for no longer than three months. The applicant’s detention from 23 January to 27 April 2006, and from 8 to 19 September 2006 were regulated by Article 255 of the Code. B. The Court’s assessment 1. Admissibility (a) Arrest and detention order of 10 December 2004 85.", "Even assuming that the applicant exhausted the domestic remedies in respect of his arrest and the detention order of 10 December 2004, he raised the related complaint before the Court only on 23 May 2006. 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. (b) Detention orders of 30 November and 29 December 2005 86. The applicant alleged that the extension request, which resulted in the detention order of 30 November 2005, should have been approved by the Prosecutor General or his deputy. Article 109 § 3 of the CCrP, as in force in 2005 and 2006, did indeed require that an extension request be approved by the Prosecutor General or his deputy (see paragraph 56 above).", "However, the Court accepts the Government’s argument that the detention order of 30 November 2005 was based on Article 109 § 7 rather than its paragraph 3. The former required that an extension request be approved by a regional prosecutor, which was done in the present case (see paragraph 10 above). Thus, the Court is satisfied that the national law was complied with in that respect. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (c) Detention order of 13 February 2006 87.", "The applicant also complained that the detention order of 13 February 2006 indicated no time-limit for his continued detention. Even assuming that the applicant exhausted the domestic remedies (see paragraph 13 above), the Court notes that this complaint was first raised in substance only in 2008, and thus was submitted out of time. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention. (d) Detention order of 2 June 2006 88. The Court observes that the main thrust of the applicant’s argument under Article 5 § 1 (c) of the Convention related to the detention order of 2 June 2006.", "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. 2. Merits 89.", "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. 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 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 Toshev v. Bulgaria, no. 56308/00, § 58, 10 August 2006). The words “in accordance with a procedure prescribed by law” in Article 5 § 1 do not merely refer back to domestic law; they also relate to the quality of this law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention (see Stafford v. the United Kingdom [GC], no.", "46295/99, § 63, ECHR 2002‑IV). Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness (see, among others, Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001-II). 90. The applicant’s argument is twofold: (i) the order of 2 June 2006 allegedly extended his detention beyond the eighteen months’ limit in breach of Article 109 of the CCrP; (ii) the relevant request for extension had been lodged too late and had not been approved by the Prosecutor General or his deputy.", "The Court observes that by 2 June 2006 the applicant had already been kept in detention for seventeen months and twenty-three days. However, the Government contended that part of that period, namely from 23 January to 27 April 2006, was covered by Article 255 of the CCrP and did not count toward the time-limits in Article 109 of the CCrP. The Court cannot accept the Government’s submission for the reasons set out below. 91. The Court has on many occasions examined the peculiar feature of the Russian legal framework consisting of detention “pending investigation” and detention “pending trial”, and the corresponding methods of calculating relevant periods of detention (see paragraphs 56 and 57 above) (see Khudoyorov, cited above, in fine).", "In such a framework, several non-consecutive periods of detention within one set of criminal proceedings can be classified as “pending investigation” or “pending trial”, for instance when the trial judge returns the case to the prosecutor (see paragraph 58 above). Although the Court cannot assess as such the “lawfulness” of the applicant’s detention before 2 June 2006 for the reason set out in paragraph 87 above, it will have regard to the relevant circumstances for its analysis in relation to the applicant’s detention on the basis of the detention order under review. 92. In that connection, the Court notes that the earlier order of 13 February 2006 did not refer to Article 255 of the CCrP, did not set a time-limit and did not state reasons for maintaining the applicant in custody or for a periodic review of the preventive measure. The remand judge did, however, refer to Article 237 of the CCrP, which required that after receipt of the case file from the judge the prosecutor should comply with his or her instructions within five days.", "This was not done in the present case. In the meantime, from 13 February to 29 May 2006 the applicant’s case was neither with the trial judge nor with the prosecuting authority. Thus, already at that point the applicant was placed in a situation of uncertainty as to the grounds for his continued detention. 93. On 2 June 2006 the regional court extended his detention until 29 July 2006 so that the total period of detention (under Article 109 of the CCrP), it stated, would amount to sixteen months and twenty-four days.", "The Court notes that the remand judge did not specify the paragraph on which he based this remand order. Even accepting that the appeal court might have remedied that shortcoming by itself referring to Article 109 § 7 of the CCrP (see paragraph 17 above), the Court is not convinced that the national courts correctly calculated the relevant term of detention. The Court considers that the applicant’s detention from 9 December 2004 to 7 February 2006 was regulated under Article 109 of the CCrP (see paragraphs 11 and 60 above). His detention from 7 to 13 February 2006 was authorised under Article 255 of the Code. The Government did not substantiate their assertion concerning the applicability of Article 255 from 13 February to 27 April 2006 (see paragraph 58 above).", "They did, however, accept that the detention from 27 April to 2 June 2006 was covered by Article 109 of the CCrP. 94. The Court notes that neither the prosecutor’s extension request nor the order itself contained any indication as to how the overall period of detention was calculated. However, this matter was of fundamental importance for the applicant who claimed that no further extension of his detention would be lawful under the CCrP. If the period from 13 February to 2 June 2006 was regulated under Article 109 of the CCrP, it meant that by the latter date the applicant had already spent seventeen months and sixteen days in detention under that provision.", "In the Court’s opinion, the absence of sufficiently precise rules concerning the legal grounds for detention following the return of the case to the prosecutor seriously affected the “lawfulness” of the applicant’s detention since the national courts’ reasoning was premised on the fact that the applicant’s detention as extended would not exceed the eighteen months’ limit. 95. In light of the foregoing considerations, the Court is not satisfied that the detention order of 2 June 2006 was based on rules which could be considered as sufficiently precise. There has accordingly been a violation of Article 5 § 1 (c) of the Convention. 96.", "In view of the above findings, there is no need to examine separately the applicant’s remaining arguments in relation to this detention order. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 97. The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been excessively long and lacked sufficient justification. Article 5 § 3 reads in the relevant part 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. Submissions by the parties 98. The applicant confirmed that he had both Russian and German nationality. However, he insisted that he had a place of residence in Russia at the material time, had a stable household and was living at his wife’s relatives’ flat. The authorities had not displayed particular diligence, given that the case had been returned to the prosecutor on three occasions. He had been charged only in respect of five episodes, none of which concerned any alleged criminal activities after the year 2003.", "99. The Government submitted that the detention decisions in respect of the applicant had been based on relevant and sufficient considerations. The case against him was particularly complex and was linked to more than thirty criminal files, including emerging episodes of criminal activity on the part of an organised group or a criminal gang. The decision to join various episodes was justified with a view to avoiding possible duplication of the proceedings. In total, the applicant and his co-accused were charged in relation to more than fifty episodes of criminal activities between 2002 and 2005 relating mainly to drug trafficking.", "The case file at the time of being studied by the accused was voluminous (4,500 pages). No less than one hundred persons were questioned as witnesses, including those residing or detained outside the Tomsk Region. Thirty complex forensic reports had been commissioned in the course of the proceedings. Moreover, there was a risk that the applicant would flee investigation and justice in view of the gravity of the charges against him for offences punishable with long custodial sentences. The courts had also taken into account that the applicant had no permanent place of residence in Tomsk or elsewhere in Russia; that he had German nationality; and that his place of residence and that of his relatives and friends, as well as his sources of income, were all located in Germany.", "The courts had also had regard to the applicant’s personality, in particular his involvement in drug trafficking and smuggling, and to the fact that he had set up and supervised the supply of drugs from Germany to Russia and was an active member of a criminal gang in the Tomsk Region. If at large, he could have put pressure on the co-accused or witnesses both before and during the trial. His previous criminal record (dealing in firearms) and his predisposition to criminal activity supported the argument that he could continue his criminal activities, if released. The courts had examined the arguments of the defence and had given reasoned decisions dismissing them. Less stringent preventive measures could not be applied in the absence of any permanent place of residence.", "Neither would financial sureties, whatever their value, be sufficient for securing the applicant’s presence at the trial. Lastly, the authorities had displayed particular diligence in the conduct of the proceedings, while the applicant and his counsel had protracted the proceedings. B. The Court’s assessment 1. Admissibility 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. 2. Merits 101.", "The Court observes that the relevant period of the applicant’s detention started on 9 December 2004, the date of his arrest, and ended on 30 July 2008, when he was convicted. Thus, he spent three years, seven months and twenty-one days in detention before and pending trial. The length of the applicant’s detention is a matter of concern for the Court. The presumption being in favour of release, the Russian authorities were required to put forward very weighty reasons for keeping the applicant in detention for such a long time. 102.", "The applicant was apprehended on suspicion of procurement and attempted supply of drugs following a search in his flat and seizure of a quantity of drugs. The Court is satisfied that that suspicion was a reasonable one. For at least an initial period, its existence justified the applicant’s detention. However, the Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices. Thus, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see McKay v. the United Kingdom [GC], no.", "543/03, § 44, ECHR 2006‑...). Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. 103. The question whether or not a period of detention is reasonable must be assessed in each case according to its special features; there is no fixed time-frame applicable to each case (see McKay, cited above, § 45). It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether Article 5 § 3 has been complied with.", "It will therefore examine the reasons given by the Russian courts throughout the period of detention. 104. In its assessment the Court does not lose sight of the fact that after the applicant had been charged in December 2004, further charges were brought in May and October 2005 on various counts of drug trafficking (see paragraphs 7 and 9 above). However, the Court has repeatedly held that, although the gravity of the charges or the severity of the sentence faced is relevant in the assessment of the risk of an accused absconding, reoffending or obstructing justice, it cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80 and 81, 26 July 2001).", "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 whether the evidence obtained supports a reasonable suspicion that the applicant has committed the alleged offence (see Khudoyorov, cited above, § 180). 105. The Government have put a special emphasis on the concerted or organised nature of the alleged criminal activities. Indeed, the applicant was charged with membership of a criminal gang, which is an offence under the Criminal Code, and commission of offences relating to drug trafficking within that organised group. The Court has previously considered that the existence of a general risk flowing from it may be accepted as the basis for detention at the initial stages of the proceedings (see Kučera v. Slovakia, no.", "48666/99, § 95, ECHR 2007‑... (extracts), and Celejewski v. Poland, no. 17584/04, §§ 37 and 38, 4 May 2006). The Court cannot agree that the concerted nature of the alleged criminal activities formed the basis of the detention orders at the initial or advanced stage of the proceedings. Neither was the Court provided with any evidence which would support the Government’s own submission on that point. 106.", "Thus, the above circumstances alone could not constitute a sufficient basis for holding the applicant for a long period of time. 107. The other grounds for the applicant’s continued detention were the domestic courts’ findings that the applicant could abscond, pervert the course of justice and reoffend. 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 v. Russia, no.", "54071/00, § 67, 7 April 2005). It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of specific facts in support of their conclusions. (a) The danger of perverting the course of proceedings 108. As to the domestic courts’ findings that the applicant was liable to pervert the course of justice, in particular by putting pressure on witnesses, the Court notes that at the initial stages of the investigation the risk that an accused person may pervert the course of justice could justify keeping him or her in custody. However, after the evidence has been collected, that ground becomes less justified.", "In particular, as regards the risk of pressure being put on witnesses, the Court reiterates that for the domestic courts to demonstrate that a substantial risk of collusion existed and continued to exist during the entire period of the applicant’s detention, it did not suffice merely to refer to an abstract risk unsupported by any evidence. They should have analysed other pertinent factors, such as the advancement of the investigation or judicial proceedings, the applicant’s personality, his behaviour before and after the arrest and any other specific indications justifying the fear that he might abuse his regained liberty by carrying out acts aimed at falsification or destruction of evidence or manipulation of witnesses (see W. v. Switzerland, 26 January 1993, § 36, Series A no. 254‑A). 109. Furthermore, the Court notes that the pre-trial investigation in respect of the applicant was completed in October 2005.", "Thereafter, he remained in custody for two years and nine months, of which most of the time the proceedings were pending before the trial court. It thus appears that the domestic authorities had sufficient time to take statements from witnesses in a manner which could have excluded any doubt as to their veracity and would have eliminated the necessity to continue the applicant’s deprivation of liberty on that ground (see, for similar reasoning, Solovyev v. Russia, no. 2708/02, § 115, 24 May 2007). Moreover, the prosecution completed the presentation of evidence in September 2007 (see paragraph 33 above). Thus, it may be assumed that the witnesses testifying in relation to the charges against the applicant had been examined by that date.", "However, no explanation was given as to why the alleged risk persisted. The Court observes that the national courts did not specify why such risk existed in relation to the applicant and did not exist in relation to the other detained or non-detained co-accused. Only two of four defendants, including the applicant and Z, were kept in detention throughout the investigation and pending the trial. L and another person were at large while most of the charges apparently concerned defendants Z and L. 110. The Court therefore considers that, having failed to act diligently, the national authorities were not entitled to regard the circumstances of the case as justification for using the risk of collusion as a further ground for the applicant’s detention.", "(b) Risk of absconding 111. Throughout the period of detention the Russian courts also referred to the applicant’s German nationality as a reason to believe that he might abscond, if released. The Court accepts that a detainee’s foreign nationality could be a relevant factor in assessing the risk of flight (see Lind v. Russia, no. 25664/05, § 81, 6 December 2007). However, the danger of an accused absconding does not result just because it is possible or easy for him to cross the frontier: there must be a whole set of circumstances, such as, particularly, the lack of well-established ties in the country, which give reason to suppose that the consequences and hazards of flight will seem to him to be a lesser evil than continued imprisonment (see Stögmüller v. Austria, judgment of 10 November 1969, § 15, Series A no.", "9). It was not disputed that the applicant’s German passport had expired and was not renewed. The applicant, who was also a Russian national, could only cross the Russian border with his Russian travel passport (see Lind, cited above, §§ 53 and 81). It appears that after his arrest the applicant had been divested of his documents, including his passport. In any event, the domestic authorities did not explain why the withdrawal of his Russian travel passport did not mitigate the risk of his absconding abroad.", "112. The Court is ready to accept that the applicant did not have a place of residence in Tomsk or elsewhere in Russia, which could be qualified as “permanent” by the Russian courts. However, the mere absence of a fixed residence does not give rise to a danger of absconding (see Pshevecherskiy v. Russia, no. 28957/02, § 68, 24 May 2007, and Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005).", "As already stated, the risk of flight should be assessed with reference to various factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8). Such risk necessarily decreases as the time spent in detention passes by for the probability that the length of detention on remand will be deducted from (or will count towards) the period of imprisonment which the person concerned may expect if convicted, is likely to make the prospect seem less awesome to him and reduce his temptation to flee (ibid. ; see also paragraph 61 above). 113.", "In addition, the Court observes that the risk of absconding was the only reason cited by the remand judge on 20 November 2006. Even assuming that he intended to endorse the other reasons cited in previous detention orders, there was no serious attempt to establish that those reasons still obtained. 114. The Court therefore finds that the existence of the risk of absconding was not sufficiently established. (c) Risk of reoffending 115.", "The domestic courts also mentioned that the applicant had previously been prosecuted for unlawfully dealing in firearms, had then been granted bail, but was “prosecuted again for even more serious offences” (see paragraph 24 above). The Court accepts that that fact may be relevant in assessing the danger of reoffending. Such a danger, if convincingly established, may lead the judicial authorities to place and leave a suspect in detention in order to prevent any attempts to commit further offences. It is however necessary, among other conditions, that the danger be a plausible one and the measure appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned (see Clooth v. Belgium, judgment of 12 December 1991, § 40, Series A no. 225).", "However, the national courts did not attempt to assess the relevant risk, including whether the earlier charges were comparable, either in nature or in the degree of seriousness, to the charges in the pending proceedings (ibid; see also Popkov v. Russia, no. 32327/06, § 60, 15 May 2008). Neither was it in dispute between the parties that those other proceedings had been discontinued and that the applicant had complied with the bail conditions. 116. Thus, the Court is not convinced that the risk of reoffending was sufficiently established.", "(d) Other reasons given by national courts 117. On 31 August 2005 the detention judge extended the applicant’s detention because the investigator required more time in which to receive the forensic reports, list the full charges against the applicant and three other co-accused, to allow them to study the reports and other materials in the case file and draft a bill of indictment (see paragraph 7 above). The Court considers that a mere reference to the need to carry out certain investigative measures, such as those referred to above, is not as such a relevant consideration for justifying the continued detention on remand. 118. The Court further notes that after the case had been listed for trial the applicant’s detention was subject to a regular re-assessment at no longer than three-month intervals, irrespective of whether or not there was an application from the prosecution or the defence.", "The reasons given for keeping the applicant in detention were that the circumstances previously referred to for justifying his detention still obtained, the fact that the defendants were studying the case file or that it was then impracticable to complete the trial within the relevant period (see paragraphs 20, 22 - 24 above). As regards the first point, the Court refers to its above analysis of the pre-trial remand orders. As to the second point, the Court considers that the fact that the applicant or his counsel studied the case file at the time could not justify the continued detention. Neither is the matter of when the trial will occur a relevant reason for the purposes of Article 5 § 3: its second limb does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial (see McKay, cited above, § 41). Therefore in so far as the promptness of the re-trial was a reason for refusing bail and not simply an additional observation by the trial judge, the Court considers that it cannot be said to be a relevant reason for the purposes of Article 5 § 3 of the Convention (see also Gault v. the United Kingdom, no.", "1271/05, § 20, 20 November 2007). 119. In the Court’s opinion, it was not shown that the above considerations were relevant for the examination of the remand issue. 120. Having noted that, the Court observes that despite a clear indication from the Supreme Court (see paragraph 59 above), the remand courts did not assess whether the “reasonable time” requirement was complied with throughout the period of the applicant’s detention and did not have regard to the applicant’s allegations in respect of the conditions of detention, which the Court has found to be in breach of Article 3 of the Convention (see paragraphs 20, 24 and 81 above).", "(e) Alternative preventive measures 121. Lastly, the Court 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). During the entire period under consideration the authorities did not consider the possibility of ensuring the applicant’s attendance by the use of other “preventive measures” – such as a written undertaking or bail – which are expressly provided for by Russian law to secure the proper conduct of criminal proceedings.", "In this connection, the Court considers that the remand orders contain no assessment of whether the danger that the applicant would avoid appearing at the trial by absconding was so substantial and persistent that it was necessary to dismiss as quite ineffective the taking of guarantees which under Article 5 § 3 may condition a grant of provisional release in order to reduce the risks which it entails. The applicant offered a deposit of up to RUB 340,000 as surety for bail. The Court is not in a position to state an opinion as to the amount of security which could reasonably be demanded. However, the omission to consider such an option or a combination of guarantees is regrettable. (f) Conclusion 122.", "Although the Court does not underestimate the danger of the organised crime, especially when it concerns drug trafficking, it cannot but conclude that the detention orders in the present case do not disclose any serious attempt to examine in sufficient detail all the circumstances relevant for the remand matter. It also notes with concern that the appeal decision in relation to the extension order of 29 December 2005 referred to a Mr Sergeyev instead of the applicant and also indicated that the investigator’s extension request had been approved by the Deputy Prosecutor General, which was not the case. 123. The Court concludes that by failing to refer to concrete relevant facts or consider alternative “preventive measures”, 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 for a period of over three years.", "It is hence not necessary to examine whether the proceedings against the applicant were conducted with due diligence during that period as such a lengthy period cannot in the circumstances be regarded as “reasonable” within the meaning of Article 5 § 3 (see also paragraph 149 below). 124. There has therefore been a violation of Article 5 § 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 125.", "The applicant complained that his appeals against the detention orders of 2 June 2006 and 31 July 2007 had not been examined speedily, in breach of Article 5 § 4 of the Convention. This provision 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.” 126. The Government submitted that the CCrP did not set a time-limit for sending the case for examination by a court of appeal. Having received the case file, the court of appeal had to start the examination of the appeal within one month (Article 374 of the CCrP).", "The applicant’s appeal against the detention decision of 2 June 2006 was examined on 22 September 2006. The delay was accounted for by the need to allow the other parties to submit their comments, to dispatch a large bulk of detention materials from Tomsk to Moscow and in order to ensure the applicant’s counsel’s presence at the appeal hearing. The appeal against the detention order of 31 July 2007 was examined within a reasonable period of time. 127. The applicant maintained his complaint.", "A. Admissibility 128. 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. General principles 129. The Court reiterates that Article 5 § 4 of the Convention proclaims the right to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Baranowski v. Poland [GC], no. 28358/95, ECHR 2000). There is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no.", "27504/95, § 76, 4 October 2001). 130. Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where national law provides for a system of appeal, the appellate body must also comply with the requirements of Article 5 § 4, in particular, as concerns the speediness of the review by the appellate body of a detention order imposed by the lower court (see Lebedev, cited above, § 96). At the same time, the standard of “speediness” is less stringent when it comes to proceedings before the court of appeal.", "The Court reiterates in this connection that the right of judicial review guaranteed by Article 5 § 4 is primarily intended to avoid arbitrary deprivation of liberty. However, if the detention is confirmed by a court it must be considered to be lawful and not arbitrary, even where an appeal is available (ibid.). Subsequent proceedings are less concerned with arbitrariness, but provide additional guarantees aimed primarily at an evaluation of the appropriateness of continuing the detention (loc. cit.). Therefore, the Court would be less concerned with the speediness of the proceedings before the court of appeal if the detention order under review was imposed by a court and on condition that the procedure followed by that court had a judicial character and afforded to the detainee the appropriate procedural guarantees.", "2. Application in the present case 131. On 5 June 2006 the applicant appealed against the extension order of 2 June 2006. He submitted further statements of appeal on 7, 13 and 19 June 2006. Copies of those statements were sent to the other parties to the proceedings for comment before 21 July 2006.", "On 26 July 2006 the detention file was dispatched from Tomsk to Moscow where the Supreme Court is situated. The latter received it on 3 August 2006. On 22 September 2006 the Supreme Court upheld the order. 132. On 31 July 2007 the Regional Court rejected the applicant’s application for release and extended his detention.", "The applicant’s counsel appealed on 8 August 2007. A copy of the statement of appeal was sent to the other parties to the proceedings for comment before 23 August 2007. The applicant submitted an additional statement of appeal on 15 August 2007. A copy of it was sent to the parties on 20 August 2007 for comment before 3 September 2007. On 4 September 2007 the detention file was dispatched to the Supreme Court, which received it on 14 September 2007.", "Due to a typing error in the detention order, the file had to be returned to the Regional Court, which required additional time in which to study it. On 6 December 2007 the Supreme Court upheld the order. 133. The Government have not adduced any evidence which would disclose that, having lodged those appeals, the applicant caused any significant delays in their examination. Thus, the Court finds that the periods from 21 June to 22 September 2006 and from 3 September to 6 December 2007 are attributable to the State.", "134. The Court considers that such delays cannot be considered compatible with the “speediness” requirement of Article 5 § 4 (see Lebedev, cited above, §§ 102 and 108; Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006; and Khudoyorov, cited above, §§ 198 and 204). The Court deplores the fact that the appeals against the above detention orders were examined only after a fresh detention order had been issued by the Regional Court. Although it was apparently open to the applicant to lodge applications for release during the intervening periods of time, the availability of such recourse did not absolve the national authorities from their obligation to decide “speedily” on the validity of an extension order (see Starokadomskiy v. Russia, no.", "42239/02, § 85, 31 July 2008, with further references). 135. There has therefore been a violation of Article 5 § 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 136. The applicant complained that the length of the criminal proceedings against him had exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention.", "The relevant part of that provision 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...” A. Admissibility 137. The Government submitted that the applicant had not exhausted domestic remedies because the proceedings had still been pending when the applicant lodged the application with the Court. 138. The Court reiterates that complaints concerning length of proceedings can be brought before it before the final termination of the proceedings in question (see Chevkin v. Russia, no. 4171/03, § 29, 15 June 2006).", "It follows that the Government’s objection must be dismissed. 139. 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. Submissions by the parties 140. The applicant indicated that the delays in 2006 were attributable to the authorities. Few hearings were held in 2007 and 2008 (see paragraph 32 above).", "The applicant’s counsel attended all hearings, except in December 2007 due to his illness. The proceedings were delayed because the trial judge had been on leave twice in 2007 and because certain witnesses had failed to appear. Between December 2007 and March 2008 the applicant had lodged eighteen applications, none of which had resulted in an adjournment. 141. The Government submitted that the criminal case was particularly complex, in view of the number of co-accused and episodes of drug trafficking.", "New episodes accumulated (more than thirty) and were investigated within the proceedings pending against the applicant and another person. The latter was prosecuted in relation to more than forty episodes of drug trafficking and money laundering. The drug trafficking charges concerned criminal activities within two regions and two types of drugs. The investigation was rendered difficult by the fact that certain witnesses were living in another region; the whereabouts of some of them were difficult to establish and they retracted their earlier statements. The case was returned to the prosecutor on three occasions.", "The applicant and his counsel delayed the proceedings, in particular when they studied the case for the second time between June and September 2006, and lodged unsubstantiated applications at the trial. Hearings were scheduled every month. 2. The Court’s assessment 142. 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 and the conduct of the applicant and the relevant authorities (see, among other authorities, Pélissier and Sassi v. France [GC], no.", "25444/94, § 67, ECHR 1999-II). Article 6 is, in criminal matters, designed to avoid that a person charged should remain too long in a state of uncertainty about his fate (see Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006, and Taylor v. the United Kingdom (dec.), no. 48864/99, 3 December 2002). The Court considers that much was at stake for the applicant in the present case, bearing in mind that he risked imprisonment and was detained pending the proceedings.", "143. The Court observes that the period under consideration in the present case began on 9 December 2004, when the applicant was arrested, and ended on 5 March 2009, when the appeal decision was issued. It follows that the criminal proceedings against the applicant have lasted for more than four years during which the applicant has remained detained. The Court has examined the applicant’s complaint, bearing in mind that it essentially concerned the trial proceedings (see Dawson v. Ireland (dec.), no. 21826/02, 8 July 2004).", "He made no submissions in relation to the investigative stage of the proceedings. The Court finds no reason to hold that there were any unjustified substantial delays during the investigation. 144. The trial proceedings lasted from 23 January 2006 to 30 July 2008, that is for two years and nearly six months. They were followed by the appeal proceedings, which ended on 5 March 2009.", "145. The Court accepts that the case revealed a certain degree of complexity; it concerned four defendants who had been charged with several counts of serious criminal offences. While admitting that the task of the national authorities was rendered more difficult by these factors, the Court cannot accept that the complexity of the case, taken on its own, is such as to justify the length of the proceedings. 146. As to the applicant’s conduct, the Court reiterates that an applicant cannot be required to co-operate actively with the judicial authorities, nor can he be criticised for having made full use of the remedies available under the domestic law in the defence of his interests (see, among others, Rokhlina, cited above, § 88).", "The Court cannot uphold the Government’s argument that the applicant went beyond the limits of legitimate defence by lodging unsubstantiated requests. It appears that the absence or illness of the applicant’s counsel was the cause of a short delay. On balance, the Court finds that the applicant has not contributed significantly to the length of the proceedings. 147. On the other hand, the Court considers that certain delays were attributable to the domestic authorities, in particular those following the decisions of the judge in 2006 to return the case to the prosecutor.", "The Court also observes that only one fully fledged hearing was held in 2006 and that there were few hearings between April and October 2007. The Government did not substantiate their argument that certain delays were due to the fact that certain witnesses detained in other towns had to be brought to trial hearings. The appeal proceedings pended for more than seven months. Neither does the Court lose sight of the fact that throughout the proceedings the applicant remained in custody and so in cramped conditions, as the Court has held above (see paragraphs 81 and 123 above). 148.", "It is 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 conduct of the authorities was consistent with the fair balance which has to be struck between the various aspects of this fundamental requirement. 149. Making an overall assessment, the Court concludes that in the circumstances of the case the “reasonable time” requirement has not been complied with.", "There has accordingly been a violation of Article 6 § 1 of the Convention. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 150. The applicant complained under Article 6 of the Convention that the search of his flat had been unlawful. The Court notes, however, that there is no indication that the applicant challenged the search order in the national courts.", "It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 151. The applicant further complained under Article 6 of the Convention about the criminal proceedings, alleging in particular that he had not been given adequate time to study the case and that counsel F. had been removed from the proceedings unlawfully. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, it finds that these complaints 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 152. Lastly, the applicant complained that he had been questioned in an intimidating environment and under threats of violence from police officers and that his defence rights had not been respected during detention hearings. The Court has examined these complaints as submitted by him. However, having regard to all the material in its possession, it finds that these complaints 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 153. 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 154.", "The applicant claimed 30,000 euros (EUR) in respect of pecuniary damage representing loss of earnings for the period of detention pending investigation and trial. He also claimed compensation in respect of non-pecuniary damage on account of the conditions of his detention. 155. The Government submitted that the applicant should have lodged before the national courts a claim under Article 133 of the CCrP for compensation on account of unlawful detention and prosecution. He should have also claimed compensation in respect of non-pecuniary damage under Article 151 of the Civil Code.", "156. The Court does not have to examine the Government’s objection and whether there is a direct causal link between the violations found and the alleged pecuniary damage because the applicant’s pecuniary claim is in any event unsubstantiated. The Court therefore rejects this claim. 157. On the other hand, the Court considers that the applicant must have sustained stress and frustration as a result of the violations found.", "It has not been established that Russian law allowed or allows reparation, even partial, in relation to those violations (see Benediktov, cited above, § 29, and Korshunov v. Russia, no. 38971/06, §§ 59-63, 25 October 2007). Making an assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 158.", "The applicant also claimed a lump sum of EUR 50,000 for the costs and expenses incurred at the national level, including various food supplies to the applicant from his relatives, and before the Court, including postal and translation costs. He also claimed reimbursement of the cost of his mother’s flight from Germany to Russia and the amounts of several bank transfers to third persons in Russia. 159. The Government contested the applicant’s claims. 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 were reasonable as to quantum. Regard being had to the information in its possession and the above criteria, the Court notes that the expenses relating to the purchase of food cannot be said to have been occasioned by the conditions of detention which led it to find a violation of Article 3 of the Convention. It therefore rejects this part of the claim. The Court rejects the remaining claim for costs and expenses in the domestic proceedings because they are unsubstantiated, not properly itemised or unrelated to the violations found. Furthermore, it is noted that the applicant made no claim in respect of lawyers’ fees incurred either at the national level or before the Court.", "At the same time, the Court considers it reasonable to award him the sum of EUR 300 for the correspondence and translation expenses incurred in relation to the proceedings before the Court. C. Default interest 161. 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 conditions of the applicant’s detention, the lawfulness of one period of detention, the length of the applicant’s detention, the delays in the examination of his appeals against detention orders and the length of the criminal proceedings admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention in relation to the detention order of 2 June 2006; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5. Holds that there has been a violation of Article 5 § 4 of the Convention; 6. Holds that there has been a violation of Article 6 § 1 of the Convention; 7.", "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 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and EUR 300 (three hundred euros) in respect of costs and expenses, 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; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident [1] The applicant’s name in his German passport." ]

[ "FOURTH SECTION CASE OF LOGHIN v. ROMANIA (Application no. 1468/08) JUDGMENT This version was rectified on 24 January 2017 under Rule 81 of the Rules of the Court STRASBOURG 21 June 2016 This judgment is final but it may be subject to editorial revision. In the case of Loghin v. Romania, The European Court of Human Rights (Third Section), sitting as a Committee ad hoc composed of: Krzysztof Wojtyczek, President,Iulia Motoc,Gabriele Kucsko-Stadlmayer, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 31 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1468/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals, Mr Aurel Loghin, Ms Virginia[1] Loghin and Mr Neculai Loghin (a son and his parents – “the applicants”), on 17 December 2007.", "[2] The third applicant, Mr Neculai Loghin, died on 17 January 2011. No request to pursue the application on his behalf was made. 2. The applicants represented themselves before the Court. The Romanian Government (“the Government”) were represented by their co‑Agent, Mrs C. Ciută, from the Ministry of Foreign Affairs.", "3. The applicants alleged, in particular, that the composition of the bench which had delivered the judgment of the Iaşi County Court had not been in accordance with the law, and had therefore breached their rights as guaranteed by Article 6 § 1 of the Convention. 4. On 24 November 2010 the application was communicated to the Government. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1958, 1940 and 1933 respectively and live in Paşcani. [3] The third applicant was born in 1933 and died in 2011. 6. On 2 March 2004 a claimant initiated civil proceedings against the applicants, seeking the annulment of a sale/purchase agreement.", "By a judgment of 3 March 2006 the Paşcani District Court, acting as a court of first instance, dismissed the claimant’s action. 7. The claimant appealed against the judgment of 3 March 2006. In their submissions in reply to the appeal lodged by the claimant, the applicants argued, inter alia, that the judgment was subject only to an appeal on points of law (recurs). By a judgment delivered on 26 January 2007 the Iaşi County Court, sitting as a bench of two judges, allowed the claimant’s appeal (apel).", "In the same judgment, the court dismissed the applicants’ arguments as to its jurisdiction, ruling that the judgment could be appealed at two levels by means of an ordinary appeal and an appeal on points of law. Thus, according to the Iaşi County Court, its judgment could be appealed via an appeal on points of law. 8. The applicants lodged an appeal on points of law against the judgment of the Iaşi County Court. By a final judgment of 21 June 2007 the Iaşi Court of Appeal dismissed their appeal as inadmissible, without giving an analysis on the merits, ruling that the case could only be considered by two levels of jurisdiction, and that the judgment of the Iaşi County Court was therefore final, even if it had been given by a bench of two judges rather than the three prescribed by law.", "The Iaşi Court of Appeal also dismissed an extraordinary appeal (contestaţie în anulare) by the applicants, without giving an analysis on the merits, by a judgment delivered on 6 December 2007. II. RELEVANT DOMESTIC LAW 9. The relevant provisions of the Romanian Code of Civil Procedure and of the Administration of Justice Act (Law no. 304/2004), as in force at the material time, are set out in Jenița Mocanu v. Romania (no.", "11770/08, 17 December 2013). THE LAW[4] I. PRELIMINARY ISSUE 10. The Court observes that the third applicant, Mr Neculai Loghin, had died on 17 January 2011, after the application was lodged, and no heir had expressed an interest in pursuing the application on his behalf (see paragraphs 1 and 5 above). 11.", "The Court points out that its practice is to strike applications out of the list when an applicant dies during the course of the proceedings and no heir or close relative wishes to pursue the case (see Léger v. France (striking out) [GC], no. 19324/02, § 44, 30 March 2009). 12. In the light of the circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application as regards the third applicant (Article 37 § 1 (c) of the Convention). Furthermore, it points out that the complaints initially lodged by the third applicant are identical to those submitted by the other two applicants, on which it will express its opinion below.", "In those circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols which, in accordance with Article 37 § 1 in fine, would require the continuation of the examination of the third applicant’s application. 13. In conclusion, the Court decides to strike the case out of the list in so far as it concerns Mr Neculai Loghin, and to pursue the examination of the remainder of the application. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14.", "The[5] first two applicants complained that the composition of the bench delivering Iaşi County Court’s judgment had not been in accordance with the law. They relied on Article 6 § 1 of the Convention, which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 1. The parties’ submissions 15. The Government submitted that, given the particular circumstances of the case and the procedural guarantees provided by the domestic legislation with regard to various types of appeal, the[6] first two applicants had not suffered a significant disadvantage. 16.", "The[7] first two applicants did not agree with the Government’s submissions. 2. The Court’s assessment 17. The Court notes that the main criterion set by Article 35 § 3 (b) of the Convention is whether the applicant has suffered any significant disadvantage (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010, and Korolev v. Russia (dec.), no.", "25551/05, 1 July 2010). 18. In the present case, the Court notes that the[8] first two applicants were involved in civil proceedings brought against a third party who was seeking the annulment of a sale/purchase contract. In the proceedings before the Court, they valued the property in question at EUR 165,120 (see paragraph 34[9] below). 19.", "In this context, the Court does not consider that the financial impact of the matter on the[10] first two applicants could be considered small or insignificant. 20. Under these circumstances, and in spite of any other arguments raised by the Government, the Court considers that the[11] first two applicants cannot be deemed not to have suffered a significant disadvantage. Accordingly, it dismisses the Government’s preliminary objection. 21.", "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 1.", "The parties’ submissions 22. The[12] first two applicants alleged that the fact that the appeal on points of law which they had lodged with the domestic courts had not been examined by a bench of three judges had been unlawful under the relevant domestic legislation. 23. The Government contended that the[13] first two applicants had failed to show how the overall fairness of the proceedings had been affected by the inadmissibility of their appeal on points of law, given that they had had access to two levels of jurisdiction as required by law. The merits of their case had undoubtedly been examined twice, and the presence of a third judge would not have guaranteed them a favourable outcome.", "Moreover, the evidence regime was stricter in proceedings concerning an appeal on points of law than in appeal proceedings. 24. The Government also argued that, according to the Court’s case‑law, the Court only considered it necessary for Contracting Parties to provide two levels of domestic jurisdiction in criminal cases. 2. The Court’s assessment 25.", "The Court reiterates that the phrase “established by law” in Article 6 § 1 also means “established in accordance with the law” (see Jenița Mocanu, cited above, § 37). In addition, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal”, but also compliance by the tribunal with the particular rules that govern it and the composition of the bench in each case. 26. The Court further reiterates that, in principle, a violation by a tribunal of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1. The Court may therefore consider whether the domestic law has been complied with in this regard (see Jenița Mocanu, cited, above, § 38).", "27. Turning to the present case, the Court notes that the appeal brought by the[14] first two applicants against a third party was initially considered by the domestic courts to be eligible for consideration at three levels of jurisdiction. Therefore, the Iaşi County Court delivered its judgment on appeal as a bench of two judges. Thereafter, the[15] first two applicants lodged an appeal on points of law against that decision. The Iaşi Court of Appeal then reclassified the civil claim as eligible for consideration at only two levels of jurisdiction, dismissing the[16] first two applicants’ appeal on points of law as inadmissible.", "Consequently, the decision given by the Iaşi County Court on 26 January 2007 was considered final by the Iaşi Court of Appeal (see paragraphs 7 and 8 above). 28. In this context, the Court notes that Article 54 § 2 of Law no. 304/2004 provided that domestic courts had to sit as benches composed of three judges to decide appeals on points of law lodged against the judgments of lower courts. In the present case, the Iaşi County Court sat as a bench composed of two judges in order to deal with the appeal on points of law which had been lodged before it.", "The Court therefore considers that that bench, which delivered its decision on the merits of the case as both a second and last-instance court, was not composed in accordance with the domestic law in force at the material time. 29. The foregoing considerations, notwithstanding the arguments put forward by the Government in respect of the general fairness of the proceedings to which the[17] first two applicants were party, are sufficient to enable the Court to conclude that the domestic courts’ significant deviation from the domestic rules of civil procedure amounted to a breach of the Convention requirement for the[18] first two applicants’ claim to be determined by a “tribunal established by law” (see Jenița Mocanu, cited above, § 42). 30. Accordingly, there has been a violation of Article 6 § 1 of the Convention in this respect.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31. Lastly, the[19] first two applicants complained under Article 1 of Protocol No. 1 to the Convention that their right to peaceful enjoyment of their possessions had been breached by the domestic courts. They also raised another complaint under Article 5 of Protocol No.", "7 to the Convention, without putting forward any reasons in support of their allegation. 32. The Court has examined these complaints submitted by the[20] first two applicants. 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 these complaints are 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 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 first applicant claimed 165,120 euros (EUR) in respect of pecuniary damage, this amount representing the value of the property which he had lost in the domestic civil proceedings.", "The second applicant claimed EUR 9,700, this amount representing what he had paid in compensation to his former wife. In respect of non-pecuniary damage, the first applicant claimed EUR 200,000 and the second applicant claimed EUR 100,000. 35. The Government asked the Court to dismiss the[21] first two applicants’ claims in respect of pecuniary damage as there was no causal link between the alleged violation of Article 6 § 1 of the Convention and the value of the lost property. As regards the[22] first two applicants’ claims in respect of non‑pecuniary damage, the Government submitted that the mere acknowledgement of a violation of the[23] first two applicants’ right should represent in itself just satisfaction.", "36. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards each[24] of the first two applicants[25] EUR 3,600 in respect of non‑pecuniary damage. B. Costs and expenses 37.", "The[26] first two applicants also claimed EUR 1,426 for costs and expenses incurred before the domestic courts and before the Court. 38. The Government contested the claim and pointed out that the[27] first two applicants had failed to adduce relevant documents to justify all the alleged costs and expenses. 39. 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[28] to the first two applicants jointly the sum of EUR 300 to cover costs under all heads. C. Default interest 40. 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[29], 1. Decides to strike the application out of its list in so far as it concerns the third applicant, Mr Neculai Loghin; 2.", "Declares the complaint raised[30] by the first two applicants, Mr Aurel Loghin and Ms Virginia Loghin, under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention[31] in respect of the first two applicants; 4. Holds (a) that the respondent State is to pay[32], 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 3,600 (three thousand six hundred euros)[33] to each[34] of the first two applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 300 (three hundred euros) to[35] the first two applicants[36] jointly, 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[37] first two applicants’ claim for just satisfaction. Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıKrzysztof WojtyczekDeputy RegistrarPresident [1] Rectified on 24 January 2017: the text was: “Virgina”. [2] Rectified on 24 January 2017: the following phrases have been added: “The third applicant, Mr Neculai Loghin, died on 17 January 2011. No request to pursue the application on his behalf was made.” [3] Rectified on 24 January 2017: the following phrase has been added: “The third applicant was born in 1933 and died in 2011.” [4] Rectified on 24 January 2017: the following text has been added: “I. PRELIMINARY ISSUE 10. The Court observes that the third applicant, Mr Neculai Loghin, had died on 17 January 2011, after the application was lodged, and no heir had expressed an interest in pursuing the application on his behalf (see paragraphs 1 and 5 above).", "11. The Court points out that its practice is to strike applications out of the list when an applicant dies during the course of the proceedings and no heir or close relative wishes to pursue the case (see Léger v. France (striking out) [GC], no. 19324/02, § 44, 30 March 2009). 12. In the light of the circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application as regards the third applicant (Article 37 § 1 (c) of the Convention).", "Furthermore, it points out that the complaints initially lodged by the third applicant are identical to those submitted by the other two applicants, on which it will express its opinion below. In those circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols which, in accordance with Article 37 § 1 in fine, would require the continuation of the examination of the third applicant’s application. 13. In conclusion, the Court decides to strike the case out of the list in so far as it concerns Mr Neculai Loghin, and to pursue the examination of the remainder of the application.” [5] Rectified on 24 January 2017: “first two” has been added. [6] Rectified on 24 January 2017: “first two” has been added.", "[7] Rectified on 24 January 2017: “first two” has been added. [8] Rectified on 24 January 2017: “first two” has been added. [9] Rectified on 24 January 2017: the text was: “paragraph 30”. [10] Rectified on 24 January 2017: “first two” has been added. [11] Rectified on 24 January 2017: “first two” has been added.", "[12] Rectified on 24 January 2017: “first two” has been added. [13] Rectified on 24 January 2017: “first two” has been added. [14] Rectified on 24 January 2017: “first two” has been added. [15] Rectified on 24 January 2017: “first two” has been added. [16] Rectified on 24 January 2017: “first two” has been added.", "[17] Rectified on 24 January 2017: “first two” has been added. [18] Rectified on 24 January 2017: “first two” has been added. [19] Rectified on 24 January 2017: “first two” has been added. [20] Rectified on 24 January 2017: “first two” has been added. [21] Rectified on 24 January 2017: “first two” has been added.", "[22] Rectified on 24 January 2017: “first two” has been added. [23] Rectified on 24 January 2017: “first two” has been added. [24] Rectified on 24 January 2017: “of the first two” has been added. [25] Rectified on 24 January 2017: the text was: “applicant”. [26] Rectified on 24 January 2017: “first two” has been added.", "[27] Rectified on 24 January 2017: “first two” has been added. [28] Rectified on 24 January 2017: “to the first two applicants jointly” has been added. [29] Rectified on 24 January 2017: the following paragraph has been added: “1. Decides to strike the application out of its list in so far as it concerns the third applicant, Mr Neculai Loghin;” [30] Rectified on 24 January 2017: “by the first two applicants, Mr Aurel Loghin and Ms Virginia Loghin,” has been added. [31] Rectified on 24 January 2017: “in respect of the first two applicants” has been added.", "[32] Rectified on 24 January 2017: “the applicants” has been deleted. [33] Rectified on 24 January 2017: “to” has been added. [34] Rectified on 24 January 2017: “of the first two applicants” has been added. [35] Rectified on 24 January 2017: “the first two” has been added. [36] Rectified on 24 January 2017: “jointly” has been added.", "[37] Rectified on 24 January 2017: “first two” has been added." ]

[ "SECOND SECTION CASE OF HANBAYAT v. TURKEY (Application no. 18378/02) JUDGMENT STRASBOURG 17 July 2007 FINAL 17/10/2007 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 Hanbayat v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B.", "Baka,MrI. Cabral Barreto,MrR. Türmen,MrM. Ugrekhelidze,MrsA. Mularoni,MrsD.", "Jočienė, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 26 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 18378/02) 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 Aydın Hanbayat (“the applicant”), on 22 January 2002. 2. By a letter dated 1 March 2006, the Registry was informed of the death of the applicant on 18 June 2005 and the applicant’s mother, Mrs Fatma Hanbayat, declared her intention to pursue the application.", "3. The applicant’s mother was represented by Mr and Mrs Kırdök, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 4. On 15 September 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 was born in 1962. 6.", "On 9 October 1994 the applicant was arrested by police officers from the Anti-Terror branch of the Istanbul Security Directorate in the course of a police operation carried out against the illegal organisation the TKP/ML-TIKKO (the Turkish Communist Party/Marxist Leninist - Turkish Workers and Peasants’ Liberation Army). 7. On 21 October 1994 the applicant was brought before a single judge at the Istanbul State Security Court, who ordered his detention on remand. 8. On 15 November 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and ten other persons.", "The public prosecutor charged the applicant with membership of an illegal organisation under Article 168 § 1 of the Criminal Code. 9. On 1 February 1995 the Istanbul State Security Court held the first hearing on the merits of the case (no. 1994/183). 10.", "On 13 October 1997 the public prosecutor at the Istanbul State Security Court filed a further bill of indictment against the applicant, accusing him of attempting to undermine the constitutional order, contrary to Article 146 of the Criminal Code. 11. Between 1 February 1995 and 27 August 1999, the Istanbul State Security Court held 28 hearings in the case. Throughout these hearings, the applicant and his representative requested that the applicant be released pending trial. They contended that the length of the applicant’s detention on remand was excessive and that he suffered from health problems.", "The court dismissed the requests on each occasion, holding that the applicant’s detention pending trial should continue having regard to the nature of the offence with which he was charged, the state of the evidence and the date of the remand decision. 12. On 27 August 1999 the Istanbul State Security Court decided to disjoin the proceedings against the applicant from case no. 1994/183 and to join them to a case brought against him in 1997 (no. 1997/359).", "13. On 8 August 2001, at the end of the 21st hearing, the Istanbul State Security Court ordered the applicant’s release pending trial, having regard to the content of the case file, the state of the evidence and the date of the remand decision. 14. Between 1997 and 2004, the Istanbul State Security Court postponed the hearings in case no. 1997/359 as it had not received from German authorities an investigation file concerning a homicide allegedly committed by the applicant in Germany.", "15. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Subsequently, the Istanbul Assize Court acquired jurisdiction over the case. 16.", "On 23 February 2005 the Istanbul Assize Court acquitted the applicant of the charge under Article 146 of the Criminal Code, but convicted him of membership of an illegal organisation under Article 168 § 2 of the Criminal Code. It sentenced the applicant to twelve years and six months’ imprisonment. 17. On an unspecified date, the applicant appealed. While the proceedings were pending before the Court of Cassation, on 18 June 2005 the applicant died.", "18. Subsequently, on 19 October 2005 the Istanbul Assize Court decided to discontinue the proceedings. THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 19. The Government submitted that the case should be struck out of the Court’s list of cases on the ground that the applicant’s mother was not affected by the alleged violations, and thus could not claim to be a victim within the meaning of Article 34 of the Convention.", "20. The Court notes that the applicant died on 18 June 2005. On 1 March 2006 his mother expressed her wish to continue the application. The Court reiterates that in a number of cases in which an applicant died in the course of the proceedings, it has taken account the statements of the applicant’s heirs or of close family members expressing their wish to pursue the case before the Court (see, among many others, Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI, Latif Fuat Öztürk v. Turkey, no.", "54673/00, § 27, 2 February 2006, and Mutlu v. Turkey, no. 8006/02, §§ 13-14, 10 October 2006). 21. In view of the above, the Court holds that the applicant’s mother has standing to continue the present proceedings in the applicant’s stead. Consequently, the Government’s objection that the case should be struck out is dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 22. The applicant complained that his detention on remand exceeded the “reasonable time” requirement of 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.” 23. The Government contested that argument.", "A. Admissibility 24. The Government asked the Court to dismiss the application for failure to exhaust domestic remedies, pursuant to Article 35 § 1 of the Convention. In this regard, they maintained that the applicant could have sought compensation pursuant to Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained. 25.", "The Court recalls that it has in the past already examined and rejected similar objections of the Government (see Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319‑A, § 44, and Ahmet Mete v. Turkey, no. 77649/01, § 21, 25 April 2006). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. As a result, it rejects the Government’s preliminary objection.", "26. 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 27. The Court notes that, in the instant case, the period to be taken into consideration began on 9 October 1994 with the applicant’s arrest and ended on 8 August 2001, when the applicant was released pending trial. It thus lasted approximately 6 years and 10 months. During this period, the domestic courts prolonged the applicant’s detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence, the state of evidence and the duration of detention”. 28.", "The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issues to those in the present application (see, for example, Atıcı v. Turkey, no. 19735/02, 10 May 2007; Solmaz, cited above; Dereci v. Turkey, no. 77845/01, 24 May 2005; Taciroğlu v. Turkey, no. 25324/02, 2 February 2006). 29.", "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, it considers that in the instant case the length of the applicant’s pre-trial detention was excessive and contravened Article 5 § 3 of the Convention. 30. There has accordingly been a violation of this provision. III.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31. The applicant complained of a breach of the reasonable time requirement 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 ... hearing within a reasonable time by [a] ... tribunal...” 32. The Government contested that allegation. 33. The Court notes that the period to be taken into consideration began on 9 October 1994 when the applicant was taken into police custody and ended on 19 October 2005 with the decision of the Istanbul Assize Court.", "They thus lasted over eleven years for two levels of jurisdiction. A. Admissibility 34. 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 35. 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) 36. 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 Pélissier and Sassi, cited above).", "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 breach of Article 6 § 1. IV.", "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 15,000 euros (EUR) in respect of non-pecuniary damage. 40.", "The Government contested the claim. 41. Ruling on an equitable basis, the Court awards the applicant’s heir, Mrs Fatma Hanbayat, EUR 12,000 under this head. B. Costs and expenses 42.", "The applicant also claimed 5,500 New Turkish liras (YTL) –approximately EUR 3,000 – for legal fees and YTL 300 – approximately EUR 168 – for costs and expenses. 43. The Government contested these claims. 44. Making its own estimate based on the information available, the Court considers it equitable to award the applicant’s heir, Mrs Fatma Hanbayat, EUR 1,500 for the costs and expenses incurred before the Court.", "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 application admissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant’s heir, Mrs Fatma Hanbayat, 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 New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable: (i) EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) 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 claim for just satisfaction. Done in English, and notified in writing on 17 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléF.", "TulkensRegistrar President" ]

[ "FOURTH SECTION CASE OF POSTEK v. POLAND (Application no. 4551/10) JUDGMENT STRASBOURG 11 October 2011 This judgment is final but it may be subject to editorial revision. In the case of Postek v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: George Nicolaou, President,Lech Garlicki,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 20 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "4551/10) 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 Sylwia Jarczyńska, on behalf of her minor daughter, a Polish national Ms Julia Postek (“the applicant”), on 12 January 2010. 2. The applicant was represented by Ms J. Budzowska, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "The applicant complained that the length of the proceedings in her case had exceeded a reasonable time, in breach of Article 6 of the Convention. 4. On 11 October 2010 the President of the Fourth 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 2001 and lives in Warszawa. 6. The facts of the case, as submitted by the applicant, may be summarised as follows. A. Main proceedings 7.", "On 23 October 2002 the applicant, represented by her mother, instituted civil proceedings against a hospital before the Warsaw Regional Court (Sąd Okręgowy), seeking compensation and a disability pension due to medical negligence and inadequate medical care during her birth. 8. In the first hearing on 28 April 2003 the Regional Court ordered the defendant hospital to pay to the applicant PLN 250 (approx. EUR 60) per month by way of a provisional disability pension. 9.", "On the applicant’s request, filed on 19 January 2005, the Warsaw Regional Court issued a writ of execution in respect of its 2003 decision. On 5 August 2005 the applicant began receiving the provisional disability pension. 10. On 17 February 2011 the Warsaw Regional Court gave a judgment which granted the applicant’s claims. It appears that this judgment has become final.", "B. Proceedings under the 2004 Act 11. On 27 May 2009 the applicant filed a complaint with the Warsaw Court of Appeal (Sąd Apelacyjny) under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). She sought a finding that the length of the proceedings had been excessive and claimed compensation in the amount of PLN 20,000. 12.", "On 9 July 2009 the Warsaw Court of Appeal acknowledged that the proceedings in the applicant’s case had been excessive and awarded her PLN 5,000 (approx. EUR 1,200) by way of just satisfaction. The court held that certain delays in the case had resulted from the erroneous transfer of the case file to the wrong medical court experts. It further observed that in 2006 and 2007 there had been a one-year-long period of unjustifiable inactivity on the part of the Regional Court. In the view of the Court of Appeal, some other delays could be explained by the need to obtain various medical expert opinions, often prompted by the applicant’s numerous requests to that effect.", "13. The Court of Appeal explained that the award of PLN 5,000 was justified by the overall length and the level of complexity of the proceedings. It dismissed the applicant’s claim for a higher award, taking note of the fact that her main claims had been properly secured by the payment of the provisional disability pension. II. RELEVANT DOMESTIC LAW AND PRACTICE 14.", "The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are presented in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005‑V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005‑VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I.", "THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 15. On 24 February 2011 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, ECHR 2003-VI) and informed the Court that they were ready to accept that there had been a violation of the applicant’s rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the proceedings in which the applicant had been involved. In respect of non‑pecuniary damage the Government proposed to award PLN 8,200 to the applicant (the equivalent of approx. EUR 2,000), drawing the Court’s attention to the fact that the excessive length of the proceedings in the applicant’s case had already been acknowledged by the domestic court, which had awarded her a certain amount of compensation in this respect.", "Consequently, the Government invited the Court to strike out the application in accordance with Article 37 of the Convention. 16. The applicant did not agree with the Government’s proposal. She considered that the proposed amount would not constitute sufficient just satisfaction for the damage she had sustained. Moreover, she pointed out that she had incurred a certain amount of costs and expenses in connection with the case, both in the domestic proceedings and in connection with the application to the Court.", "In support of her claims, she submitted detailed and itemised invoices and explained in detail the nature of the costs and expenses incurred. Consequently, she requested the Court to continue the examination of her application. 17. The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part thereof 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 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 and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75; and Melnic v. Moldova, no.", "6923/03, § 22, 14 November 2006). 18. According to the Court’s case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar length of proceedings cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85-107, ECHR 2006-V; Scordino v. Italy (no.1) [GC], no.", "36813/97, §§ 193-215, ECHR-2006-V; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004). 19. Admittedly, the amount of compensation proposed by the Government in their unilateral declaration roughly corresponds to the amount of non-pecuniary damage which the Court has awarded in prior, similar cases. However, the Court notes that the applicant presented it with claims for the costs and expenses incurred by her in connection with her case, which were corroborated by sufficiently detailed and itemised invoices.", "The applicant’s statement was transmitted to the Government, who did not comment on it. 20. Recalling its jurisprudence in the area of just satisfaction awards (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005-X), the Court first of all notes that the costs and expenses claimed by the applicant, incurred in the course of the domestic proceedings, are referable to the violation alleged by the applicant, namely that of Article 6 of the Convention. What is more, these costs and expenses have been incurred necessarily, either in order to allow the applicant to obtain redress for the alleged violation or to exhaust the available domestic remedy prior to lodging her application with the Court.", "The Court also considers that the invoices submitted by the applicant were sufficiently detailed and that the applicant actually incurred the costs and expenses claimed. It also observes that their amount exceeds by some 50 % the amount proposed by the Government in their unilateral declaration. 21. Since the amount of just satisfaction put forward by the Government in their unilateral declaration does not take into account the above‑mentioned costs and expenses incurred by the applicant in connection with the case, the Court, having regard to its above findings, finds that respect for human rights, as defined in the Convention and its Protocols, does not allow it to strike the application out of its list of cases on the basis of the Government’s declaration. Consequently, it considers it necessary to continue its examination of the case (see, by contrast, Spółka z o.o.", "WAZA v. Poland (striking out), no. 11602/02, 26 June 2007). 22. 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 the examination of the admissibility and merits of the case. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 23. Invoking Articles 2, 6 and 8 of the Convention, the applicant complained that the length of the proceedings had been excessive. The Court considers that the applicant’s complaint is best examined from the standpoint of Article 6 § 1 of the Convention, which provides, in so far as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 24. The Government, in their unilateral declaration submitted on 24 February 2011, acknowledged that the length of the proceedings in the applicant’s case had indeed been excessive. 25.", "The period to be taken into consideration began on 23 October 2002 and ended on 17 February 2011. It thus lasted 8 years and 4 months for one level of jurisdiction. A. Admissibility 26. 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 27. 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; Kaniewska v. Poland, no.", "8518/08, § 32, 18 May 2010; Jerzak v. Poland, no. 29360/06, § 26, 7 October 2008). 28. 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). Furthermore, the Court takes note of the Government’s acknowledgement of the excessive length of the proceedings, made in their unilateral declaration.", "29. Having examined all the material submitted to it and 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. 30. There has accordingly been a breach of Article 6 § 1. III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 31. In addition, the applicant alleged that she was not provided with an effective remedy before the national courts against the excessive length of proceedings, in breach of Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in this 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.” 32. The Government did not comment on the matter. 33. With regard to the applicant’s complaint, it should be recalled that the Court has already found that the 2004 Act provides for an effective remedy in respect of the excessive length of proceedings (see Charzyński v. Poland (dec.), no.", "15212/03, §§ 12-23, ECHR 2005‑V; Figiel v. Poland (no. 1), no. 38190/05, §§ 25-30, 17 July 2008; Figiel v. Poland (no. 2), no. 38206/05, §§ 29-34, 16 September 2008).", "34. It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 a) and must be rejected in accordance with Article 35 § 4. IV. 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 5,000 in respect of non-pecuniary damage. 37. The Government, as stated above, submitted a unilateral declaration. 38.", "The Court considers that the applicant must have sustained non‑pecuniary damage. The Court has had due regard to the matters raised by the Government, in particular to the fact that the excessive length of the proceedings had been acknowledged on the domestic level and to the amount of the award made by the domestic court (see paragraphs 12 and 15 above). 39. Ruling on an equitable basis, it awards the applicant EUR 2,000 under that head. B.", "Costs and expenses 40. The applicant also claimed EUR 186 for the costs and expenses incurred before the domestic court and EUR 1,010 for those incurred before the Court (approx. PLN 4,738). She presented the relevant invoices. 41.", "The Government did not express an opinion on the matter. 42. In the Court’s view, having regard to the amount of work carried out by the applicant’s counsel in connection with the case, in particular to her diligent, comprehensive communications with the Court, and to the cost of making translations, the amounts claimed appear to be reasonable as to quantum. 43. Regard being had to the documents in its possession, to the Court’s case-law and, in particular, to its findings described in paragraphs 19-20 above, the Court considers that the sums claimed should be awarded in full.", "C. Default interest 44. 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 request to strike the application out of its list of cases; 2. Declares the complaint concerning the excessive length of the civil proceedings 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 (a) that the respondent State is to pay the applicant, within three months EUR 2,000 (two thousand euros), in respect of non-pecuniary damage, and EUR 1,196 (one thousand one hundred and ninety-six euros) for costs and expenses, plus any tax that may be chargeable, to be converted into Polish zlotys 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGeorge NicolaouDeputy RegistrarPresident" ]

[ "AFFAIRE ROBINS c. ROYAUME-UNI CASE OF ROBINS v. THE UNITED KINGDOM (118/1996/737/936) ARRET/JUDGMENT STRASBOURG 23 septembre/September 1997 Cet arrêt peut subir des retouches de forme avant la parution dans sa version définitive dans le Recueil des arrêts et décisions 1997, édité par Carl Heymanns Verlag KG (Luxemburger Straße 449, D‑50939 Cologne) qui se charge aussi de le diffuser, en collaboration, pour certains pays, avec les agents de vente dont la liste figure au verso. The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D‑50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf. List of Agents Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B - 1000 Bruxelles) Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare) The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC ‘s-Gravenhage) SUMMARY[1] Judgment delivered by a Chamber United Kingdom – length of costs proceedings (Legal Aid Act 1988) i.article 6 § 1 of the convention A.Applicability Proceedings to determine amount of costs payable by legally aided applicants after litigation between neighbours must be seen as continuation of substantive litigation and accordingly as part of determination of “civil rights and obligations”.", "B.Compliance Delays of ten months owing to mistake on part of legal aid assessment authorities and sixteen months owing to inactivity by court staff, in context of proceedings lasting over four years to determine relatively straightforward dispute, were unreasonable. Conclusion: violation (unanimously). ii.article 50 of the convention A.Damage Pecuniary damage: no causal link established. Non-pecuniary damage: finding of violation constitutes sufficient just satisfaction. B.Costs and expenses: award of part of sum claimed.", "Conclusion: respondent State to pay applicants specified sum for costs and expenses (unanimously). court’s case-law referred to 23.3.1994, Silva Pontes v. Portugal; 26.9.1996, Di Pede v. Italy; 26.9.1996, Zappia v. Italy; 17.12.1996, Duclos v. France; 25.2.1997, Findlay v. the United Kingdom; 19.3.1997, Hornsby v. Greece In the case of Robins v. the United Kingdom[2], The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A[3], as a Chamber composed of the following judges: MrR. Bernhardt, President, MrL.-E. Pettiti, MrI. Foighel, MrA.N. Loizou, SirJohn Freeland, MrA.B.", "Baka, MrL. Wildhaber, MrD. Gotchev, MrU. Lōhmus, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 2 June and 1 September 1997, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.", "The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 16 September 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 22410/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 by two British citizens, Mr Geoffrey Robins and Mrs Margaret Robins, on 14 March 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.", "2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and sought leave to present their own case. However, the President of the Chamber, Mr R. Bernhardt, declined to grant the requested leave and the applicants subsequently designated the lawyer who would represent them (Rule 30 § 1). 3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention), and Mr Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)).", "On 17 September 1996, in the presence of the Deputy Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr L.-E. Pettiti, Mr I. Foighel, Mr A.N. Loizou, Mr A.B. Baka, Mr L. Wildhaber, Mr D. Gotchev and Mr U. Lōhmus (Article 43 in fine of the Convention and Rule 21 § 5). 4. As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Deputy Registrar, consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38).", "Pursuant to the order made in consequence and subsequent extensions of the time-limit granted at the request of the applicants’ solicitors, the Registrar received the Government’s memorial on 2 April 1997 and the applicants’ memorial on 11 April 1997. 5. On 25 April 1997 the Chamber decided to dispense with a hearing in the case, having satisfied itself that the conditions for this derogation from its usual procedure had been met (Rules 26 and 38). 6. In the light of this decision, the Government, applicants and Commission were invited to submit written comments on the matters raised in the memorials.", "The Registrar subsequently received letters from the Government’s Agent and the applicants’ solicitors on the subject, inter alia, of the applicants’ claims under Article 50 of the Convention. AS TO THE FACTS I.Circumstances of the case A.Background 7. The applicants, Mr and Mrs Robins, born respectively in 1942 and 1943, are resident in Crediton, Devon and in London. 8. The background to the case is a dispute between neighbours over sewerage.", "Initially the applicants’ neighbours, Mr and Mrs T., instituted proceedings seeking damages for problems experienced with their sewerage, allegedly caused by work carried out by the applicants. Mr and Mrs T. won their case. On 26 February 1988 the applicants then instituted proceedings against Mr and Mrs T. in the Exeter County Court in Devon, alleging that the latter’s sewage was seeping onto their land. On 1 May 1991, Judge Clarke gave judgment against the applicants. Their appeal was subsequently dismissed by the Court of Appeal.", "B.The costs proceedings 9. In England and Wales it is usual that the unsuccessful party to litigation pays the costs of the successful party (see paragraph 19 below). On 31 May 1991, Mr and Mrs T., who were not in receipt of legal aid, requested a hearing to determine costs issues. The applicants had been and were legally aided throughout the litigation to appeal stage. Although this did not affect the amount of costs Mr and Mrs T. would be entitled to receive, after having made an order for costs it would be necessary for the judge to assess the applicants’ means for the purposes of section 17 of the Legal Aid Act 1988 (“the 1988 Act” – see paragraph 20 below).", "10. After hearings on 5 and 6 August 1991, the matter was adjourned until 19 September 1991, to be heard at Torquay County Court, also in Devon. As the question of costs could not be resolved because of factual disputes and conflict between the parties, on 24 September 1991 Judge Clarke made a direction that the inquiry should be adjourned and not restored until a number of points concerning the applicants’ entitlement to legal aid had been clarified. In particular, information was sought as to whether the applicants had advised the Legal Aid Board (“LAB”) of any change in their circumstances and whether revocation of their legal-aid certificate, if necessary, would have any retrospective effect. 11.", "On 25 November 1991, the court received a report from the LAB outlining events from the time the applicants first applied for legal aid. This report was sent to the parties on 14 January 1992, when they were informed that the matter could be re-listed for hearing. However, on 4 February 1992, the LAB informed the court that a fresh Department of Social Security (“DSS”) assessment of the applicants’ means was required in view of the fact that they had separated. The DSS later explained, in a letter filed with the court on 10 November 1992, that a delay of nine months had been caused because of a misapprehension in this respect; in fact, the applicants had not separated. 12.", "The restored hearing was held on 12–13 November 1992 before Judge Darwall-Smith, as Judge Clarke had fallen ill. Examining the criteria set out in section 17 (1) of the 1988 Act (see paragraph 20 below), the judge ordered that 4,599 pounds sterling (GBP), which had previously been retained by the LAB following an award of damages to the applicants resulting from a successful negligence action against a firm of solicitors, should be paid to Mr and Mrs T. forthwith and that the applicants should in addition pay them GBP 6,000 in instalments of GBP 100 per month. C.The appeal against the costs order 13. The applicants sought legal aid to appeal against this decision. On 11 January 1993 they applied for an extension of time, since the time-limit for appealing the costs order had expired on 11 December 1992.", "Subsequently queries were raised by a lawyer in the Civil Appeals Office as to whether leave to appeal was required, and the matter was referred to the registrar. 14. In March 1993, September 1993 and March 1994 the applicants contacted the Court of Appeal asking why there was a delay in dealing with their application. 15. On 10 April 1994, the registrar directed that leave was not required to appeal against the costs order.", "With a view to avoiding the time and expense of holding two hearings, one before him for the extension of time and another before the full Court of Appeal, he referred the application to the full court to determine the question of the time extension and, if granted, immediately to hear the appeal. 16. The applicants were requested to lodge the relevant documents by 2 May 1994. Extensions of this time-limit were granted on 25 April, 24 May, 16 June, 6 July and again on 27 July 1994 at the request of the applicants, because they were experiencing difficulty in obtaining transcripts and judge’s notes of hearings from the first-instance courts. It later transpired that Judge Clarke’s notes had been either lost or did not exist.", "On 6 October 1994, the registrar granted the applicants’ request that transcripts of the judgment of Judge Darwall-Smith be produced at public expense. 17. Another extension of the time-limit for the submission of documents was granted, upon the applicants’ request, on 16 February 1995. On 6 March 1995 the documents were finally lodged with the Court of Appeal’s Office and on 29 March 1995 the application was listed for hearing. After the hearing on 19 June 1995, the Court of Appeal confirmed Judge Darwall-Smith’s judgment of 13 November 1992 and dismissed the appeal.", "II.Relevant domestic law and practice A.Legal aid 18. Legal aid is available to litigants in the English courts subject to various requirements as to means and the merits of the case in question. Financial assessments of a litigant’s disposable income and capital are carried out by specialist staff of the Benefits Agency’s Legal Aid Assessment Office. The resources of the litigant’s spouse are treated as belonging to the litigant unless they are living “separate and apart” (see the Civil Legal Aid (Assessment of Resources) Regulations 1989 (Statutory Instrument 1989 no. 338), Regulations 4 and 7).", "B.Assessment of costs against a legally aided litigant 19. In the English courts, the award of costs generally (in all cases, including those where one or more parties are legally aided) is a matter for the discretion of the court (see the Supreme Court Act 1981, section 51). However, rules of court lay down certain principles which are normally applied in the exercise of this discretion, including the principle that the unsuccessful party to litigation pays the costs of the successful party (see the Rules of the Supreme Court, Order 62, Rule 3, and the County Court Rules, Order 38, Rule 1 (3)). 20. This principle is not affected by the fact that an unsuccessful litigant is legally aided.", "However, after an order for costs has been made against such a person, the court which tried or heard the proceedings must determine how much of these costs it would be reasonable for the legally aided litigant to pay, in accordance with section 17 (1) of the Legal Aid Act 1988, which provides: “The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties and their conduct in connection with the dispute.” PROCEEDINGS BEFORE THE COMMISSION 21. In their application to the Commission of 14 March 1993 (no. 22410/93) Mr and Mrs Robins made a number of complaints under Articles 6, 8, 13 and 14 of the Convention concerning the substantive proceedings relating to their dispute with their neighbours; in addition, they complained under Article 6 § 1 of the Convention about the length of the costs proceedings. 22. On 22 February 1995, the Commission declared inadmissible the complaints concerning the substantive proceedings.", "The complaint concerning the costs proceedings was declared admissible on 18 January 1996. In its report of 4 July 1996 (Article 31), it expressed the opinion, by sixteen votes to nine, that there had been no violation of Article 6 § 1 of the Convention because the proceedings did not fall within the scope of that provision. The full text of the Commission’s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment[4]. FINAL SUBMISSIONS TO THE COURT 23. The Government in their memorial asked the Court to find that Article 6 § 1 of the Convention was not applicable to the proceedings in question or, in the alternative, that there had been no violation of that provision.", "The applicants asked the Court to find a violation and to award them compensation under Article 50 of the Convention. AS TO THE LAW I.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 24. The applicants contended that the costs proceedings were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a … hearing within a reasonable time by [a] … tribunal ...” The Government and the Commission were both of the opinion that Article 6 § 1 was not applicable. A.Applicability of Article 6 § 1 25. The applicants disputed that Judge Clarke had made an order for costs on 1 May 1991; in their view the proceedings were therefore both for the determination of their basic liability to pay costs and the assessment of the amount of their contribution.", "They submitted that these proceedings fell within the scope of Article 6 § 1 of the Convention because they could not be divorced from the substantive proceedings, which undoubtedly involved “the determination of ... civil rights and obligations”. Furthermore, they reminded the Court that the sums of money at stake were substantial and that they were finally ordered to pay a contribution in excess of 10,000 pounds sterling (GBP). 26. The Government contended that Judge Clarke had ordered that the applicants pay Mr and Mrs T.’s costs on 1 May 1991. The proceedings in question did not, therefore, concern a determination of the substantive rights of the parties to the litigation or of the liability of Mr and Mrs Robins to pay their neighbours’ costs; they were instead concerned with an investigation by the court under section 17 of the 1988 Act into the applicants’ financial circumstances and the assessment of any contribution which it was reasonable for them to pay (see paragraph 20 above).", "This investigation fell within the scope of public law and did not concern “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention. 27. The Commission in its report found that the costs proceedings were not in any way linked to the substantive dispute between the applicants and their neighbours, since the dispute over costs arose after the substantive dispute had been resolved and had no relevance to it. It invoked its case-law to the effect that subsidiary proceedings to decide costs fell outside the scope of Article 6 § 1. 28.", "The Court recalls that Article 6 § 1 of the Convention requires that all stages of legal proceedings for the “determination of ... civil rights and obligations”, not excluding stages subsequent to judgment on the merits, be resolved within a reasonable time (see the Silva Pontes v. Portugal judgment of 23 March 1994, Series A no. 286-A, p. 14, §§ 33–36; the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1384 and 1411–12, §§ 24 and 20, respectively; and, mutatis mutandis, the Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, pp. 510–11, § 40). 29.", "The Court observes that the legal costs which formed the subject matter of the proceedings in question were incurred during the resolution of a dispute between neighbours which undoubtedly involved “the determination of ... civil rights and obligations” (see paragraph 8 above). It notes that there was some disagreement between the Government and the applicants as to whether Judge Clarke had ordered on 1 May 1991 that Mr and Mrs T., the successful parties to the litigation, should have their costs paid by the applicants. However, whether the proceedings in question were for the determination of the applicants’ liability to pay their neighbours’ costs or were limited to an investigation under section 17 of the 1988 Act into the applicants’ financial circumstances and the size of the contribution it was reasonable for them to pay, the Court considers that the costs proceedings, even though separately decided, must be seen as a continuation of the substantive litigation and accordingly as part of a “determination of ... civil rights and obligations” (see, mutatis mutandis, the authorities cited in the preceding paragraph). It follows that Article 6 § 1 is applicable. B.Compliance with Article 6 § 1 1.Period to be taken into consideration 30.", "The applicants, Government and Commission all agreed that the relevant period began on 1 May 1991 when Judge Clarke determined the substantive dispute (see paragraph 8 above) and ended on 19 June 1995, with the Court of Appeal’s dismissal of the applicants’ appeal against the judgment on costs (see paragraph 17 above). The Court sees no reason for departing from this approach. 2.Reasonableness of the length of proceedings 31. Mr and Mrs Robins pointed out that it had taken over four years to determine the costs issues. They complained, inter alia, about the delay between February and November 1992 caused by the Legal Aid Board’s mistaken belief that they had separated (see paragraph 11 above) and the period between January 1993 and April 1994 when apparently no action was taken by the Civil Appeals Office to process the application (see paragraphs 13–15 above).", "32. The Government submitted that the State authorities could not be held responsible for the entire length of the proceedings. In particular, they stressed that the failure of the parties to the litigation to come to any agreement over the facts prolonged the dispute, as did Judge Clarke’s ill-health and the applicants’ decision to appeal against Judge Darwall-Smith’s judgment (see paragraphs 10, 12 and 13 above). 33. The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case, having regard in particular to the complexity of the case and the conduct of the parties to the dispute and the relevant authorities (see for example the Duclos v. France judgment of 17 December 1996, Reports 1996-VI, pp.", "2180–81, § 55). 34. The Court notes that it took over four years to resolve what may be regarded as a relatively straightforward dispute over costs. It is undoubtedly true that the State authorities cannot be held responsible for the totality of the delays in the case. Nonetheless, as the Department of Social Security itself explained, ten months were wasted between February and November 1992 because of that Department’s mistaken belief that the applicants had separated (see paragraph 11 above).", "Moreover, there was a period lasting approximately sixteen months, between the application for an extension of time for the filing of notice of appeal in January 1993 and the registrar’s directions in April 1994, when it would seem that the court authorities were totally inactive (see paragraphs 13–15 above). Basing itself on these two periods, in the context of the overall length of the proceedings, the Court concludes that there was an unreasonable delay in dealing with the applicants’ case. 35. There has accordingly been a violation of Article 6 § 1 in that the applicants’ “civil rights and obligations” were not determined within “a reasonable time”. II.APPLICATION OF ARTICLE 50 OF THE CONVENTION 36.", "Mr and Mrs Robins claimed compensation under Article 50 of the Convention, which provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A.Pecuniary damage 37. The applicants submitted that the delay in determining the costs proceedings gave rise to an atmosphere of suspicion and intrigue which prejudiced them and resulted in their liability to pay a contribution towards their neighbours’ costs in excess of GBP 10,000 (see paragraphs 12 and 17 above. 38. The Government did not accept that there should be any liability for compensation based on an alleged “atmosphere of suspicion and intrigue” to the prejudice of the applicants in the County Court proceedings. 39.", "There is no evidence which would permit the Court to assume that the costs issue would have been decided any differently had the violation of Article 6 § 1 not occurred. For this reason, it does not award any compensation in respect of the alleged pecuniary damage (see, mutatis mutandis, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 284, § 85). B.Non-pecuniary damage 40. In addition, the applicants claimed compensation for the stress caused by the mistakes and delays of the administrative and judicial authorities and the time consumed by the proceedings before the domestic courts. 41.", "The Court considers that in the circumstances of the case a finding of violation constitutes sufficient satisfaction for any non-pecuniary damage suffered. C.Costs and expenses 42. The applicants claimed their personal costs and expenses arising from the Strasbourg proceedings: Mrs Robins had spent approximately forty days working on the case, for which she asked to be compensated at a level equivalent to that of a solicitor or barrister, and they had incurred travel and other expenses amounting to approximately GBP 320. In addition they claimed solicitors’ costs of GBP 1,583.25 (exclusive of value-added tax – “VAT”) and counsel’s fees of GBP 750 (exclusive of VAT). 43.", "The Government informed the Court that they did not agree that it would be proper to compensate the applicants for the time spent preparing the case at the level sought, although they accepted the amounts claimed in respect of solicitors’ costs and counsel’s fees. 44. The Court awards GBP 2,700, together with any VAT which may be chargeable, in respect of legal costs and expenses. D.Default interest 45. 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 8% 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 that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage alleged by the applicants; 3.Holds (a)that the respondent State is to pay the applicants, within three months, in respect of costs and expenses, 2,700 (two thousand seven hundred) pounds sterling together with any value-added tax which may be chargeable; (b)that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement; 4.Dismisses the remainder of the claim for just satisfaction. Done in English and in French and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 September 1997. Signed: Rudolf BernhardtPresident Signed: Herbert PetzoldRegistrar [1]1. This summary by the registry does not bind the Court. [2]Notes by the Registrar 1.", "The case is numbered 118/1996/737/936. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [3]2. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No.", "9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. [4]1. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry." ]

[ "SECOND SECTION CASE OF EBEDİN ABİ v. TURKEY (Application no. 10839/09) JUDGMENT STRASBOURG 13 March 2018 FINAL 13/06/2018 This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ebedin Abi v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Paul Lemmens,Ledi Bianku,Işıl Karakaş,Nebojša Vučinić,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 13 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "10839/09) 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 Ebedin Abi (“the applicant”), on 24 December 2008. 2. The applicant was represented by Ms S. Coşkun, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 7 July 2014 notice of the complaint concerning Article 3 of the Convention 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 1. The applicant was born in 1970 and is detained in Kırıkkale. 2.", "He suffers from type-2 diabetes[1] and coronary heart disease[2]. He has in the past undergone coronary angioplasty. 3. According to a medical report issued on 29 June 2004 by the Gaziantep university hospital, the applicant’s state of health required him to follow one diet for his diabetes and another one for his coronary disease, and to live in a well-ventilated environment free of tobacco smoke. 4.", "On 30 April 2008 the applicant was placed in the Erzurum H-type prison, where he remained until 6 March 2009, serving a term for terrorist offences. 5. On 17 July 2008 the applicant was taken to the cardiology department of the Atatürk university hospital in Erzurum (“Erzurum hospital”) for blood tests and an echocardiogram. 6. A report drawn up on 24 July 2008 by the Erzurum hospital’s health board pointed out that owing to his cardiac issues the applicant had to adhere to a special anti-cholesterol diet with high poultry meat and vegetable content and low levels of beef and saturated fats.", "The report mentioned that if the prison in which the applicant had been placed offered a wide choice of daily menus it would be unnecessary to transfer the applicant to another prison providing such facilities. It added that on the other hand, if the prison only offered one standard menu, the Erzurum hospital’s health board would hold a further meeting in order to decide whether the applicant should be transferred to another prison, after ascertaining the view of a dietician on the cholesterol content of the standard menu. 7. On an unspecified date the applicant, arguing that the meal served in prison was incompatible with his medically prescribed diet, asked the prison authorities to send samples to the Ministry of Justice and the Human Rights Commission of the Grande National Assembly of Turkey. 8.", "On 24 October 2008 the prison disciplinary board rejected his request on the grounds that the foodstuffs would spoil very quickly, before reaching their destination. That board pointed out that the applicant could lodge a complaint by mail with the aforementioned institutions in order to inform them of his grievances concerning the meals served in prison. 9. The applicant appealed against that decision. On 7 November 2008 the Erzurum judge responsible for the execution of sentences (“the judge responsible for the execution of sentences”) dismissed the appeal.", "On 5 December 2008 the Erzurum Assize Court (“the Assize Court”) upheld the dismissal decision given by the judge responsible for the execution of sentences. 10. Meanwhile, on 24 November 2008, the applicant had been taken to the emergency department of Erzurum hospital complaining of chest pains. On 5 December 2008 he underwent an exercise electrocardiogram. 11.", "On an unspecified date the applicant lodged a complaint with the judge responsible for the execution of sentences about the refusal by the prison authorities, despite his many requests, to provide him with meals compatible with his medically prescribed diet, which he said formed an integral part of his medical treatment. He also complained about his difficulties in obtaining medication. The applicant stated the following, inter alia: “... my state of health [is poor]; the prison authorities informed me that I would be provided with meals compatible with my diet, but that has not happened; this can be noted from surveillance camera footage; I was not provided with the menu list when I wanted to submit it to the Ministry for examination.” 12. On 2 January 2009 the judge responsible for the execution of sentences allowed the applicant’s request. That judge referred in his decision to a document which the prison authorities had drawn up for the attention of the Erzurum public prosecutor’s office, stating the following: “... medically prescribed diets cannot be prepared in [our] prison’s kitchen; we can only cook unsalted and unspiced versions of the meals prepared for the other [prisoners].", "Extra potatoes, boiled eggs and tomatoes are sometimes provided.” 13. The judge responsible for the execution of sentences pointed out that the prison had not indicated in that document whether or not the meals contained fats, which made it impossible to assess their cholesterol content. In view of the impossibility of ascertaining whether meals prepared in that manner were compatible with the medical prescriptions in question, he ordered that the standard menu should be examined by a dietician and, if that menu proved incompatible with the applicant’s diet, that the applicant should be provided with an appropriate menu. 14. On 5 January 2009 the Erzurum public prosecutor (“the prosecutor”) appealed against the decision of 2 January 2009.", "On 8 January 2009 the judge responsible for the execution of sentences dismissed that appeal. 15. On the same day the prosecutor lodged a fresh appeal against the decision of 8 January 2009, this time with the Assize Court. He argued as follows: the meals were prepared in the prison kitchen; the daily allowance per prisoner, which totalled three Turkish liras (TRY – about 1.40 euro at the material time), was only sufficient to prepare one type of meal per day, which meant that the prisoners could not be offered several types of menus; menus could not be prepared for the medically prescribed diets for a total of thirty-eight individuals detained in the same prison, and only an unsalted, fat-free and unspiced version of the standard menu was on offer. According to the prosecutor, the prison would only be able to improve its service in that respect if the amount of the daily allowance were increased.", "16. On 9 January 2009 the Assize Court followed the prosecutor’s reasoning and quashed the decisions given by the judge responsible for the execution of sentences on 2 and 8 January 2009. 17. Furthermore, according to the weekly lists of standard menus for the weeks of 24 February 2009 and 3 March 2009, the meals served to prisoners in the Erzurum Prison had mainly consisted of beef, fried food and starches: poultry meat had only been served once a week and the menus had comprised minimal fresh vegetables. II.", "RELEVANT DOMESTIC LAW 18. In its relevant articles in force at the material time, the regulations enacted by the Ministry of Justice on the daily allowance for convicted prisoners, detainees and prison staff (OG No. 25978 of 26 October 2005) provided as follows: Amount of daily allowanceArticle 5 The amount of the daily allowance shall be calculated in cooperation with the Ministry of Health, upon analysis of daily calorie requirements and the available budget. Daily allowance for prisoners suffering from an illnessArticle 9 Convicted prisoners and detainees suffering from disease shall be served foodstuffs as decided by the prison doctor. 19.", "The Decree enacted by the Committee of Ministers on the management of prisons and the execution of sentences and preventive measures (OG No. 26131 of 6 April 2006) provides as follows: Titre IITasks, competences and responsibilities of prison staffHealth servicesArticle 25-7 Dietician’s duties: taking the requisite action to ensure healthy nutrition in line with the prisoners’ and prison staff’s calorie requirements, planning their daily, weekly and monthly allowances, ensuring the preparation of meals compatible with the patient’s state of health, and taking any other action required for that purpose. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 20. The applicant alleged that the authorities’ refusal to provide him with meals compatible with his medically prescribed diet had infringed his right to live a healthy life, in breach of Article 2 of the Convention.", "Moreover, he submitted that his continued detention in the particular circumstances of the case had amounted to a violation of Article 5 of the Convention. 21. The Government contested that argument. 22. The Court considers that the complaints put forward by the applicant should be assessed solely from the angle of Article 3 of the Convention since, being the master of the characterisation to be given in law to the facts of a case, it is not bound by the characterisation given by an applicant or a Government (see Lopes de Sousa Fernandes v. Portugal [GC], no.", "56080/13, § 145, ECHR 2017). Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 23. The Government submitted that it had not been demonstrated that the applicant’s state of health had worsened because he had not followed the diet prescribed by the doctors and that his conditions of detention had not attained the severity threshold for the application of Article 3 of the Convention. They considered the application manifestly ill-founded. 24.", "The Court considers that the objection raised by the Government concerning the applicability of Article 3 of the Convention in the present case raises factual and legal issues which cannot be settled at the admissibility stage. Accordingly, the assessment of that objection should be joined to that of the merits of the case. Noting, moreover, that the application 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, the Court declares it admissible. B. Merits 25.", "The applicant complained of the authorities’ refusal to provide him with meals compatible with his medical prescriptions and of a deterioration in his state of health. He submitted that that situation had amounted to a violation of Article 3 of the Convention. 26. The Government contested that argument. They explained that, like the other prisoners, the applicant had had the option of eating in the prison canteen, which had offered a wide range of foodstuffs, including fruit and vegetables, and that he could also have had recourse to an outside supplier in order to obtain the foodstuffs recommended by the doctors.", "27. The Court reiterates the principles established in its relevant case-law. As it has ruled on many previous occasions, 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, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996‑V).", "28. 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 of severity 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 other authorities, Mikadze v. Russia, no. 52697/99, § 108, 7 June 2007, and Dybeku v. Albania, no. 41153/06, § 36, 18 December 2007).", "For a punishment or the accompanying treatment to be “inhuman” or “degrading”, the suffering and humiliation inflicted must in any event go beyond the unavoidable level of suffering and humiliation inherent in any form of legitimate treatment or punishment. 29. As regards, in particular, persons deprived of their liberty, under Article 3 of the Convention the State must 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 by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX; and Tekin Yıldız v. Turkey, no.", "22913/04, § 71, 10 November 2005). Thus the lack of appropriate medical care and, more broadly, the detention of persons suffering from disease in inadequate conditions may, in principle, amount to treatment contrary to Article 3 (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000‑VII; Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001‑VII; and Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004).", "It is incumbent on the State to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see, mutatis mutandis, Benediktov v. Russia, no. 106/02, § 37, 10 May 2007, and Sukhovoy v. Russia, no. 63955/00, § 31, 27 March 2008). 30. Therefore, the conditions of detention of a person suffering from disease must ensure that his or her health is protected, regard being had to the ordinary and reasonable demands of imprisonment.", "Article 3 of the Convention requires the State to protect the physical well‑being of persons deprived of their liberty. In particular, the Court holds that the duty of the national authorities to guarantee the health and general well-being of prisoners includes the requirement to provide them with proper nourishment (see, mutatis mutandis, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 451, ECHR 2004‑VII, and Moisejevs v. Latvia, no. 64846/01, § 78, 15 June 2006). 31.", "In the present case, the Court observes that it is not disputed between the parties that the applicant’s state of health required treatment for his various illnesses. It will therefore consider, in the light of the principles set out above, whether the applicant was given sufficient and adequate medical care during his custody in Erzurum Prison and whether the authorities’ refusal to provide him with meals complying with his medical prescriptions was compatible with Article 3 of the Convention. 32. The Court first of all notes with satisfaction that the applicant was transferred to various hospitals whenever necessary (see paragraphs 8 and 13 above). 33.", "It then notes that the applicant was suffering from type-2 diabetes and coronary heart disease, as shown by two different medical reports, which concurred on that point (see paragraphs 6 and 9). According to those reports, the applicant had to observe a hypocaloric diabetic diet with low levels of beef and saturated fats. 34. Having considered the facts before it, however, the Court concludes that the applicant was served dishes which consisted mainly of beef and starches in the prison in question (see paragraph 22 above), that he complained to the prison authorities and that the latter rejected his request for his food to be brought into line with the requirements of the medically prescribed diet (see paragraphs 10 and 11 above). 35.", "The Court also observes that the applicant complained to the judge responsible for the execution of sentences about the prison authorities’ attitude to him. That judge noted that the prison authorities had served the applicant and thirty-seven other prisoners suffering from disease the same meals as the healthy prisoners, the only difference being that their meals had contained a lower level of salt and spices. He allowed the applicant’s request on the grounds that it had not been established how those salt- and spice-free meals complied with the latter’s medically prescribed diet, and that the prison authorities had not specified whether or not those meals had contained fats (see paragraphs 16 and 17 above). 36. The Court then observes that the prosecutor appealed to the Assize Court against the decision of the judge responsible for the execution of sentences on the grounds that the prison authorities were unable to prepare and serve a special menu because of insufficient finances, given the prisoners’ daily allowance of only 3 TRY.", "In his appeal, the prosecutor pointed out that it would only be feasible to prepare menus compatible with the medically prescribed diets if the amount of that allowance were increased. The Assize Court upheld the prosecutor’s appeal, confirming that the prison had been providing the applicant with fat-, salt- and spice-free meals. 37. On that point, the Court reiterates its case-law on requirements in terms of the adequacy of prisoners’ allowances, to the effect that for long prison terms like the applicant’s, the competent authorities must ensure the provision of adequate and sufficient daily nourishment, if necessary by establishing an in-house catering structure for prisoners (see, mutatis mutandis, Chkhartishvili v. Greece, no. 22910/10, § 61, 2 May 2013, and De los Santos et de la Cruz v. Greece, nos.", "2134/12 and 2161/12, § 44, 26 June 2014). 38. The Court notes that in the present case the prison in which the applicant was detained at the material time did indeed have a catering unit in which the meals were prepared by staff employed for the purpose. However, it observes that in view of the amount of the daily allowance granted to prisoners, the prison was not in a position to supply meals compatible with the specific requirements of special diets for prisoners suffering from disease, notwithstanding the corresponding medical prescriptions. 39.", "In that connection, the Court notes that under the prison rules, prisoners suffering from disease were entitled to foodstuffs indicated by the prison doctors. The amount of the daily allowance to be granted to prisoners suffering from disease depended on their individual medical prescriptions (see paragraph 21 above). 40. In those circumstances, the Court considers that the refusal to bring the applicant’s meals into line with his medical prescriptions cannot be justified for economic reasons, given that the law in force at the material time provided for a separate budget for prisoners suffering from disease. 41.", "Furthermore, the Court notes that neither the prosecutor nor the Assize Court sought to ascertain whether the prison authorities had contacted the competent authorities to request an increase in the daily allowance in order to meet the dietary needs of prisoners suffering from disease, as required by law. 42. In any event, since the domestic courts refused to seek to ascertain whether the foodstuffs served to the applicant were compatible with his medically prescribed diet, the Court cannot discern how they managed to conclude that the prison’s practice was compatible with the applicant’s state of health. 43. That finding is particularly cogent because according to the documents on file, the applicant was not the only prisoner affected by that practice.", "It transpires from the case file that the practice was observed without distinction, ignoring the specific features of the diseases from which individual prisoners were suffering. The Court takes the view that such a practice amounts to a failure by the prison in question diligently to protect the health and welfare of the persons concerned (see paragraph 18 above). 44. Moreover, the Court cannot agree with the Government that the applicant could have had meals compatible with his diet if he had ordered them from an outside supplier or eaten in the prison canteen. In that scenario the applicant would have had to pay for his sustenance out of his own pocket.", "The fact is that the applicant’s poor state of health should not inflict on him a heavier financial burden than that faced by healthy prisoners. The Court therefore considers that a solution involving payment by the prisoner is incompatible with the State’s duty to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see, mutatis mutandis, Sukhovoy, cited above, § 31, and Benediktov, cited above, § 37). 45. Firstly, for the above-mentioned reasons, the Court finds therefore that by acting in the aforementioned manner, the authorities failed to take the requisite action to protect the applicant’s health. 46.", "Secondly, as regards the issue of the deterioration in the applicant’s health as a result of his inability to follow his medically prescribed diet, the Court reiterates that allegations of treatment contrary to Article 3 of the Convention must be supported by appropriate evidence (see Klaas v. Germany, 22 September 1993, § 30, Series A no. 269; Erdagöz v. Turkey, 22 October 1997, § 40, Reports 1997‑VI; Martinez Sala and Others v. Spain, no. 58438/00, § 121, 2 November 2004; and Hüsniye Tekin v. Turkey, no. 50971/99, § 43, 25 October 2005). In order to establish the alleged facts, the Court adopts the standard of proof “beyond reasonable doubt”, although 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, and Labita v. Italy [GC], no. 26772/95, §§ 121 and 152, ECHR 2000‑IV). 47. That having been said, the Court acknowledges that it may indeed be difficult for a prisoner to obtain medical evidence of his allegations (see Ayan v. Turkey, no. 24397/03, § 55, 12 October 2010) and that the difficulties encountered by an applicant in making his case may also result from a failure by the authorities to respond effectively to complaints which they receive (ibid., § 56).", "48. In that regard, the Court takes note of the Government’s position that no evidence had been provided of the applicant’s worsening state of health, that the applicant had not complained of any aggravation of his illness after the delivery of the Assize Court’s judgment and that the fact that the applicant had not followed his medically prescribed diet had not caused him any suffering beyond that inherent in imprisonment. 49. In the present case the Court observes that at the material time the applicant had recourse to all the available remedies for lodging with the national authorities his complaints concerning the incompatibility of his meals with his diet and the worsening of his state of health resulting from his ingestion of those meals. The Court notes that he later raised those same issues before it, subsequently to the last-instance decision under domestic law.", "The Court cannot discern how, or to which authority, the applicant could have submitted his complaints more effectively. The Court notes that the national authorities were unresponsive to the many requests which the applicant claims to have submitted with a view to receiving meals compatible with the requirements of his state of health (see paragraphs 10 to 12 and 14 above). 50. Having regard to prisoners’ inability to seek medical help at any time from a hospital of their choosing, the Court considers that it is incumbent on the domestic authorities to instruct a specialist to assess the standard menu offered by the prison in question, and at the same time to invite the applicant to undergo a medical examination specifically linked to his complaints. 51.", "Indeed, as emphasised above, the authorities did not seek to ascertain whether the nourishment provided to the applicant was suitable or whether the failure to comply with his medically prescribed diet had had any negative effects on his state of health; in fact, on 24 November 2008 the applicant had been transferred to the emergency ward of Erzurum hospital for chest pains (see paragraph 13 above). 52. The Court further observes that the Government failed to provide any specific explanation as regards the effects of the practice followed by the prison on the applicant’s state of health, and that the domestic authorities also failed to examine that issue. 53. The Court considers therefore that, owing to their negligence, the domestic authorities failed to take the requisite action to protect the applicant’s health and well-being and that therefore they failed to provide him with appropriate conditions of detention compatible with human dignity, in breach of Article 3 of the Convention.", "54. The foregoing considerations are sufficient to enable the Court to conclude that the preliminary objection raised by the Government (see paragraph 27 above) must be rejected and to find a violation of Article 3. 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 110,000 euros (EUR) in respect of non-pecuniary damage. 57. The Government consider that sum exorbitant and unsubstantiated by the circumstances of the case. 58.", "The Court considers that the applicant sustained non-pecuniary damage which cannot be sufficiently repaired by the finding of a violation. Deciding on an equitable basis, the Court awards him 5,000 euros (EUR) under this head. B. Costs and expenses 59. The applicant also claimed EUR 1,150 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.", "60. The Government contested that sum. 61. 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 Court awards the whole amount of the applicant’s claim in respect of the proceedings before the domestic courts.", "C. Default interest 62. 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 concerning the applicability of Article 3 of the Convention, and rejects it; 2. Declares the application admissible; 3.", "Holds that there has been a 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, the following amounts, to be converted into Turkish liras 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 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 French, and notified in writing on 13 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıRobert SpanoDeputy RegistrarPresident [1].", "Type-2 diabetes is a disease characterised by chronic hyperglycaemia, that is to say a high blood sugar level. [2]. Disease of the coronary arteries." ]

[ "FOURTH SECTION CASE OF SZYMAŃSKI v. POLAND (Application no. 75929/01) JUDGMENT (Friendly settlement) STRASBOURG 21 October 2003 This judgment is final but it may be subject to editorial revision. In the case of Szymański v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrsV. Strážnická,MrM. Fischbach,MrR.", "Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges, andMrM. O’Boyle, Section Registrar, Having deliberated in private on 30 September 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 75929/01) 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 Marian Szymański (“the applicant”), on 31 May 2001. 2. The Polish Government (“the Government”) were represented by their Agent, Ms S. Jaczewska, of the Ministry of Foreign Affairs. 3.", "The applicant complained under Article 6 § 1 of the Convention about the length of a set of civil proceedings. 4. On 21 March 2003 the Court decided to communicate 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. 5.", "On 20 August 2003, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 26 August 2003 and on 27 August 2003 the applicant and the Government respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicant was born in 1926 and lives in Poznań. 7.", "The facts of the case, as submitted by the applicant, may be summarised as follows. 8. On 10 September 1985 the applicant lodged a compensation claim with the Poznań Regional Court, claiming PLZ (old Polish zlotys) 1,530,000 from the military hunting association “P.” for unpaid salary. Later on, he extended his claim to PLZ 4,138,729. 9.", "The court held a hearing on 2 December 1985. 10. By a decision of 16 January 1986, the court stayed the proceedings at the applicant’s request, having regard to the fact that criminal proceedings had been instituted against him. The civil proceedings were resumed on an unspecified date in 1987. 11.", "The court held hearings on 9 September 1987, 3 December 1987, 7 January 1988 and 21 January 1988. 12. On an unspecified date in 1991 the court ordered an expert opinion. 13. Another expert opinion was ordered by virtue of a decision of 14 January 1995.", "14. In a letter of 8 December 1997 the applicant requested the court to adjourn the hearing scheduled on 16 December 1997 due to his bad health. 15. In 1997 the applicant requested the court to order a further expert opinion and he paid an advance fee for it in January 1998. Apparently, the court failed to order the relevant opinion.", "16. By a decision of 9 March 1998 the court stayed the proceedings as the applicant was ill. The proceedings were resumed on an unspecified date in 2001. 17. The court held hearings on 24 April and 23 August 2001.", "18. By virtue of a court settlement concluded on an unspecified date, on 14 December 2001 the applicant received a partial compensation from the military hunting association. 19. By a decision of 18 December 2001 the Poznań Regional Court terminated the proceedings as the applicant had withdrawn his claim. THE LAW A. Admissibility 20.", "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. The Court will therefore declare it admissible. B. Solution reached 21.", "The applicant complained under Article 6 § 1 of the Convention that the compensation proceedings exceeded a reasonable time. 22. On 27 August 2003 the Court received the following declaration from the Government: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Poland offer to pay 13,000 zlotys to Marian Szymański. This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the judgement by the Court pursuant to the Article 39 of the Convention on Human Rights. This payment will constitute the final resolution of the case.", "The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 23. On 26 August 2003 the Court received the following declaration signed by the applicant: “I note that the Government of Poland are prepared to pay me the sum of 13,000 zlotys covering pecuniary and non-pecuniary damage and costs with a view to securing a friendly settlement of the above mentioned case pending before the European Court of Human Rights. I accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final settlement of the case. This declaration is made in the context of a friendly settlement which the Government and I have reached.", "I further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court’s judgement.” 24. 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). 25. Accordingly, the case should be struck out of the list.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides the application admissible; 2. Decides to strike the case out of the list; 3. 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 21 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF TILOCCA v. CROATIA (Application no. 40559/12) JUDGMENT STRASBOURG 5 April 2018 This judgment is final but it may be subject to editorial revision. In the case of Tilocca v. Croatia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Kristina Pardalos, President,Ksenija Turković,Pauliine Koskelo, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 13 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 40559/12) 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 an Italian national, Mr Giuseppe Tilocca (“the applicant”), on 25 May 2012.", "2. The applicant was represented before the Court by Mr D.S. Janković and Mr H. Grenac of Abel & Grenac Law Firm, advocates practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "On 19 May 2015 the complaint concerning the right of property was 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 of Italy did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1963 and currently lives in Alexandria (Egypt). 6. On 15 February 2010, while crossing the border between Serbia and Croatia with his wife, the applicant was caught by the Croatian customs authorities carrying the sum of 563,300 euros (EUR) which he had failed to declare, contrary to the law. The customs authorities immediately seized the EUR 560,000. 7.", "On the same day the customs authorities instituted administrative‑offence proceedings (prekršajni postupak) against the applicant before the Financial Inspectorate of the Ministry of Finance (Ministarstvo financija, Financijski inspektorat – “the Ministry”) for failing to declare EUR 560,000 – a sum exceeding EUR 10,000 – an administrative offence defined in section 40(1) of the Foreign Currency Act and section 74 of the Prevention of Money Laundering and Financing of Terrorism Act. 8. In his defence, the applicant explained that he and his wife had been visiting her daughter in Serbia who had recently had a serious attack of epilepsy, and submitted documentary evidence suggesting that his wife’s daughter did indeed suffer from epilepsy. The money he had been carrying originated from: (a) a company called SCI (société civile immobilière) M. registered in France, of which he was the director and the only member, from whose account he had withdrawn EUR 326,008.03 with a view to starting another business; and (b) the sale of their house in France (the remaining amount). The applicant submitted relevant documents as evidence of those transactions.", "He also explained that he had not wished to deposit the money in a bank account because, in the wake of the global financial crisis of 2007-2008, he had been afraid that his bank would go bankrupt and that he would lose most of that money, given that the French State only guaranteed up to EUR 50,000 of bank deposits. 9. During the proceedings the Ministry requested information from the relevant authorities in Serbia, France and Italy. While the Italian authorities did not reply at all, the Serbian authorities informed the Ministry that neither the applicant nor his wife had been recorded in their register of suspicious transactions, and the French authorities only confirmed the authenticity of the transactions on which the applicant relied to prove the origin of the money he had been carrying. 10.", "By a decision of 9 July 2010 the Ministry found the applicant guilty of having committed the administrative offence in question and fined him 5,000 Croatian kunas (HRK). At the same time, the Ministry imposed a protective measure (zaštitna mjera) confiscating EUR 318,500 under section 69(2) of the Foreign Currency Act. 11. On the basis of the documentary evidence, the Ministry established that: (a) the company SCI M. had been founded in 2002 and recorded in the business and companies register in Strasbourg, and under French law its members were liable for its debts in proportion with their share in the company, that is, the applicant in respect of 99.75% and his wife in respect of 0.25%; (b) on 6 July 2009 the applicant had indeed sold his house in France, and EUR 243,091.82 from the proceeds of sale had been paid into his bank account on 29 July 2009, from which he had first transferred EUR 30,000 to his company’s account on the same day and then withdrawn EUR 211,500; and (c) on 21 December 2009 the applicant, acting as the company’s director, had sold its real estate, and EUR 326,008.03 from the proceeds of sale had been paid into the company’s bank account on 19 January 2010, a sum which had been withdrawn by the applicant the next day. 12.", "The Ministry held that the origin of the money which the applicant had failed to declare was irrelevant in relation to the commission of the offence of which he had been convicted or the imposition of the fine. However, that consideration was relevant in relation to the imposition of the protective measure of confiscation. 13. In particular, the Ministry decided not to confiscate EUR 241,500 of the money which the applicant had not declared, because it found that this sum did indeed originate from the sale of his house in France. 14.", "As regards the remaining EUR 318,500 (of the EUR 560,000 which had been seized), the Ministry held that this sum was part of the funds which the applicant had withdrawn from his company’s bank account (EUR 326,008.03) on 20 January 2010 (see paragraph 11 above). The Ministry further held that: (a) since there was no evidence that the applicant had borrowed that money from his company, by carrying it across border he had disposed of it as if it had belonged to him, which amounted to misappropriation of the company’s funds, an offence punishable in every country; and (b) he had failed to pay the relevant taxes in France on that amount. It therefore decided to confiscate that sum. 15. The applicant appealed by arguing that: (a) the evidence collected indicated that the French authorities had been aware of the transaction from which the confiscated sum originated, but had done nothing about it, which suggested that they considered that it originated from a legitimate source, (b) the Ministry correctly assumed that he had not borrowed the confiscated sum from his company, as he had actually lent EUR 358,600.81 to his company in 2008 and 2009, for which he had submitted documentary evidence; (c) under French law, he was fully liable for the debts of his company, the payment of which, including taxes, he therefore could not have avoided by misappropriating the company’s funds as the Ministry implied; (d) the Ministry had attempted to interpret foreign (French) law, and in such a complex area as tax and commercial law, about which it had known very little; and (e) it was peculiar that the Ministry had confiscated for the benefit of the Croatian State budget the amount on which he had, in the Ministry’s own view, not paid the relevant taxes in France.", "16. By a decision of 17 September 2010 the High Court for Administrative Offences (Visoki prekršajni sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the Ministry’s decision, endorsing the reasons given therein. 17. The applicant then, on 17 December 2010, lodged a constitutional complaint, alleging, inter alia, a violation of his constitutionally protected right of ownership. 18.", "By a decision of 17 November 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible and served its decision on his representative on 2 December 2012. It found that, even though the applicant had relied on the relevant Articles of the Constitution in his constitutional complaint, he had not substantiated his complaint by any constitutional-law arguments, but had merely repeated the arguments raised in the proceedings before the Ministry and the High Court for Administrative Offences. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint. II. RELEVANT CROATIAN AND INTERNATIONAL LAW 19.", "The relevant domestic and international law and practice is summarised in the case of Boljević v. Croatia, no. 43492/11, §§ 16-21, 31 January 2017. III. RELEVANT FRENCH LAW 20. Under French law, a société civile immobilière (SCI) is a civil (non‑commercial) company constituted for the ownership and management of real estate (Articles 1845 to 1870-1 of the French Civil Code).", "It is a legal entity, meaning it has a legal personality distinct from that of its members. The members are, however, liable for the debts of the company without limitation, meaning that they may be liable in relation to their personal assets (Article 1857 of the French Civil Code). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 21.", "The applicant complained that the decision of the domestic authorities in the administrative-offence proceedings to confiscate EUR 318,500 from him for having failed to declare the sum of EUR 560,000 at customs had not been justified. The Court decided to examine this complaint under 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 parties’ submissions 22. The Government submitted that the amount of EUR 318,500 which had eventually been confiscated from the applicant was part of the funds which he had withdrawn from his company’s bank account (EUR 326,008.03) on 20 January 2010 (see paragraphs 11 and 14 above). The confiscated sum had thus not belonged to him personally, but to his company. The Government therefore argued that the applicant could not be considered a victim of the violation complained of. 23.", "The applicant emphasised that the protective measure of confiscation had been imposed on him and the amount of EUR 318,500 confiscated from him personally. He had therefore been directly affected by the confiscation. The applicant further stressed that, in order to ensure that protection of the rights guaranteed by the Convention did not remain ineffectual and illusory, the interpretation of the term “victim” must not be excessively formalistic (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 38, ECHR 2004‑III, and Stukus and Others v. Poland, no. 12534/03, § 35, 1 April 2008).", "In any event, the applicant submitted that he had been a creditor of his company, as he had lent it a total amount of EUR 358,600.81 in 2008 and 2009 (see paragraph 15 above). The confiscated sum of EUR 326,008.03 which he had withdrawn from his company’s bank account on 20 January 2010 (see paragraphs 11 and 14 above) represented the reimbursement of that loan. The sum had thus belonged to him and not to his company. 2. The Court’s assessment 24.", "For the reasons set out below (see paragraphs 25-29), the Court does not find it necessary to decide whether the confiscated sum belonged to the applicant or to his company. 25. In that connection, it first reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions relate to his “possessions” within the meaning of this provision (see Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74 (c), ECHR 2005‑V).", "26. The Court further reiterates that where the acts or omissions complained of affect a company, the application should be brought by that company. Disregarding a company’s legal personality as regards the question of being a “victim” will be justified only in exceptional circumstances (see, notably, Agrotexim and Others v. Greece, 24 October 1995, § 66, Series A no. 330‑A). On the other hand, the sole owner of a company can claim to be a “victim” within the meaning of Article 34 of the Convention in so far as the impugned measures taken in respect of his or her company are concerned, because in the case of a sole owner there is no risk of differences of opinion among shareholders or between shareholders and a board of directors as to the reality of infringement of Convention rights, or as to the most appropriate way of reacting to such an infringement (see, for example, Ankarcrona v. Sweden (dec.), no.", "35178/97, 27 June 2000, Gubiyev v. Russia, no. 29309/03, § 53, 19 July 2011, and Beguš v. Slovenia, no. 25634/05, § 25, 15 December 2011). 27. In the present case, the applicant claimed that he was the sole member and the director of the company in question, whereas in the domestic proceedings it was established that his share in the company was 99.75% and his wife’s share was 0.25% (see paragraphs 8 and 11 above).", "28. The Court considers that, while formally the applicant thus might not have been the only member of the company, he was certainly its only legal representative (director), and held such a substantial share in it (see, for example, G.J. v. Luxembourg, no. 21156/93, § 24, 26 October 2000) that for all practical purposes he has to be seen as its sole owner. Specifically, it is clear that there is no risk of any competing interests and/or differences of opinion which could create difficulties as reflected in the Court’s relevant case-law (see the preceding paragraph).", "It would therefore be artificial to distinguish the present case from those in which the Court has held that the sole owner of a company could claim to be a “victim” within the meaning of Article 34 of the Convention (see the preceding paragraph). 29. In the instant case, this conclusion is further reinforced by the fact that the applicant was liable for the company’s debts in relation to his personal property (see paragraph 20 above). The Court has already held that where an individual and a professional entity are so closely connected, such an individual applicant could be considered to be directly affected by the measures taken in respect of such an entity (see Oklešen and Pokopališko Pogrebne Storitve Leopold Oklešen S.P. v. Slovenia, no.", "35264/04, § 40, 30 November 2010). 30. It follows that the Government’s objection based on the applicant’s lack of victim status must therefore be dismissed. 31. 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 32. The Court notes that it has already found violations of Article 1 of Protocol No.", "1 to the Convention in cases raising similar issues to those in the present case (see, for example, Ismayilov v. Russia, no. 30352/03, 6 November 2008; Gabrić v. Croatia, no. 9702/04, 5 February 2009; Grifhorst v. France, no. 28336/02, 26 February 2009; Moon v. France, no. 39973/03, 9 July 2009; and Boljević, cited above).", "33. Having examined all the submitted material, 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. 34. In particular, what is relevant is that: the applicant was never charged with any criminal offence; bringing the money into Croatia was not prohibited; and the only illegal (but not criminal) conduct which could be attributed to him in respect of the money was his failure to declare it (see Gabrić, cited above, § 38, and Boljević, cited above, §§ 42-46). 35.", "Having regard to its case-law on the matter (see paragraph 32 above), the Court therefore finds that there has been a breach of Article 1 of Protocol No. 1 to the Convention in the present case. II. 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 the total of 521,500 euros (EUR) in respect of pecuniary damage, of which EUR 318,500 represented the sum confiscated from him. As to the remaining amount sought, the applicant explained that in order to maintain the same level of support for his family, he had been forced to sell two items of his immovable property approximately a month after the confiscation at prices which, as certified by a chartered surveyor, had been EUR 203,000 below their market value. 38. The applicant also claimed 400,000 in respect of non-pecuniary damage.", "39. The Government contested these claims. 40. The Court has found that an amount of EUR 318,500 was confiscated from the applicant in breach of Article 1 of Protocol No. 1 to the Convention.", "Therefore, in so far as the applicant’s claim in respect of pecuniary damage concerns that amount, the Court accepts it and awards him EUR 318,500 under this head, plus any tax that may be chargeable. On the other hand, the Court rejects the remainder of this claim, as it does not discern any causal link between the violation found and the pecuniary damage alleged. 41. As regards non-pecuniary damage, the Court considers that, in the circumstances of the present case, the finding of a violation of Article 1 of Protocol No. 1 to the Convention constitutes in itself sufficient just satisfaction (in that sense, see Gabrić, cited above, § 49, and Boljević, cited above, § 54).", "B. Costs and expenses 42. The applicant also claimed EUR 36,661.36 for costs and expenses incurred before the domestic courts, and EUR 2,617.33 for those incurred before the Court. 43. The Government contested these claims.", "44. 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 it reasonable to award the sum of EUR 1,770 for costs and expenses in the domestic proceedings and EUR 1,780 for those incurred in the proceedings before the Court. C. Default interest 45. 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 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, the following amounts: (i) EUR 318,500 (three hundred and eighteen thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 3,550 (three thousand five hundred and 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 the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerKristina PardalosDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF HAJDUK v. POLAND (Application no. 6210/05) JUDGMENT STRASBOURG 11 February 2014 This judgment is final but it may be subject to editorial revision. In the case of Hajduk v. Poland, 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 21 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6210/05) 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 Krzysztof Hajduk (“the applicant”), on 15 December 2004.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that the ex officio reopening of the social security proceedings concerning his right to an early-retirement pension, which resulted in the quashing of the final decision granting him a right to a pension, was in breach of Article 1 of Protocol No. 1 to the Convention.", "4. On 20 May 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 5.", "The applicant was born in 1956 and lives in Borki Nizińskie. 6. The applicant is married with two children. Prior to his early retirement he had been employed for 23 years and had paid his social security contributions to the State. A.", "Proceedings concerning the grant and the revocation of an EWK pension 7. On 18 December 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist doctor on 14 December 2001. The certificate stated that the child (born in 1990) suffered from, among other things, urinary tract infection and chronic headaches and that she was in need of her parent’s constant care.", "9. On 20 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an early‑retirement pension. 10. The Social Security Board initially suspended the payment of the pension until the end of the year 2001 due to the fact that the applicant was still working on the date of the decision. 11.", "On 31 December 2001 the applicant’s employment contract expired. It had been terminated by the employer with three-month notice for reasons attributable to the employer’s financial situation. 12. Consequently, on 1 January 2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 1,324.57 Polish zlotys (PLN) (approximately 370 euros (EUR)). 13.", "The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right. 14. On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 13 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 15.", "On 19 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 16. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early‑retirement pension under the scheme provided for by the 1989 Ordinance. 17.", "The applicant appealed against the respective decisions divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 18. On 25 September 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.", "19. The applicant appealed against the first-instance judgment. 20. On 12 October 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care.", "21. A professional lawyer prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 22. On 22 June 2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not properly described the circumstances which would justify the examination of the cassation appeal (okolicznośći uzasadniające rozpoznanie kasacji). B.", "The applicant’s financial situation 23. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension. 24. Throughout the whole period of receiving the EWK pension the applicant did not work. 25.", "More than one year after the pension had been revoked, the applicant started working on the basis on a mandate contract. He worked for three months from 20 October until 22 December 2003. 26. In 2004 the applicant remained unemployed for ten months. On 25 October 2004 he started to work on a permanent basis.", "27. The Government submitted that the applicant’s gross annual income was PLN 1,100 (approx. EUR 262) in 2003, PLN 2,056.67 (approx. EUR 456) in 2004, PLN 11,464.50 (approx. EUR 2,870) in 2005, PLN 12,480 (approx.", "EUR 3,285) in 2006, PLN 13,080 (approx. EUR 3,535) in 2007, PLN 14,111 (approx. EUR 3,813) in 2008, PLN 17,880 (approx. EUR 4,250) in 2009. 28.", "The Government also submitted that the applicant had owned a 4.59 ha farm and had received some direct payments from the Agency of Modernisation and Restructuring of Agriculture in the amount of PLN 1,948.43 (approx. EUR 430) in 2004, PLN 1,934.50 (approx. EUR 480) in 2005, 2,327.58 (approx. EUR 612) in 2006, PLN 2,161.67 (approx. EUR 584) in 2007, PLN 3,554.03 (approx.", "EUR 960) in 2008 and PLN 6,592.63 (approx. EUR 1,570) in 2009. They further submitted that “there were no doubts that the applicant’s farm had constituted a source of income”; they failed however to submit any evidence to support this statement. The applicant submitted that the income from his farm had been “minimal”. 29.", "The Government also maintained that the applicant’s wife had a gainful employment. In the years 2003-2007 she earned between 20 and 39% of the average gross salary in Poland. 30. The applicant has a son who also worked at the relevant time. He earned 5.25% of the average gross salary in Poland in 2002, 3.31% in 2003, 13.3% in 2004, 34.02% in 2005, 33.80% in 2007, 88.86% in 2008, 96.10% in 2009.", "In 2006 he apparently did not work. 31. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension when he turns sixty‑five in 2021. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Social security system 32. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, §§ 31-34, 15 September 2009. B. Cassation appeal 33. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court.", "A party had to be represented by an advocate or a legal adviser. 34. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 35. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination.", "Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was well-founded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 36.", "The applicant complained that divesting him, in the circumstances of the case, of his acquired right to an early-retirement pension amounted to an unjustified deprivation of property. This complaint falls to be examined under 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 Government’s preliminary objections (a) Abuse of the right of an individual application (i) The Government 37. The Government submitted that the present application constituted an abuse of the right of individual application under Article 35 § 3 of the Convention in that the applicant had misrepresented to the Court his current social security status and the financial situation of his family. 38. In particular, the Government noted that the applicant had informed the Court that after the revocation of his EWK pension his family and he had been left without any means to live. In fact, the source of income of the applicant’s family, both when the applicant had been in receipt of his EWK pension and after its revocation, had been the salary of the applicant’s wife.", "39. The Government further argued that the applicant had misled the Court in representing himself as a person who had wished to stay at home to take care of his daughter. In reality, the applicant had had a full-time job before the time he was granted the EWK pension and at the time when the pension was granted his employment contract was already about to expire due to the difficult financial situation of his employer. In the Government’s view, the applicant had sought early retirement not because he wished to take care of his child at home but because he wished to maintain a source of income. (ii) The applicant 40.", "The applicant submitted that his application had been originally based on Article 6 of the Convention and that, from this point of view, his wife’s salary had no significance for revocation of his retirement pension. He further noted that he had lodged the application himself, without the assistance of a professional lawyer, and that he had had submitted information which was relevant according to his best knowledge. He also argued that the application had been lodged only on his behalf and therefore the facts concerning the members of his family seemed irrelevant. (iii) The Court 41. The Court considers that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1206, §§ 53–54; I.S.", "v. Bulgaria (dec.), no. 32438/96, 6 April 2000; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; or Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004). 42.", "The Court notes that in the present case the gist of the Government’s arguments does not actually concern “untrue facts” allegedly adduced by the applicant before the Court. Rather, their objection is based on their own perception of the applicant’s possible intentions behind his decision to take advantage of the EWK early-retirement pension scheme and/or on their assessment of his and his family’s overall financial situation after the revocation of the pension. It has not been disputed that the applicant did not work while in receipt of his EWK pension and only resumed employment after his pension had been withdrawn. 43. The Government’s preliminary objection should therefore be dismissed.", "(b) Non-compliance with the six-month rule 44. The Government submitted that the applicant had failed to respect the six-month time-limit. They argued that the Supreme Court’s decision rejecting the applicant’s cassation appeal had been served on the applicant’s lawyer on 26 July 2004 and the present application – according to the information on the application form - was lodged with the Court on 22 April 2005, that is more than nine months after the final decision had been served on the applicant’s lawyer. 45. The applicant made no comments as regards the alleged non‑compliance with the six-month rule.", "46. The Court notes that indeed the Supreme Court’s decision was served on the applicant’s lawyer on 26 July 2004. However, the applicant’s first letter in which he raised the substance of his complaints was lodged with the Court on 15 December 2004. It follows that the six-month rule was respected and therefore the Government’s preliminary objection should be dismissed. (c) Non-exhaustion of domestic remedies (i) The Government 47.", "The Government argued that the applicant had not exhausted the domestic remedies available to him, as required by Article 35 § 1 of the Convention. 48. They submitted that the applicant did not lodge a cassation appeal against the Rzeszów Court of Appeal’s judgment of 12 February 2004 in compliance with procedural requirements. As a result, his cassation appeal was rejected on the ground that the circumstances which would justify the examination of the cassation appeal had been insufficiently described. 49.", "The Government argued that the cassation appeal should be considered an effective and available remedy for the EWK cases. They referred to several examples of domestic case-law. In particular, they pointed to a case in which a cassation appeal had been allowed by the Supreme Court which had remitted it to the Court of Appeal. Afterwards the applicant’s appeals against the Social Security Board’s decision had again been rejected at two instances and, finally, the Supreme Court had refused to entertain the second cassation appeal lodged in this case. The Government did not indicate the grounds for quashing the judgment by the Supreme Court when examining the cassation appeal for the first time.", "50. In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention. (ii) The applicant 51. The applicant submitted that he had exhausted all effective domestic remedies because, although the cassation appeal lodged by his lawyer had been rejected, even if it had been lodged properly, it would not have had any prospects of success. (iii) The Court 52.", "The Court reiterates 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. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 65). 53. In so far as the Government argued that the applicant’s cassation appeal had not been lodged in compliance with procedural requirements, the Court notes at the outset that in the operative part of the decision of 22 June 2004 the Supreme Court indeed rejected the cassation appeal lodged by the applicant’s lawyer. The ground which was relied on by the Supreme Court to justify the decision in question was of a formal character, namely the failure of the applicant’s lawyer to give the grounds which would justify the examination of his client’s cassation appeal.", "The Court notes further that the reasons behind the Supreme Court’s decision were exactly the same as reasons relied on by the same court in other case examined by the Strasbourg Court namely in Antoni Lewandowski v. Poland, no. 38459/03, § 25, 2 October 2012, where the Supreme Court refused to entertain the applicant’s cassation appeal. Therefore the Court sees no reason to depart from the reasoning adopted in the case of Antoni Lewandowski where the Court found that the applicant’s procedural mistake did not have any material bearing on the effectiveness of his cassation appeal. As noted above, most cassation appeals which had been lodged by applicants with similar cases were considered by the Supreme Court as not deserving substantive examination. Accordingly, the prospects of success of the applicant’s cassation appeal, even if it had been lodged properly, were very little and, therefore, not sufficient for the purposes of Article 35 § 1 of the Convention (see Antoni Lewandowski, cited above, §§ 62–66).", "(d) Further preliminary objections 54. In their additional observations on the case, the Government also submitted that the applicant should have made an application to the Constitutional Court, challenging the compatibility of the relevant social security provisions with the Constitution. They further argued that the applicant did not suffer significant disadvantage. 55. The Court has already examined identical objections regarding non‑exhaustion as regards the applicant’s failure to lodge a constitutional complaint, and no significant disadvantage, and dismissed them, in the follow‑up cases to Moskal (see, for instance, Antoni Lewandowski, cited above, §§ 54–72, Potok v. Poland, no.", "18683/04, §§ 36–44, and Lew v. Poland, no. 34386/04, §§ 56–62, 4 December 2012). It sees no reason to depart from its previous findings. 2. Conclusion on admissibility 56.", "The Court also 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 applicant 57. The applicant submitted that divesting him, in the circumstances of the case, of his acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. (b) The Government 58. The Government claimed that the interference with the applicant’s property rights had been lawful and justified. In particular, divesting the applicant of his right to the early-retirement pension had been provided for by law and was in the general interest.", "There was also a reasonable relationship of proportionality between the interference and the interests pursued. 2. The Court’s assessment (a) General principles 59. The relevant general principles are set out in the Moskal judgment, cited above, paragraphs 49-52. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal, cited above, §§ 49 and 50).", "(b) Application of the above principles to the present case (i) Whether there has been an interference with the applicant’s possessions 60. The parties agreed that the decisions of the Rzeszów Social Security Board of 19 September 2002, subsequently validated by two court instances (the regional court and the court of appeal), which deprived the applicant of the right to receive the EWK pension, amounted to an interference with his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise. (ii) Lawfulness of the interference and legitimate aim 61.", "As in the Moskal case the Court considers that this interference was provided for by law and pursued a legitimate aim, as required by Article 1 of Protocol No. 1 to the Convention (see Moskal, cited above, §§ 56, 57 and 61‑63 and also Iwaszkiewicz v. Poland, no. 30614/06, §§ 47, 48, 26 July 2011). (iii) Proportionality 62. In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to the application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right (see paragraphs 7-12 above).", "Before being invalidated the decision of 20 December 2001 had undoubtedly produced effects for the applicant. 63. It must be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The decision of 20 December 2001 was left in force for nine months before the authorities became aware of their error. On the other hand, as soon as the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect (see paragraphs 15-16 above).", "Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 19 September 2002 in judicial review proceedings, his right to the pension was eventually determined by the courts only a year and a half later and during that time he was not in receipt of any welfare benefit (see paragraphs 24-26 above). 64. In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I; Öneryıldız v. Turkey [GC], no.", "48939/99, § 128, ECHR 2004‑XII; Megadat.com S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). It is desirable that public authorities act with the utmost care, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights.", "In the present case, the Court considers that having discovered their mistake, the authorities failed in their duty to act speedily and in an appropriate and consistent manner (see Moskal, cited above, § 72). 65. Moreover, in the Court’s opinion, the fact that the State did not ask the applicant to return the pension which had been unduly paid (see paragraph 23 above) did not mitigate sufficiently the consequences for the applicant flowing from the interference in his case. As a result of the impugned measure, the applicant was faced, without any transitional period enabling him to adjust to the new situation, with the total loss of his early‑retirement pension, which constituted his only source of income at that time. Moreover, the Court is aware of the potential risk that, in view of his age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have had considerable difficulty in securing new employment.", "Indeed, after the revocation of his pension the applicant remained unemployed. After more than a year following the revocation of his pension he worked for three months on the basis of a mandate contract. Subsequently, he remained unemployed for more than ten months and it took him more than three years after finding a paid job to earn the equivalent of the amount of his former EWK pension, that is, approximately EUR 350 net per month (see paragraph 27 above). 66. The Government submitted that the applicant’s wife had been continuously employed.", "However, the Court considers that this fact is not decisive for the matter at hand, namely whether the revocation of the EWK pension placed an excessive burden on the applicant as an individual in his own right irrespective of third party financial support. 67. The Government further maintained that the applicant’s farm had with no doubts constituted a source of income. However, they failed to submit any evidence that after the revocation of the EWK pension he indeed derived any income from the farm. The applicant submitted that the income generated by the farm was minimal (see paragraph 28 above).", "Moreover, the farm clearly did not constitute his main source of income, since for over twenty-three years he had been employed outside the farm, in a non-agricultural enterprise (see paragraph 6 above and Frączek-Potęga v. Poland, no. 39430/04, § 71, 4 December 2012). As regards the direct payments from the Agency of Modernisation and Restructuring of Agriculture, it is to be noted that they were paid as of 2004, about two years after the revocation of the EWK pension and originally in very modest amounts (see paragraph 28 above). Therefore the Court considers that they could not sufficiently mitigate the consequences of the revocation of the applicant’s EWK pension. 68.", "In view of the above considerations, the Court does not see any reason to depart from its ruling in the leading case concerning EWK pensions, Moskal v. Poland, and finds that in the instant case a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive. 69. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. 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 71. The applicant claimed EUR 50,000 without specifying whether he meant pecuniary or non-pecuniary damage. 72.", "The Government submitted that the applicant’s claims were groundless and undeserved. 73. The Court finds that the applicant was deprived of his income in connection with the violation found and must take into account the fact that he undoubtedly suffered some pecuniary and non-pecuniary damage (see Moskal, cited above, § 105 with a further reference). Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 5,500 to cover all heads of damage. B.", "Costs and expenses 74. The applicant did not make any claim in respect of costs and expenses. C. Default interest 75. 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 (a) that the respondent State is to pay the applicant, within three months, the amount of EUR 5,500 (five thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of pecuniary and non-pecuniary damage, 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 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 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıLedi BiankuDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF IVANNIKOVA v. RUSSIA (Application no. 24659/03) JUDGMENT STRASBOURG 17 November 2005 FINAL 12/04/2006 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 Ivannikova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsS.", "Botoucharova,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens , judgesand Mr S. Quesada, Deputy Section Registrar, Having deliberated in private on 25 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24659/03) 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 a Russian national, Ms Galina Nikolayevna Ivannikova, on 8 April 2002. 2. 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 7 October 2003 the Court decided to communicate 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 1965 and lives in the Voronezh Region. 5. The applicant receives welfare payments for her child. In 1999 she brought civil proceedings against a local welfare authority, claiming arrears in those payments for 1998 – 1999. 6.", "On 17 December 1999 the Novousmanskiy District Court of the Voronezh Region awarded the applicant 1,593.54 Russian roubles (RUR). 7. On 17 March 2000 a writ of execution was issued and sent to the bailiffs. 8. On 24 October 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 17 December 1999 and returned the writ of execution to the applicant, as the debtor had insufficient funds.", "9. In January – February 2004 the applicant was paid the amount due pursuant to the writ of execution. II. RELEVANT DOMESTIC LAW 10. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution.", "The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 11. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 12. The applicant complained about the lengthy non-enforcement of the judgment in her favour. The Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.", "These Articles, in so far as relevant, 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 13. The Government informed the Court that the authorities of the Voronezh Region had attempted to secure a friendly settlement of the case and that the applicant had refused to accept the friendly settlement on the terms proposed by the authorities.", "By reference to this refusal and to the fact that, in any event, the judgment in the applicant’s favour had been enforced, the Government invited the Court to strike out the application, in accordance with Article 37 of the Convention. 14. The applicant disagreed with the Government’s arguments and maintained her complaints. As regards the friendly settlement proposal, the applicant claimed that the authorities of the Voronezh Region had made an offer to her, but did not allow her to acquaint herself with the terms of that offer and that, in any event, the amount of the judgment debt transferred to her account in 2004 had lost its purchasing power due to inflation. 15.", "The Court firstly observes that the parties were unable to agree on the terms of a friendly settlement of the case. The Court recalls that under certain circumstances an application may indeed be struck out of its list of cases 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 (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 76, ECHR 2003‑...). 16. On the facts, the Court observes that the Government failed to submit with the Court any formal statement capable of falling into the latter category and offering 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, by contrast, to Akman v. Turkey (striking out), no.", "37453/97, §§ 23-24, ECHR 2001‑VI). 17. As regards the Government’s argument that the judgment in question has already been enforced, the Court considers that the mere fact that the authorities complied with the judgment after a substantial delay cannot be viewed in this case as automatically depriving the applicant of her victim status under the Convention. (see, e.g., Petrushko v. Russia, no. 36494/02, § 16, 24 February 2005).", "18. In the light of the above considerations, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention. 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 20. The Government advanced no arguments on the merits of the application. 21.", "The applicant maintained her complaint. 22. The Court observes that the judgment of 17 December 1999 remained inoperative for about four years and one month. No justification was advanced by the Government for this delay. 23.", "The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, among other authorities, Burdov v. Russia, no. 59498/00, ECHR 2002-III and, more recently, Petrushko, cited above, or Poznakhirina v. Russia, no. 25964/02, 24 February 2005). 24.", "Having examined the material submitted to it, the Court notes that the Government did 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 finds that by failing for years to comply with the enforceable judgment in the applicant’s favour the domestic authorities prevented her from receiving the money she could reasonably have expected to receive. 25. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 26. The applicant also complained that the lengthy non-enforcement of the judgment in her favour violated her rights to effective domestic remedies under Article 13 of the Convention. 27. The Court considers that this complaint is linked to the above issues of non-enforcement to such an extent that it should be declared admissible as well.", "However, having regard to the finding relating to Article 6 § 1 (see paragraph 25 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13. 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.", "As regards compensation for pecuniary damage, the applicant claimed RUR 7,053.80 as the interest payable at a statutory rate of 55 % for the default period as well as 30,000 US dollars (USD), of which USD 10,000 represented the amount she could have earned during the period when, instead, she had sought the enforcement of the judgment in her favour and USD 20,000 was the compensation for the losses her child had sustained as a result of the untimely enforcement of the judgment of 17 December 1999. She also claimed USD 45,000 in respect of non-pecuniary damage. 30. The Government contested the applicant’s claims as wholly excessive and unjustified. As regards the pecuniary damage, they pointed out that under national law it was open to the applicant to file a court claim, seeking interest for the delayed payment of her judgment debt, and that the domestic courts would calculate such interest on the basis of a statutory rate which was currently equal to 14 %.", "Therefore, in the Government’s view, the interest accrued by the applicants should amount to RUR 892. As to the non-pecuniary damage, the Government considered that should the Court find a violation in this case that would in itself constitute sufficient just satisfaction. 31. Having regard to the materials in its possession, the Court accepts the Government’s argument and awards the applicant RUR 892, plus any tax that may be chargeable, in respect of pecuniary damage. 32.", "As regards the compensation of non-pecuniary damage, the Court would not exclude that the applicant might have suffered distress and frustration resulting from the State authorities’ failure to enforce the judgment in her favour. However, having regard to the nature of the breach in this case and making its assessment on an equitable basis, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant (see, in a similar context, Poznakhirina, cited above, § 35). B. Costs and expenses 33. The applicant also claimed RUR 10,000 for the costs and expenses incurred before the domestic courts and the Court.", "34. The Government considered the applicant’s claims to be unfounded and manifestly excessive and noted that the documents submitted by the applicant lacked evidence that she had incurred such costs. 35. 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 applicant the sum of EUR 20 in respect of costs and expenses, plus any tax that may be chargeable on that amount.", "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. Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No.", "1 to the Convention; 3. Holds that there is no need to examine the complaint under 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, the following amounts: (i) RUR 892 (eight hundred ninety-two roubles) in respect of pecuniary damage; (ii) EUR 20 (twenty 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; (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; 5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; 6. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 17 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaChristos Rozakis Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF ZAHID MAMMADOV AND OTHERS v. AZERBAIJAN (Applications nos. 3172/08, 42347/08, 454/09, 2772/09 and 32585/09) JUDGMENT STRASBOURG 6 December 2011 This judgment is final but it may be subject to editorial revision. In the case of Zahid Mammadov and Others v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a committee composed of: Peer Lorenzen, President,Khanlar Hajiyev,Julia Laffranque, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 15 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in five applications 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 the following Azerbaijani nationals: – Mr Zahid Mammadov, born in 1955, represented by Mr A. Mustafayev, a lawyer practising in Azerbaijan (application no. 3172/08, lodged on 6 December 2007); – Mr Vagif Aliyev, born in 1940, also represented by Mr A. Mustafayev (application no.", "42347/08, lodged on 11 August 2008); – Mr Bakhtiyar Muslumov, born in 1965, represented by Mr N. Ismayilov, a lawyer practising in Azerbaijan (application no. 454/09, lodged on 3 December 2008); – Mr Eduard Abramov, born in 1958, represented by Mr A. Bagirov, a lawyer practising in Azerbaijan (application no. 2772/09, lodged on 15 December 2008); and – Ms Tamilla Hasanova born in 1950, represented by Mr A. Nagiyev, a lawyer practising in Azerbaijan (application no. 32585/09, lodged on 8 May 2009). 2.", "The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. On 12 March 2010 the President of the First Section decided to give notice of the applications to the Government. In accordance with Protocol No. 14, the applications were allocated to a Committee.", "It was also decided that the Committee would rule on the admissibility and merits of the applications at the same time (Article 29 § 1 of the Convention). 4. The Government did not object to the examination of the applications by a Committee. THE FACTS I. THE CIRCUMSTANCES OF THE CASES 5.", "All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers (yaşayış sahəsi orderi) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority (see Appendix – Table I). 6. In all five cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the Armenian‑Azerbaijani conflict over Nagorno-Karabakh. 7. The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats.", "8. On the dates indicated in the Appendix (Table I), the applicants’ claims were granted by different domestic courts, which ordered the eviction of the IDPs from their flats. 9. The respective judgments became final and enforceable. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced.", "II. RELEVANT DOMESTIC LAW 10. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010). THE LAW I.", "ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 11. Relying on Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complained about the non-enforcement of the judgments in their favour. Article 6 § 1 of the Convention reads, as far as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 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.” 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.” 12. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. A. Admissibility 1.", "The Court’s competence rationae temporis in applications nos. 454/09, 2772/09 and 32585/09 13. The Court observes that in the cases of Mr Bakhtiyar Muslumov (application no. 454/09), Mr Eduard Abramov (application no. 2772/09) and Ms Tamilla Hasanova (application no.", "32585/09) the domestic judgments in the applicants’ favour were delivered prior to 15 April 2002, the date of the Convention’s entry into force in respect of Azerbaijan. 14. The Court notes that in the light of the authorities’ continued failure to execute the judgments in question, they still remain unenforced. Therefore, there is a continuous situation and the Court is thus competent to examine the part of the applications relating to the period after 15 April 2002 (see Gulmammadova, cited above, § 26). 2.", "Other admissibility criteria 15. The Court further considers that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 16.", "The Court points out that the factual circumstances of these cases are similar and that the complaints and legal issues raised are identical to those in the Gulmammadova case (cited above), in which it found violations of Article 6 § 1 and Article 1 of Protocol No. 1. 17. Having examined all the material in its possession, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in respect of the present applications. 18.", "In particular, the Court is prepared to accept that, in these cases, the existence of a large number of IDPs in Azerbaijan created certain difficulties in relation to the execution of the judgments in the applicants’ favour. Nevertheless, the judgments remained final and enforceable, but no adequate measures were taken by the authorities to ensure compliance with them. It has not been shown that the authorities acted with expedition and diligence in taking any measures necessary for the enforcement of the judgments in question. In such circumstances, the Court considers that no reasonable justification has been advanced by the Government for the significant delay in the enforcement of the judgments. 19.", "As regards the applicants’ submissions concerning the alleged violation of their property rights, it has not been established either in the domestic proceedings or before the Court that any specific measures were taken by the domestic authorities in order to comply with their duty to balance the applicants’ right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention against the IDPs’ right to be provided with accommodation. In such circumstances, the failure to ensure the execution of the judgments for considerable periods of time resulted in a situation in which the applicants were forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for this excessive individual burden, the authorities failed to strike the requisite fair balance between the general interest of the community in providing the IDPs with temporary housing and the protection of the applicants’ right to peaceful enjoyment of their possessions (see Gulmammadova, cited above, §§ 43-50). 20.", "There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. 21. The Court does not consider it necessary to rule on the complaint under Article 13 of the Convention because Article 6 is the lex specialis in respect of this part of the applications (see, for example, Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007).", "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 1. Pecuniary damage 23.", "The applicants claimed various sums as indicated in the Appendix (Table II) in respect of pecuniary damage. In cases nos. 3172/08 and 42347/08 the amounts claimed covered the loss of rent from the dates of delivery to the applicants of the relevant occupancy vouchers or ownership certificates. In case no. 454/09 the amount included the market price of the flat.", "In support of their claims, all the applicants except for the applicant in case no. 32585/09 submitted some estimates by local companies on rent prices for flats in a similar condition. 24. The Government submitted that the applicants had failed to justify their claims. The Government also argued that the applicant in case no.", "454/09 could not claim any compensation for the market value of the flat. 25. The Court considers that the applicants must have suffered pecuniary damage as a result of their lack of control over their flats and finds that there is a causal link between the violations found and the pecuniary damage claimed in respect of lost rent (compare Radanović v. Croatia, no. 9056/02, §§ 62-66, 21 December 2006). However, the Court considers that the damage suffered by the applicants in cases nos.", "3172/08 and 42347/08 should be calculated starting from the date of delivery of each respective judgment in the applicants’ favour and not from the dates of delivery of the occupancy vouchers or ownership certificates as claimed by the applicants. As to the part of the claim in case no. 454/09 relating to the market value of the flat, the Court rejects this part as it does not find any causal link between the violation found and this part of the claim. The Court also rejects the claim in respect of the lost rent submitted by the applicant in case no. 32585/09 as she failed to submit any documents in support of her claims.", "26. Having examined the parties’ submissions in cases nos. 3172/08, 42347/08, 454/09 and 2772/09, the Court will take as a reference point the amount set forth in the local companies’ estimates, which were submitted by the applicants. 27. In making its assessment, the Court takes into account the fact that the applicants would inevitably have experienced certain delays in finding suitable tenants and would have incurred certain maintenance expenses in connection with the flats.", "They would have also been subject to taxation (see Prodan v. Moldova, no. 49806/99, § 74, ECHR 2004‑III (extracts); Popov v. Moldova (no. 1) (just satisfaction), no. 74153/01, § 13, 17 January 2006; and Radanović, cited above, § 65). Having regard to the foregoing, and deciding on an equitable basis, the Court awards 5,000 euros (EUR) to the applicant in case no.", "3172/08; EUR 3,000 to the applicant in case no. 42347/08; EUR 8,800 to the applicant in case no. 454/09; and EUR 12,800 to the applicant in case no. 2772/09. No award is made in case no.", "32585/09 as the applicant failed to substantiate his claims. 2. Non-pecuniary damage 28. The applicants claimed different sums as indicated in the Appendix (Table II) in respect of non-pecuniary damage. 29.", "The Government indicated their willingness to accept the applicants’ claims for non-pecuniary damage up to a maximum of EUR 1,000 in respect of each applicant. 30. The Court considers that the applicants must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgments in their favour. However, the amounts claimed in most of the cases are excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the following amounts under this head, plus any tax that may be chargeable on these amounts: – EUR 1,600 to each of the applicants in applications nos.", "3172/08 and 42347/08; and – EUR 4,800 to each of the applicants in applications nos. 454/09, 2772/09 and 32585/09. 31. Moreover, the Court considers that, in so far as the judgments remain in force, the State’s outstanding obligation to enforce them cannot be disputed. Accordingly, the applicants are still entitled to the enforcement of those judgments.", "The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicants, as far as possible, are put in the position they would have been in had the requirements of Article 6 not been disregarded (see Davletkhanov and other “Chernobyl pensioners” v. Russia, nos. 7182/03, 10115/04, 21752/04, and 22963/04, § 25, 23 September 2010 and Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). Having regard to the violation found, the Court finds that this principle also applies in the present cases. It therefore considers that the Government shall secure, by appropriate means, the enforcement of the judgments in the applicants’ favour.", "B. Costs and expenses 32. All the applicants, except the applicant in case no. 2772/09, also claimed different sums as indicated in the Appendix (Table II) for the costs and expenses incurred before the domestic courts and the Court. 33.", "The Government considered the claims to be unjustified. 34. 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. 35. In case no.", "2772/09 the applicant did not submit a claim for costs and expenses incurred before the Court. Accordingly, the Court considers that there is no call to award her any sum under this head. 36. Having regard to the fact that the applicants in cases nos. 454/09 and 32585/09 failed to produce any supporting documents, the Court dismisses their claims for costs and expenses.", "37. As for the claims for costs and expenses by the applicants in cases nos. 3172/08 and 42347/08, the Court observes that they were submitted by the same lawyer (namely, Mr A. Mustafayev). The Court further notes the similarity of the complaints and legal arguments submitted in the cases and the fact that the cases concern matters on which there is well-established case-law. In view of the above considerations, the Court awards the total amount of EUR 700 jointly to the applicants in cases nos.", "3172/08 and 42347/08, in respect of the legal services rendered by Mr A. Mustafayev. 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. Decides to join the applications; 2.", "Declares the applications 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 1 of Protocol No. 1 to the Convention; 5. Holds that there is no need to examine the complaint under Article 13 of the Convention; 6.", "Holds that the respondent State, within three months, shall secure, by appropriate means, the enforcement of the domestic courts’ judgments in the applicants’ favour; 7. Holds (a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement: (i) in respect of damage: – Mr Zahid Mammadov (application no. 3172/08) – EUR 5,000 (five thousand euros) in respect of pecuniary damage and EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; – Mr Vagif Aliyev (application no. 42347/08) – EUR 3,000 (three thousand euros) in respect of pecuniary damage and EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; – Mr Bakhtiyar Muslumov (application no. 454/09) – EUR 8,800 (eight thousand eight hundred euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; – Mr Eduard Abramov (application no.", "2772/09) – EUR 12,800 (twelve thousand eight hundred euros) in respect of pecuniary damage and EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; – Ms Tamilla Hasanova (application no. 32585/09) – EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) in respect of costs and expenses, EUR 700 (seven hundred euros), jointly to the applicants Mr Zahid Mammadov and Mr Vagif Aliyev, plus any tax that may be chargeable to the applicants, to be paid into the applicants’ 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; 8. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 6 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachPeer LorenzenDeputy RegistrarPresident APPENDIX Table I Application no.", "Applicant’s name Document confirming the applicant’s property rights Date of delivery of the enforceable judgment Date of lodging of the application with the Court 3172/08 Zahid Mammadov Occupancy voucher of 3 March 1997 The Sumgayit Court of Appeal’s judgment of 30 December 2008 6 December 2007 42347/08 Vagif Aliyev Occupancy voucher of 28 October 1996 The Sumgayit Court of Appeal’s judgment of 24 December 2008 11 August 2008 454/09 Bakhtiyar Muslumov Ownership certificate of 5 April 1995 The Sabayil District Court’s judgment of 25 September 1995 3 December 2008 2772/09 Eduard Abramov Ownership certificate of 15 February 1994 The Surakhani District Court’s judgment of 11 October 1999 15 December 2008 32585/09 Tamilla Hasanova Ownership certificate of 13 July 1996 The Binagadi District Court’s judgment of 22 July 1998 8 May 2009 Table II Application no. Applicant’s name Claim for pecuniary damage (EUR) Claim for non- pecuniary damage (EUR) Claim for costs and expenses 3172/08 Mr Zahid Mammadov 61,200 3,000 1,600 42347/08 Mr Vagif Aliyev 36,720 3,000 1,450 454/09 Mr Bakhtiyar Muslumov 56,967 15,000 1,500 2772/09 Mr Eduard Abramov 17,054 20,000 - 32585/09 Ms Tamilla Hasanova 54,000 10,000 7,000" ]

[ "FIFTH SECTION CASE OF D.E. v. GERMANY (Application no. 1126/05) JUDGMENT STRASBOURG 16 July 2009 FINAL 06/11/2009 This judgment may be subject to editorial revision. In the case of D.E. v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Rait Maruste,Karel Jungwiert,Renate Jaeger,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 1126/05) 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 German national, Mr D.E. (“the applicant”), on 27 December 2004. 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). 2.", "The applicant was represented by Mr K. D. Deumeland. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel Ministerialdirigentin, of the Federal Ministry of Justice. 3. On 13 November 2007 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1947 and lives in Barnag, Hungary. 1. Background to the case 5. The applicant used to work as a business consultant.", "He was insured with the Mülheim Administrative Health Insurance Association (Verwaltungs-Berufsgenossenschaft, hereinafter referred to as “the Insurance Association”). 6. Between 1982 and 1987 he lived and worked in premises of which the wood-panelled walls and ceilings had been treated with timber preservative. During this time he began to suffer from concentration and respiration problems. 7.", "In 1986 the medical service of the Insurance Association established that as of 28 October 1986 the applicant was incapable of practising his profession. A specialist in internal diseases informed the Insurance Association that the applicant was presumably allergic to timber preservatives. 8. The applicant subsequently gave up his profession, moved out and later moved to Hungary. 2.", "Administrative proceedings 9. The applicant then applied to have his illness recognised as work-related within the meaning of the Occupational Disease Act (Berufskrankenverordnung). 10. In the course of these administrative proceedings a number of expert opinions and statements were obtained. 11.", "On 25 October 1990 the Insurance Association rejected his application. 12. On 19 November 1990 the Appeals Board of the Insurance Association dismissed his administrative appeal. 3. Proceedings before the Duisburg Social Court 13.", "On 19 December 1990 the applicant lodged a claim with the Duisburg Social Court for the recognition of his health problems as a work-related disease within the meaning of the Occupational Disease Act (Berufskrankenverordnung). He announced that he would file further submissions. 14. On 30 July 1991, after having received four reminders from the Social Court, the applicant filed those submissions. 15.", "Between August 1991 and August 1992 both the Insurance Association and the applicant filed numerous further pleadings and additional documents. 16. On 3 August 1992 the Social Court scheduled the hearing – first for 19 August 1992 and then, on the applicant’s requests for a postponement, for 26 October 1992. At the hearing the parties agreed that Prof. S., an expert at the institute for hygiene and micro-biology at the University of Bochum, should be commissioned to produce an expert opinion. 17.", "On 10 December 1992 the Social Court appointed the expert. 18. In July 1993, after receiving a reminder from the Social Court, the expert announced that on account of his workload and health problems, he would not submit his report until December 1993. 19. On two occasions in the course of the year 1994 the Social Court set the expert a time-limit for the submission of his report – the latter deadline was further extended twice on the ground that the expert had to undergo an operation.", "In February and March 1995 the court warned the expert that it would fine him in the amount of 1,000 euros (EUR) if he failed to submit the expert opinion again. 20. On 30 March 1995 Prof. S. submitted his report. He returned the files in May. 21.", "On 21 August 1995, following an extension of the time-limit set by the Social Court and a reminder, the Insurance Association submitted its observations on the expert opinion. 22. Thereafter, the court informed the applicant that it intended to obtain another expert opinion. 23. In December 1995 the applicant filed his observations on the expert opinion.", "24. In January 1996 the Nordrhein-Westfalen Social Court of Appeal requested the files, since further proceedings on the applicant’s grade of disability were pending before it. It returned the files in May 1996. 25. In July 1996 the Social Court again informed the parties that it intended to obtain another expert opinion.", "The applicant agreed to an examination by Dr. Sch., a specialist in environmental medicine. 26. On 20 November 1996 he paid the advance requested by the court on 4 September 1996. 27.", "On 4 April 1997 Dr. Sch. submitted his report. 28. The Social Court then set the Insurance Association a time-limit of eight weeks to submit further observations. On 10 December 1997, having received a reminder from the court in November, the Insurance Association submitted the observations.", "29. On 8 January 1998 the Social Court quashed the decision of the Insurance Association of 25 October 1990 and declared that the applicant’s brain-related organic psycho syndrome (hirnorganisches Psychosyndrom), which diminished his ability to concentrate and his memory, was the result of a work-related disease within the meaning of the Occupational Disease Act. 4. Proceedings before the Nordrhein-Westfalen Social Court of Appeal 30. On 20 February 1998 the Insurance Association lodged an appeal with the Nordrhein-Westfalen Social Court of Appeal.", "In April 1998 it further reasoned the appeal and thereby also submitted a further expert statement. 31. On 29 June 1998 – having been sent a reminder by the court and given access to the files – the applicant opposed the appeal. Between August 1998 and January 1999 he filed further observations. 32.", "On 5 February 1999 the Court of Appeal scheduled the hearing for 10 March 1999. On the applicant’s request to postpone the hearing the court cancelled it. 33. On 3 May 1999 the Court of Appeal informed the parties that it considered another expert opinion and the examination of the applicant to be necessary. It also requested the applicant to submit information as to his medical record.", "34. In August 1999, in response to the court’s reminder to submit the requested documents, the applicant replied that correspondence was usually delayed for about three weeks in Hungary and requested more time for the submission of the documents. 35. Subsequently the court again reminded the applicant to submit the requested documents and moreover set him a deadline. It also rejected his request to be examined in Hungary.", "36. On 12 January 2000 it commissioned an expert opinion from a Dr. D., to be submitted by 12 May 2000. 37. On 10 August 2000, having received a reminder from the court in May, Dr. D. submitted his report. 38.", "On 3 November 2000 the Insurance Association filed further observations, including a further medical statement by a Dr. Som. 39. In November 2000 and January 2001 the Court of Appeal requested an additional report from Dr. D. and further information from the applicant and his Hungarian doctor. 40. In April and June 2001 the Insurance Association submitted further documents – partly also expressly requested by the court.", "41. On 26 July 2001 the Court of Appeal commissioned a Dr. K. to prepare a further expert opinion on the basis of the files. 42. In August 2001 the applicant declared that he had always been willing to be examined. The court therefore amended its decision respectively.", "43. On 10 September 2001 Dr. K. submitted a report elaborated on the basis of the files. 44. In October 2001 the applicant missed an appointment with the expert – apparently because he had moved to a new address. 45.", "A number of pleadings, in particular by the applicant, followed. The applicant severely criticised the expert opinion. In January 2002 the expert admitted that in parts his report had been based on findings concerning another person. The applicant then requested access to the files. 46.", "On 20 March 2002 the applicant filed further observations and also submitted the documents requested by the court on 3 May 1999. 47. In its reply of 16 April 2002 the Insurance Association submitted a further statement by Dr. Som. The applicant challenged those submissions. 48.", "In June 2002 the court asked the applicant whether he was willing to be examined. In July 2002 the applicant requested more time to reply. 49. On 30 September 2002, following a number of pleadings and orders, the Court of Appeal commissioned a supplementary expert opinion from a Dr. P., another expert in occupational- social- and environmental-medicine, and from a Prof. F. 50. The applicant did not attend the examination arranged for 22 October 2002.", "He explained this again by submitting that correspondence in Hungary was often delayed for about three weeks. 51. On 13 November 2002 he challenged Dr. P. for bias. On 29 January 2003 the court rejected the motion for bias. 52.", "On 23 February 2003 the applicant refused to undergo an examination. 53. The court then first ordered the expert opinion to be based on the files and then, since the applicant opposed to it, decided that no further expert opinion should be obtained. 54. On 16 May 2003, on the applicant’s request, the hearing which had been scheduled for 21 May 2003 was postponed to 11 June 2003.", "55. On 11 June 2003 the Court of Appeal quashed the judgment of the Social Court of 8 January 1998, dismissed the applicant’s claim and refused to grant leave to appeal on points of law. 5. Proceedings before the Federal Social Court and Federal Constitutional Court 56. On 11 September 2003 the applicant lodged an appeal against the refusal for leave to appeal.", "57. On 11 March 2004 the Federal Social Court rejected this appeal on the ground that he failed to sufficiently substantiate it. 58. On 28 June 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 59. 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...” 60. The Government contested that argument. 61. The Court notes that the period to be taken into consideration began in November 1990 when the applicant lodged his administrative appeal against the decision of 25 October 1990 (the exact date is not known, but it is safe to assume that the applicant lodged the appeal in the beginning of November 1990 since the Appeals Board decided on it on 19 November 1990) and ended on 28 June 2004 when the Federal Constitutional Court rendered its decision.", "It thus lasted 13 years and almost 8 months for one level of compulsory administrative appeal and four levels of jurisdiction. A. Admissibility 62. The Court observes 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 63. The applicant maintained that the authorities had deliberately delayed the proceedings. He thereby relied in particular on belated submissions on the part of the Insurance Association, a belated notification of the judgment of the Social Court of Appeal and delays allegedly caused by changes of the judge rapporteur.", "He moreover drew on the time-consuming and, in his view, unnecessary commissioning of further expert opinions – in this connection he also submitted that he had been urged to give his consent. The applicant finally also opposed the Government’s submissions that his move to Hungary had caused delays, arguing that the authorities could have written to his legal counsel. 64. The Government submitted that even though the duration of the proceedings had in fact been very long, it did not exceed the reasonable time requirement. They emphasised that the case was of an unusual complexity and that the question of a causal link between low-level exposure to timber preservative and health impairments had been a matter of serious dispute in Germany at the relevant time.", "They also pointed out that there had only been a few highly specialised experts in the field, who were consequentially overworked, and that the parties had nonetheless agreed to commission Prof. S. in particular. They also submitted that the courts had exploited all judicial means of expediting the proceedings by reminders, deadlines and also threats of fines. The Government moreover considered that the applicant had made a decisive contribution to the length of the proceedings in that he had delayed the reasoning of his claim, requested the postponement of hearings, delayed observations – such as in particular the submission of the requested and relevant medical record – and the payment of an advance and in that he had not fully cooperated with the authorities and refused to be examined. They also submitted that his move to Hungary had prolonged the proceedings – not least on account of insufficient information given by the applicant in this respect and correspondence difficulties. Finally, they emphasised that no delays had been caused by changes of the judge rapporteur.", "2. The Court’s assessment 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 observes, at the outset, that the proceedings concerned the question whether the applicant’s illness qualified as a work-related disease, which decisively depended on the questions whether the applicant had been exposed to timber preservatives on account of his work and whether, moreover, a causal link between this exposure and his health problems existed. 67. The Court therefore recognises that the proceedings were of a considerable complexity and that the social courts were faced with difficult legal and factual questions. The Court also accepts the Government’s explanation that only a few specialists could be commissioned to produce expert opinions and that they produced differing opinions on the issue. 68.", "As regards the applicant’s conduct, the Court observes that he caused considerable delays on account of belated submissions and statements. In this respect the Court notes in particular that he only reasoned his claim with the Social Court seven months after its introduction and only submitted information as to his medical record, requested by the Court of Appeal on 5 May 1999, in March 2003. It moreover observes that substantial delays had been caused on account of the fact that, whereas the applicant had first declared to be willing to be examined, he then missed two appointments with different experts in Germany and in the end completely refused to be examined and challenged the expert for bias. Further delays in the course of the social court proceedings stemmed from several requests to postpone scheduled hearings, difficulties in correspondence caused by the applicant’s residence in Hungary and the delayed payment of the advance for an expert opinion. The Court therefore finds that the applicant clearly contributed to delays of almost four years.", "69. Turning to the conduct of the national authorities, the Court notes that the proceedings were pending for seven years before the Social Court alone and for another five years before the Social Court of Appeal. The length of the proceedings before the Social Court was to a large extent caused by the expert Prof. S., who only submitted his report after two years and three months. The Court recalls in this respect that in cases where cooperation with an expert proves necessary, it is the responsibility of the domestic courts to ensure that the proceedings are not excessively prolonged (see, among other authorities, Volkwein v. Germany, no. 45181/99, § 39, 4 April 2002).", "It notes that in the present case the Social Court did set Prof. S. a number of time-limits for the submission of his report – in the end it also announced the imposition of a coercive fine. Nonetheless, it finds that the Social Court only reluctantly inquired about the progress of the report, and the expert’s repeated failure to comply with the time-limits set did not have any further consequences. Moreover, after the submission of the report, no real attempts to substantially further the case were made either – the Social Court merely awaited the return of the files and the comments of the applicant and then transferred the files, without making copies, to the Social Court of Appeal, where they remained for half a year (there is no indication that the outcome of these proceedings was of any relevance to the proceedings at issue here). Also, after the submission of the second expert opinion several months elapsed before the Social Court reminded the Insurance Association to submit observations. The Social Court of Appeal on its part also – at least in parts – failed sufficiently to further the proceedings.", "That court also partly merely awaited the parties’ submissions, and on the applicant’s request to postpone the hearing just cancelled it, and moreover only reluctantly commissioned the first expert report. As regards the Federal Social Court and the Federal Constitutional Court, the Court notes that both decided within a year. Thus, no delays were caused by those courts. 70. As to the importance of what was at stake for the applicant, the Court observes that the recognition of the applicant’s health problems as a work related disease was at issue, which is a precondition for the payment of a pension.", "The Court thus recognises that the proceedings were of some importance to the applicant. 71. Having examined all the material submitted to it, the Court considers that, in view in particular of the overall length of the proceedings and the failure of the authorities to substantially further the case, 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 of the Convention. II.", "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 non-pecuniary damage. He expressly left the amount to the Court’s discretion; however, he referred to a similar case in which the Court awarded EUR 20,000.", "74. The Government left the matter to the Court’s discretion. 75. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 1,500 under that head.", "B. Costs and expenses 76. The applicant also claimed EUR 10,306 for costs and expenses incurred before the domestic courts (lawyers’ fees, travel expenses, phone calls and expenses for office equipment) and about EUR 4,000 for those incurred before the Court. In this latter respect, he did not submit any documentary evidence. 77.", "The Government maintained that the costs claimed for the conduct of the domestic proceedings could not be attributed to the length of the proceedings. They did not comment on the applicant’s claim concerning the Convention proceedings. 78. 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 by him in order to seek prevention or rectification of the specific violation caused by the excessive length of the proceedings.", "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‑...), it does not find it unreasonable to award the applicant EUR 250 under this head. With regard to the costs incurred in the proceedings before it, the Court, having regard to its case-law and in the absence of any documentation, makes no award in this respect. C. Default interest 79. 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 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: (i) EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage; (ii) EUR 250 (two hundred and fifty euros) in respect of costs and expenses; (iii) any tax that may be chargeable to him 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FIRST SECTION CASE OF GRYPAIOS AND OTHERS v. GREECE (Application no. 10525/09) JUDGMENT STRASBOURG 7 February 2012 This judgment is final but it may be subject to editorial revision. In the case of Grypaios and Others v. Greece, The European Court of Human Rights (First Section), sitting as a Committee composed of: Anatoly Kovler, President,Linos-Alexandre Sicilianos,Erik Møse, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 17 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10525/09) 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 seven Greek nationals whose names appear in the annex (“the applicants”), on 5 February 2009.", "2. The applicants were represented by Mr V. Chirdaris, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr I. Bakopoulos and Ms G. Kotta, Legal Assistants at the State Legal Council. 3. On 2 September 2010 the President of the First Section decided to communicate the complaints concerning the length of the proceedings and the lack of an effective remedy in this respect to the Government.", "In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born on the dates listed in the Annex and live in Hydra.", "A. Background of the case 5. The applicants are owners of different plots of land in Hydra, in the same area. 6. On 6 December 1980, 26 January 1981 and 27 January 1982 respectively, after applications were lodged by the applicants, the Forest Inspection of Poros decided that their plots of land were not forestal.", "7. On 16 August 1985 the Forest Inspection of Poros designated an area of 235 000 square meters (235 stremmas), including the applicants’ property, as a forest land (decision no. 1265/1985). 8. The applicants lodged objections with the First Instance Committee for the Settlement of Forest Disputes (hereafter “the First Instance Committee”) challenging decision no.", "1265/1985. 9. By decision no. 1/1986 the First Instance Committee decided that the area under consideration should be reduced to 203,5 stremmas and that, from this area, only a part of 138 stremmas should be characterised as forest land. Further, the applicants’ objections were accepted regarding 66,5 stremmas of the abovementioned area.", "10. On an unspecified date an appeal was lodged by the applicants before the Appeal Committee for the Settlement of Forest Disputes (hereafter “the Appeal Committee”) challenging the part of decision no. 1/1986 designating the 138 stremmas as a forest land. 11. By decision no.", "1/1987 the applicants’ allegations were accepted and the case was remitted to the Forest Inspection of Poros for a new consideration. B. Proceedings relevant to the case 12. On 26 May 1988 the Forest Inspection of Poros designated again all the area (235 stremmas) as a forest land (decision no. 65/1988).", "13. On 3 August 1988 the first five applicants lodged objections with the First Instance Committee challenging decision no. 65/1988. On 5 September 1989 their objections were rejected (decision no. 1/1989).", "14. Subsequently, on 7 May 1990 they lodged an appeal with the Appeal Committee challenging decision no. 1/1989. The Appeal Committee found that the First Instance Committee did not have a lawful composition. Decision no.", "1/1989 was annulled and the case was remitted to the First Instance Committee for a new consideration. 15. On 7 July 1993 the First Instance Committee decided that, as far as the 66,5 stremmas were concerned, the authorities had not challenged decision no. 1/1986 and thus, it had become final regarding this part of the area (decision no. 11/1993).", "Further, regarding the remaining part of the 138 stremmas, the Committee decided that this area was forest land and rejected the objections of the applicants. 16. In December 1993 appeals were lodged against the abovementioned decision. The first four applicants challenged the part of the decision concerning the 138 stremmas and the authorities the part of the decision concerning the 66,5 stremmas. 17.", "On 20 December 1994 the Appeal Committee found that the First Instance Committee had to decide again on the nature of the 66,5 stremmas. 18. On 19 February 1996 the First Instance Committee decided to declare the area of the 66,5 stremmas as a forest (decision no. 1/1996). 19.", "Subsequently, on 19 April 1996 - the first two applicants - and on 2 July 1996 - the other five applicants - lodged appeals with the Appeal Committee challenging decisions nos. 11/1993 and 1/1996, with the exception of the fifth applicant who challenged only decision no. 1/1996. 20. On 19 October 1999 the Appeal Committee upheld the designation of the area including the applicants’ property as a forest land (decision no.", "12/1999). 21. On 2 June 2000 the applicants lodged recourses with the Supreme Administrative Court asking for the annulment of decision no. 12/1999. By judgment dated 27 December 2006, the court accepted the recourse of the fifth applicant and annulled the part of decision no.", "12/1999 concerning the property of the applicant that was included in the area of the 66,5 stremmas (judgment no. 3893/2006). Further, on the same date the court rejected the recourses of the other applicants (judgment nos. 3890-2/2006). The judgments were “finalised” (θεώρηση και καθαρογραφή) on 5 and 25 August 2008 respectively.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 22. The following provisions of the Introductory Law (Εισαγωγικός Νόμος) to the Civil Code (Law no. 2783/41) are relevant: Section 104 “The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.” Section 105 “The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.” 23.", "These sections establish the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts. The admissibility of an action for damages is subject to one condition, namely the unlawfulness of the act or omission. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 24. 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 his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 25. The Government contested that argument. 26. 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. 1. The period to be taken into account 27. As far as the period to be taken into consideration is concerned, and in particular regarding the dies a quo, the Court reiterates that the Committees for the Settlement of Forest Disputes satisfy both the substantive and procedural requirements of a “tribunal” within the meaning of Article 6 § 1 (see Argyrou and Others v. Greece, no.", "10468/04, § 31, 15 January 2009). In the present case, prior to the recourse that the applicants lodged with the Supreme Administrative Court, they had submitted objections with the First Instance and Appeal Committees for the Settlement of Forest Disputes (decisions nos. 11/1993 and 1/1996) challenging the Forest Inspection’s decision that designated their property as a forest land (decision no. 65/1988). In view of the Court’s conclusion in Argyrou and Others (cited above), the latter are proceedings before a “tribunal” within the meaning of Article 6 § 1 and therefore their length has to be taken into account in the context of the present case.", "28. Accordingly, as far as the first four applicants are concerned, the period to be taken into consideration started to run on 3 August 1988, when they lodged their objections with the First Instance Committee and ended on 25 August 2008, when decisions nos. 3890-92/2006 of the Supreme Administrative Court were “finalised”. The proceedings thus lasted more than twenty years for three levels of jurisdiction. 29.", "As far as the fifth applicant is concerned, the period to be taken into consideration started to run also on 3 August 1988, when the applicant lodged his objection with the First Instance Committee and ended on 5 August 2008, when decision no. 3893/2006 of the Supreme Administrative Court was “finalised”. The Court observes that a period of approximately three years (from 7 July 1993 to 2 July 1996) should be deducted from the total length of the proceedings, as the fifth applicant did not challenge decision no. 11/1993. The proceedings thus lasted approximately seventeen years for three levels of jurisdiction.", "30. As to the last two applicants who joined the proceedings on 2 July 1996, when they lodged an appeal with the Appeal Committee challenging decisions nos. 11/1993 and 1/1996, the period to be taken into consideration started on the abovementioned date and ended on 25 August 2008, when decisions nos. 3890-92/2006 of the Supreme Administrative Court were “finalised”. The proceedings thus lasted more than twelve years for two levels of jurisdiction.", "2. Reasonableness of the length of the proceedings 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 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). 32.", "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). 33. 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 (see Argyrou and Others, cited above), 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 34. The applicants further complained of the fact that in Greece there was no court to which application could be made to complain of the excessive length of proceedings. They relied on 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 notwithstanding that the violation has been committed by persons acting in an official capacity.” 35. The Government contested that argument.", "36. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 37. 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 the objections and arguments put forward by the Government have been rejected in earlier cases (see Konti-Arvaniti v. Greece, no. 53401/99, §§ 29-30, 10 April 2003 and Tsoukalas v. Greece, no. 12286/08, §§ 37-43, 22 July 2010) and sees no reason to reach a different conclusion in the present case. 38. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 39. Lastly, the applicants complained under Article 1 of Protocol No. 1 that, due to the domestic courts’ decisions designating their plots as forest land - with the exception of the fifth applicant - and the failure of the authorities to award them compensation for more than twenty years for the blocking of their properties, their right to peaceful enjoyment of their property was infringed. 40.", "The Court reiterates that, with the exception of the fifth applicant, the Supreme Administrative Court held, in its sufficiently reasoned judgments nos. 3890-92/2006, that the decision of the authorities to declare as a forest the area including the applicants’ plots land was right. Hence, their complaint is about a speculative loss of income based on the assumption that their plots of land were not forestal and that they had the right to exploit them without any constraints (see Ian Edgar (Liverpool) Ltd v. the United Kingdom (dec.), no. 37683/97, ECHR 2000-I). 41.", "As regards the fifth applicant, the Court observes that, following judgment no. 3893/2006 of the Supreme Administrative Court, he could have lodged a civil action for damages against the State under sections 104 and 105 of the Introductory Law to the Civil Code, asking for compensation for loss of income due to the designation by the administration of his plot as forest land and consequently the lack of its peaceful enjoyment (see, Roussakis and others v. Greece (dec.), no. 15945/02, 8 January 2004 and Amalia S.A. & Koulouvatos S.A. v. Greece (dec.), no. 20363/02, 28 October 2004). 42.", "Therefore, in view of the above, these complaints are manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention. IV. 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 first, second and fifth applicant claimed 400,000 euros (EUR) each and the rest of the applicants claimed the same amount jointly in respect of pecuniary damage they had allegedly suffered because of the loss of their property. Further, the applicants claimed EUR 40,000 each for non-pecuniary damage. 45. The Government contested the applicants’ claims for pecuniary damage. They stressed that their claims for pecuniary damage, as long as they were not connected with the length of the proceedings before the domestic courts, fell outside the Court’s examination of the case under Article 41 of the Convention and should be rejected.", "Further, regarding the applicants’ claim for non-pecuniary damage, they considered the amount requested exorbitant and submitted that the finding of a violation would constitute sufficient just satisfaction. 46. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, ruling on an equitable basis and taking into account all the circumstances of the case, it awards to each of the first four applicants EUR 18,000, EUR 16,000 to the fifth applicant and, further, EUR 6,000 to each of the last two applicants in respect of the non-pecuniary damage suffered because of the length of the proceedings, plus any tax that may be chargeable on these amounts. B.", "Costs and expenses 47. The applicants claimed EUR 1,230 jointly for the costs and expenses incurred before the Court. They produced an invoice for that amount. 48. The Government contested this claim.", "49. 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 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 to its case-law, the Court considers it reasonable that the sum claimed, namely EUR 1,230, should be awarded jointly to the applicants in full, plus any tax that may be chargeable to them. 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. Declares the complaint concerning the excessive length of the proceedings and the lack of remedies in that respect 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 applicants, within three months, the following amounts, in respect of non-pecuniary damage: (i) to each of the first four applicants EUR 18,000 (eighteen thousand euros) plus any tax that may be chargeable on this amount; (ii) to the fifth applicant EUR 16,000 (sixteen thousand euros) plus any tax that may be chargeable on this amount; (iii) to each of the sixth and seventh applicant EUR 6,000 (six thousand euros), plus any tax that may be chargeable on this amount; (iv) EUR 1,230 (one thousand two hundred and thirty euros) jointly to the applicants, plus any tax that may be chargeable to them, 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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachAnatoly KovlerDeputy RegistrarPresident ANNEX" ]

[ "FOURTH SECTION CASE OF HASS v. POLAND (Application no. 2782/04) JUDGMENT STRASBOURG 7 November 2006 FINAL 07/02/2007 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 Hass v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 17 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 2782/04) 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 Ryszard Hass (“the applicant”), on 18 December 2003. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.", "3. On 17 March 2005 the President of the Fourth Section of the Court decided to communicate the complaint concerning the length of the applicant’s detention on remand to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1976 and lives in Toruń, Poland.", "5. On 15 November 2001 the applicant was arrested on suspicion of having committed several car thefts. 6. On 17 November 2001 the Toruń District Court (Sąd Rejonowy) remanded the applicant in custody until 15 February 2002. The court considered that his detention was justified by the existence of substantial evidence against him and the gravity of the charges.", "It also noted that the applicant had attempted to induce one of the witnesses to change her testimony. 7. On 11 February 2002 the court prolonged the applicant’s detention until 15 May 2002. It repeated the reasons previously given and added that the need to obtain additional evidence justified keeping the applicant in custody. 8.", "The applicant’s detention was subsequently prolonged several times by the District Court and the Gdańsk Court of Appeal (Sąd Apelacyjny) until 30 March 2003. 9. His appeal against the prolongation of his detention was dismissed by the Court of Appeal on 15 January 2003. 10. On 14 March 2003 the applicant and 22 other persons were indicted on charges of being members of an organised criminal group and having committed numerous car thefts.", "11. Subsequently, the applicant’s detention was extended several times by the Toruń District Court and the Gdańsk Court of Appeal, for the same reasons as before. 12. On 18 November 2003 the District Court refused the applicant’s application for release. 13.", "On 3 February 2004 the Court of Appeal granted the District Court’s request to prolong the applicant’s detention until 15 May 2004. The court considered that the case was very complex and that it was necessary to examine voluminous evidence. It also found that the detention was justified by the existence of strong evidence against the applicant and the gravity of the charges. There was also the possibility that the applicant would attempt to tamper with evidence. His appeal against that decision was dismissed on 16 March 2004.", "14. On 11 May and 12 July 2004 the Court of Appeal again granted the District Court’s requests and ordered that the applicant be detained until 30 September 2004. It dismissed the applicant’s appeals against those decisions. 15. On 18 August 2004 the District Court released the applicant under police supervision; it also prohibited him from leaving the country.", "The court considered that the applicant suffered from a personality disorder and depression and that his isolation from the outside world constituted a danger to his life and health. The court based its view on a report by two expert psychiatrists. 16. The proceedings are still pending. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 17. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). 18. Article 249 § 1 sets out the general grounds for imposition of the preventive measures.", "That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” 19. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 20.", "The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” 21. Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.", "22. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 2.", "If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. The court of appeal within whose jurisdiction the offence in question has been committed may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 23. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention was excessive. Article 5 § 3 of the Convention, 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.” 24. The Government contested that argument.", "A. Admissibility 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 1. Period to be taken into consideration 26. The Court observes that the applicant’s detention lasted from 15 November 2001 to 18 August 2004, when he was released from custody. Accordingly, the period of his detention amounted to approximately 2 years and 9 months. 2.", "The reasonableness of the length of detention (a) The parties’ arguments 27. The Government maintained that the length of the applicant’s detention was not excessive. They stressed that the case was a very complex one as it concerned organised crime. They underlined that the domestic authorities dealt with it with due diligence. 28.", "The Government stated that the applicant’s detention was duly justified during the entire period at issue. There were relevant and sufficient grounds for justifying his detention. It was necessary to ensure the proper course of the proceedings, especially in view of the gravity of the charges and the severe penalty that could be expected. The applicant was charged with participation in an organised criminal group and there was a serious risk that if released, he would attempt to put pressure on witnesses, as he had done before his arrest. 29.", "They further maintained that all the applicant’s requests for release and his appeals against decisions prolonging his detention had been thoroughly examined by the competent courts. 30. The applicant contested these arguments. He submitted that his detention had been inordinately lengthy and that the authorities had failed to exercise all due diligence when dealing with his case. He stressed that his isolation had caused a deterioration of his physical and mental health as well as substantial pecuniary loss.", "(b) The Court’s assessment (i) Principles established under the Court’s case-law 31. The Court reiterates that the question whether a period of detention is reasonable cannot be assessed in the abstract but must be considered 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 laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111, ECHR 2000-X). 32.", "Under Article 5 § 3 the national judicial authorities must ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. 33. The persistence of reasonable suspicion that the person arrested 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. The Court must then 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 be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see, for instance, Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000). (ii) Application of the principles to the circumstances of the present case 34. The Court observes that in their decisions concerning the applicant’s detention the judicial authorities relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, their serious nature and the heavy sentence which could be expected. They also referred to the risk that the applicant, if released, might obstruct the proper conduct of the trial or induce witnesses to give false testimony.", "They repeated those grounds in nearly all the decisions concerning the applicant’s detention (see paragraphs 6-7, 11 and 13 above). 35. The Court agrees that the strong suspicion against the applicant of having committed serious offences could have initially warranted his detention. However, with the passage of time, the initial grounds for pre-trial detention become less and less relevant and the domestic courts should rely on other “relevant” and “sufficient” grounds to justify the deprivation of liberty. 36.", "The Court reiterates that, if due to the particular circumstances of the case, detention on remand is extended beyond the period generally accepted under the Court’s case-law, particularly strong reasons would be required for the applicant’s lengthy detention to have been justified under Article 5 § 3 (see Celejewski v. Poland, no. 17584/04, §38, 4 May 2006). 37. The Government pointed out that the applicant had been charged with being a member of an organised criminal group. The Court accepts that in cases concerning organised crime, involving numerous accused, the process of gathering and hearing evidence is often a difficult task.", "Moreover, in cases such as the present case concerning organised criminal groups, the risk that a detainee if released might put pressure on witnesses or might otherwise obstruct the proceedings, is often particularly high. All these factors can justify a relatively longer period of detention on remand. However, they do not give the authorities unlimited power to prolong this preventive measure (see Celejewski v. Poland judgment cited above, §§ 37-38). 38. The Court observes that, in their decisions prolonging the applicant’s detention, the judicial authorities held that there was the danger that, if released, he might induce witnesses to give false testimonies.", "They referred to the fact that the applicant had attempted to do so before his arrest. The Court agrees that the applicant’s attempt to obstruct justice justified keeping him in custody at the initial stages of the proceedings. However, the Court considers that this ground gradually lost its relevance as the trial proceeded and witnesses were heard. Moreover, there is no indication that the applicant made any further attempts to induce witnesses or to obstruct the course of the proceedings while in custody or after his release. 39.", "The Court cannot but note that the District Court eventually released the applicant under police supervision because he suffered from a personality disorder and depression and that his further isolation constituted a danger to his life and psychological state of health. Before that decision, the authorities had not deliberated on the possibility of imposing on the applicant measures other than detention expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraphs 17 and 18 above). 40. In that context, the Court would reiterate that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures for ensuring his appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see the Jabłoński v. Poland judgment cited above, § 83).", "41. Furthermore, the Court observes that the proceedings against the applicant started November 2001 and, after nearly five years, his case is still pending before the first-instance court. The Court considers the complicated nature of the case does not relieve the national authorities of their obligation to exercise due diligence when dealing with it. The Court has stressed on many occasions, in the context of Article 5 § 3, that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities (see Kreps v. Poland, no. 34097/96, § 52, 26 July 2001).", "42. In the circumstances, the Court finds that the grounds given for the applicant’s pre-trial detention were not “relevant” and “sufficient” to justify holding him in custody for a total period of 2 years and 9 months. 43. There has accordingly been a violation of Article 5 § 3 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 44. The applicant alleged a breach of Article 6 § 1 in that he did not have a “fair trial”. He alleged that the courts committed errors of fact and law when dealing with his case. 45. However, the Court notes that the proceedings in question are still pending before the first-instance court.", "This complaint is therefore premature. 46. It follows that 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. 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 20,000 euros (EUR) for pecuniary damage and EUR 20,000 for non-pecuniary damage. 49. The Government considered that the sum claimed by the applicant was excessively high.", "They asked the Court to rule that a finding of a violation constituted sufficient just satisfaction. 50. 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 has suffered non-pecuniary damage – such as distress resulting from the protracted length of his detention – 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 1,000 under this head.", "B. Costs and expenses 51. The applicant also claimed EUR 10,000 for the costs and expenses incurred before the domestic courts and in the proceedings before the Court. He maintained, however, that he could not provide any documents which would support his claims. 52.", "The Government contested these claims. 53. The Court recalls that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred, and reasonable as to quantum. The Court reiterates further that costs incurred before national courts may only be taken into account if they were incurred in seeking redress for the violations of the Convention found, which was not so in the instant case (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999‑II).", "On the other hand, making its assessment on an equitable basis and according to the criteria laid down in its case-law, the Court awards the applicant, who was not represented by a lawyer, EUR 100 for the costs and expenses incurred in Strasbourg proceedings. C. Default interest 54. 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 applicant’s detention on remand admissible and the remainder of the application inadmissible; 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, the following amounts, to be converted into national currency at the rate applicable at the date of settlement: (i) EUR 1,000 (one thousand euros) in respect of non‑pecuniary damage; (ii) EUR 100 (one hundred euros) in respect of costs and expenses; (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 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 7 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L.", "EarlyNicolas Bratza RegistrarPresident" ]

[ "FOURTH SECTION CASE OF PŁACZKOWSKA v. POLAND (Application no. 15435/04) JUDGMENT STRASBOURG 2 October 2012 FINAL 02/01/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Płaczkowska v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: David Thór Björgvinsson, President,Lech Garlicki,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Nebojša Vučinić, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 11 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "15435/04) 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 Elżbieta Płaczkowska (“the applicant”), on 20 April 2004. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that the ex officio reopening of the social security proceedings concerning her right to an early‑retirement pension, which resulted in the quashing of the final decision granting her a right to a pension, was in breach of Article 1 of Protocol No.", "1 to the Convention. 4. On 20 May 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 5. The applicant was born in 1959 and lives in Mielec. 6. The applicant is a single mother of two children. Prior to her application for an early-retirement pension she had been employed from 1977 until 29 June 2001 and paid social security contributions to the State.", "A. Proceedings concerning the grant and revocation of the EWK pension 7. On 28 December 2000 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early‑retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre on 21 December 2000.", "The certificate stated that the child (born in 1988) suffered from epilepsy and other medical conditions and was in need of her parent’s constant care. 9. On 19 June 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early‑retirement pension as of 1 June 2001 in the net amount of 742, 86 Polish zlotys (PLN). 10. On 23 August 2002 Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent.", "On 19 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 11. On 25 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance.", "12. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 13.", "On 18 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. 14. The applicant further appealed against the first-instance judgment.", "15. On 16 April 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. 16. On 17 September 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant. B.", "The applicant’s financial situation following the revocation of the EWK pension 17. Following the social security proceedings the applicant was not ordered to return her early‑retirement benefits paid by the Social Security Board, despite the revocation of her right to an early‑retirement pension. 18. The applicant submitted that after the revocation of the EWK pension she opened a small business in 2004 but it did not generate any income. For many years she had been unsuccessfully looking for a job but received no unemployment or other benefits from the State.", "19. The Government submitted that between July 2004 and October 2006 the applicant had registered as self‑employed (dzialanosc gospodarcza). They did not specify whether the applicant’s business generated any income. Afterwards, in 2007 she received unemployment benefit for six months in the amount of PLN 3,800 and since 6 April 2009 she has been employed. The Government also stated that the applicant had been receiving child‑support payment in the amount of PLN 300.", "20. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation. 21. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2019.", "C. Other EWK cases pending before the Court 22. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 23. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.", "24. One hundred‑and‑four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty‑one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Social security system 25. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31‑34, 15 September 2009.", "26. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). 27. The reopening of the proceedings concerning the early‑retirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows: “The right to benefits or the amount of benefits will be re‑assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.” On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows: “Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.” B. Cassation appeal 28. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second‑instance court.", "A party had to be represented by an advocate or a legal adviser. 29. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 30. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination.", "Where the Supreme Court failed to find non‑conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was well‑founded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. C. Constitutional Court’s judgments 1. Judgment no. K 18/99 31.", "On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age‑limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution. 32. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.", "2. Judgment no. K5/11 33. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted. 34.", "On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 35. The applicant complained that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension amounted to an unjustified deprivation of property.", "The complaint falls to be examined under 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 her possessions. No one shall be deprived of 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. The Government’s preliminary objections (a) Abuse of the right of an individual application (i) The parties’ submissions 36.", "The Government submitted that the present application constituted an abuse of the right of individual application under Article 35 § 3 of the Convention in that the applicant had misrepresented to the Court her current social security status and the financial situation of her family. 37. In particular, the Government argued that the applicant had misled the Court in representing herself as a person who had wished to stay at home to take care of her daughter. In reality, the applicant had had a full-time job up until the time she was granted an EWK pension and she resumed her paid employment some time after her pension was revoked. In the Government’s view, the applicant had sought early retirement not because she had wished to take care of her child at home but because she had wanted to have a source of income.", "38. The applicant contested the Government’s submissions and argued that her application had been truthful and sincere. (ii) The Court’s assessment 39. The Court considers that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, p. 1206, §§ 53‑54; I.S. v. Bulgaria (dec.), no.", "32438/96, 6 April 2000; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000‑X or Rehak v. the Czech Republic, (dec.), no. 67208/01, 18 May 2004). 40. The Court notes that in the present case the gist of the Government’s arguments does not actually concern “untrue facts” allegedly adduced by the applicant before the Court.", "Rather, their objection is based on their own perception of the applicant’s possible intentions behind her decision to take advantage of the EWK early-retirement pension scheme and/or on their assessment of her overall financial situation after the revocation of the pension. It has not been disputed that the applicant quit her job when she was officially judged eligible to obtain an EWK pension and only resumed full-time employment after her pension had been withdrawn. 41. The Government’s preliminary objection should therefore be dismissed. (b) Non‑exhaustion of domestic remedies (i) The parties’ submissions 42.", "The Government argued that the applicant had not exhausted the domestic remedies available to her, as required by Article 35 § 1 of the Convention. 43. They submitted that the applicant should have made an application to the Constitutional Court challenging the compatibility of the relevant social security provisions with the Constitution. They relied on a judgment delivered by the Constitutional Court on 4 January 2000 (see paragraphs 31 and 32 above). 44.", "In their further submissions, the Government referred to the Constitutional Court’s judgment of 28 February 2012 (see paragraph 33 above). They maintained that even though the decisions issued in the EWK cases had been based on section 114 (1) of the 1998 law and not on section 114 (1)(a), the applicant should nevertheless have availed herself of the possibility of lodging a constitutional complaint. 45. The applicant did not comment on this objection. (ii) The Court’s assessment 46.", "The Court reiterates that it has already held that in Poland a constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention only in situations where the alleged violation of the Convention resulted from the direct application of a legal provision considered by the complainant to be unconstitutional (see, among other authorities, Szott‑Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003). 47. Furthermore, 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 not only in theory but also 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 Selmouni v. France [GC], no.", "25803/94, § 76, ECHR 1999‑V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002‑VIII). 48. In so far as the Government referred to the Constitutional Court’s judgment of 4 January 2000, the Court observes that the Government failed to indicate which provision of the 1998 Law should have been challenged by the applicant before the Constitutional Court. They have merely stated that the applicant could have contested “the relevant social security provisions” without specifying any constitutional provision that could have been relied on in the applicant’s situation.", "Furthermore, they have not adduced any relevant case‑law of the Constitutional Court which would have demonstrated that such complaint, in the circumstances of the applicant’s case, offered any prospects of success. 49. As regards the second limb of the Government’s objection, the Court observes that, as the Government have acknowledged, section 114(1)(a) of the 1998 Law was not applicable in the present case. The SSB’s decision to reopen the proceedings concerning the relevant benefit was based on section 114(1) (see paragraphs 34 and 44 above). While it is true that the Ombudsman’s application was successful (see paragraph 34 above), this does not of itself indicate that a hypothetical complaint lodged by the applicant would have had a similar effect.", "Moreover, it should be noted that the Ombudsman’s challenge was examined nearly ten years after the events complained of in the present case. In reality, the Government’s objection is based on a theoretical and retrospective, and therefore highly speculative, comparison between the applicant’s situation at the material time and recent developments in the Constitutional Court’s case‑law. 50. In consequence, the Court considers that in the present case a constitutional complaint cannot be considered with a sufficient degree of certainty to have been a remedy offering reasonable prospects of success. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.", "(c) Six months 51. The Government submitted in relation to all EWK cases that should the Court consider that the cassation appeal had not been an effective remedy in the instant case, the calculation of the time‑limit should start from the decision of the Court of Appeal. If this decision had been given more than six months before the date of introduction of the application to the Court, the application should be considered as having being lodged out of time and rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 52. However, the Court notes that the applicant lodged her application with the Court on 20 April 2004, in the course of the domestic proceedings concerning the revocation of her EWK pension (see paragraphs 15 and 16 above).", "53. Therefore the Court considers that the Government’s objection does not apply in the context of the present case. 2. Conclusion on admissibility 54. The Court notes that this part of the application 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 (a) The applicant 55.", "The applicant submitted that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. 56. In the applicant’s view, there was no reasonable relationship of proportionality between the interference and the interests pursued. She had quit her employment in order to take care of her sick child. The special measures taken by the Government in the Podkarpacki region had no relevance for her professional situation, in view of her age and education.", "For these reasons it had been impossible for her to find a job for six‑and‑a‑half years. 57. The applicant also claimed that she had borne an excessive burden in that the decision of 25 September 2002 had deprived her of her main source of income with immediate effect. (b) The Government 58. The Government claimed that the interference with the applicant’s property rights had been lawful and justified.", "In particular, divesting the applicant of her right to the early-retirement pension had been provided for by law and was in the public interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued. In the Polish social security system only retirement pensions granted under the general scheme, were, in principle, permanent and irrevocable. All other benefits based on conditions subject to change were subject to verification and possible revocation. 59.", "They further noted that even though the decision to revoke the EWK pension had a retroactive effect, the applicant had not been required to reimburse the sum of PLN 13,905. 2. The Court’s assessment (a) General principles 60. The relevant general principles are set out in the Moskal judgment, cited above, paragraphs 49‑52. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal, cited above, §§ 49 and 50).", "(b) Application of the above principles to the present case (i) Whether there has been an interference with the applicant’s possessions 61. The parties agreed that the decisions of the Rzeszów Social Security Board of 25 September 2002, subsequently validated by three court instances (the regional court, the court of appeal and the Supreme Court), which deprived the applicant of the right to receive the EWK pension, amounted to an interference with her possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise. (ii) Lawfulness of the interference and legitimate aim 62.", "As in the Moskal case the Court considers that this interference was provided for by law and pursued a legitimate aim as required by Article 1 of Protocol No. 1 to the Convention (see Moskal, cited above §§ 56, 57, 61‑63 and also Iwaszkiewicz v. Poland, no. 30614/06, §§ 47, 48, 26 July 2011). (iii) Proportionality 63. In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to her application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right (see paragraphs 8 and 9 above).", "Before being invalidated the decision of 19 June 2001 had undoubtedly produced effects for the applicant and her family. 64. It must be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The 2001 decision was left in force for fifteen months before the authorities became aware of their error. On the other hand, as soon as the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect (see paragraphs 10 and 11 above).", "Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 25 September 2002 in judicial review proceedings, her right to the pension was determined by the courts more than twenty-four months later (see paragraphs 12‑16 above). 65. In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I; Öneryıldız v. Turkey [GC], no.", "48939/99, § 128, ECHR 2004‑XII; Megadat.com S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). It is desirable that public authorities act with the utmost care, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights.", "In the present case, the Court considers that having discovered their mistake, the authorities failed in their duty to act speedily and in an appropriate and consistent manner (see Moskal, cited above, § 72). 66. In the Court’s opinion, the fact that the State did not ask the applicant to return the pension which had been unduly paid (see paragraph 55 above) did not mitigate sufficiently the consequences for the applicant flowing from the interference in her case. The Court notes in this connection that the applicant, after her right to the EWK pension had been confirmed by the authorities, decided to resign from her employment. 67.", "It should also be observed that as a result of the impugned measure, the applicant was faced, without any transitional period enabling her to adjust to the new situation, with the total loss of her early-retirement pension, which constituted her main source of income. Moreover, the Court is aware of the potential risk that, in view of her age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have considerable difficulty in securing new employment. Indeed it took the applicant six years and six months to find a full‑time job. 68. The Government generally submitted that the applicant had been registered as self‑employed which might have been a source of income for her.", "However, it has not been demonstrated that any income derived from the applicant’s small business sufficiently compensated for loss of her EWK pension. The Government also stressed that the applicant had been receiving child‑support payment in the amount of PLN 300. However, the Court considers that the child‑support payment, which the applicant has been receiving irrespective of her EWK pension, is intended to cater for the costs of raising children and cannot be considered as income of the child’s mother. In so far as the Government listed various benefits available in Poland, the Court considers that they have failed to specify which of those benefits, if any, were available in the applicant’s situation. It should be noted that the applicant submitted that she had not been eligible to apply for any welfare benefits.", "69. In view of the above considerations, the Court does not see any reason to depart from its ruling in the leading case concerning EWK pensions, Moskal v. Poland, and finds that in the instant case a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive. 70. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 71. The applicant also complained about the ex officio reopening of the social security proceedings, which had resulted in the quashing of the final decision granting her a right to a pension, was in breach of Article 6 § 1 of the Convention. 72. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "73. However, having regard to the reasons which led the Court to find a violation of Article 1 of Protocol No. 1 to the Convention, the Court finds that the applicant’s complaint under Article 6 of the Convention regarding the principle of legal certainty does not require a separate examination (see Moskal, cited above, § 83). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74.", "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 75. The applicant claimed 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 76. The Government contested her claim and considered it excessive.", "77. The Court finds that the applicant was deprived of her income in connection with the violation found and must take into account the fact that he undoubtedly suffered some pecuniary and non‑pecuniary damage (see Koua Poirrez, cited above, § 70). Making an assessment on an equitable basis, as is required by Article 41 of the Convention, the Court awards the applicant EUR 8,000 to cover all heads of damage. B. Costs and expenses 78.", "The applicant did not make a claim in respect of costs and expenses. C. Default interest 79. 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 five votes to two that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds unanimously that there is no need to examine separately the complaint under Article 6 of the Convention; 4. Holds by five votes to two (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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of both pecuniary and 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; 5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 2 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıDavid Thór Björgvinsson Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Hirvelä and Bianku is annexed to this judgment. D.T.B.F.A JOINT PARTLY DISSENTING OPINION OF JUDGES HIRVELÄ AND BIANKU The instant case raises issues similar to those dealt with by the Court in Moskal v. Poland (no. 10373/05) and Lewandowski v. Poland (38459/03). The majority in those cases found that there had been a breach of Article 1 of Protocol No.", "1 to the Convention. We dissented. We dissent in this case also, for the reasons we gave in our Joint Partly Dissenting Opinion in the Moskal case and in the Lewandowski case." ]

[ "FOURTH SECTION CASE OF KURKOWSKI v. POLAND (Application no. 36228/06) JUDGMENT STRASBOURG 9 April 2013 FINAL 09/07/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kurkowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Krzysztof Wojtyczek,Faris Vehabović, judges,and Fatoş Aracı, Deputy 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.", "36228/06) 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 Mariusz Kurkowski (“the applicant”), on 28 August 2006. 2. The applicant was represented by Ms B. Krzyżagórska- Żurek, a lawyer practising in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz succeeded by Ms J. Chrzanowska of the Ministry for Foreign Affairs. 3.", "The applicant alleged, in particular, that the conditions of his detention had given rise to inhuman and degrading treatment contrary to Article 3 of the Convention. 4. On 12 January 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 5. The applicant was born in 1960 and lives in Gdańsk. A. The applicant’s pre-trial detention and criminal proceedings against him 6. The applicant was a member of the management board of the Mostostal Gdańsk joint-stock company (“the company”), manufacturing ships and other industrial steel constructions.", "7. On 28 November 2002 the Gdańsk District Prosecutor (Prokuratur Rejonowy) opened a criminal investigation into allegations that the company’s management board had intentionally acted to the detriment of the enterprise (celowe działanie na szkodę spółki). 8. On 4 December 2004 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody on reasonable suspicion that he had committed a series of offences related to the running of the company. The court also considered that keeping the applicant in detention was justified by the severity of the penalty which could be imposed if he were convicted and the risk that he might attempt to obstruct the proceedings, especially since the applicant’s and his co-accused’s testimonies had been contradictory.", "That decision was upheld by the Gdańsk Regional Court (Sąd Okręgowy) on 10 January 2005. 9. The applicant’s detention was subsequently extended by decisions of the Gdańsk District Court of 2 March, 1 June and 26 August 2005, which were upheld by the Gdańsk Regional Court on 30 March, 27 June and 19 September 2005 respectively. In their decisions, the domestic courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences, the complexity of the case which involved many individuals and the risk that the applicant would obstruct the proceedings, for example, by inducing witnesses to give false testimony. The domestic courts considered the latter argument particularly relevant in light of the fact that the penalty which the applicant faced was severe.", "In addition, the domestic courts invoked the difficulties in obtaining evidence, including from abroad, and the need to examine several hundred witnesses and many accounting, tax and auditing experts. On 1 June 2005 the case file already consisted of one hundred volumes. 10. The applicant’s pre-trial detention was further extended by decisions of the Gdańsk Regional Court of 22 December 2005, 23 May and 28 September 2006, which were upheld by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 24 January and 13 June 2006 and a further decision of an unspecified date. 11.", "On 31 August 2005 and 2 February 2006 two motions for the applicant’s release were rejected. 12. In the meantime, on 18 August 2005 the prosecutor lodged a bill of indictment with the Gdansk District Court against the applicant and eleven other co-accused. The applicant was charged with eleven offences including appropriation of the company’s assets, causing damage to the company and acting to the detriment of the company’s creditors. The prosecutor requested to hear evidence from 30 witnesses and to have read out the testimonies of 552 other witnesses.", "13. On 31 August 2005 the District Court requested the Gdansk Court of Appeal to transfer the case to the Gdansk Regional Court due to its complicated nature. On 6 September 2005 the case was remitted to the Gdańsk Regional Court. 14. The first hearing took place on 27 June 2006.", "15. The applicant’s detention pending trial was further extended by the first-instance court on 28 September 2006. 16. On 26 October 2006 the Gdańsk Regional Court decided to lift the preventive measure and to release the applicant. The court considered that continuing the applicant’s detention was no longer necessary because two of the co-accused, who had initially been detained, had already made their statements and seven of the other co-accused had remained at liberty throughout the proceedings.", "For these reasons there was no need to keep the applicant in pre-trial detention. 17. It would appear that the criminal proceedings against the applicant are still pending. B. Complaint about the unreasonable length of the criminal proceedings against the applicant 18.", "On 7 December 2005 the applicant complained of the unreasonable length of the criminal proceedings against him to the Minister of Justice and to the President of the Gdańsk Regional Court. 19. By letters of 18 January and 14 February 2006 the respective authorities rejected the applicant’s complaint as ill-founded. The authorities considered that in the light of the complexity of the case the impugned proceedings had not been lengthy. 20.", "The applicant did not lodge a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time. C. Conditions of the applicant’s detention 1. Uncontested facts 21. The applicant was detained in Gdańsk Remand Centre from 4 December 2004 until 26 October 2006. During this time he was held in six different cells.", "The size of those cells varied between 6.74 m² and 17 m². The space per person ranged between 2.1 m² and 3.6 m². 22. Between 29 August and 1 September 2005 the applicant was detained in cell number 10, which measured 17 m² and was shared by eight detainees, including the applicant (2.1 m² per person). 23.", "Between 12 and 15 September 2005, the applicant was held in cell number 18, which measured 5.52 m² and was shared by two detainees, including the applicant (2.6 m² per person). 24. The cells were equipped with separate toilets. 2. Facts in dispute (a) The applicant 25.", "The applicant stressed that the conditions of detention in the two‑ person cell were inhuman. He submitted that in each cell there had been a bunk bed (200 cm x 100 cm). However the surface of the toilet had been included in the total surface and constituted part of the 3 m² per person. The design of the cells made it impossible for two prisoners to move around freely. 26.", "The applicant also claimed that the food served to all detainees was of poor quality and insufficient quantity. He had to buy additional food and despite that he had lost 20 kg during his detention. (b) The Government 27. The Government argued that the applicant had had access to clean sanitary facilities, running water and bathing facilities. The food served to him complied with the relevant standards of the Ministry of Justice.", "The applicant was afforded a one-hour walk per day. He could have his own television set or he could watch television in the prison’s social room. D. Restrictions on the applicant’s right to visits during his detention and monitoring of his correspondence 1. Uncontested facts 28. The list of visits supplied by the Government shows that between 29 December 2004 and 6 July 2006 the applicant received 86 visits, of which 53 were meetings with his defence counsel and 1 meeting with a notary.", "The remaining 32 visits involved the applicant’s family (wife, daughter and mother). They lasted from 40 (on one occasion) to 120 minutes but on most occasions were 90 minutes long. 29. On 13 March 2006, the authorities rejected the applicant’s request to have an additional visit from his relatives. That decision did not contain any reasoning.", "30. On three occasions (27 September 2005, 2 November 2005 and 11 January 2006) the applicant’s contacts with his family were restricted and he was separated from the visitors by a Perspex partition. 2. Facts in dispute (a) The applicant 31. The applicant, without specifying any details, submitted that, during his pre-trial detention, his correspondence with his family had been monitored and withheld by the authorities.", "32. He also submitted that his wife and children had been allowed to visit him in the remand centre only once a month. Most of the applicant’s requests to meet more often with his family had been rejected by the authorities. The applicant’s family members’ visits were short and without the possibility of direct contact. On several occasions he had had no direct contact with his family because he had been separated from them by a Perspex partition and they could communicate with him only by internal phone.", "33. Lastly, he denied receiving a visit from a certain E.P. on 6 July 2006. (b) The Government 34. The Government submitted that between 29 December 2004 and 5 October 2006 most of the family visits took place at a table (przy stoliku) in the presence of a guard.", "Out of the thirty-two visits of the applicant’s wife, mother and youngest child, direct contact was granted on twenty-nine occasions. 35. The Government submitted that in addition to the visits listed above, the applicant received a visit from E.P. on 6 July 2006. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Preventive measures, including pre-trial detention 36. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “preventive measures” (środki zapobiegawcze) are set out 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 May 2006).", "B. Conditions of detention 37. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively).", "More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08 (dec), §§ 25-54, 12 October 2010). C. Right to visits in detention 1. Situation until 8 June 2010 38. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, as applicable until 8 June 2010, a detainee was allowed to receive visitors, provided that he had obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remained, i.e.", "an investigating prosecutor (at the investigative stage) or from the trial court (once the trial had begun) or from the appellate court (in appeal proceedings). A detainee was entitled to 1 one‑hour long visit per month. 39. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”.", "40. An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room. 41.", "A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transferring of any forbidden objects from or to prison. 42. A closed visit takes place in a special room. A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone. 2.", "Situation as from 8 June 2010 (a) Constitutional Court’s judgment of 2 July 2009 (no. K. 1/07) 43. The judgment was given following an application, lodged by the Ombudsman on 2 January 2007, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the Convention and Article 37 of the United Nations Convention on the Rights of the Child. The Constitutional Court’s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws (Dziennik Ustaw). 44.", "The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against a prosecutor’s decision to refuse a family visit to those in pre-trial detention. (b) Amendments to the Code of Execution of Criminal Sentences 45. On 5 November 2009 Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences.", "In particular, subparagraphs 1a-1f were added. These provisions stipulate that a detainee is entitled to at least one family visit per month. In addition, they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010. D. Remedies against unreasonable length of proceedings 46.", "The relevant domestic law and practice concerning remedies for excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time, (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; and Ratajczyk v. Poland, no. 11215/02 (dec.), ECHR 2005‑VIII; and in its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34‑46, ECHR 2005-V. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 47. The applicant complained that the conditions of his detention in the Gdansk Detention Centre (overcrowding and lack of adequate food) amounted to inhuman and degrading treatment contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 48. The Government contested that argument. A. Admissibility 1. The Government’s preliminary objection 49.", "The Government submitted that the applicant could have had recourse to administrative authorities i.e. a complaint to the penitentiary authorities. They further stressed that on 26 October 2006 the applicant had been released from the Gdansk Remand Centre. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and that the applicant should have brought a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation. 50.", "In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention. 51. The applicant in general disagreed with the above arguments and maintained that the remedies suggested by the Government could not be considered “effective” for the purposes of Article 35 § 1 of the Convention. 52. The Court has already examined a similar objection based on exhaustion of domestic remedies raised by the Government in the above‑mentioned case of Łatak v. Poland and considered their arguments not only in the context of that particular applicant but also in respect of other actual or potential applicants with similar complaints (see Łatak v. Poland, cited above §§ 71-85).", "53. Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in June 2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid. § 85 and § 76 respectively). 54. In the present case the situation giving rise to the alleged violation of Article 3 ended on 26 October 2006 when the applicant was released from the Gdansk Remand Centre.", "The Court considers, therefore, that since the relevant civil action under Articles 24 and 448 of the Civil Code is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of the civil remedy in question. 55. Moreover, the Court reiterates that in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see Orchowski, cited above, § 96 and Norbert Sikorski, cited above, §§ 100-101) it has already held that the findings made by the Constitutional Court and by this Court that overcrowding in Polish detention facilities was of a structural nature, “undermined the effectiveness of any domestic remedy available, making them theoretical and illusory and incapable of providing redress in respect of the applicant’s complaint” at the time when those applicants lodged their applications with the Court (ibid. § 111 and § 121 respectively). This conclusion equally applies to the present case which was lodged on 28 August 2006.", "56. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies. 2. Overcrowding 57. The Court concludes that the complaint about detention in an overcrowded cell is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "No other ground for declaring it inadmissible has been established. 3. Lack of adequate food (a) The parties’ submissions 58. The applicant submitted that the quality of food served in the Gdansk Detention Centre was very bad. Despite buying extra food, during the two years he had spent in detention he had lost 20 kg.", "59. The Government argued that the food served to the applicant complied with the relevant standards of the Ministry of Justice. (b) The Court’s assessment 60. The Court notes the applicant’s allegation about the poor quality of food, which is disputed by the Government. The Court further considers that while failure to provide food in accordance with the general nutritional tables and menus in prison may put at risk the health of detainees (compare Rotaru v. Moldova, no.", "51216/06, § 37, 15 February 2011), it has not been established that such was the situation in the present case. In addition, the applicant has failed to provide any evidence that he had raised the substance of this complaint with the prison administration. Consequently, 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. B. Merits 1.", "The parties’ submissions (a) The applicant 61. The applicant submitted that the conditions of his detention in the Gdansk Detention Centre had fallen short of standards compatible with Article 3 of the Convention. In particular, he complained that he had been detained in overcrowded cells. In addition, the conditions of detention had been inhuman. The design of cells made it impossible for two detainees sharing the same cell to move around freely.", "Cells were equipped with separate toilets but the surface of the toilet was included in the calculation of the surface of the cell. (b) The Government 62. The Government listed the cells in which the applicant was kept in the Gdansk Detention Centre. They acknowledged that between 29 August and 1 September 2005 and between 12 and 15 September 2005 the space per person in the applicant’s cells had been inferior to 3m². They argued, however, that the applicant had not suffered inhuman or degrading treatment which attained the minimum level of severity within the meaning of Article 3 of the Convention.", "2. The Court’s assessment 63. A restatement of the general principles concerning the examination of conditions of detention under Article 3 may be found in the Court’s judgment in Orchowski v. Poland (cited above, §§ 119-229). 64. The Court has already found in its two pilot judgments in the cases of Orchowski v. Poland and Norbert Sikorski v. Poland that, for many years, namely from 2000 until at least mid-2008, overcrowding in Polish prisons and remand centres had revealed a structural problem consisting of “a practice that [was] incompatible with the Convention” (see Orchowski, cited above, § 151, and Norbert Sikorski, cited above, §§ 155-156).", "65. The Court notes that in the instant case the Government acknowledged that during two periods (eight days in total) of the applicant’s detention in the Gdansk Remand Centre the personal space afforded to him was below 3 square metres (see paragraph 53 above). 66. Contrary to the case of Dmitriy Rozhin (see Dmitriy Rozhin v. Russia, no. 4265/06, § 52, 23 October 2012), where the applicant spent 11 days in a disciplinary cell and was afforded less than 2 m² per person, the Court notes that in the present case, the applicant spent 4 days in a cell in which he was afforded approximately 2.1 m² of floor space per person.", "Subsequently, he spent a period of 4 days, in a cell where he was afforded approximately 2.6 m² of floor space per person (see paragraphs 22 and 23 above). 67. The Court considers having regard to the brevity of the applicant’s stay in these cells (two periods of four days), that the conditions of the applicant’s detention did not reach the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention (see Dmitriy Rozhin cited above § 53, Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 138, 17 January 2012). 68.", "It follows that there has been no violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 69. The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which, in its relevant part, 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 70. The Government did not contest the admissibility of this complaint. 71. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. Period to be taken into consideration 72. The period to be taken into consideration began on 4 December 2004 and ended on 26 October 2006; it accordingly lasted one year, ten months and twenty-two days. 2.", "The parties’ submissions (a) The applicant 73. The applicant submitted that his detention on remand had been exceedingly long. (b) The Government 74. The Government maintained that in the present case all the criteria for the application and extension of pre-trial detention had been met. The applicant’s detention was justified by the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences and the severity of the anticipated penalty.", "In addition, the risk of obstructing the proceedings or tampering with evidence had been increased as a result of the significant financial damage which he allegedly caused to the company. In their opinion the case had been very complex due to its commercial nature and the contradictory testimonies of the applicant and the co-accused. At the moment of lodging the bill of indictment against the applicant the case file had already consisted of 107 volumes and related to 61 crimes allegedly committed by 12 accused. Lastly, in the Government’s opinion, the domestic authorities showed special diligence in the case. 3.", "The Court’s assessment 75. The Court reiterates 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 cited above, § 110 et seq; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references). 76. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely: the serious nature of the offences with which he had been charged, the severity of the penalty to which he was liable and the risk that the applicant might tamper with evidence.", "77. The Court notes that the applicant was charged with a series of offences related to the running of a company. It is true that the applicant was not charged with being a member of an organised criminal group (a contrario Bąk v. Poland, no. 7870/04, § 57, 16 January 2007). However, the proceedings in the present case involved 11 other co-accused, several hundred witnesses and the need to obtain evidence from abroad (see paragraphs 8 and 9 above).", "78. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences and the severity of the penalty constituted relevant grounds for the applicant’s initial detention. The need to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from a large number of witnesses also constituted a valid ground for maintaining the applicant’s detention. 79. The Court takes note of the fact that when the authorities could no longer justify the applicant’s protracted detention, they released the applicant (see paragraph 16 above).", "80. The foregoing considerations are sufficient for the Court to conclude that the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period, namely nearly one year and eleven months. 81. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. 82.", "In this regard, the Court observes that the investigation was of significant complexity, regard being had to the number of co-accused and the fact that it concerned complicated financial and commercial issues. The Court further does not discern any significant periods of inactivity in the investigation or the initial phase of the trial. For these reasons, the Court considers that during the relevant period the domestic authorities handled the applicant’s case with necessary diligence. 83. Having regard to the foregoing, the Court finds that there has been no violation of Article 5 § 3 of the Convention III.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 84. The applicant further complained under Article 8, submitting that the restrictions on visits from his family throughout his detention, in particular with his youngest child and mother, put an exceptionally severe strain on him. Article 8, in so far as-relevant, reads as follows: ““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.” A. Admissibility 85. The Government did not contest the admissibility of this complaint. 86. 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 1. Principles deriving from the Court’s case-law 87. The relevant general principles are set out in the Piechowicz and Horych judgments (see, Piechowicz cited above § 212; Horych cited above, §§ 122-124).", "The Court would nevertheless reiterate that any interference by a public authority with a detainee’s right to respect for family life should be lawful, must pursue one or more legitimate aims listed in paragraph 2 of Article 8 and, in addition, must be justified as being “necessary in a democratic society” (see Horych, cited above, § 123). 2. Refusal of family visits (a) The parties’ arguments (i) The applicant 88. The applicant submitted that during the period of his pre-trial detention his right to receive visits was restricted. In particular, he referred to the fact that he was only allowed to receive visits from his family once a month.", "In addition, during certain months his family was not allowed to visit him at all. 89. He stressed that the restrictions on his contacts with his two-year old child and his eighty-two year old mother (restricting the number of visits and preventing direct contact) proved that he had been treated in an inhuman manner. 90. The applicant concluded that these restrictions had caused him serious emotional distress and suffering.", "The authorities had interfered with his rights under Article 8 in an arbitrary and disproportionate manner. He asked the Court to find a violation of this provision. (ii) The Government 91. The Government argued that the applicant’s contacts with his family had not been restricted. He had been visited by his wife, child and mother on thirty-two occasions.", "In March 2005 and July 2006 the applicant was visited by his family on three occasions. In addition, in eight other months the applicant was visited by his family two times per month. Admittedly, the applicant was refused a visit in March 2006. However, in April 2006 the applicant saw his family twice. 92.", "The Government concluded that the restrictions imposed had not amounted to an interference with his rights under Article 8 of the Convention. In view of the foregoing, the Government considered that there had been no violation of Article 8 of the Convention. (b) The Court’s assessment 93. The Court observes that it has not been contested that at least on one occasion, namely on 13 March 2006, the applicant was refused a visit from his family and that this decision did not include any reasoning (see paragraph 29 above). Accordingly, the Court considers that the restriction on the applicant’s personal contact with his family constituted an “interference” with his right to respect for his family life.", "94. The Court observes that the contested measure was applied under Article 217 § 1 of the Code of Execution of Criminal Sentences. The Court further notes that this provision, as applicable at the material time, gave the relevant authority (prosecutor or court) the power to grant permission for family visits in prison. The law, however, provided no details as regards the conditions for granting such permission, no guidance as to how the authorities might decide whether the prohibition on visiting rights was merited in a particular case, and what factors might be relevant to that decision. It further did not provide for a possibility to appeal against the refusal of visits.", "The decision was left to the authorities’ absolute discretion (see Dochnal v. Poland, no. 31622/07, § 95, 18 September 2012). 95. The Court further observes that it had already held in similar Polish cases that Article 217 § 1 of the Code of Execution of Criminal Sentences did not indicate with reasonable clarity the scope and manner of the exercise of any discretion conferred on the relevant authorities to restrict visiting rights. In consequence, the Court has held that an unreasoned refusal to grant permission for visits was not in “accordance with the law” and found a breach of Article 8 on account of the arbitrariness of the interference (see Wegera v. Poland, no.", "141/07, § 74‑75, 19 January 2010; Popenda v. Poland, no. 39502/08, § 72, 9 October 2012). 96. For these reasons the Court concludes that the refusal of the family visit in the present case was not in accordance with the law. On that account it is not necessary to ascertain whether the other conditions imposed by Article 8 § 2 have been complied with.", "97. There has accordingly been a violation of Article 8 of the Convention. 3. Limitations on direct contact (a) The parties’ arguments 98. The applicant also complained that he was unable to take full advantage of visits already granted or available to him each month because of the specific arrangements governing visits, which on several occasions excluded direct physical contact with the visitors.", "The applicant complained, without giving any details, that on some occasions he was only allowed to have the so-called “closed visits”, without the possibility of direct contact as he was physically separated from his visitors by a Perspex partition and they could communicate only by internal phone. 99. The Government argued that during the vast majority of visits the applicant was afforded direct contact with his relatives. Of the thirty-two visits of the applicant’s wife with the youngest child and the applicant’s mother, direct contact was restricted only on three occasions, namely: on 27 September 2005, 2 November 2005 and 11 January 2006. (b) The Court’s assessment 100.", "The Court observes that on three occasions (27 September 2005, 2 November 2005 and 11 January 2006) he was separated from his family by a Perspex partition (see paragraph 31 above). The Court considers that this amounted to “interference” with the applicant’s rights guaranteed by Article 8 of the Convention. 101. The Court further observes that the contested measure was applied under Article 217 § 2 of the Code of Execution of Criminal Sentences. This provision, as applicable at the material time, gave the relevant authority (prosecutor or court) the power to determine the manner in which they were to be conducted.", "The Court also notes that, pursuant to the rule contained in that provision, visitors are not allowed to have direct physical contact with the person detained on remand. The Court is consequently satisfied that the interference was “in accordance with the law”. 102. The Court further considers that the impugned measures can be considered as having been taken in pursuance of “the prevention of disorder and crime”, which is a legitimate aim under Article 8. 103.", "It remains for the Court to ascertain whether a fair balance was struck between the competing public and private interests involved (see Horych, cited above, § 126), having regard to the legitimate aim relied on. 104. The Court accepts that in certain situations restrictions on a detainee’s contact with members of his family may be compatible with Article 8 (see Horych cited above § 129). However, in the present case the Government offered no explanation as to why it was necessary on these three occasions to require the applicant and his close family members to be separated by a physical barrier. In particular, no arguments have been adduced regarding the legitimacy of the aim pursued, nor as regards the necessity of imposing the measure on these specific occasions.", "The Court can but note that such measure had never been imposed during any of the other twenty-nine visits. The Court finds it difficult to discern any coherent pattern of application of the above-mentioned restrictions and considers that they have been applied by the domestic authorities in an arbitrary and random manner. For these reasons alone, the Court finds that the applicant’s right to respect for his family life has been breached. 105. Accordingly, there has been a violation of Article 8 of the Convention.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 106. The applicant also complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been unreasonably lengthy. 107. The Court notes that the applicant failed to lodge a complaint with the domestic courts under the 2004 Act (see paragraph 20 above).", "It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 108. Lastly, the applicant alleged that his private correspondence had been censored. 109. 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 complaint 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 110. 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 111. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.", "112. The Government contested this claim. 113. The Court awards the applicant EUR 1,500 in respect of non‑pecuniary damage. B.", "Costs and expenses 114. The applicant made no claim for the reimbursement of costs and expenses incurred before the domestic courts or in the proceedings before the Court. C. Default interest 115. 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 Articles 3 (overcrowding), 5 § 3 and 8 (refusal of family visits and limitations on direct contact with family members) admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 3 of the Convention; 3. Holds that there has been no violation of Article 5 § 3 of the Convention; 4. Holds that there has been a violation of Article 8 of the Convention as regards the refusal of family visits on certain occasions and limitations on direct contact with family visitors during certain visits; 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 1,500 (one 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, 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 9 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıIneta ZiemeleDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF SOMOGYI v. HUNGARY (Application no. 43411/12) JUDGMENT STRASBOURG 17 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Somogyi v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Faris Vehabović, President,Carlo Ranzoni,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 26 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43411/12) against 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 József Somogyi (“the applicant”), on 5 July 2012.", "2. The applicant was represented by Mr T. Fekete S., a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Agent, Ministry of Justice. 3. On 18 May 2016 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1974 and lives in Százhalombatta. 5. On 11 April 2009, quoting the relevant sections of the Code of Criminal Procedure, the Pest Central District Court ordered the applicant’s pre-trial detention on charges of terrorist acts and other related offences involving abuse of firearms and explosives on the grounds that he might abscond for fear of a severe punishment, might frustrate the on-going investigation by colluding with accomplices still at large, or might execute the planned offences or re-offend. 6.", "The detention measure was extended on 8 May and again on 7 August 2009. The court reiterated its earlier reasons, adding that the risk of collusion was serious, since certain other suspects had not yet been apprehended. 7. A further extension was ordered on 9 November 2009. The court stated that the applicant was being prosecuted for terrorist acts committed as an associate of an organised criminal group whose plans entailed a real risk of loss of life.", "It was of note that the group had existed for quite some time and had been committed to carrying out terrorist acts. Moreover, the volume of evidence supporting a reasonable suspicion, as weighed individually against the applicant, was increasing. 8. On 9 February 2010 the applicant’s detention was again extended, the court noting that, in view of the grounds for his detention, not even his clean criminal record, family ties and settled background could provide adequate justification for a less strict measure. 9.", "On 7 April 2010 the measure was renewed, with special reference to the fact that the case was concerned with a series of crimes committed over a long period of time by a criminal organisation. 10. On 9 June 2010 the Budapest Regional Court ordered that the applicant be held under house arrest, holding that the danger of his re-offending was not of a degree that justified his continued detention, noting also that the investigation was about to be wrapped up and that, in any case, some accomplices in the case had already been released pending trial. The applicant was released from detention the next day. During the ensuing period he complied with the rules of house arrest.", "11. On 7 July 2010 the Budapest Court of Appeal again ordered the applicant’s detention. It held that the charges of several very serious offences committed over a long time in an organised group were of such gravity that they could not be addressed merely by house arrest. 12. The measure was extended on 4 August 2010.", "In addition to the previously cited reasons, the court considered that there was no reason to assume that the applicant’s political motivation behind the incriminated acts had subsided, which meant that the risk of re-offending was real. 13. On 24 November 2010 the Budapest Court of Appeal ordered the applicant’s house arrest, observing that the applicant had abided by the previous house arrest (see paragraph 10 above) and holding that the risk of re-offending was slight. 14. On 20 September 2012 the applicant’s house arrest was replaced by a restraining order, which was eventually lifted on 6 July 2014.", "15. On 22 April 2015 the applicant was again detained on remand for the purposes of prosecution for a new offence allegedly committed during the on-going proceedings. He was accused of having threatened and harassed a relative of one of the witnesses in the main case. For want of evidence, this new investigation was discontinued on 30 October 2015. 16.", "On 18 December 2015 the applicant was released from detention and put under house arrest, which lasted until 27 July 2016. 17. On 30 August 2016 the applicant and his accomplices were convicted. He was sentenced to 12 years in a strict-regime prison. 18.", "Both the defendants and the prosecution appealed. The outcome of the ensuing proceedings is unknown. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 19. The applicant complained that his detention was lacking in any legal basis, but without substantiating or developing this assertion.", "He relied on Article 5 § 1 of the Convention which provides in its relevant parts: “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; ... 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. ...” 20. The Court observes that, in invoking Article 5 § 1, the applicant confined himself to asserting that his detention had been devoid of legal basis in Hungarian law, without however explaining why and thus without substantiating this complaint. The Court, for its part, notes that he was detained on remand on reasonable suspicion that he had committed terrorist acts as member of a criminal group.", "It is therefore satisfied that this measure, devoid of any appearance of unlawfulness or arbitrariness, was one of those envisaged by Article 5 § 1 of the Convention, in its subparagraph (c). 21. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 22.", "The applicant also complained that the measure had been in place for an unacceptably long time and that the reasoning offered by the courts had been predictably stereotypical. He relied on Articles 3, 5 §§ 3 and 4 as well as Article 13 of the Convention. The Government contested these arguments. 23. The Court, master of the characterisation to be given in law to the facts of the case (see, amongst many authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998–I), considers that this complaint falls to be examined under Article 5 § 3 alone.", "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 25. The applicant submitted that his detention on remand and house arrest had been excessively long, that the authorities had failed to provide relevant reasons for it, that their decisions had not been sufficiently individualised, and that due consideration had not been given to any less coercive measures. 26. The Government argued that the reasons put forward by the authorities had been relevant and sufficient to justify the detention complained of. 27.", "The Court observes that the applicant was held in detention on remand from 11 April 2009 to 10 June 2010 (see paragraphs 5 and 10 above), under house arrest from 11 June to 7 July 2010 (see paragraphs 10‑11 above), in detention again from 8 July to 23 November 2010 (see paragraphs 11 and 13 above) and, eventually, under house arrest once more from 24 November 2010 until 20 September 2012 (see paragraphs 13-14 above). A further detention occurred between 22 April and 18 December 2015, followed by house arrest until 27 July 2016 (see paragraphs 15-16 above). 28. Since house arrest constitutes deprivation of liberty within the meaning of Article 5, which shall also be taken into consideration when assessing the length of pre-trial detention (see Süveges v. Hungary, no. 50255/12, § 77, 5 January 2016 and the authorities cited therein), the measure lasted altogether more than four years and eight months.", "29. The Court has recently summarised the general principles relevant in such cases in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84‑102, ECHR 2016). It would add that when detention pending trial is extended beyond the period generally accepted under the Court’s case-law – in the present case amounting to a very long time indeed – particularly strong reasons are required to justify it (see Süveges, cited above, § 98). 30.", "In the present case, however, the Court is unable to identify such strong reasons. Noting the authorities’ justifiable concern about the applicant’s potentially fleeing a severe punishment and/or colluding with accomplices who had not yet been apprehended, the Court nevertheless considers that no individualised assessment of the applicant as a flight risk seems to have been undertaken, especially after his compliance with house arrest when first released from custody (see paragraph 10 above). As regards the risk of collusion, the Court considers that this was not a compelling reason once the investigation had been terminated. Nevertheless, the coercive measures continued for more than two more years. Furthermore – although quite rightly somewhat concerned with and inclined to apply less coercive alternatives – the authorities seem to have been preoccupied with the risk of reoffending.", "For them, however, this risk emanated chiefly from the allegation that the applicant belonged to a criminal group, and they failed to perform an individualised assessment of the danger of committing new offences against the background of the specific circumstances of the case. 31. Moreover, the Court finds it troubling that, after a fresh detention order had been issued in relation to a new charge brought in 2015, the applicant’s deprivation of liberty remained in place for another nine months (see paragraphs 15-16 above), although the underlying investigation was dropped on 30 October 2015. 32. Lastly, the Court cannot but note that it took the authorities over seven years (from 11 April 2009 until 30 August 2016 – see paragraphs 5‑17 above) to proceed from the applicant’s arrest to the first-instance judgment, which falls far short of the “special diligence” required in such cases (see Labita v. Italy [GC], no.", "26772/95, §§ 152 and 153, ECHR 2000‑IV). 33. The foregoing elements are sufficient for the Court to conclude that the reasons for the applicant’s deprivation of liberty, even though relevant, were not sufficient to justify the lengthy periods involved (see, mutatis mutandis and for pre-trial detentions of a similar length, Calleja v. Malta, no. 75274/01, §§ 96-112, 7 April 2005, and Maglódi v. Hungary, no. 30103/02, §§ 32-40, 9 November 2004).", "It follows that there has been a violation of Article 5 § 3 of the Convention. III. 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 14,373 euros (EUR) in respect of pecuniary damage, that sum corresponding to his loss of income during the impugned measures. Moreover, he claimed EUR 52,735 in respect of non-pecuniary damage. 36. The Government contested these claims as excessive. 37.", "The Court considers, on the one hand, that the applicant has not shown the existence of a 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 must have suffered some non-pecuniary damage and awards him, on an equitable basis, EUR 4,800 under this head. B. Costs and expenses 38. The applicant also claimed EUR 955 for the costs and expenses incurred before the Court, as per his lawyer’s retainer agreement.", "39. The Government contested this claim. 40. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the full sum claimed. 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 complaint concerning Article 5 § 3 admissible and the remainder of the application inadmissible; 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 955 (nine hundred fifty-five 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 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiFaris VehabovićDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF KUZMINA v. RUSSIA (Application no. 15242/04) JUDGMENT STRASBOURG 2 April 2009 FINAL 02/07/2009 This judgment may be subject to editorial revision. In the case of Kuzmina 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. 15242/04) 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 Zinaida Mikhaylovna Kuzmina (“the applicant”), on 29 March 2004.", "2. The applicant was represented by Mr V. Gandzyuk, a lawyer practising in Ryazan. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 13 November 2007 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). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1957 and lives in Ryazan. 5.", "She is a military servicewoman. From January 2000 to February 2001 she served in the Russian contingent of the UN Peacekeeping Mission in Bosnia and Herzegovina. 6. Upon her return, the applicant brought proceedings against the head of her military unit to secure payment of her daily allowance for her service abroad. 7.", "On 25 July 2003 the Military Court of the Ryazan Garrison partly granted the applicant’s claim and ordered the military unit to pay the applicant 346,050.70 Russian roubles (RUB) in remuneration and RUB 1,000 in expenses for legal advice. 8. The military unit did not lodge an ordinary appeal, and on 22 August 2003 the judgment became binding and enforceable. 9. However, following the respondent’s request, on 19 November 2003 the Presidium of the Military Court of the Moscow Command quashed the judgment of 25 July 2003 by way of supervisory review and dismissed the applicant’s claims in full.", "The reason given for the quashing of the judgment was the “wrongful application of substantive law by the first-instance court”. II. RELEVANT DOMESTIC LAW 10. The Code of Civil Procedure of the Russian Federation provides as follows: Article 362. Grounds on which appeal courts may quash or alter judicial decisions “1.", "The grounds on which appeal courts may quash or alter judicial decisions are: ... (4) a violation or incorrect application of substantive or procedural law.” Article 387. Grounds on which judicial decisions may be quashed or alteredby 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 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 fresh examination, if the substantive law has been erroneously applied or interpreted.” 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 IN THE APPLICANT’S FAVOUR 11. The applicant complained that the quashing of the judgment of 25 July 2003 by way of supervisory-review proceedings had violated her “right to a court” under Article 6 § 1 of the Convention and her 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. Submissions by the parties 12. The Government, relying on the Court’s judgments in the cases of Pellegrin v. France ([GC], no. 28541/95, ECHR 1999‑VIII) and Kanayev v. Russia (no. 43726/02, 27 July 2006), argued that the applicant’s complaint under Article 6 of the Convention was incompatible ratione materiae because the applicant was a military officer and the judgment award had concerned allowances for her military service. They further argued that Article 1 of Protocol No.", "1 was also inapplicable because the applicant had not had a “possession” within the meaning of that Convention provision as she had had no right to receive “payments in the amount claimed”. She had neither an “existing possession” nor a “legitimate expectation”. As to the merits of the complaint, the Government noted that the judgment of 25 July 2003 had been quashed because the Military Court of the Ryazan Garrison had incorrectly interpreted and applied substantive law. 13. The applicant averred that the quashing of the final judgment of 25 July 2003 had irremediably impaired the principle of legal certainty and deprived her of the right to receive money she was entitled to receive.", "B. The Court’s assessment 1. Article 6 § 1 of the Convention (a) Admissibility 14. The Government contested the applicability of Article 6 to the dispute raised by the applicant. Relying on Pellegrin (cited above), they argued that Article 6 was not applicable since complaints raised by servants of the State such as military officers over their conditions of service were excluded from its ambit.", "15. The Court accepts that in the Pellegrin judgment it attempted to establish an autonomous interpretation of the term “civil service”. To that end the Court introduced a functional criterion based on the nature of the employee’s duties and responsibilities. 16. However, in its judgment in the case of Vilho Eskelinen and Others v. Finland ([GC], no.", "63235/00, 19 April 2007), the Court found that the functional criterion adopted in the Pellegrin judgment did not simplify the analysis of the applicability of Article 6 in proceedings to which a civil servant was a party or bring 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: “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.” (see Vilho Eskelinen and Others v. Finland [GC], no.", "63235/00, 19 April 2007, § 62) 17. Turning to the facts of the present case, the Court notes that the applicant had access to a court under national law. She made use of her right and introduced an action against her employer. The Military Court of the Ryazan Garrison examined the applicant’s claims and accepted them, awarding the applicant a daily allowance for her service abroad and compensation for legal costs. After the final judgment of 25 July 2003 had been quashed by way of supervisory review, the applicant’s claims were once again re-examined and dismissed.", "Neither the domestic courts nor the Government indicated that the domestic system barred the applicant’s access to a court. Accordingly, Article 6 is applicable (see Vilho Eskelinen, cited above, § 63, and, for a similar context in a Russian case, Dovguchits v. Russia, no. 2999/03, § 33, 7 June 2007). 18. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds.", "It must therefore be declared admissible. (b) Merits 19. The Government pointed out that the aim of the application of the supervisory review procedure in the present case was to correct judicial errors. The applicant’s case clearly did not call for any payment of a daily allowance and the supervisory review court had to give a proper explanation and an appropriate legal interpretation of the matter in dispute for the purpose of delivering a fair and lawful judgment and for the purpose of securing the correct application of the relevant domestic law in future similar cases. There had therefore been no violation of the principle of legal certainty.", "20. The Court observes 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, 28 October 1999, § 61, Reports of Judgments and Decisions 1999-VII). 21. This principle states that no party is entitled to seek the re-opening of proceedings merely for the purpose of a rehearing and a fresh decision of the case.", "The power of the higher courts to quash or alter binding and enforceable judicial decisions should be exercised only for the correction of fundamental defects. The mere possibility of two views on the subject does not constitute grounds 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).", "22. The Court observes 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 enforceable judicial decision to be quashed by a higher court merely on the ground of disagreement with the assessment made by lower courts, with a view to carrying out a fresh examination (see Kot v. Russia, no. 20887/03, §§ 27-30, 18 January 2007, and Zvezdin v. Russia, no.", "25448/06, § 28, 14 June 2007). 23. In the present case the judgment of 25 July 2003 in the applicant’s favour was set aside on 19 November 2003 by way of a supervisory review on the grounds that the Military Court of the Ryazan Garrison had incorrectly applied the substantive law. The Court has to assess whether the power to conduct a supervisory review was exercised by the authorities so as to correct a fundamental error. 24.", "The Court reiterates that a binding and enforceable judgment should be quashed only in exceptional circumstances rather than for the sole purpose of obtaining a different decision in the case. In the Russian legal system, the grounds for quashing or altering judgments through 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). The judgment of 25 July 2003 was quashed by way of supervisory review because of the incorrect application of the substantive law. That defect could have been rectified in appeal proceedings. Thus, a situation where a final judgment in the applicant’s favour was called into question could have been avoided, had the military unit lodged an ordinary appeal within the statutory ten-day time-limit.", "25. The Court notes that the military unit 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 25 July 2003. Instead, it applied for supervisory review after the judgment in the applicant’s favour had become binding and enforceable. 26. Having regard to these considerations, the Court finds that, by granting the respondent’s request to set aside the judgment of 25 July 2003, the Presidium of the Military Court of the Moscow Command 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. Article 1 of Protocol No. 1 (a) Admissibility 27. The Court observes that the Government contested the applicability of Article 1 of Protocol No.", "1 on the grounds that the applicant did not have a “possession” within the meaning of that Convention provision. In this connection, the Court notes that it has already on a number of occasions found that the existence of a debt confirmed by a binding and enforceable judgment constitutes the judgment beneficiary’s “possession” within the meaning of Article 1 of Protocol No. 1 (see, for example, Bulgakova v. Russia, no. 69524/01, § 31, 18 January 2007, and Pravednaya, cited above, § 38). The Court sees no reason to depart from those findings in the present case and dismisses the Government’s objection that the applicant’s complaint is incompatible ratione materiae with Article 1 of Protocol No.", "1. 28. The Court further observes that the complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits 29. The Government claimed that there was no violation of the applicant’s property rights because she had not had any “possessions”. Nor could she have had any “legal expectations” to benefit from the judgment, since it had been delivered as a result of an evident judicial error. 30. The Court observes that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt will be paid and constitutes a beneficiary’s “possessions” within the meaning of Article 1 of Protocol No.", "1. The quashing of such a judgment amounts to an interference with his or her right to the peaceful enjoyment of possessions (see, among other authorities, Brumărescu, cited above, § 74, and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). 31. The Court observes that the proceedings concerned compensation for a daily allowance in respect of the applicant’s military service abroad and compensation for legal costs.", "A substantial amount was found by a domestic court to be payable by the military unit. The quashing of that enforceable judgment frustrated the applicant’s reliance on a binding judicial decision and deprived her of an opportunity to receive the money she had legitimately expected to receive. In these circumstances, the Court considers that the quashing of the judgment of 25 July 2003 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. 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. Damages 33. The applicant claimed 347,050.70 Russian roubles (RUB) in respect of pecuniary damage, referring to the unpaid judgment debt, and RUB 244,046.05, relating to inflation losses accrued during the period of the non-enforcement of the judgment of 25 July 2003.", "The applicant further claimed 7,000 euros (EUR) in respect of non-pecuniary damage. 34. The Government submitted firstly that no award should be made as the judgment of 25 July 2003 was lawfully quashed. They further noted that the applicant did not apply to a national court with a claim for recalculation of the sum due to inflation. They maintained that in her calculation the applicant did not refer to any official sources in respect of rates of inflation from 2003-2007.", "This part of her claim should thus be dismissed. As regards the claim in respect of non-pecuniary damages, the Government considered that the applicant’s claim was wholly excessive and unreasonable. 35. The Court observes that in the present case it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in that the award in the applicant’s favour was not paid to her as a result of the quashing of the final judgment by way of supervisory review.", "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 in had the requirements of Article 6 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). The Court finds that this principle also applies in the present case, having regard to the violations found. The applicant was prevented from receiving money she had legitimately expected to receive under the judgment of 25 July 2003.", "The Court considers that the Government should pay the judgment award made under the judgment of 25 July 2003. 36. The Court further recalls that the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as an extended delay in enforcement (see Gizzatova v. Russia, no. 5124/03, § 28, 13 January 2005, and Metaxas v. Greece, no. 8415/02, § 36, 27 May 2004).", "Having regard to the materials in its possession and the fact that the Government did not furnish any objection to the applicant’s method of calculation of compensation or submit any other official sources for inflation rates in the relevant period, the Court also awards the applicant EUR 5,890 in respect of pecuniary damage, plus any tax that may be chargeable. 37. The Court further considers that the applicant suffered distress and frustration resulting from the quashing of the final judgment of 25 July 2003. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B.", "Costs and expenses 38. The applicant also claimed RUB 10,000 for costs and expenses incurred before the Court. 39. The Government considered this sum to be reasonable should the Court find any violations of the applicant’s rights as safeguarded under the Convention. 40.", "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 EUR 240, plus any tax that may be chargeable to the applicant on that amount. 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 application admissible; 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 25 July 2003; 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, shall pay the award made in the applicant’s favour under the judgment of 25 July 2003, that is, RUB 347,050 (three hundred forty-seven thousand and fifty Russian roubles); (b) 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 the settlement: (i) EUR 5,890 (five thousand eight hundred and ninety euros) in respect of pecuniary damage; (ii) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage; (iii) EUR 240 (two hundred and forty euros) in respect of costs and expenses; (iv) any tax that may be chargeable to the applicant on the above amounts; (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 2 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIFTH SECTION CASE OF DOVZHENKO v. UKRAINE (Application no. 36650/03) JUDGMENT STRASBOURG 12 January 2012 FINAL 12/04/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dovzhenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Ann Power-Forde,Angelika Nußberger,André Potocki, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 6 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "36650/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Ivanovich Dovzhenko (“the applicant”), on 11 October 2003. 2. The applicant was represented by Mr V. Dovzhenko, a lawyer practising in Mariupol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3.", "The applicant complained under Article 6 § 2 of the Convention that his right to be presumed innocent was not respected; under Article 6 §§ 1 and 3 (c) of the Convention that the proceedings before the Supreme Court had been held without the applicant’s lawyer; under Article 6 §§ 1 and 3 (b) of the Convention that he had not had sufficient time to study the materials of the case file for the proceedings before the Supreme Court; and under Article 8 of the Convention that the authorities had refused to dispatch his correspondence during his detention. 4. On 22 September 2009 the Court declared the application partly inadmissible and decided to communicate the above complaints to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Due to the absence of a national Judge at the relevant time, Mr M. Buromenskiy was appointed to sit as ad hoc judge (Rule 29 § 1(b)).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1972 and is currently serving a life sentence in prison. A. Criminal proceedings against the applicant and related issues 6.", "On 19 May 2002 the applicant was arrested on suspicion of having committed a series of murders. 7. On 22 October 2002 the investigation was completed and the applicant started to study the case file. During the pre-trial investigation and the examination of the case file the applicant was assisted by a legal-aid lawyer. 8.", "On 7 November 2002 the applicant and the lawyer finished examining the case file in full. 9. On 8 September 2003 the Donetsk Court of Appeal, acting as a first-instance court (“the first-instance court”), found the applicant guilty of seventeen murders and other less serious crimes committed by him between 1999 and 2002 and sentenced him to life imprisonment with confiscation of property. During the trial the applicant was represented by the lawyer. 10.", "According to the applicant, following the judgment of 8 September 2003, he was not assisted by any lawyer despite his complaints to the first-instance court on this account. 11. On 2 October 2003 the applicant lodged with the Supreme Court a cassation appeal against the judgment of 8 September 2003. 12. On 17 September 2003, in the course of preparation to the proceedings before the Supreme Court, the applicant requested the first-instance court to familiarise him with the minutes of the hearings.", "13. On 23 January 2004 the applicant started to examine the minutes of the hearings held by the first-instance court. 14. On 26 January 2004 the applicant submitted that he would continue examination of the minutes only after he had studied the case file one more time. He therefore requested that the case file be provided to him for examination.", "15. On 2 February 2004 the first-instance court, having regard to the applicant’s statements, set a five-day period for him to examine the minutes of the hearings. Despite the fact that the applicant was invited on several occasions to continue studying the minutes of the hearings, he refused to do so, insisting that he needed to examine the case file first. 16. On 28 April 2004 the first-instance court found that the applicant had refused to familiarise himself with the minutes of the hearings for no valid reason and allowed no further time to do so.", "The applicant was then provided with the case file. 17. On 16 July 2004 the first-instance court found that, despite having been provided with the case file on several occasions, the applicant had examined only two volumes of the file. As the file consisted of twenty-five volumes, the court concluded that the applicant’s actions suggested that he had deliberately sought to draw out the time allowed for examining the case file. It set therefore a thirty-five-day time-limit for him to complete his examination of the case file.", "18. During fifty-three days between July and September 2004 the applicant was provided with the case file. He managed to examine twelve volumes of the file. 19. On 28 September 2004 the first-instance court decided to allow no further time for the applicant to study the case file, as the relevant time-limit had expired.", "20. On 7 April 2005 the Supreme Court held a hearing in the applicant’s case. In his further submissions before the Supreme Court the applicant complained, inter alia, that there had been a lack of legal assistance and lack of time to study the case file. 21. The same day the Supreme Court, in the presence of the prosecutor and the applicant, who had not been represented by a lawyer, found that the applicant’s guilt had been well founded and dismissed the applicant’s appeal in cassation as unsubstantiated.", "B. The reporting of the criminal proceedings against the applicant in the media 22. On 25 May 2002 a local newspaper, Priazovskiy Rabochiy, reported that the police had arrested the applicant on suspicion of a number of murders. It read, in particular: “But the most sensational is the fact that the arrestee turned out to be former police lieutenant of the criminal investigation department, Sergey Dovzhenko. ...” 23.", "On 28 May 2002 another newspaper, Salon Dona i Basa, reported on a press conference held by K., the Head of the Mariupol Police Department. According to the newspaper, with respect to the progress of the investigation of series of murders K. announced that the police had arrested “a person who was reasonably suspected of having committed crimes with the use of a firearm” and then emphasised that it would be inappropriate to divulge any other information about the investigation. 24. On 8 June 2002 Priazovskiy Rabochiy provided a summary of another press conference given by K. on the subject of the applicant’s arrest. The journalist reporting on the press conference referred to the detainee by his real name and provided some extracts from K.’s speech.", "In particular, when opining as to who might have been the next victims of the detainee, K. was quoted as noting as follows: “Those would be the police officers ... and others... But in this respect we can only trust in the words of the criminal ... And I have doubts about many of his statements...” 25. On 11 December 2002 the same journalist reported in Priazovskiy Rabochiy that the first hearing in the applicant’s case was to commence on that day. He noted that the police had always insisted that the applicant had acted without any accomplices, while in the latest press release M., the Head of the Donetsk Regional Police Department, expressed a different opinion. The journalist reported as follows: “In the beginning of July [M.] stated in the official press release that Dovzhenko is just – quoting him word for word – ‘one member of a criminal group which committed a series of murders’...”.", "26. The criminal proceedings against the applicant were further extensively reported on by the same journalist in a number of his publications, some of which contained pictures of the applicant. 27. On 4 June 2004 that journalist published an interview with the prosecutor, who commented on the procedural actions taken by the applicant after the judgment of the first-instance court. 28.", "In his submissions before the Supreme Court the applicant complained that his right to be presumed innocent had been affected by multiple newspaper articles reporting on the proceedings in his case, specifying further that in some of the articles State officials had clearly indicated that he had committed the murders, despite the fact that the proceedings were pending. C. The applicant’s correspondence 29. On 5 November 2004 the first-instance court referred the case file to the Supreme Court, following which the applicant was refused permission by the officials of the detention facilities to send correspondence. The refusals were based on the fact that the written permit for the applicant’s correspondence, issued by the first-instance court, was no longer valid, while a new one had not been issued by the Supreme Court, which had become responsible for his case. The authorities acted on the basis of section 13 of the Pre-Trial Detention Act (see paragraph 33 below).", "30. On 2 February 2005 and 1 March 2005 the applicant lodged two applications with the Supreme Court asking for such a permit to be issued, but to no avail. On 28 June 2005 the applicant could still not dispatch any correspondence. II. RELEVANT DOMESTIC LAW A.", "Code of Criminal Procedure, 28 December 1960 (“the CCP”) as worded at the relevant time 31. The relevant provisions of the CCP read as follows: Article 45. Compulsory participation of a defence lawyer “Participation of a defence lawyer in the inquiry, pre-trial investigations and trial by the first-instance court shall be compulsory: ...(4) from the moment of the person’s arrest or when he or she is charged with a criminal offence carrying a penalty of life imprisonment ... The participation of a defence lawyer in the proceedings before the court of appeal shall be compulsory in cases as provided by the first paragraph of this Article if the appeal raises issues capable of worsening the position of the convicted or acquitted person.” Article 47. The procedure for selecting and appointing a defence lawyer “A defence lawyer shall be selected by a suspect, an accused, a defendant or a convicted person ... A defence lawyer shall be appointed [by the authorities] in the following cases: (1) when, in accordance with Article 45 §§ 1 and 2, the participation of the defence lawyer is compulsory but the suspect, accused or defendant does not wish to or cannot appoint a defence lawyer; (2) when a suspect, an accused or a defendant wishes to appoint a defence lawyer but cannot do so for lack of means or other objective reason.", "...” 32. Article 395 of the CCP provides, inter alia, that the court of cassation shall review whether the challenged court decision is lawful and substantiated based on the case file and additionally submitted material. The scope of the review shall be limited by the arguments of the cassation appeal(s). The court shall be empowered to review the case beyond the arguments of the cassation appeal(s) provided that this does not worsen the position of the convicted or acquitted person. B.", "The Pre-Trial Detention Act of 30 June 1993 33. Section 13 of the Act provides, inter alia, that a person held in custody may correspond with their relatives, other individuals and legal entities upon obtaining a written permit from the authority dealing with the criminal case against the detainee concerned. THE LAW I. THE GOVERNMENT’S OBJECTION REGARDING LOCUS STANDI 34. In their further observations on the application the Government submitted that they had not received any documents confirming the authority of the applicant’s lawyer.", "They maintained therefore that no submissions made by the applicant’s lawyer could be accepted by the Court. 35. The Court notes that the applicant’s lawyer was admitted to the proceedings on the basis of the power of attorney of 24 October 2009 which is available in the case file. On 5 November 2009 the Registry sent a copy of that power of attorney to the Government. The Court further notes that no submissions were made by the applicant’s lawyer before the date of the power of attorney.", "In these circumstances the Government’s objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 36. The applicant complained that the numerous newspaper articles outlining the proceedings against him amounted to a vicious media campaign, which was contrary to Article 6 § 2 of the Convention. Besides, the public statements of the law enforcement officers contained statements which were incommensurate with his right to be presumed innocent.", "37. Article 6 § 2 of the Convention reads as follows: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. Admissibility 38. The Government submitted that the applicant had failed to exhaust domestic remedies in so far as he had not applied to the editorial boards of the relevant newspapers requesting rebuttal of the divulged information. Neither had he lodged a civil suit claiming a violation of his honour and dignity by the impugned publications and seeking redress on this account.", "39. The applicant claimed that the remedies invoked by the Government were not effective and therefore he had had no obligation to exhaust them. 40. At the outset, the Court notes that in so far as the applicant alleged that the journalists breached his right provided by Article 6 § 2 of the Convention by their numerous publications and expressions of opinion concerning the applicant’s guilt, the Court notes that this complaint is inadmissible ratione personae since these actions were carried out by private persons and there is no indication that they should be attributable to the State. Moreover, the applicant has not availed himself of any domestic remedy in this respect (see Bochev v. Bulgaria (dec.), no.", "73481/01, 20 March 2007). 41. As to the applicant’s allegation that his right to be presumed innocent was breached by the public statements of the law enforcement officers, which were also quoted in the newspaper articles referred to by the applicant, the Court considers that this complaint falls within the scope of Article 6 § 2 of the Convention. 42. The Court has previously held that a complaint under Article 6 § 2 of the Convention cannot be rejected for the reason of non-exhaustion if an applicant raised that issue in the course of criminal proceedings against him (see Shagin v. Ukraine, no.", "20437/05, §§ 71-73, 10 December 2009). As the applicant raised the matter before the Supreme Court (see paragraph 28 above), the complaint cannot be rejected on the grounds claimed by the Government. 43. The Court notes that this part of 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 44. The Government submitted that the public officials were very cautious in their statements when informing the public as to the proceedings against the applicant. This cautiousness was evidenced by the first press conference held by K., during which he merely disclosed that the detainee was “a person who was reasonably suspected of having committed crimes with the use of a firearm” (see paragraph 23 above).", "45. As to the articles of 8 June and 11 December 2002, the statements of high-ranking police officers’ contained therein could not be linked to the applicant in themselves as his name was not mentioned in the quotations. His name was mentioned outside the quotations by the journalist and not by the public officials. The Government also added that the interview with the prosecutor of 4 June 2004 did not contain any expressions encroaching upon the applicant’s right to be presumed innocence. 46.", "The applicant disagreed. 47. The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The right to presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of a fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308).", "It prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62) but also covers statements made by other public officials about pending criminal investigations which encourage the public to consider the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41; Daktaras v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X; and Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002-II). 48.", "It has been the Court’s consistent approach that the right to 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 the 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. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Böhmer v. Germany, no. 37568/97, §§ 54 and 56, 3 October 2002, and Nešťák v. Slovakia, no.", "65559/01, §§ 88 and 89, 27 February 2007). Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Karakaş and Yeşilırmak v. Turkey, no. 43925/985, § 51, 28 June 2005). 49. Turning to the present case, the Court takes note of the Government’s contention that the quotations in the articles of 8 June and 11 December 2002 did not suggest that the high-ranking police officers called the applicant by his name.", "This, however, does not resolve the issue under Article 6 § 2 of the Convention, as the person concerned by a statement may be capable of being identified without his or her name having been mentioned (see Peša v. Croatia, no. 40523/08, § 146, 8 April 2010). 50. The Court notes that as early as 25 May 2002 the applicant’s name and other personal information about him had been disclosed by the press and had thus become known to the public (see paragraph 22 above). Moreover, given the gravity of the crimes of which he had been suspected and the particular interest of the media in the case, the applicant’s name must have been well-known to the public.", "51. The Court therefore considers that the statement of the high-ranking police officers, as quoted in the articles of 28 May, 8 June and 11 December 2002, clearly concerned the applicant even without them having mentioned his name. Explicit references by the speakers to the name of the applicant in this case were not necessary to attract the guarantees of Article 6 § 2 of the Convention. 52. In assessing the contents of the expressions in question, it is sufficient for the Court to note that in the article of 8 June 2002 the detainee was referred to as a “criminal” without any reservation (see paragraph 24 above).", "Such a qualification, coming from a high-ranking police officer, came across as an established fact and amounted to a declaration of the applicant’s guilt of the crimes in respect of which he was suspected. That statement prejudged the assessment of the relevant facts by the competent judicial authority and encouraged the public to consider the applicant guilty before he had been proved guilty according to law. 53. The foregoing considerations enable the Court to conclude that there has been a breach of the applicant’s right to be presumed innocent. It therefore does not find it necessary to examine the other expressions in question and holds that there has been a violation of Article 6 § 2 of the Convention.", "III. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 54. The applicant complained that he had not been represented by a lawyer before the Supreme Court. He further complained that he had not had an opportunity to study all the materials in the case file to prepare for the hearing before the Supreme Court. The applicant relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention which provide, in so far as relevant, as follows: “1.", "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... . ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself ... 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; ...” A. Admissibility 55. The Court notes that this part of 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. Legal assistance to the applicant in the proceedings before the second-instance court 56. The applicant contended that his right to be legally represented before the Supreme Court had not been ensured by the domestic authorities.", "57. The Government submitted that the first-instance court had sentenced the applicant to the severest punishment – life imprisonment with confiscation of property – and therefore the consideration of the case by the Supreme Court could not have resulted in an aggravation of his situation. Accordingly, by virtue of Article 45 § 2 of the Code of Criminal Procedure, the legal representation of the applicant before the Supreme Court (acting as a court of appeal in that case) was not compulsory. The Government further contended that the applicant was a former police officer and must have been able to present his defence by himself. 58.", "The Court notes that the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1. It will examine the applicant’s complaint under both provisions taken together (see, among many other authorities, Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I). 59. The sub-paragraph (c) of paragraph 3 of Article 6 attaches two conditions to a defendant’s right to receive legal aid.", "The first, “lack of sufficient means to pay for legal assistance”, is not in dispute in the present case. The only issue before the Court is therefore whether the “interests of justice” required that the applicant be granted such assistance free. 60. The Court reiterates that the manner in which Article 6 §§ 1 and 3 (c) is to be applied in relation to appellate or cassation courts depends upon the particular features of the proceedings involved; account must be taken of the entirety of the proceedings conducted in the domestic legal order and the role of the appellate or cassation court therein (see Twalib v. Greece, 9 June 1998, § 46, Reports of Judgments and Decisions 1998-IV , and Granger v. the United Kingdom, 28 March 1990, § 44, Series A no. 174).", "61. The Court has already held that the situation in a case involving a heavy penalty where an appellant was left to present his own defence unassisted before the highest instance of appeal was not in conformity with the requirements of Article 6 (see Maxwell v. the United Kingdom, 28 October 1994, § 40, Series A no. 300-C). 62. In the present case there is nothing to suggest that the applicant was assisted by any lawyer following his conviction by the first-instance court.", "It is undisputed that the hearing before the Supreme Court was held without any lawyer representing the applicant. However, the applicant’s submissions before the domestic courts suggested that he wished to be legally represented at that stage of the proceedings. 63. The Government, relying on Article 45 § 2 of the CCP, contended that the applicant had not been entitled to compulsory legal representation at that stage of proceedings as he had been convicted to the heaviest penalty and his position could not be aggravated. This argument is immaterial for the Court, as even assuming that the applicant was not entitled to free legal assistance under the domestic law, the question is whether he was entitled to that assistance under the Convention.", "64. According to the rules of criminal procedure (see paragraph 32 above), where a court of appeal acted as a first-instance court in criminal proceedings, the jurisdiction of the Supreme Court reviewing the case in cassation proceedings extended both to legal and factual issues. The Supreme Court also had the power to consider additional arguments which had not been examined in the first-instance proceedings. Given the seriousness of the charges against the applicant and the severity of the sentence imposed on him by the trial court, the Court considers that the assistance of a lawyer at this stage was essential for the applicant. 65.", "In these circumstances the Court finds that the interests of justice required that the applicant be legally represented before the Supreme Court. It holds, therefore, that there has been a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention. 2. Access to the case file with a view to preparation for the proceedings before the second-instance court 66. The applicant claimed that he was not given sufficient time to examine the case file in order to prepare for the proceedings before the Supreme Court.", "Given that he was not assisted by any lawyer, the exercise of his right to examine the case file was ineffective and time-consuming. 67. The Government maintained that the applicant had been provided with sufficient time to study the case file. After the authorities found that the applicant was abusing his procedural rights, they set a thirty-five day time-limit for examining the case file, which was reasonable taking into account the fact that the applicant had earlier examined the case file in full when preparing for the trial, and the only new material at the stage of appeal was the minutes of the hearings held by the trial court. In the Government’s opinion the applicant had been abusing his procedural rights and had attempted to delay the proceedings against him.", "68. The Court notes that at the pre-trial stage the sixteen-day period was sufficient for the applicant to study the whole case file with the assistance of a lawyer (see paragraphs 7 and 8 above). However, at the stage of appeal more than fifty-three days turned out to be insufficient for the applicant to study even half of the same material without a lawyer (see paragraphs 17-19 above). 69. The Court therefore considers that in the circumstances of the present case the real issue is not about the insufficiency of time in studying the case file but about the lack of legal aid at that stage of the proceedings.", "This point has been emphasised by the applicant himself in his submissions under this head. Indeed, even a very generous time-limit for analysing the complicated legal material contained in the case file might not have counterbalanced the lack of legal assistance in examining that material by the applicant. 70. Given that the matter of absence of legal assistance at that stage of proceedings has been examined above under Article 6 §§ 1 and 3 (c) of the Convention, the Court does not discern any separate issue under Article 6 §§ 1 and 3 (b) of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 71. The applicant complained that he had not been allowed to dispatch any correspondence in the period when his case had been referred to and considered by the Supreme Court. He relied on Article 10 of the Convention. 72. The Court decided to examine the complaint under Article 8 of the Convention which provides the following: “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 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. B. Merits 74. The Government submitted that on 10 February 2005 the Supreme Court received one of the applicant’s requests for a permit for correspondence. They did not provide any further comments on the matter.", "75. The applicant maintained his complaint. 76. The Court notes that the officials of the detention facilities refused to dispatch the applicant’s correspondence for at least six months. The refusal amounted to an interference with the applicant’s right to respect for his correspondence, which is guaranteed by paragraph 1 of Article 8 of the Convention.", "77. The Court further notes that such an interference 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 and furthermore is “necessary in a democratic society” in order to achieve them. The expression “in accordance with the law” does not only necessitate compliance with domestic law, but also relates to the quality of that law. The domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see Sergey Volosyuk v. Ukraine, no. 1291/03, §§ 81 and 82, 12 March 2009).", "78. In the present case the refusal to dispatch the applicant’s correspondence was based on the fact that the Supreme Court had not issued a relevant permit to the applicant, as provided by section 13 of the Pre-Trial Detention Act (see paragraph 33 above). The Court notes that the applicable provision of the domestic law does not oblige the competent authority to adopt a formal decision on the request, give reasons for such a decision or provide a copy thereof to the detainee concerned. Nor does that provision lay down a specific remedy enabling the detainee to contest the action or omission by the relevant authority. It appears therefore that due to the lack of these important procedural safeguards the applicant’s requests for a correspondence permit could remain unanswered or refused for no valid reason.", "The lack of the abovementioned guarantees is all the more disconcerting given that the domestic law, as a general rule, prohibits correspondence and obliges pre-trial detainees to seek a permit as an exception thereto, rather than respecting, in principle, a detainee’s right to correspondence and ensuring that any interference therewith is provided by and is in accordance with law. 79. In the light of the foregoing considerations, the Court concludes that the applicable domestic law did not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities in issuing permits for correspondence to detainees. It follows that the interference complained of was not “in accordance with the law”. The Court therefore does not consider it necessary in the instant case to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with and holds that there has been a violation of that provision.", "V. 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.” 81. 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 (see, for example, Haidn v. Germany, no. 6587/04, §115, 13 January 2011).", "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 § 2 of the Convention; 3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention; 4. Holds that there is no need to examine the applicant’s complaint under Article 6 §§ 1 and 3 (b) of the Convention; 5.", "Holds that there has been a violation of Article 8 of the Convention. Done in English, and notified in writing on 12 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean Spielmann Registrar President" ]

[ "THIRD SECTION CASE OF BAISUEV AND ANZOROV v. GEORGIA (Application no. 39804/04) JUDGMENT STRASBOURG 18 December 2012 FINAL 18/03/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Baisuev and Anzorov v. Georgia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Corneliu Bîrsan,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 27 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "39804/04) against Georgia 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 Adam Baisuev and Mr Rustam Anzorov (“the applicants”), on 6 August 2004. 2. The applicants were represented before the Court by lawyers from “Article 42 of the Constitution”, a human-rights NGO based in Tbilisi. The Georgian Government (“the Government”) were represented by their former Agent, Ms. Irine Bartaia of the Ministry of Justice. 3.", "On 25 May 2005 the Court decided to communicate the complaints under Article 5 §§ 1, 2 and 4 of the Convention concerning the circumstances of the allegedly unlawful detention of the applicants by police (Rule 54 § 2 (b) of the Rules of Court). It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 4. The Government and the applicants each submitted observations on the admissibility and merits of the communicated complaints (Rule 54 (a) of the Rules of Court). The Russian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are Mr Adam Baisuev (“the first applicant”) and Mr Rustam Anzorov (“the second applicant”), two Russian citizens of Chechen origin who were born in 1980 and 1979 respectively. At the material time they were residing in Tbilisi, Georgia, where they had refugee status. A.", "The applicants’ detention 6. According to the applicants, early in the morning of 7 December 2002 police officers arrived at their homes to question them. The police proceeded to search their premises without producing a warrant. Their identity papers were taken from them and the applicants were asked to follow the officers to police station no. 3 in the Vake-Saburtalo district of Tbilisi (“the police station”).", "There the applicants were photographed and questioned about the armed conflict in the Chechen Republic of the Russian Federation and asked if they and their family members had been involved. They also had their fingerprints taken. Three hours later they were released and their identity papers were handed back to them. 7. The Government disagreed with the version of events presented by the applicants.", "They maintained that on 7 December 2002 the police officers had gone to the applicants’ home to conduct a regular identity check of people living in Tbilisi without registration. The applicants were asked to follow the police officers to Vake-Saburtalo police station, where their ID and refugee cards were checked. The Government rejected the applicants’ contention that their homes had been searched and other investigative measures taken. 8. According to the Government, the applicants were kept at the police station for thirty minutes.", "They were released immediately upon completion of the identity check. B. Legal steps taken by the applicants 9. According to the applicants, on 20 January 2003 they lodged complaints with the Office of the Prosecutor General of Georgia (“the PGO”), criticising the way the police had acted. They sought explanations regarding the legal basis for the search of their homes, for them being taken to the police station and for the criminal procedural measures to which they had been subjected.", "The Government maintained that they were unable to find those complaints lodged with the PGO. 10. On 7 February 2003 the second applicant reiterated his request to the PGO for information concerning his detention. In its reply of 31 March 2003 the investigator from the Vake-Saburtalo District prosecutor’s office explained that the second applicant had not been detained, but had been taken to the police station along with other temporary residents of different nationalities to have his identity and legal status in Georgia checked. The investigator claimed that not a single investigative act had been carried out and that the applicant had been released immediately after the identity check.", "11. On 2 April 2003 the applicants applied to the Tbilisi Public Prosecutor’s office to have criminal proceedings initiated against the police officers who had carried out their detention. According to the applicants, their application was forwarded to the Vake-Saburtalo District prosecutor’s office, which did not reply. The Government again maintained that they were unable to find the applicants’ letter of 2 April 2003, either with the Tbilisi Public or Vake-Saburtalo District prosecutor’s office. 12.", "On 17 November 2003 the applicants requested a written reply to their application dated 2 April 2003. 13. On 19 November 2003 the Vake-Saburtalo District prosecutor’s office replied that on 7 December 2002 the applicants, along with several other Chechen refugees, had not been “arrested”, but had been taken to the police station to have their identity and their legal situation in Georgia checked. Once the check was complete they were released immediately. The prosecutor’s office did not indicate on what legal basis the applicants had been taken to and kept in the police station.", "No information was provided about the applicants’ request for criminal proceedings to be initiated. 14. On 18 December 2003 the applicants reiterated their request to the Vake‑Saburtalo District prosecutor’s office and again on 16 January 2004 they received a reply to the effect that they had not been detained but rather taken to the police station for identity check purposes. 15. On 27 February 2004 the applicants made yet another application to the Vake‑Saburtalo District prosecutor’s office, requesting that the police reports concerning their stay at the police station and the criminal investigative measures to which they had been made subject be made available to them, in accordance with Article 150 of the Code of Criminal Procedure of Georgia (“the CCP”).", "16. In its response, dated 10 March 2004, the prosecutor’s office pointed out that the detention complained of had lasted only thirty minutes. Without indicating the legal basis for holding the applicants, it claimed that bringing them to the police station had not been unlawful. It did inform them, however, that no record had been kept of their presence at the police station. 17.", "On 29 August 2005, following communication of the application to the Government, a preliminary investigation was initiated under Article 333 of the Criminal Code of Georgia (abuse of power) concerning unlawful taking of Chechen Russian citizens to various police stations on 7 December 2002. The criminal proceedings covered the case of the second applicant. In addition, on 11 October 2005 similar proceedings were initiated with respect to the first applicant’s incident. The relevant documents submitted by the Government to the Court included only the copies of the decisions to open preliminary investigation. The Government committed to informing the Court about the progress of the relevant proceedings; however, no information has been submitted since then.", "II. RELEVANT LAW AND PRACTICE A. Georgian domestic law 1. Code of Criminal Procedure (“the CCP”), as in force at the material time 18. The relevant Articles of the CCP read as follows: Article 24 § 4 – Public criminal prosecution “In all cases disclosing signs of an offence, an investigative body, investigator or a prosecutor are responsible, within the limits of their powers, to initiate public criminal proceedings ...” Article 55 § 5 – Prosecutor’s office “A superior prosecutor is authorised to quash a decision issued by a subordinate prosecutor, amend it or replace with a new one.” Article 146 § 1 – Procedure and review of the lawfulness and legitimacy of placement in police custody “As soon as an individual is taken to a police station ..., a report on his or her placement in police custody must immediately be drawn up. ...” Article 235 §§ 1 and 2 – Lodging a complaint “The complaint is to be lodged with the body responsible for criminal proceedings or the state employee who, in accordance with the law, has jurisdiction to examine it and to reach a decision... A complaint against an action or decision of an investigator, investigating body, investigating office or head of an investigating body is to be submitted to the relevant prosecutor.", "A complaint against an action or decision of a prosecutor shall be submitted to the prosecutor with hierarchical superiority...” Article 261 – Obligation to initiate a preliminary investigation “Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. ...” Article 265 §§ 1 and 4 – Consideration of information concerning the commission of an offence “Information that a criminal offence has been committed may be submitted in writing or orally. ... Information thus submitted shall be examined promptly. Where the suspected perpetrator of an offence has already been arrested, verification of the information that a criminal offence has been committed and institution of a prosecution must be carried out within twelve hours of the person’s being apprehended by the police or other investigating body. In other cases, institution of proceedings may also be preceded by verification of the information received, but this must not last more than twenty days.” Article 279 §§ 1 and 2 – Appeal against an act or decision of an investigator or prosecutor “An appeal lies against an action or decision of an investigator with the relevant prosecutor.", "An action or decision of a prosecutor can be appealed against to a superior prosecutor or in court, in cases and according to the procedure provided for in this Code.” 2. Police Act of 27 July 1993, as in force at the material time 19. The relevant parts of the Police Act read as follows: Section 8 § 1 (c) and (r) – Police duties “In accordance with their functions, the police shall ... restrict the rights of individuals only as provided for by law. When enforcing a restriction of those rights, all police officers must make themselves known to the person, produce their official identification, explain the basis for the restriction and inform the person of his or her rights.... Ensure the observance of the registration and movement rules by aliens ... on the territory of Georgia.” Section 9 (b), (c), (5) and (11) – Police Rights “In order to fulfil their official duties, police officers may... inspect a person’s identity papers if there is sufficient cause to believe that he or she has committed a crime or an administrative offence; in the context of proceedings relating to a criminal or administrative offence, summon the person concerned to a police station and request an explanation as well as the necessary information and documents.", "If the person fails to appear without a valid reason, he or she may be brought to the police station compulsorily in accordance with the statutory provisions ... bring an offender to a police station and keep him or her for up to eight hours in order to establish his or her identity and check any relevant items. A report of the detention must be drawn up immediately in accordance with the statutory provisions ... in order to prevent a crime, arrest a suspect or an accused or where human life is in danger, enter a private residence ... without the permission of the occupants ... and inform the prosecutor in writing within twenty-four hours.” Section 33 – Remedies against police actions “All citizens shall have the right to challenge police actions before a competent senior official, the prosecutor or a court.” 3. Presidential Decree no. 634 dated 29 November 1999 “concerning urgent provisional measures aimed at regulating the registration of the entry, residence and departure of aliens” 20. According to the above Decree, the Ministry of the Interior is among the State agencies overlooking the lawfulness of entry, stay and departure of aliens to and from the territory of Georgia.", "Article 3 provides that the Ministry of the Interior shall, with other law-enforcement bodies, within the limits of its powers and according to the relevant legislation, react to violations of the rules concerning the entry, stay and departure of aliens. According to Article 5 (b) of the same Decree, the Ministry of the Interior is responsible for monitoring compliance by aliens with the permissible dates of their stay in the country. 4. Code of Administrative Offences, as in force at the material time 21. Under Articles 24 and 32 of the Code, administrative detention is one of the penalties for administrative offences.", "It is decided on by a first‑instance judge and cannot exceed thirty days. 22. According to Article 173 of the Code, persistent refusal to comply with orders or requests issued by a police officer in the exercise of his or her public order duties constitutes an administrative offence, punishable by a fine or by administrative detention for up to thirty days. Proceedings relating to such an offence fall within the jurisdiction of the courts of first instance (Article 208 of the Code). 23.", "In accordance with Articles 244, 245 and 246 of the Code, for the purposes of identifying a person in the context of proceedings relating to an administrative offence, that person may be subject to administrative detention and to a strip-search, and may have objects and documents confiscated. Detention where the offence is one defined under Article 173 of the Code, falls within the competence of the Ministry of the Interior and must not exceed three hours. The time-limit begins running when the individual is brought to the police station to have a police report drawn up. The report on the person’s administrative detention must include the date and time, the duties and name of the officer, information about the detainee, the time of detention and the reasons for it. B.", "International reports 1. The report by the Parliamentary Assembly’s Political Affairs Committee on the situation in Georgia and the consequences for the stability of the Caucasus region, 24 September 2002, (Doc. 9564) 24. The report, in its relevant part, states the following: “E. Consequences of the conflict in the Chechen Republic 34.", "When the current stage of the conflict in the Chechen Republic started in 1999, the authorities of the Russian Federation accused Georgia of sheltering Chechen fighters and asked the Georgian authorities to authorise the Russian army to operate in Georgia to fight Chechen “terrorists.” 35. Georgia denied these accusations and called upon the OSCE to observe and report movements across the border between Georgia and the Chechen Republic of the Russian Federation. ... 37. The most serious concerns have been expressed about the presence of Chechens in the Pankisi Valley, situated around 35 kilometres north of Tbilisi. This valley is generally considered as a largely lawless area, mostly controlled by criminals and fighters.", "The Georgia authorities maintain that the Chechens, who live in the valley (possibly around 8.000 people), are refugees. The Russian authorities claim that the valley is used by Chechen fighters as a safe haven and a base for their operations in Russia. 38. Last year, the Georgian authorities accused Russia of bombarding its territory on the pretext of fighting Chechen terrorists. Russia strongly denied the accusations.", "39. In the spring of 2002, the US government declared that Al‑Qaida terrorists were hiding in the Pankisi Valley. The Georgian government accepted the presence of some 200 US instructors to help train the Georgian anti-terrorist units. ... 41. In these circumstances, it does not seem likely that the Pankisi valley serves in any meaningful manner as an active base for the Chechen fighters.", "It is, nevertheless, impossible to claim that there has not been a presence of Chechen fighters there. The lawless situation in Pankisi undoubtedly represents a security threat both to Georgia and to Russia. Both countries have an interest in collaborating in order to solve this situation, while fully respecting the principles of sovereignty and territorial integrity. I welcome the declared willingness of the Georgian government to restore the rule of law in the Pankisi Valley. 42.", "However, the situation has been severely aggravated by the declaration of the President of the Russian Federation of 11 September 2002, which contained the threat of using unilateral military action based on Article 51 of the UN Charter against suspected terrorists on Georgian territory, but also expected Georgian agreement on joint efforts during the next CIS Summit on 7 October 2002. In response hereto, the Georgian President invited on 13 September a monitoring mission to the Pankisi Valley by the OSCE including Russian participation. ...” 2. Follow-up report to the recommendations of the Commissioner for Human Rights, following his visit to Georgia, from 1 to 10 June 2000 (excerpt from the 3rd Annual Report of the Commission for Human Rights (CommDH(2003)7) 25. The relevant part of the report reads as follows: “1.", "Chechen Refugees Since the Commissioner’s first report numerous, and occasionally worrying, developments have taken place in respect of the Chechen refugees in Georgia. ... As of September 2002, troops from Georgian Ministry of Interior have conducted several checks in the [Pankisi] valley. Similar operations have also been conducted in Tbilisi, notably on 7th December 2002, when 100 Chechens were detained and questioned. In a separate incident, on the same day, 5 Chechens were allegedly killed. The extradition of 5 Chechens to Russia on 4th October 2002, and a further 8 afterwards following the obtaining of procedural guarantees from Russia by the European Court of Human Rights has increased the feeling of insecurity amongst the Chechen refugee population in Georgia.", "For so long as the situation in the Chechen Republic is such that the refugee population in Georgia cannot freely return, it is incumbent on the Georgian authorities to provide all the protection afforded by the Geneva Convention. Whilst the restoration of order in the Pankisi Gorge must remain a priority for Georgian authorities and a concern of their Russian counterparts, it is essential that the necessary measures be conducted by the Georgian authorities, in an even-handed manner and in full respect of the rule of law....” 3. The United Nations High Commissioner for Refugees (“the UNHCR”), The Global Report 2002 26. In its Global Report 2002 the UNHCR noted with respect to Georgia: “Chechen refugees and asylum seekers In April, the Ministry for Refugees and Accommodation carried out a registration exercise, with UNCHR’s financial and technical assistance. The number of prima facie registered refugees was reduced from about 8,000 to some 4,000, mainly because of previous double and triple registration or refugees, as well as the erroneous registration of local people.", "... The context The refugee caseload in the Pankisi valley has proven to be a politically sensitive issue. There were frequent security incidents during the year, the most important being the bombing and shelling of areas close to the refugee settlements by an unidentified aircraft in August. ... In August 2002, Georgia law enforcement units were deployed in the valley but the security situation remained very difficult and dangerous.", "...” 4. Human Rights Watch “In the name of counter-terrorism: human rights abuses worldwide” (25 March 2003) 27. The relevant part of the report reads as follows: “Georgia U.S.-supported anti-terror measures in Georgia have focused on the Pankisi Gorge and on Georgia’s Chechen population. In implementing these measures the government has committed serious human rights violations, which it refuses to address. President Eduard Shevardnadze indicated the government’s attitude toward observing human rights in its counter-terrorism campaign on October 5, 2002, one day after Georgia had extradited five Chechens to Russia without due process, when he said: “International human rights commitments might become pale in comparison with the importance of the anti-terrorist campaign.” ... Human Rights Watch has documented four “disappearances,” one extrajudicial execution, and cases of incommunicado detention, attributable to Georgian security forces engaged in counter-terrorism.", "... In a massive passport check in Tbilisi on December 7, 2002, police briefly detained nearly one hundred ethnic Chechens, including some minors. Given the context, many in Georgia believed this operation to be connected with counter-terrorism efforts, though no official publicly linked the two.” (Footnotes omitted) THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 2 AND 4 OF THE CONVENTION 28. The applicants alleged that their three-hour detention at the police station on 7 December 2002 in the absence of any relevant legal basis was in breach of domestic law and, consequently, of Article 5 § 1 of the Convention.", "They further complained that they had not been informed about the reasons for their detention and had been denied the opportunity to challenge its lawfulness before the domestic courts. The Court considers that the present complaints fall to be examined under Article 5 §§ 1, 2 and 4 of the Convention, which reads as follows: Article 5 §§ 1, 2 and 4 “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 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 authorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 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. ... 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.” A. Admissibility 29. The Government raised several objections to the admissibility of the application. 1.", "Exhaustion of domestic remedies (a) The parties’ submissions 30. The Government argued that the applicants had not exhausted the available domestic remedies. Their assertion was based on two grounds. Firstly, the investigation of the allegedly unlawful detention of the applicants was still pending and no final decision had yet been taken at the domestic level (see paragraph 17 above). Therefore, the applicants’ complaints were premature.", "Secondly, they argued that as the applicants had alleged that their 2 April 2003 application for the initiation of criminal proceedings had not been followed up with a formal written decision issued within twenty days, as required by Article 265 § 4 of the CCP, the applicants should have lodged a hierarchical complaint of failure to take action against the district prosecutor (Articles 55, 235 and 279 of the CCP). 31. The applicants insisted that the investigation had been ineffective. In their opinion, the fact that the proceedings had been opened only after communication by the Court of the application to the respondent Government, and almost three years after the alleged incident, was proof in itself of the ineffectiveness of the investigation. The Government also failed to submit the case file, which would have indicated that certain investigative measures had indeed been taken in the course of the relevant proceedings.", "The applicants also complained in this connection that they had been informed about the initiation of relevant criminal proceedings only through the Government’s observations of 12 October 2005. 32. As regards the hierarchical complaint, the applicants maintained that despite their reiterated requests, they had not been issued with a formal written decision concerning either the initiation or refusal to initiate criminal proceedings, as provided by Article 265 of the CCP. Hence, they were deprived of the opportunity to challenge a decision of a district prosecutor through the normal procedure. A mere general complaint of failure to take action against a district prosecutor would have been just another formal and ineffective measure further protracting the proceedings.", "(b) The Court’s assessment 33. The Court notes at the outset that in the present case the parties have disputed when exactly the applicants lodged their initial formal complaints with the competent prosecution authorities. Another issue in dispute was also related to the fact that the Government failed to find some of the applicants’ complaints stated to have been lodged with the relevant prosecution authorities. In the Court’s opinion there is no need for it to resolve these disputed matters, for the following reason: the Government has never contested that the incident of 7 December 2002 as such was more than adequately brought to its attention, thus triggering the relevant authorities’ duty to act promptly to verify the information and to institute a prosecution in the event of evidence of an offence being identified (Articles 24 § 4, 261 and 265 § 4 of the CCP). Even if the Government’s version of events is accepted, the prosecution authorities learned about the second applicant’s grievances concerning the police actions at the latest in February 2003 and, with respect to the first applicant’s complaint, at the latest in November 2003.", "The Court is, therefore, satisfied that the applicants raised their complaints about the police actions before the appropriate domestic bodies; the prosecution authorities were accordingly obliged under relevant domestic provisions to carry out a preliminary inquiry with a view to opening criminal proceedings. 34. Turning to the substance of the Government’s non-exhaustion plea, in connection with the first limb of the objection the Court notes that it was not until almost three years after the incident, in August and October 2005 respectively, and only after communication of the application by the Court to the respondent Government, that a preliminary investigation was launched by the prosecutor’s office. Its progress is dubious, as the Government failed to submit any relevant documents from the case file (see paragraph 17 above). In the Court’s view, the belated commencement of the inquiry and the apparent delay in the progress imputable to the relevant domestic authorities renders the investigation on the whole ineffective.", "Hence, the Court does not consider that the applicants should have waited for completion of the investigation. The Government’s argument that the applicants’ complaints are premature should therefore be dismissed. 35. As to the second limb of the objection, according to which the applicants should have challenged the district prosecutor’s failure to take action before a higher prosecutor, the Court reiterates that in general a hierarchical remedy cannot be regarded as effective, because litigants are unable to participate in such proceedings (see Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 112, 13 January 2009).", "Since the competent authorities remained passive in the face of the applicants’ allegations of misconduct and abuse of power by State agents, the applicants could justifiably have regarded any further requests to the same authorities as a futile exercise (see Giorgi Nikolaishvili, cited above, § 114). As to possible judicial proceedings, the applicants were never served with a formal decision on whether the requested criminal proceedings would in fact be instituted. Consequently, the applicants cannot be criticised for not appealing against it (see, a contrario, Ramishvili and Kokhreidze v. Georgia (dec), no. 1704/06, 26 June 2007, and Chitayev and Chitayev v. Russia, no. 59334/00, §§ 139 and 140, 18 January 2007).", "36. In these circumstances, the Court finds that the applicants did everything that could reasonably be expected of them to have their rights redressed (see Ramishvili and Kokhreidze (dec.), cited above). The Court hence dismisses the Government’s objection of non-exhaustion. 2. Compliance with the six-month time-limit under Article 35 § 1 of the Convention (a) The parties’ submissions 37.", "The Government argued that the application had been submitted outside the six-month time-limit prescribed by the Convention. They maintained that, in so far as the applicants’ main argument was that the prosecution authorities had neglected their request of 2 April 2003 concerning initiation of criminal proceedings and had accordingly failed to issue a written decision within twenty days, in violation of Article 265 § 4 of the CCP, 22 April 2003 should have served as the starting point for the six-month period. The Government further contended, in the alternative, that in view of the content of the letters of 19 November 2003 and 16 January 2004 the applicants should have understood the futility of their efforts at the domestic level earlier and should not have waited for still another letter, on 10 March 2004, before applying to the Court. 38. The applicants disagreed, claiming that the Government’s position regarding the starting point for the six-month period was inconsistent.", "According to the applicants, on the one hand, the Government were arguing that the applicants’ application was premature, as the criminal proceedings were still pending, whilst on the other hand they claimed that the six‑month period had started to run on 22 April 2004. Furthermore, the applicants argued that, contrary to the Government’s submission, they had continued to make attempts to obtain a review of their detention, but their complaints had been discarded without being considered. The last letter received from the prosecutor’s office in this respect was dated 10 March 2004, which, according to the applicants, should have been taken as a starting point for the six-month time-limit. (b) The Court’s assessment 39. The Court reiterates that the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies.", "Article 35 § 1 of the Convention cannot, therefore, be interpreted in a manner which would require an applicant to bring his complaint to the Court before his position in connection with the matter had been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). 40. Turning to the case at hand, the Court observes that the applicants and their lawyers lodged several complaints with the prosecutor’s office of unlawful police actions taken on 7 December 2002; however, their attempts produced no results.", "It is true that with the passage of time the applicants must have become aware of unwillingness on the part of the prosecution authorities to initiate an investigation. That being said, the relatively short period involved is not sufficient for the Court to conclude that the applicants should already have been aware, more than six months before they lodged their application on 26 August 2004, of the ineffectiveness of the measures applied (see Stanimirović v. Serbia, no. 26088/06, § 33, 18 October 2011). The Court also notes that the Government have failed to advance any convincing argument as to why the Court should disregard the prosecutor’s letter of 10 March 2004. The letters of 19 November 2003 and 16 January 2004 in this respect were not formal decisions capable of precluding with certainty the initiation of the requested criminal proceedings in the future.", "41. It follows that the applicants’ complaints are not out of time for the purposes of Article 35 § 1 of the Convention. This objection is therefore also to be dismissed. 3. Abuse of the right of application 42.", "The Government claimed that the applicants had deliberately submitted false information to the Court and thus abused their right of petition to the Court. The applicants disagreed. 43. The Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untruth (see, amongst others, Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006, and Pirtskhalaishvili v. Georgia (dec.), no.", "44328/05, 29 April 2010). 44. Having regard to the statements made by the applicants in the present case, the Court does not consider that they amount to an abuse of the right of petition. Accordingly the Government’s objection is dismissed. 45.", "The Court further finds that the complaints under Article 5 §§ 1, 2 and 4 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. The complaints must therefore be declared admissible. B. Merits 1. Alleged violation of Article 5 § 1 of the Convention (a) The parties’ submissions 46.", "At the outset, the Government described the challenging security context prevailing in Georgia at the material time. After the influx of the Chechen refugees into Georgia at the end of 1999, the country had been accused of sheltering Chechen fighters. Whilst addressing security considerations particularly in the Pankisi valley, where most of the Chechen refugees were (see paragraphs 24‑26 above), the Government had also initiated a country-wide registration procedure for aliens (see paragraph 26 above). The Ministry of the Interior, being involved in the registration procedure, had been conducting check of aliens’ identities and their legal status in Georgia. 47.", "Against this background the Government claimed that the applicants’ identity check on 7 December 2002 had been conducted precisely within the framework of the above process. They further submitted that the length of time during which the applicants had been held at the police station had not exceeded thirty minutes. Not a single investigative action had been conducted with respect to them within this period of time. Therefore, their “detention” had been so temporary that it had not amounted to a “deprivation of liberty.” Moreover, the applicants had merely been requested to accompany the police to the police station for an identity check. They had been kept there only for the length of time necessary to complete the identity check in accordance with Article 8 of the Police Act (see paragraph 19 above) and Articles 3 and 5 of Presidential Decree no.", "634 (see paragraph 20 above). Their “detention” had therefore been lawful and justified under the above provisions. 48. The applicants disagreed with the Government. They maintained that they had been restrained and compelled to go to the police station and confined there against their will.", "They claimed that they had been held in police custody for three hours. Further, they alleged that their identity documents had been seized by the police and that they had been subjected to several investigative actions, which clearly implied that they were not free to leave the police premises. In view of this sequence of events, the applicants claimed that they were deprived of their liberty within the meaning of Article 5 § 1 of the Convention. 49. The applicants further disputed the Government’s argument concerning the lawfulness of their detention.", "They reiterated that their detention had been arbitrary and unlawful because it had no basis in domestic law and did not fall within any of the exceptions set out in Article 5 § 1 (a) to (f) of the Convention. (b) The Court’s assessment i. The general principles 50. The Court reiterates that Article 5 of the Convention enshrines a fundamental right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. In proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person; its aim is to ensure that no one should be deprived of that liberty in an arbitrary fashion.", "It is not concerned with mere restrictions on the liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4. In order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned, and account must be taken of a whole range of factors arising in a particular case, such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance (see Guzzardi v. Italy, 6 November 1980, Series A no. 39, § 92, and H.L.", "v. the United Kingdom, no. 45508/99, § 89, ECHR 2004-IX; see also Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, §§ 52‑60, ECHR 2012). Article 5 of the Convention may apply to deprivations of liberty of even a very short length (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 57, ECHR 2010‑... (extracts), where the applicants were stopped for a search which did not exceed thirty minutes; see also Iliya Stefanov v. Bulgaria, no.", "65755/01, § 71, 22 May 2008, and Foka v. Turkey, no. 28940/95, § 75, 24 June 2008). 51. The Court points out that sub‑paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which people may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Austin and Others, cited above, § 60). Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law.", "Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1, and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, among other judgments, Guzzardi, cited above, § 92, and A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162‑164, 19 February 2009). ii. Application of the above principles to the circumstances of the present case 52.", "The Court observes that the parties are in dispute as to the exact length of time the applicants spent at the police station, with the applicants maintaining that they were detained for three hours and the Government arguing that they had been kept there only thirty minutes. In determining the length of time the applicants were in the police station, the Court considers that, in the absence of any official document in support of the Government’s position, the benefit of the doubt should be given to the applicants, as it falls primarily on the Government to provide a detailed hour-by-hour account supported by the relevant and convincing evidence (see Creangă v. Romania [GC], no. 29226/03, §§ 89-90, 23 February 2012; see also Salayev v. Azerbaijan, no. 40900/05, § 39, 9 November 2010; Farhad Aliyev v. Azerbaijan, no. 37138/06, § 157, 9 November 2010; and Boris Popov v. Russia, no.", "23284/04, § 61, 28 October 2010). 53. The Court points out that the applicants’ version of the length of their detention, as evident from the case file, was supported by other Chechen refugees who were also taken on 7 December 2002 to the same police station, and also by the applicants’ consistent claims in the domestic proceedings. The extracts from the relevant international reports also refer to the detention and questioning of some 100 Chechens on 7 December 2002 (see paragraphs 25 and 27 above). The Government failed to produce any copies of the documents relating to the applicants’ detention or to challenge the available evidence.", "Accordingly, the Court accepts that the applicants were in fact kept at the police station for three hours. 54. The Court must now ascertain whether the applicants were “deprived of their liberty” during this period. The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă, cited above, § 92). 55.", "The Court points out that owing to the scarcity of information at its disposal and the lack of any official records, it is unable to establish in detail all the circumstances surrounding the applicants’ detention. Nevertheless, it appears indisputable to the Court that the applicants had their identification documents taken from them and were escorted by police to the police station, where they were questioned. Despite the fact that the applicants were not handcuffed, placed in a locked cell or otherwise restrained during the period in question, it would be unrealistic to assume that they were free to leave (see, for example, Shimovolos v. Russia, no. 30194/09, § 50, 21 June 2011, and Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010).", "The Court, therefore, considers, in view of the coercive element clearly present in the current case (see, for example, Rantsev v. Cyprus and Russia, no. 25965/04, §§ 317 -318, ECHR 2010 (extracts)) and despite the relatively short period of time in question (see Gillan and Quinton, cited above, § 57, and Shimovolos, cited above, §§ 48-50) that the applicants were deprived of their liberty within the meaning of Article 5 § 1 of the Convention. 56. The Court will now examine whether the applicants’ detention was free from arbitrariness. It reiterates in this connection that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one, and that 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 liberty (see paragraph 51 above).", "57. In the present case, the Georgian Government pointed to Article 8 of the Police Act and Articles 3 and 5 of Presidential Decree no. 634 as possible grounds for the applicants’ being taken to the police station and their subsequent detention. The Court does not accept the validity of the Government’s argument, which, in its opinion, has a twofold defect. Firstly, neither of these two legal acts appears to provide a legal basis for detention in the situation like that of the applicants (see, a contrario, Foka, cited above, §§ 85-86; compare with paragraphs 21‑23 above).", "Secondly, the Government did not dispute that the applicants had already complied with the statutory obligation to show their identity documents at the police officers’ request when they were still in their apartments (see, a contrario, Vasileva v. Denmark, no. 52792/99, §§ 36-38, 25 September 2003, and Foka, cited above, §§ 85-86) and notwithstanding the fact that both applicants had shown valid refugee cards, the Government failed to argue that there had indeed been a need for them to be taken to the police station. 58. Hence, there is no evidence of the applicants’ failure to comply with any lawful court order or to fulfil any obligation prescribed by law and, thus, their deprivation of liberty was not covered by sub-paragraph (b) of Article 5 § 1. The Court finds that no grounds have been made out which could bring the applicants’ detention into any of the other sub-categories of Article 5 § 1.", "59. Furthermore, the applicants’ deprivation of liberty was not documented at all. The Court notes in this connection that notwithstanding the actual length of deprivation of liberty, the unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a grave violation of that provision (see Kurt v. Turkey, 25 May 1998, § 125, Reports 1998-III). 60. Lastly, the Court takes note of the Government’s argument that against the background of the prevailing security situation in Georgia at the material time, the relevant national authorities were indeed requested to implement stricter control measures on the entry and residence of aliens on the territory of Georgia.", "This could include increased identity checks to establish the legal status of those concerned. The Court reiterates, however, that even taking into account the special circumstances of the case, Article 5 § 1 does not permit a balance to be struck between the individual’s right to liberty and the State’s interest in addressing security threats. The Government’s argument is inconsistent with the principle that paragraphs (a) to (f) of Article 5 § 1 amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee (see A. and Others, cited above, § 171, and Al Husin v. Bosnia and Herzegovina, no. 3727/08, §§ 64-65, 7 February 2012; see also Schwabe and M.G.", "v Germany, nos. 8080/08 and 8577/08, § 85, ECHR 2011 (extracts)). 61. It follows from all the above that the applicants’ unrecorded detention did not have any legitimate purpose under Article 5 § 1 and was accordingly unlawful and arbitrary. There has therefore been a violation of Article 5 § 1 of the Convention.", "2. Alleged violation of Article 5 § 2 of the Convention (a) The parties’ submissions 62. The Government reiterated that the applicants had not been deprived of their liberty within the meaning of Article 5 § 1 of the Convention, therefore there was no obligation on the part of the relevant police officers to inform the applicants of the reasons for their detention. 63. The applicants disagreed.", "(b) The Court’s assessment 64. 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. By virtue of this provision 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 (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182; see also Shamayev and Others v. Georgia and Russia, no. 36378/02, § 413, ECHR 2005‑III).", "65. In the present case, the Court has already found, in the context of its examination of the applicants’ complaint under Article 5 § 1 of the Convention, that the applicants’ situation amounted to a deprivation of liberty. The fact that the applicants were not provided with a single written document concerning the grounds for their detention either throughout the detention itself or subsequently after their release supports the applicants’ allegation that they were left in a state of uncertainty and confusion as to why they had been deprived of their liberty on 7 December 2002. It should be further stressed that according to the applicants, they were subjected to several investigative actions during their stay at the police department. The available extracts from the relevant international reports confirm the applicants’ allegations at least as far as they concern their questioning (see paragraph 25 above).", "Under the particular circumstances of this case (see paragraphs 25-27 above; see also Shamayev and Others, cited above), the Court considers that the applicants’ questioning would have driven them even more into uncertainty as regards the reasons for their detention (see, a contrario, Foka, cited above, § 88). 66. It follows that there has been a violation of Article 5 § 2 of the Convention in the present case. 3. Alleged violation of Article 5 § 4 of the Convention (a) The parties’ submissions 67.", "The Government reiterated their argument that Article 5 of the Convention as a whole, including its fourth paragraph, was not applicable to the situation of the applicants. In any event, they maintained, in line with the non-exhaustion argument, that the applicants had had effective appeal procedures at their hand, but had not availed themselves of these remedies. 68. The applicants disagreed, maintaining that they were not able to challenge the lawfulness of their detention. They were not provided with a written prosecutorial decision either refusing or agreeing to initiate criminal proceedings.", "As a consequence, the applicants claimed that they were deprived of any possibility of relying on the hierarchical and judicial means of appeal available to them under the relevant criminal and administrative law. (b) The Court’s assessment 69. The Court reiterates that Article 5 § 4 of the Convention deals only with those remedies which must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The provision does not deal with other remedies which may serve to review the lawfulness of a period of detention which has already ended, including, in particular, a short-term detention (see Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003‑X).", "70. Accordingly, the Court does not find it necessary to examine the merits of the applicants’ complaint under Article 5 § 4 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 71. The applicants complained of a violation of Articles 6 § 1 and 13 of the Convention on account of the failure of the relevant prosecution authorities to initiate a preliminary investigation of the circumstances of their allegedly unlawful detention, and the inability as a consequence to bring judicial review proceedings.", "72. The Court notes at the outset that Article 6 § 1 of the Convention does not guarantee the right to institute criminal proceedings against a third party (see, amongst other authorities, Members (97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia (dec.), no. 71156/01, 6 July 2004, and Saghinadze and Others v. Georgia, no. 18768/05, § 89, 27 May 2010). 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.", "As regards the last complaint, in the light of all the material in its possession, the Court finds that no separate issue arises under Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 73. 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 74.", "The applicants claimed that they had felt harassed and intimidated by the police actions and that it would be appropriate for the Court to award compensation of EUR 10,000 each in respect of non-pecuniary damage. 75. The Government submitted that the applicants’ claims were ill‑founded; in view of the short duration of the identity-check procedure they were subjected to, the applicants could not have suffered any psychological damage. 76. The Court considers that EUR 500 in respect of non‑pecuniary damage for each applicant constitutes sufficient just satisfaction in the circumstances of the present case.", "B. Costs and expenses 77. The applicants also claimed EUR 100 in respect of translation costs. In support they presented a contract with a translator. 78.", "The Government did not comment on this claim. 79. Regard being had to the document in its possession and to its case‑law, the Court considers it reasonable to award the applicants the sum of EUR 100 in respect of translation costs. 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. Declares the complaints under Article 5 §§ 1, 2 and 4 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 § 2 of the Convention; 4. Holds that it is not required to deal with the merits of the applicants’ complaint under Article 5 § 4 of the Convention; 5.", "Holds (a) that the respondent State is to pay each applicant, within three months of 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, plus any tax that may be chargeable, and jointly EUR 100 (one hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants, 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; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 18 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FOURTH SECTION CASE OF NECDET BULUT v. TURKEY (Application no. 77092/01) JUDGMENT STRASBOURG 20 November 2007 FINAL 20/02/2008 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 Necdet Bulut v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President, MrJ. Casadevall, MrG.", "Bonello, MrR. Türmen, MrK. Traja, MrS. Pavlovschi, MrsP. Hirvelä, judges, and Mr T.L. Early, Section Registrar, Having deliberated in private on 23 October 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 77092/01) 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 Necdet Bulut (“the applicant”), on 9 August 2001. 2. The applicant, who had been granted legal aid, was represented by Ms G. Altay, Mr Ü. Kuş and Mr H. Karakuş, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 3 July 2003 the Court decided to give notice of the application to the Government. 4. In a letter of 24 June 2005, the Court informed the parties that in accordance with Article 29 §§ 1 and 3 of the Convention it would decide on both the admissibility and merits of the application. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1984 and lives in Freiburg, Switzerland. 6. On 15 July 2000, in the early hours of the morning, the applicant was injured by gunfire during arrest. He received a single bullet to his lower left leg.", "He was sixteen years old. 7. A report of the incident was drafted on the same day at 4.30 a.m. by the police officers involved in the incident and signed by all the suspects, with the exception of the applicant who had been taken to hospital. According to this report, at around 2.30 a.m. the police officers had received information from police headquarters that a group of masked persons had been seen writing on walls and tampering with cars on Tufan Street in the district of Kartal. On arrival at the scene, the police officers had seen graffiti on the walls and, at that moment, someone had started to shoot at them from a dark alley on the opposite side of the street.", "The police officers and reinforcement police teams which had arrived in the meantime had chased the suspects for about one hour. The suspects had eventually been cornered on an empty plot of land at number 6 Spor Street. Despite being ordered to surrender, the suspects had continued to shoot before entering a tent. Following a clash, the applicant had been injured and immediately taken to Kartal Hospital for treatment. The other suspects had resisted arrest.", "The incident report stated that the police officers had found masks, illegal documents, knives and spray paint in the tent. It also mentions that a cap gun (a toy gun that creates a loud sound akin to a gunshot and a puff of smoke when the trigger is pulled) had been found in the applicant's possession. 8. Between 15 and 17 July 2000 the applicant received medical treatment at Kartal State Hospital. According to the medical report of 17 July 2000 the applicant had suffered a fracture of the fibula (small bone located on the outside of the lower leg).", "The bullet trajectory was established as having entered from the back of the leg and exited from the front. 9. On 17 July 2000 the applicant was examined by a doctor who noted no physical signs of ill-treatment on his person apart from the gunshot wound. 10. In the meantime, on 16 July 2000, the Istanbul Criminal Police Laboratory conducted a ballistics examination of the cap gun and eight cartridges.", "The experts found, inter alia, that the 99 mm. semi automatic cap gun fired noise and gas caps and that the cartridges submitted corresponded to the gun. However, they asserted that with some modifications, the gun could shoot real cartridges. They submitted that the cap gun in question was no different from a real gun in terms of both its size and mechanical structure and that it was impossible to distinguish it, at first glance, from a real gun, even for those who were familiar with guns. 11.", "On 17 July 2000 forensic experts at the Istanbul Criminal Police Laboratory examined samples taken from the hands and palms of the applicant and the other suspects. They found no traces of gunpowder. However, they noted that in certain cases it was possible for traces of gunpowder on hand and palm extracts to go undetected depending on the type of gun and powder used, the way a gun was handled and whether the suspects' hands had been previously washed. 12. On the same day, the public prosecutor at the Istanbul State Security Court heard evidence from the applicant, who denied knowing the other suspects and writing graffiti.", "He claimed, inter alia, that he had started to run out of fear after he had heard gunshots nearby and that the police officers had beaten him when they caught him. The applicant stated that he did not know whether the police were shooting into the air or at the ground when he was shot. 13. In the meantime, the Istanbul State Security Court also heard evidence from the suspects arrested at the same time as the applicant. The co-accused Mr A.U, Mr M.B, heard on 15 July 2000, and Mr D.Ş.A., heard on 18 July 2000, all admitted that they had written slogans on the walls.", "However, they affirmed that none of them had fired at the police officers, including the applicant. Moreover, they suggested that the applicant had been injured after they had been taken out of the tent and made to lie down on the ground. Some of the accused referred to hearing gunshots from a wedding nearby. 14. On an unspecified date, the Kartal public prosecutor instigated an investigation into the incident.", "On 23 March 2001 he decided not to prosecute the eight police officers who took part in the incident on the ground that there was no evidence supporting the suspects' allegations that they had been ill-treated during arrest. The prosecutor further considered that the applicant had been injured as a result of the clash between the police officers and the suspects after the latter had responded to the police officers' order to surrender by opening fire from the tent. The applicant's objection to this decision was dismissed by the Kadıköy Assize Court on 17 May 2001. II. RELEVANT DOMESTIC LAW AND PRACTICE 15.", "A description of the relevant domestic law at the material time can be found in Şimşek and Others v. Turkey, nos. 35072/97 and 37194/97, §§ 82‑87, 26 July 2005). THE LAW I. ALLEGED VIOLATION OF ARTICLES 3, 5 AND 13 OF THE CONVENTION 16. The applicant complained that the force used by the police officers during his arrest had been disproportionate and had caused him to suffer serious bodily harm.", "He further complained that there had been no adequate or effective investigation into the circumstances surrounding the incident. The applicant relied on Article 3 of the Convention. 17. In addition, the applicant stated that he had been injured during his arrest and that therefore Article 5 § 1 (c) of the Convention had been breached. 18.", "The Court considers that these complaints should be examined from the standpoint of Article 3 alone, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 19. The applicant further complained that he had been denied the right to an effective remedy in breach 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.” A. Admissibility 20. 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 21. The Government submitted that the applicant had been arrested in the course of a random operation which had given rise to unexpected developments to which the police officers had had to react without prior preparation. They admitted that at the scene of the incident the police officers had outnumbered the suspects.", "However, they pointed out that the applicant had been in possession of a cap gun which was indistinguishable, at first glance, from a real gun. They submitted that the police officers had used their guns only when it had become absolutely necessary and that they had aimed at the person who had opened fire. In this connection, the Government pointed out that the police officers had not aimed at the vital organs of the applicant. They maintained that, in the circumstances of the present case, the use of force had been proportionate to the aim pursued. 22.", "The applicant maintained his allegations. He submitted, in particular, that neither he nor the other suspects had resisted arrest and that they had never fired the gun. He denied that there had been a clash between them and the police and maintained that he had been shot after he had been taken out of the tent. He claimed that the police officers had used disproportionate force and that he had been injured as a result of their arbitrary shootings. 2.", "The Court's assessment 23. The Court reiterates that Article 3 does not prohibit the use of force in certain well-defined circumstances, such as to effect an arrest. However, such force may be used only if indispensable and must not be excessive (see, among others, Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007, Rehbock v. Slovenia, no. 29462/95, §§ 68‑78, ECHR 2000‑XII; Krastanov v. Bulgaria, no.", "50222/99, §§ 52 and 53, 30 September 2004, and Günaydın v. Turkey, no. 27526/95, §§ 30‑32, 13 October 2005). 24. In the instant case the applicant was injured by a single gunshot to his left knee. The Court finds this injury sufficiently serious to bring it within the scope of Article 3.", "It is undisputed that the applicant's leg injury resulted from the use of force by the police officers in the performance of their duties, namely while effecting an arrest. However, differing versions of how the applicant had actually sustained the injury were put forward by the parties. 25. At the outset, the Court cannot ignore that the police were initially called upon to attend to an incident without any prior preparation (see, a contrario, Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000-XII).", "It further notes that the incident occurred late in the evening in a residential area where gunshots were heard. In addition, according to the official documents, the applicant was found with a cap gun in his possession which could have conveyed the impression that he was carrying a weapon. However, the Court similarly cannot overlook the fact that the police officers, who largely outnumbered the suspects, gave chase for about an hour before they cornered the applicant and the other suspects in a tent where the applicant was shot and arrested. The security forces were thus able, with the lapse of time, to properly evaluate the situation and to organise and coordinate their efforts accordingly. Against this background and, particularly, in the light of the type of force used, namely firearms, the Court considers that the burden rests on the Government to demonstrate with convincing arguments that the use of force, which resulted in the applicant's injury, was not excessive (see, mutatis mutandis, Matko v. Slovenia, no.", "43393/98, §104, 2 November 2006, and Zelilof v. Greece, no. 17060/03, § 47, 24 May 2007). 26. However, in the instant case, the Government merely stated that the police officers had opened fire only after the applicant had shot at them without providing any explanation or documentation which could shed light on the exact circumstances regarding the applicant's arrest. In this regard, the Court observes that there is no information in the case file as regards the manner in which the police operation was conducted.", "For example it is not clear from the case file whether the applicant was injured in the crossfire or whether he was aimed at and shot by a police officer who had received such an instruction. There is no information regarding the number of shots fired by the parties and the official documents do not indicate whether any shots were effectively fired from the cap gun found on the applicant or whether any empty cartridges were found in the area (see paragraph 10). Finally, the Court also finds it noteworthy that the bullet trajectory indicates that the applicant was not facing towards the police officers when he was hit (see paragraph 8) and that consequently he could not have been shooting at the police officers, at least at that precise moment, as the Government suggested. In these circumstances, the Court finds that the Government have failed to provide convincing or credible arguments which would justify the degree of force used against the applicant in order to arrest him. 27.", "Finally, although the applicant's injury - a single gunshot wound to a non-vital organ - appears not to have had any lasting consequences for his health, the Court finds that it must have led to severe pain and suffering, particularly when account is taken of his young age at the time of the events. 28. In light of the above, the Court concludes that the force used against the applicant during his arrest was excessive and that therefore the State is responsible, under Article 3 of the Convention, for the injury sustained by him on that date. It follows that there has been a violation of Article 3 of the Convention. 29.", "Having regard to the facts of the case, the parties' submissions and the grounds on which it has found a violation of Article 3 above (see, in particular, paragraph 26 above), the Court considers that there is no need to give a separate ruling on the applicant's remaining complaints under Articles 3 and 13. III. 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 5,000 euros (EUR) in respect of pecuniary damage and EUR 60,000 for non-pecuniary damage. 32. The Government contested those amounts. 33. As regards the alleged pecuniary damage sustained by the applicant, the Court considers that the applicant has failed to properly substantiate his claim.", "The Court accordingly dismisses it. 34. However, the Court accepts that the applicant must have suffered pain and distress which cannot be compensated for solely by the Court's finding of a violation. Ruling on an equitable basis, the Court awards the applicant EUR 5,000. B.", "Costs and expenses 35. The applicant, who received EUR 701 by way of legal aid from the Council of Europe, also claimed EUR 4,287 for the costs and expenses incurred before the Court. In support of his claim the applicant submitted a breakdown of costs drawn up by his legal representative. 36. The Government contested the amount.", "37. Since the applicant submitted no substantiation by way of vouchers or receipts of his costs claim, as required by Rule 60 of the Rules of Court, and having regard to the fact that he has already received a certain amount in legal aid from the Council of Europe, the Court makes no award 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 1.", "Declares the application admissible unanimously; 2. Holds by six votes to one that there has been a violation of Article 3 of the Convention on account of the injury sustained by the applicant during his arrest; 3. Holds unanimously that there is no need to examine separately the applicant's remaining complaints under Articles 3 and 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, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into new Turkish liras at the rate applicable at the date of the settlement and free of any taxes or charges that may be payable; (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 20 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr R. Türmen is annexed to this judgment. N.B.T.L.E. DISSENTING OPINION OF JUDGE TÜRMEN I regret that I am unable to agree with the majority in finding a violation of Article 3 in its substantive aspect.", "The facts as contained in the judgment are as follows: The police were called upon to attend an incident without any preparation. The incident occurred late in the evening in a residential area where gunshots were heard. According to the report prepared by the police, a group of masked persons was writing on walls and tampering with cars. The applicant was in possession of a gun which, according to experts, “was no different from a real gun in terms of both size and mechanical structure.” They also said that it was “impossible to distinguish it, at first glance, from a real gun, even for those who were familiar with guns” (paragraph 10). After a long chase of one hour, the applicant and his friends were cornered and, despite being ordered to surrender, the applicant continued to shoot and the policemen returned the fire, which resulted in a fracture of the applicant's fibula.", "To determine whether the force used was “proportionate” several elements have to be taken into consideration. First of all, the police were called upon to conduct a random operation without any preparation. Therefore, it seems unreasonable to consider, as the majority does in paragraph 25, that, with the lapse of time, the police could have properly evaluated the situation and that they should or could have organised and coordinated their efforts accordingly. Such an assertion fails to take into account the practical realities of police work and imposes a disproportionate burden on the authorities. Secondly, the authorities found that the applicant was in possession of a cap gun that was not distinguishable from a real gun.", "According to official police records the applicant produced his gun and shot at the policemen. In such circumstances the police had no choice but to return fire in self-defence since they could not have known at that time that the applicant's gun was not real. In addition, the majority gave undue consideration to the fact that the bullet trajectory was established as having entered from the back of the leg and exited from the front. The bullet trajectory does not in my opinion disprove the fact that the applicant was shooting at the policemen before he was injured. The majority's consideration under this head is therefore speculative.", "Thirdly, the majority disregarded the fact that the applicant's version of facts both before the domestic authorities and the Court lacked coherence and credibility. For example the applicant denied knowing the other suspects and writing graffiti, whereas all the co‑accused had admitted that they knew each other and had written graffiti on the walls together with the applicant. In this connection, I find it difficult to believe, in the absence of a plausible explanation by the applicant, that the police officers shot the applicant after having already apprehended him and made him lie down. Finally, taking into account the fact that the only injury sustained by the applicant was a single gun shot to a non-vital organ and that neither he nor the other suspects had sustained any other injuries, I accept the Government's argument that the force used against the applicant in this case was made necessary by his own conduct. The foregoing circumstances count heavily against the applicant, with the result that, in my view, the Government's burden to prove that the use of force was not excessive in this case was less stringent (see, mutatis mutandis, Berliński v. Poland, nos.", "27715/95 and 30209/96, § 64, 20 June 2002). However, it seems that the majority has accepted facts relating to the investigation, such as the lack of information regarding the number of shots fired by each side or whether any empty cartridges were found in the area, as the basis for finding a violation of the substantive aspect of Article 3. It would have been more in line with the Court's case-law to examine all these issues that are closely linked to the investigation under the procedural aspect of Article 3. I am therefore of the opinion that there has been no violation of Article 3 in its substantive aspect." ]

[ "THIRD SECTION CASE OF SHAKIRZYANOV v. RUSSIA (Application no. 50650/16) JUDGMENT STRASBOURG 24 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Shakirzyanov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 50650/16) 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 Rustam Maykarimovich Shakirzyanov (“the applicant”), on 15 August 2016.", "2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the 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 3 April 2017 the complaint concerning the right to compensation for a period of unlawful detention was 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 4. The applicant was born in 1967 and lives in Kazan. 5. On 4 June 2002 he was convicted of disorderly acts and given a suspended two-year custodial sentence conditional on two years’ probation. On 14 November 2003 the court replaced the suspended sentence with an unconditional one because the applicant had failed to report to the probation authorities.", "On 16 December 2003 the Supreme Court of the Tatarstan Republic upheld that decision on appeal. The applicant subsequently served the full two years of the custodial sentence. 6. On 13 July 2016 the Presidium of the Supreme Court of the Tatarstan Republic quashed the decision of 14 November 2003 and the appeal decision of 16 December 2003, noting that the offence of disorderly acts had been decriminalised on 11 December 2003 and that the original sentence had been unenforceable. It held however that the applicant was not eligible for compensation for the unlawful detention because he had been initially found guilty and because the “right to the rehabilitation” did not cover the situations of ex post facto decriminalisation.", "II. RELEVANT DOMESTIC LAW 7. The relevant provisions of the domestic law are summarised in Stadnik v. Russia (no. 41509/06, §§ 13-14, 13 June 2017) and Abashev v. Russia (no. 9096/09, §§ 20-21, 27 June 2013).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 8. The applicant complained that he did not have an enforceable right to compensation for a period of unlawful detention in breach of Article 5 § 5 of the Convention which reads as follows: “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. Admissibility 9. The Court considers 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 10. The Government submitted that it was not the Court’s task to call into question the findings of the domestic courts. The Presidium of the Supreme Court had explained in sufficient detail why the applicant had not had a right to compensation within the meaning of Article 5 § 5.", "11. The applicant submitted that, as a result of a judicial error, he had spent two years in custody instead of paying a fine. 12. The Court reiterates that the right to compensation under Article 5 § 5 of the Convention arises if a breach of one of its other four paragraphs has been established, directly or in substance, either by the Court or by the domestic courts (see, among many other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012; Svetoslav Dimitrov v. Bulgaria, no.", "55861/00, § 76, 7 February 2008; and Çağdaş Şahin v. Turkey, no. 28137/02, § 34, 11 April 2006). 13. In the instant case the Presidium of the Supreme Court established that the custodial sentence had no longer been enforceable by the time the applicant had begun serving it. That he had been required to serve it in full amounts to a gross and obvious irregularity indicating that the applicant had been deprived of his liberty in a manner that was not in accordance with the substantive and procedural requirements of the domestic law, that is, in breach of paragraph 1 of Article 5.", "It follows that Article 5 § 5 is applicable in the instant case. 14. The Court reiterates that the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty. This requirement goes hand in hand with the principle that the Convention must guarantee not rights that are theoretical or illusory but rights that are practical and effective. It follows that compensation for detention imposed in breach of the provisions of Article 5 must be not only theoretically available but also accessible in practice to the individual concerned (see Abashev, cited above, § 39, with further references).", "15. In Abashev, the Court found that the Russian law in its present state did not provide for an effective possibility to obtain compensation for unlawful detention if the applicant was found ultimately guilty in criminal proceedings (ibid., §§ 30 and 40-42). The present case is another example of this unacceptable situation. The applicant was denied the “right to rehabilitation” on the ground that it only accrued to those who have been cleared of the charges. 16.", "It follows that the manner in which the Russian law is formulated and applied precluded the applicant from obtaining compensation for the detention that was imposed in breach of Article 5 § 1 of the Convention. Having rejected the applicant’s compensation claim on formal grounds, the Russian courts did not interpret or apply the domestic law in the spirit of Article 5 of the Convention (see Abashev, cited above, § 42, and Houtman and Meeus v. Belgium, no. 22945/07, §§ 45-47, 17 March 2009). 17. The applicant did not therefore have an enforceable right to compensation as is required under Article 5 § 5 of the Convention.", "There has accordingly been a violation of this provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 18. 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.” 19. The applicant claimed 1,000,000 euros (EUR) in respect of non‑pecuniary damage.", "20. The Government submitted that Article 41 was to be applied in accordance with the established case-law. 21. The Court awards the applicant EUR 5,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. 22.", "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 5 § 5 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five 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; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıAlena PoláčkováDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BIELSKI v. POLAND AND GERMANY (Application no. 18120/03) JUDGMENT STRASBOURG 3 May 2011 FINAL 03/08/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bielski v. Poland and Germany, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Zdravka Kalaydjieva,Vincent A. de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 5 April 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "18120/03) against the Republic of Poland and 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 Polish national, Mr Kazimierz Bielski (“the applicant”), on 15 May 2003. 2. The applicant, who had been granted legal aid, was represented by Ms J. Jędrzejak, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that his pre-trial detention had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention. 4. On 13 June 2007 the President of the Fourth Section of the Court decided to give notice of the application to the Polish 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 1966 and is currently detained in Szczecinek Prison. A. Criminal proceedings against the applicant and his pre-trial detention 6. On 1 July 1999 the applicant was arrested by the German police on suspicion of having committed a murder in Germany.", "On the same date he was remanded in custody by the German authorities. 7. On 28 January 2000 the applicant was surrendered to the Polish authorities. 8. On the same date, the Poznań District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question.", "It attached importance to the serious nature of those offences and the likelihood of a severe prison sentence being imposed on the applicant. 9. On 17 April 2000 the Poznań Regional Court (Sąd Okręgowy) extended the applicant’s pre-trial detention to 26 July 2000. It stated that it resulted from the other suspects’ testimonies, expert reports and other evidence that the applicant had committed the offences of which he was suspected. It stressed that the investigation was in its final stage but some additional time would be necessary for the suspects to acquaint themselves with the large volume of evidence.", "Finally, it drew importance to the fact that there were several suspects in the case and that the less restrictive measure would not secure the proper conduct of the proceedings. 10. The applicant’s appeals against several decisions extending his detention were unsuccessful. 11. On 30 June 2000 the prosecution filed a bill of indictment with the Poznań Regional Court.", "There were five defendants in the case, all charged with numerous offences. The applicant was charged with murder. 12. On 4 December 2000 the trial court held the first hearing. It subsequently held some thirteen hearings in the case.", "13. During the court proceedings the Poznań Regional Court further extended the applicant’s pre-trial detention on several occasions, namely, on 17 July 2000 (to 30 January 2001), 22 January 2001 (to 30 April 2001) and 23 April 2001 (to 30 June 2001) repeating the reasons given previously. 14. On 28 June and 28 December 2001 the Poznań Court of Appeal (Sąd Apelacyjny) repeated the earlier arguments given for the applicant’s continued detention, underlining the complexity of the case and the substantial volume of evidence to be examined, including expert reports from abroad. 15.", "On 27 June 2002 the Poznań Court of Appeal extended the applicant’s pre-trial detention to 30 September 2002 stating merely that the evidence collected during the proceedings seemed to indicate that he had committed the offences with which he was charged. 16. On an unspecified date the Poznań Regional Court decided that the criminal proceedings had to start anew as more than the statutory period of 35 days elapsed between two consecutive hearings. 17. On 3 September 2002 the Poznań Court of Appeal extended the applicant’s detention to 28 February 2003.", "It did not rely on any new arguments. It considered that the applicant’s detention for the subsequent months was reasonable given that the criminal proceedings in his case had to start anew. 18. On 2 October 2002 the trial started anew. Subsequently, the court held seven hearings.", "19. On 20 February 2003 the Poznań Regional Court found the applicant guilty as charged and sentenced him to life imprisonment. The applicant appealed. He remained detained pending appellate proceedings. 20.", "On 10 March 2004 the Poznań Court of Appeal upheld the first‑instance judgment in respect of the applicant. 21. On 1 March 2005 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as manifestly ill-founded. B. Conditions of the applicant’s detention 22.", "On 28 January 2000 the applicant was committed to Rawicz Prison. Since that date he has been continuously detained in several penitentiary facilities. On an unspecified date in early 2008, he was transferred to Szczecinek Prison where he is currently detained. 23. The parties gave partly differing accounts of the conditions of the applicant’s detention.", "24. The applicant maintained that during his entire detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene. 25. The Government acknowledged that the applicant had spent 2 years, 6 months and 20 days in cells in which the statutory minimum size of 3 m² per person had not been respected. They maintained however that currently the applicant was detained in a cell in which the statutory minimum requirement was respected.", "This submission was not contested by the applicant. 26. The applicant lodged several complaints to the Ombudsman and the penitentiary authorities regarding the conditions of his detention. All of them were found groundless. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Preventive measures, including pre-trial detention 27. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “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 May 2006. B. Conditions of detention 28. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no.", "17599/05) on 22 October 2009 (see §§ 75‑85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 29.", "The applicant complained that the length of his pre-trial detention 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.” 30. The Government contested that argument. A. Admissibility 31.", "The Court notes that the Government raised a preliminary objection that the applicant had failed to exhaust the remedies provided for by Polish law as regards his complaint under Article 5 § 3 of the Convention, in that he did not appeal against most of the decisions extending his detention. 32. The applicant contested this argument. 33. In the present case, the applicant appealed against several decisions which had extended his detention.", "The Court considers that the purpose of the remedy used by the applicant was to obtain a review of his detention pending trial. In the circumstances of the case this remedy constituted an adequate and effective remedy within the meaning of Article 35 of the Convention as its aim was to obtain his release. It follows from the Court’s case-law that the applicant is not required to appeal against each and every decision extending his detention (see, by contrast, Bronk v. Poland (dec.), no. 30848/03, 11 September 2007). 34.", "The Court further notes that the arguments raised by the Government are similar to those already examined and rejected in previous cases against Poland (see Tomecki v. Poland, no. 47944/06, §§ 19-21, 20 May 2008, and Buta v. Poland, no. 18368/02, §§ 25-27, 28 November 2006) and that the Government have not submitted any new circumstances which would lead the Court to depart from its previous findings. 35. It follows that this complaint cannot be rejected for non‑exhaustion of domestic remedies.", "The Court further 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.", "Period to be taken into consideration 36. The applicant’s detention started on 28 January 2000, when the Poznań District Court remanded him in custody, relying on the reasonable suspicion of having committed a murder. On 20 February 2003 the Poznań Regional Court convicted him as charged. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła, cited above, § 104).", "Accordingly, the period to be taken into consideration amounts to three years and twenty-three days. 2. The parties’ submissions (a) The applicant 37. The applicant submitted that his detention exceeded a reasonable time within a meaning of Article 5 § 3 of the Convention. He also argued that his lengthy detention violated the relevant provisions of the Code of Criminal Procedure.", "(b) The Government 38. The Government were of the opinion that there was no violation of Article 5 § 3 of the Convention in the applicant’s case. 3. The Court’s assessment (a) General principles 39. The Court reiterates 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 judgements (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 40. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three 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; and (3) the complexity of the case owing to the volume of evidence to be obtained from various sources. 41.", "The applicant was charged with murder. The Court acknowledges that the seriousness and the nature of the accusations against the applicant could initially warrant his detention. 42. Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a risk that he would obstruct the proceedings. The Court reiterates that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot by itself justify long periods of pre-trial detention (see Michta v. Poland, no.", "13425/02, § 49, 4 May 2006). 43. The Court further observes that the proceedings were of considerable complexity, regard being had to the serious nature of the charge and the extensive scope of the evidence to be obtained (see paragraph 14 above). In these circumstances, the Court considers that the need to obtain voluminous evidence from many sources and to determine the facts and degree of alleged responsibility of each of the co-defendants, constituted relevant and sufficient grounds for the applicant’s initial detention. 44.", "While all the above factors could justify even a relatively long period of detention, they did not give the domestic courts unlimited powers to extend this measure. Even if the particular circumstances of the case required detention to be extended beyond the period generally accepted under the Court’s case-law, particularly strong reasons would be needed to justify further extensions of the applicant’s pre-trial detention (see Wolf v. Poland, no. 15667/03 and 2929/04, § 90, 16 January 2007). In this respect, the Court observes that the applicant was held in custody over three years and that the reasons relied upon by the domestic courts in their decisions to extend the applicant’s detention were often limited to repeating the wording of the decisions previously given (see paragraphs 13, 15 and 17 above). 45.", "Having regard to the foregoing, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant’s detention. 46. Consequently, it is not necessary to examine whether the proceedings were conducted with special diligence. However, the Court cannot but note that between 4 December 2000 and 2 October 2002 (when the proceedings started anew) the Poznań Regional Court held only thirteen hearings that is less than one hearing per month. Furthermore, the trial had to start anew as the Poznań Regional Court failed to hold hearings at the statutorily required interval of 35 days.", "It cannot therefore be said that the authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant. 47. There has accordingly been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 48.", "The applicant alleged a breach of Article 3 of the Convention in that he had been detained in overcrowded cells and that the State had failed to secure to him adequate conditions throughout his detention. A. The Government’s objection based on exhaustion of domestic remedies Article 35 § 1 of the Convention reads, in so far as relevant, as follows: “1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...” 49. The Government argued that the applicant had not exhausted domestic remedies available to him, as required by Article 35 § 1 of the Convention.", "They raised a preliminary objection similar to that relied on in the case of Łatak v. Poland (see Łatak v. Poland (dec.) no. 52070/08, 12 October 2010, §§ 63-64). In particular, they stressed that the applicant had been moved to a cell in which he had been secured at least the statutory minimum standard space of 3 m2 per person shortly after the delivery of the Orchowski and Norbert Sikorski pilot judgments. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and the applicant should bring a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation. 50.", "In view of the foregoing, the Government invited the Court the Court to reject the applications for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention. B. The applicant’s position 51. The applicant in general disagreed with the above arguments and maintained that the remedy suggested by the Government could not be considered “effective” for the purposes of Article 35 § 1 of the Convention. C. The Court’s conclusion 52.", "The Court has already examined the same objection raised by the Government in the above-mentioned case of Łatak v. Poland and considered their arguments not only in the context of that particular applicant but also in respect of other actual or potential applicants with similar cases (see Łatak, cited above, §§ 71-85). 53. In so doing, the Court had regard to the fact that on the date of the adoption of its decision there were 271 cases pending before it where the applicants had raised complaints similar in substance, alleging a violation of Article 3 in that at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells (ibid. § 84). 54.", "Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in June 2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid. § 85 and § 76 respectively). 55. In the present case, the situation giving rise to the alleged violation of Article 3 ended after June 2008 when the applicant was placed in a cell in which the minimum size requirement of 3 m2 per person was respected. That being so and having regard to the fact that he still has adequate time to prepare and lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code, he should, before having their Convention claim examined by the Court, be required to seek redress at the domestic level.", "56. In any event, as from 6 December 2009, the date on which Article 110 § 2 (f) of the Code of Execution of Criminal Sentences entered into force, a detainee placed in conditions where the area per person is less than the statutory minimum may lodge a complaint with the court and contest a decision of the prison administration to reduce his cell space (see Łatak, cited above, §§ 42-43 and 86-87). 57. 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.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 58. Invoking Article 5 § 2 of the Convention the applicant complained that he had not been informed by the German authorities of the reasons for his arrest in a language he understood. He further complained under Article 5 § 3 of the Convention about the length of his pre-trial detention in Germany. Invoking Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, he also alleged that after his arrest, the German authorities had failed to secure his apartment in a way to prevent burglars from breaking into it.", "59. The Court notes that the applicant failed to raise his complaints ‑either in form or in substance – before any relevant German authorities. 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. 60. Under Article 6 of the Convention the applicant further complained about the alleged unfairness of the criminal proceedings against him.", "61. The Court observes that the applicant did not allege any particular failure to respect his right to a fair hearing on the part of the relevant courts and authorities. Indeed, his complaints are limited to a challenge to the result of the proceedings. Assessing the circumstances of the case as a whole, the Court finds no indication that the applicant’s right to a fair trial was not respected in the impugned proceedings. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "62. Finally, the applicant complained about the negative coverage of the criminal proceedings against him by countrywide media, about being denied access to the prison chapel and not being offered a job within an employment scheme in prison. 63. The Court has examined those complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints.", "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. 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 claimed 25,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage. 66. In respect of the applicant’s claim for non-pecuniary damage, the Government found it exorbitant. Regarding, his claim for pecuniary damage, the Government submitted that there was no causal link between the alleged violations and the applicant’s claim under this head. 67.", "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 1,500 in respect of non‑pecuniary damage. B. Costs and expenses 68. The applicant claimed 100,000 Polish zlotys (PLN) for the costs and expenses incurred before the domestic courts.", "The applicant further submitted that all costs related to the proceedings before the Court should be borne by the Government, including the cost of photocopies in the amount of 2,000 PLN. He did not submit any documents in support of his claims. 69. The Government noted that the applicant had not presented any invoices in support of his claims. 70.", "The Court notes that the applicant was represented by a lawyer and received EUR 850 by way of legal aid from the Council of Europe. 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 to the above criteria and the fact that the applicant failed to submit any documents in support of his claim, the Court makes no award under this head (see, Adamiak v. Poland, no. 20758/03, § 49, 19 December 2006). C. Default interest 71.", "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 detention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (a) that the Republic of Poland 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 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys 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 3 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "GRAND CHAMBER CASE OF RAMIREZ SANCHEZ v. FRANCE (Application no. 59450/00) JUDGMENT STRASBOURG 4 July 2006 In the case of Ramirez Sanchez v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of: Luzius Wildhaber, President,Christos Rozakis,Jean-Paul Costa,Nicolas Bratza,Boštjan M. Zupančič,Volodymyr Butkevych,Josep Casadevall,John Hedigan,Margarita Tsatsa-Nikolovska,Kristaq Traja,Lech Garlicki,Javier Borrego Borrego,Elisabet Fura-Sandström,Alvina Gyulumyan,Renate Jaeger,Danutė Jočienė,Dragoljub Popović, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 25 January and 31 May 2006, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 59450/00) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Venezuelan national, Mr Ilich Ramirez Sanchez (“the applicant”), on 20 July 2000. 2.", "The applicant alleged, in particular, that he had been held in solitary confinement in breach of Article 3 of the Convention, and that no remedy had been available to him to challenge the measure. 3. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 19 February 2004 it was declared admissible by a Chamber of that Section, composed of Christos Rozakis, Peer Lorenzen, Jean-Paul Costa, Françoise Tulkens, Nina Vajić, Egils Levits, Snejana Botoucharova, judges, and Søren Nielsen, Section Registrar. 4.", "On 27 January 2005 a Chamber from the same Section, composed of Christos Rozakis, President, Loukis Loucaides, Jean-Paul Costa, Françoise Tulkens, Peer Lorenzen, Nina Vajić, Snejana Botoucharova, judges, and Santiago Quesada, Section Registrar, delivered a judgment. It held by four votes to three that there had been no violation of Article 3 of the Convention on account of the applicant’s solitary confinement and unanimously that there had been a violation of Article 13 on account of the lack of a remedy enabling the applicant to challenge that measure. A dissenting opinion by Judges Rozakis, Loucaides and Tulkens was annexed to the judgment. 5. On 21 April 2005 the applicant requested, pursuant to Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber.", "On 6 June 2005 a panel of the Grand Chamber decided to refer the case to the Grand Chamber. 6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 7. The applicant, but not the Government, filed observations on the merits (Rule 59 § 1).", "8. A hearing took place in public in the Human Rights Building, Strasbourg, on 25 January 2006 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsE. Belliard, Director of Legal Affairs,Ministry of Foreign Affairs,Agent,MsA.-F. Tissier, Head of the Human Rights Section,Department of Legal Affairs, Ministry of Foreign Affairs,MsK. Keuflet, member, Legal Action and Prison Law Office,MrP.", "Obligis, Assistant Director, Head of Prison Security,Ministry of Justice,Counsel; (b) for the applicantMsI. Coutant Peyre, member of the Paris Bar,MrF. Vuillemin, member of the Paris Bar,Counsel. The Court heard addresses by Ms Coutant Peyre, Mr Vuillemin and Ms Belliard. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1949 and is currently in Clairvaux Prison. A. The applicant’s solitary confinement 10. The applicant, who claims to be a revolutionary by profession, was taken into custody on 15 August 1994.", "He was placed under judicial investigation in connection with a series of terrorist attacks in France and was given a life sentence on 25 December 1997 for the murder of two police officers and an acquaintance on 27 June 1975. 11. He was held in solitary confinement from the moment he was first taken into custody in mid-August 1994 until 17 October 2002, notably in La Santé Prison (Paris). 12. According to his lawyer, this entailed his being held in a 6.84 square metre cell that was run-down and poorly insulated, with an open toilet area.", "The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs. His sole permitted activity outside his cell was a two-hour daily walk in a triangular area that was 15 metres long and 7.5 metres wide at the base, receding to 1 metre at the vertex. This area was walled in and covered with wire mesh. His only recreational activity was reading the newspapers or watching television on a rented set. The only visits he received were from his lawyers and, once a month, a priest.", "The prison authorities ignored his requests to be allowed visits from anyone else. Mail intended for the applicant had gone missing, although it had not been officially confiscated, and he had not received a winter jacket that had been brought to the prison for him in October 1999 until 16 February 2000. 13. The Government did not dispute these facts. They said that the cell was lit by natural light, a ceiling light and a reading lamp.", "None of the members of the applicant’s family had ever applied for permission to visit. Only two requests to visit had been turned down, both from journalists. 14. The documents in the case file show that the applicant has received visits from 58 different lawyers during his time in prison. His current representative, who is also his wife under Islamic law, visited him more than 640 times between 27 June 1997 and 29 April 2002.", "15. The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive three-month periods. 16. The first was taken when the applicant was first detained (15 August 1994). It consists of a form on which the following boxes were ticked: “Need to prevent communication with one or more other prisoners” and “Undermining of order and discipline in the prison”.", "There were no observations by the applicant. The same day, a doctor issued a medical certificate stating: “[The applicant’s] health is compatible with solitary confinement. However, he must, if possible, have complete rest for eight days.” 17. A decision dated 3 November 1994 to prolong the applicant’s solitary confinement from 15 November 1994 to 15 February 1995 was approved by the Regional Director’s Office of the Prison Service. The reasons stated were the same, but the applicant made the following observations: “I consider that these solitary-confinement measures, especially the disturbances at night, indicate a desire to harass a political prisoner.” In a medical certificate issued the same day, a doctor “certif[ied] that [the applicant’s] health [was] compatible with his continued solitary confinement”.", "18. A decision of 20 January 1995, which was applicable from 15 February to 15 May 1995, cited the same reasons and was approved by the Regional Director’s Office. The applicant refused to sign the notice informing him of the decision. In a medical certificate issued the same day, a doctor “certif[ied] that [the applicant’s] health [was] compatible with his continued solitary confinement for administrative reasons”. 19.", "A decision dated 25 April 1995, which was approved by the Regional Director’s Office and was applicable from 15 May to 15 August 1995, spoke of the “need to prevent communication with one or more other prisoners” and a “security measure”. The applicant was transferred that day to Fresnes Prison. 20. A proposal to prolong the measure dated 26 July 1995 cited the “need to prevent communication with one or more other prisoners”. On 27 July 1995 a doctor from Fresnes Prison issued a certificate stating: “Health currently compatible with continued solitary confinement.” 21.", "On 11 August 1995 the measure was prolonged for a period of three months starting on 15 August 1995. 22. On 10 November 1995 a doctor from Fresnes Prison issued a medical certificate stating that the applicant’s health was satisfactory and compatible with solitary confinement. A further proposal to prolong the measure dated the same day referred to “the undermining of order or discipline in the prison”. 23.", "On 20 November 1995 the measure was prolonged for a period of three months starting on 15 November 1995. 24. A proposal of 24 January 1996 for a further extension referred to “the need to prevent communication with one or more other prisoners”. On 25 January 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant’s health was satisfactory. 25.", "On 4 March 1996 the measure was prolonged for a period of three months starting on 15 February 1996. 26. On 19 April 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant’s health was compatible with his detention in the segregation unit. On 7 May 1996 the measure was extended for a period of three months commencing on 15 May 1996. A proposal dated 17 April 1996 mentioned a “precautionary or security measure required for one or more of the following reasons: need to prevent communication with one or more other prisoners”.", "27. It was not until 31 October 1996 that the applicant was notified of the measure applicable for the period from 15 May to 15 August 1996. He made the following observation: “I do not think it right that I should be asked to sign more than five months late.” 28. On 15 July 1996 the applicant was notified of a measure which referred to the “need to prevent communication with one or more other prisoners” and to “international terrorism”. 29.", "On 22 October 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant’s health was compatible with his detention in solitary confinement. 30. A decision dated 31 October 1996, which was applicable from 15 November 1996 to 15 February 1997, referred only to the “need to prevent communication with one or more other prisoners”. The applicant made the following observations on the notification slip: “I note that Mr ..., the director, has already replied to these observations, even before I have made them, it is stated below: 07.11.1996 before the Sentence Enforcement Board in the prison. Consequently, the remarks I am required to make have become superfluous.", "Even so, my solitary confinement is a form of torture.” This measure was authorised by the head of the Prison Service at the Ministry of Justice on 14 November 1996, as were those that followed. 31. On 17 January 1997 a doctor from the Paris Regional Health Authority certified that he had examined the applicant and found his health to be compatible with solitary confinement. 32. A proposal made on 20 January 1997 referred to the “need to protect [the applicant] from the rest of the prison population” and the “need to prevent communication with one or more other prisoners”.", "The applicant made the following remarks: “I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner. I reject the reasons given for keeping me in solitary confinement.” 33. On 23 April 1997 a doctor from the Paris Regional Health Authority certified that solitary confinement was not contraindicated for the applicant. 34. The following reasons were given for a proposal for a further extension dated 25 April 1997: “Precautionary or security measure for one or more of the following reasons: (i) need to protect you from the rest of the prison population; (ii) need to prevent communication with one or more other prisoners.” The applicant made the following comments: “I have not had a check-up, been weighed or had my blood pressure taken, etc.", "... I note that the lower section of the questionnaire has already been filled in, thus making a mockery of the observations which I have been asked to make. Please give me a further complete medical check-up.” 35. A decision of 21 July 1997 referred in addition to “the undermining of order and discipline in the prison” and “potential dangerousness linked to acts of terrorism”. The applicant made the following comments: “I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me.", "I request an immediate interview with the governor.” 36. A decision of 13 August 1997 again cited the “need to prevent communication with one or more other prisoners”. 37. On 14 October 1997 a doctor at Fresnes Prison issued a certificate certifying that the applicant’s health was satisfactory. Proposals of 21 October 1997 and 23 January 1998 were in the same terms as the decision of 13 August 1997.", "On signing the proposal of 21 October, the applicant stated: “I sign under protest against an unjust repressive measure (decision) against a political prisoner held hostage by the French State.” 38. On 23 January 1998 a Fresnes Prison doctor issued a certificate certifying that the applicant’s health was satisfactory. 39. It was followed by a further certificate on 22 April 1998 stating that the applicant was fit enough to remain in solitary confinement and a certificate of 23 July 1998 stating that solitary confinement was not contraindicated. A further certificate drawn up on 21 October 1998 stated that the applicant was in satisfactory health and fit enough to remain in solitary confinement.", "40. Proposals made on 22 April, 23 July and 19 October 1998 cited the need for “precautionary and security measures in view of the prisoner’s character and record”. The applicant commented as follows on the proposal of 22 April 1998: “I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me. Please provide me with a copy.” On the proposal of 19 October 1998, he noted: “The signature on this notice by the disloyal deputy director Mr V. further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me.” 41. The measure dated 19 October 1998 referred to “precautionary and security measures in view of the prisoner’s character and record”.", "42. On 15 January 1999 a doctor from La Santé Prison issued a medical certificate in which he stated: “The applicant’s health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment.” Proposals made on 14 January and 8 April 1999 stated: “The prisoner must remain in administrative solitary confinement on order and security grounds, in view of his character and record and the nature of his court cases.” 43. The Ministry of Justice stated in decisions of 20 January and 20 April 1999: “The character of this prisoner, who is an HSP [high-security prisoner] and objectively dangerous, in particular because of the nature and length of the sentence he faces, justifies his continued solitary confinement on order and security grounds.” 44. On 9 April 1999 the senior doctor at La Santé Prison issued a certificate which read: “The circular of December 1998 on solitary confinement states that the opinion of a doctor will only be sought after a year’s confinement. Last certificate issued on (illegible).", "I do not, therefore, need to append a certificate regarding prolongation to this note.” 45. On 23 April 1999 another prison doctor certified that the applicant’s health was compatible with his detention or continued detention in solitary confinement. 46. A further certificate dated 20 July 1999 confirmed that the applicant’s health was compatible with his continued detention in solitary confinement. 47.", "A decision of 22 July 1999 cited the following reasons: “You must remain in solitary confinement for a further period of three months on order and security grounds, in view of your character, your classification as an HSP, and the nature of your convictions and of the cases currently pending.” 48. A decision of 25 October 1999, which took effect on 15 November 1999, read as follows: “It is necessary to prolong your solitary confinement for a further period of three months in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal.” The applicant made the following observations: “I note that the infamous masquerade by the Zionist militant Elisabeth Guigou, who runs the French Ministry of Justice on behalf of the imperialist forces that are seeking to reduce France to the level of a suzerain of the United States, continues. To heck with Human Rights and with Law itself. ALLOUHA AKBAR.” 49. On 1 February 2000 the authorities relied on “order and security grounds, in view of your character, your classification as an HSP and the offences for which you have been imprisoned”.", "50. The decisions of 27 April, 20 July and 20 October 2000 were couched in identical terms to the decision of 25 October 1999, save that the end of the sentence read “given your access to outside help”. 51. On 13 July 2000 the senior doctor at La Santé Prison issued a medical certificate which read: “I, the undersigned, ... declare that [the applicant] is in quite astounding physical and mental condition after six years in solitary confinement. However, it is not proper for a patient’s doctor to be required to issue a certificate that ought to be a matter for expert opinion.", "It is very difficult for a doctor to sanction solitary confinement on administrative, rather than medical, grounds.” 52. On 3 October 2000 another doctor issued a certificate in the following terms: “I, the undersigned, ... certify that I have today examined [the applicant]. No clinical examination was carried out. However, in view of his current mental condition, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement.” 53. On 5 January and 23 January 2001 the Ministry of Justice ratified decisions by the governors of Fleury-Mérogis and La Santé Prisons, dated 30 December 2000 and 22 January 2001 respectively, to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer.", "54. The following reasons were stated in the decision of 22 January 2001: “Regard has been had to your personality, your classification as an HSP, the length of your sentence (LI [life imprisonment]), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds.” 55. On 20 March 2001 a doctor from La Santé Prison certified that she had seen the applicant but had not been able to carry out a physical examination. She added: “However, in view of his current mental state, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement.” On 28 March 2001 the applicant commented as follows: “I have once again filled in this form, having already done so on 19 March ...", "I denounce ‘the white torture’ of perpetual solitary confinement which, following the ‘serious provocation of 28 December 2000’, has been aggravated by the obstruction of the fanlight, which now only opens to an angle of 30o (7.5 cm), preventing fresh air getting in. This is on top of the ban on my receiving visits or French lessons, in breach of the undertakings. You are committing a crime of ‘lese-humanity’.” 56. On 28 March 2001 a doctor from the Cochin Hospital practising in La Santé Prison issued the following certificate: “I, the undersigned, ... state that the doctors from the medical service at Paris La Santé Prison are not qualified to judge whether the physical and mental condition of the prisoner Ilich Ramirez Sanchez, who is currently being held in La Santé, is compatible with his continued solitary confinement.” 57. On 22 April 2001 it was decided to prolong the solitary confinement “in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help”.", "The same reasons were cited in a further extension of 18 June 2001, while a decision of September 2001 was worded in almost identical terms. 58. On 23 May 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit (“the OCTU”) wrote to the governor of La Santé Prison in these terms: “I have met Mr Ilich Ramirez Sanchez ... as I was asked for an opinion on whether there is any contraindication to this patient’s remaining in solitary confinement. Even though Mr Ramirez Sanchez is in reasonable physical and mental condition, strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm. It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision.", "...” 59. On 20 June 2001 the doctor who issued the certificate of 20 March 2001 issued a second certificate in similar terms. 60. The following reasons were stated in a decision that was applicable from 22 July 2001: “... in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help.” 61. On 20 September 2001 the doctor in charge of the OCTU issued a medical certificate after examining the applicant “for the purposes of the medical opinion required for continued solitary confinement”.", "He stated that the applicant presented “a physical and mental condition that was entirely reasonable after seven years in solitary confinement”, adding, however, that this opinion does not constitute an expert opinion, which I am not qualified to give”. 62. The following reasons were given for prolonging the solitary confinement in a decision of 4 October 2001: “It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape.” In his observations, the applicant noted in particular: “More than seven years of strict solitary confinement, a ban on receiving visits or French lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken.” 63. On 20 December 2001 the measure was renewed for a further three months on the following grounds: “Regard has been had to your character, your classification as an HSP, the length of your sentence (LI), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds.” 64.", "Decisions of 10 January, 25 March and 8 July 2002 read as follows: “It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. The fact that you have received a life sentence, your classification as a high-security prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement.” 65. On 13 June 2002 an assistant doctor from the OCTU at La Santé Prison issued a medical certificate in the following terms: “I, the undersigned, Doctor ..., an assistant doctor from the OCTU at La Santé Prison in Paris, certify that I have examined Mr Ramirez Sanchez Ilich, who was born on 12/10/49, in connection with a request for him to remain in solitary confinement. From the medical standpoint, the problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner’s physical and mental health.” 66. On 29 July 2002 the doctor in charge of the OCTU at La Santé Prison provided the Ministry of Health with the following summary of the medical care the applicant was receiving: “This patient, who, as you are aware, is in the segregation unit, receives two mandatory medical visits from a member of the OCTU medical team every week, as required by the French Criminal Code.", "He is currently in excellent somatic health. I am not qualified to express an opinion on his mental health. In addition, Mr Ramirez Sanchez may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit. He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses. He has consulted a general practitioner several times independently of mandatory visits to the segregation unit on ...", "Biological tests are performed regularly. ... The treatment Mr Ramirez Sanchez has been receiving can be equated to comfort treatment: ... It should be noted that Mr Ramirez Sanchez has refused any psychological help from the RMPS [Regional Medical and Psychological Service]. ...” 67.", "In September 2002 a further decision to prolong the solitary confinement was taken “in order to preserve security and order, which are under serious threat owing to the applicant’s implication in terrorist networks, his dangerousness and the risk of his escaping”. 68. On 17 October 2002 the applicant was transferred to Saint-Maur Prison (département of Indre), where his solitary confinement ended. On 13 May 2003 he lodged a fresh application with the Court, in which he complained of the new conditions in which he was being held and, in particular, of the distance from Paris. 69.", "In June 2003 a book that had been written by the applicant with the help of a journalist was published under the title L’islam révolutionnaire (“Revolutionary Islam”). 70. On 27 August 2003 the Indre Health Inspector wrote the following letter to the Ministry of Health: “Mr Ramirez Sanchez received a somatic and psychiatric medical examination on his arrival at the prison on 17 October 2002. He has at no stage been placed in solitary confinement in Saint-Maur Prison. As regards his somatic health, Mr Ramirez Sanchez receives the statutory care and may consult the OCTU on request.", "As to his mental health, he was seen by an RMPS psychiatrist as part of the standard induction procedure. No follow-up was prescribed at the time and the patient has not asked to see a psychiatrist since. He was offered an examination and this took place on 26 August 2003. The RMPS have not recommended any follow-up to that appointment.” 71. On 18 March 2004 the applicant was transferred to Fresnes Prison in the Paris area where he was again placed in solitary confinement.", "This followed a television programme in which, in the course of a telephone interview with a journalist, the applicant refused among other things to express any remorse for his crimes to the victims on the grounds that there were “no innocent victims”. 72. On 6 August 2004 a doctor at Fresnes Prison issued a medical certificate in the following terms: “I, the undersigned, ... certify that the prolonged period of solitary confinement to which Mr Ilich Ramirez Sanchez, who was born on 12 October 1949, is subject is detrimental to his mental health. Bringing the solitary confinement to an end would go a long way to facilitating the monitoring of a chronic somatic pathology from which the patient has recently started to suffer which requires medical supervision and regular biological tests.” 73. On 20 December 2005 another doctor issued a medical certificate which read: “I, the undersigned, ... regularly see Mr Ilich Ramirez Sanchez, a prisoner in the segregation unit.", "His continued solitary confinement is damaging his health; it has now lasted for several years and it would appear desirable from the medical standpoint for it to cease.” 74. On 24 January 2005 the applicant was transferred to Fleury-Mérogis Prison and on 24 November 2005 to La Santé Prison. In both institutions he was kept in solitary confinement with the measure being periodically renewed, including on 17 February 2005 (see below). 75. On 30 June and 5 October 2005 the senior doctor at the OCTU at Fleury-Mérogis Prison issued two medical certificates in exactly the same terms: “I, the undersigned, ... certify that Mr Ramirez Sanchez Ilich, who was born on 12 October 1949, has been in my care since his arrival at the prison.", "The problems which Mr Ramirez Sanchez has had with his physical health are now stable. Mr Ramirez Sanchez continues to make the same complaints about the difficulties of being held in full solitary confinement. Since he does not wish to be treated by the Regional Medical and Psychological Service at Fleury-Mérogis Prison and I am not qualified to determine the impact of the conditions in which he is detained on his mental state, a medical and psychological assessment would be desirable. Certificate issued at the request of the prison authorities and delivered by hand for whatever purpose it may serve in law.” 76. On 5 January 2006 the applicant was transferred to Clairvaux Prison, where he is held under the ordinary prison regime.", "B. The applicant’s requests for judicial review 77. On 14 September 1996 the applicant lodged an application for judicial review with the Paris Administrative Court, arguing that the decision of 11 July 1996 to place him in solitary confinement should be set aside. 78. In a judgment of 25 November 1998, which was served on the applicant on 26 January 1999, the Paris Administrative Court rejected the application, holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside.", "79. The applicant lodged an application for an order setting aside, on the grounds of formal invalidity, the decision of 17 February 2005 to keep him in solitary confinement. In a judgment of 15 December 2005, the Paris Administrative Court held as follows. “Although the authorities argue in their defence that the judge responsible for the execution of sentences gave an oral decision on 4 February 2005 in favour of prolonging Mr Ramirez Sanchez’s solitary confinement, there is no evidence in the file to show that the regional director obtained the opinion of the Sentence Enforcement Board before delivering his reasoned report to the Minister of Justice, even though, by virtue of the aforementioned provisions of Article D. 283-1 of the Code of Criminal Procedure, the Board is the only body empowered to decide whether solitary confinement should continue beyond a year. It follows that Mr Ramirez Sanchez’s argument that the decision of 17 February 2005 to prolong his solitary confinement was defective and must be set aside is well-founded.", "As regards the submissions on the issue of compensation. Although the formal invalidity of a solitary-confinement measure constitutes a fault capable of engaging the State’s responsibility, such a fault cannot entitle the person subjected to the measure to compensation for his or her loss if the circumstances of the case were such as to justify in law the decision to place the prisoner in solitary confinement as the alleged loss cannot be considered to have been a consequence of the defect in the decision. The investigation shows that Mr Ramirez Sanchez has been sentenced to life imprisonment for the murder of police officers. He has been placed under investigation in connection with various terrorist cases, inter alia, for voluntary homicide and using an explosive device to destroy movable property. The applicant might use communications in Fleury-Mérogis Prison or on the outside to re-establish contact with the members of his terrorist cell or seek to proselytize other prisoners and possibly prepare an escape.", "That being so, the circumstances of the instant case were such as to justify in law the decision taken to prolong the solitary confinement for a period of three months. The damage alleged by Mr Ramirez Sanchez, which included the loss of contact with other prisoners, cannot, therefore, be considered to have been a consequence of the procedural defect in the decision of 17 February 2005, so that his request for an order requiring the State to compensate him for the damage he claims to have sustained is unfounded. ...” II. RELEVANT DOMESTIC LAW AND PRACTICE 80. 1.", "Code of Criminal Procedure Article D. 270 “Save in the circumstances set out in Articles D. 136 to D. 147, prison staff must at all times be able to verify a prisoner’s presence. At night it must be possible to light cells when necessary. Cells should be entered only for good reason or in the event of imminent danger. In all cases, intervention must be by at least two staff members and an officer, if one is on night duty.” Article D. 272 “Rounds shall be made after lights out and during the night at set times to be changed daily by the senior custody officer, under the authority of the prison governor.” Article D. 283-1 [The words in italic were added or amended by the decrees of 1996 and 1998: Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no.", "98-1099 of 8 December 1998, Articles 65 and 190, Official Gazette of 9 December 1998.] “Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure. Orders for prisoners to be placed in solitary confinement shall be made by the prison governor, who shall inform the regional director and the judge responsible for the execution of sentences without delay. The prison governor shall also report to the Sentence Enforcement Board at the first meeting following the prisoner’s confinement or objection to a request for his or her confinement. The prisoner may, either personally or through counsel, send any observations he or she has on the decision to the judge responsible for the execution of sentences.", "The medical team shall be given a list of the prisoners in solitary confinement every day. Prisoners in solitary confinement will receive a medical examination in accordance with Article D. 381. If the doctor considers it appropriate in view of the prisoner’s health, he or she shall give an opinion on whether solitary confinement should cease. Solitary confinement may only exceed three months if a new report has been made to the Sentence Enforcement Board and the regional director so decides. Solitary confinement may only exceed one year from the date of the initial decision if the Minister of Justice so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of the Sentence Enforcement Board and the prison doctor.", "The prison governor shall keep a solitary-confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections.” Article D. 283-2 [Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Article 190, Official Gazette of 9 December 1998] “Solitary confinement shall not constitute a disciplinary measure. Prisoners in solitary confinement shall be subject to the ordinary prison regime.” 81. 2.", "Circulars Extracts from the Circular of 8 December 1998 implementing the decree amending the Code of Criminal Procedure “4. Solitary confinement as a precautionary or security measure Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner’s request or on the governor’s own initiative. Since the governor has sole power to order solitary confinement, he or she will need to take particular care in setting out the reasons. 4.1. The need to state reasons Since the Conseil d’Etat’s Marie judgment of 17 February 1995, the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions ‘giving cause for complaint’.", "Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement, which continue to be regarded in the most recent decisions as ‘internal administrative measures’ that are not amenable to review. The courts consider on the basis of Article D. 283-2 that ‘solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held’ (Conseil d’Etat, 28 February 1996, Fauqueux, and Conseil d’Etat, 22 September 1997, Trébutien). 4.2. Nature of the reasons It is not sufficient simply to repeat the succinct ‘as a precautionary or security measure’ formula used in Article D. 283-1. ... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm.", "The reasons must state whether the measure has been taken to avoid the risk of an escape, violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement. 4.3. Invalid reasons An order for solitary confinement cannot be made solely for the following reasons. 4.3.1. Nature of the offence The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement.", "... II. PROCEDURE IN SOLITARY CONFINEMENT CASES ... 1.4. Content of the decision The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing. The sheet contains two sections, one for the reasons and the other for the prisoner’s observations. Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision.", "... 2.2. Copies of documents for the authorities Article D. 283-1, sub-paragraph 2, of the Code of Criminal Procedure requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay. A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation. 3. Lifting of the measure Solitary confinement is not intended to continue indefinitely, as it must be justified by factual and legal considerations, which may change or cease to apply.", "In view of the harmful effects of prolonged solitary confinement, the prison governor and regional director must closely monitor the length of the measure. The measure will automatically lapse in the circumstances set out in Chapter 3. Consideration should also be given on the ordinary renewal dates to lifting the measure. The prisoner must be notified of a decision to lift the measure. If the prisoner has asked to be placed in solitary confinement, his or her observations (if any) must be obtained.", "4. Prolongation of the measure Unless a decision to prolong the measure is made at the end of three months, it will automatically lapse. ... 4.1. Proposals to prolong the measure The prolongation procedure must be set in motion three weeks before the three-month period expires. Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and, if they so wish, be given an hour in which to prepare their observations, which they may submit at a hearing held for that purpose.", "They are then notified of the proposal. No prolongation may be proposed without a prior assessment of the prisoner’s situation made with the aid, inter alia, of the record of observation of the prisoner in solitary confinement. If the prison governor considers it necessary to prolong the measure, he or she must compile a file containing: (i) The printed proposal form containing a statement of reasons, which must be up to date when the request is made. The form will contain confirmation that the prisoner has been notified of the proposal, the date of the verbal report to the Sentence Enforcement Board and the date of transmission to the regional director. (ii) The liaison form.", "(iii) The report on the prisoner’s behaviour in solitary confinement based, in particular, on the record of observation. Any report by the medical team or opinion by the doctor will be appended to the proposal file. 4.2. The regional director’s investigation The file should be sent to the Regional Director’s Office at least fifteen days before the three-month period expires. The Regional Director’s Office will examine the file and, if necessary, request additional documents or information.", "It should make sure it has a fully up-to-date statement of reasons for the proposal to prolong the measure. The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the three-month period in all cases. The decision shall be reasoned. If it is decided not to prolong the measure, it will immediately lapse and the prisoner will be returned to the ordinary regime. The prisoner will be given a copy of the decision to prolong the measure on being notified of it.", "The same rules shall apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision. The same procedure shall be followed if prolongation appears necessary at the end of a further three-month period. Regional directors shall consider the reasons for a further extension with particular care. In particular, they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible. When a decision to prolong solitary confinement has already been taken by a regional director, the measure may be lifted during the statutory periods only by a decision of the same authority, unless it automatically lapses under Chapter 3.", "In such cases, the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied, if applicable, by a supporting report. The prison governor will also send the regional director without delay any medical certificates the doctor may have issued together with his opinion on whether any action is called for. 5. Prolongation after a year Solitary confinement should be prolonged after a year only in exceptional cases. The Minister of Justice has sole decision-making power, in accordance with Article D. 283-1, sub-paragraph 6.", "5.1. Proposals to prolong solitary confinement The prison governor must send the proposal to prolong solitary confinement to the regional director before the end of the tenth month to allow the Regional Director’s Office and the central authority time to examine it thoroughly. A doctor’s opinion must be sought if it is proposed to prolong solitary confinement beyond a year. If the doctor gives an opinion, it must be set out in writing and forwarded with the proposal. If the doctor does not give an opinion, he or she should initial at least the form containing the proposal.", "The prison governor will submit the proposal to the Sentence Enforcement Board for an opinion, which the latter will indicate on the proposal form. The prison governor should advise the prisoner of his or her intention to propose prolonging the solitary confinement beyond a year. If the prisoner so wishes, he or she may be given at least an hour in which to prepare observations to be made at a hearing at the end of the allotted time. The prisoner is then notified of the proposal. The prison governor must append to the proposal a summary report on the prisoner’s behaviour since the initial decision was made.", "Lastly, the liaison record (III.3) shall be forwarded with the proposal so that the authority that will take the decision has full details of the chronology of the measure. 5.2. The regional director’s report The regional director should draw up a report on the basis of the prison governor’s proposal and give a reasoned opinion on whether the measure should be prolonged beyond a year. Before doing so, the regional director may lift the measure if he or she considers that it is no longer warranted or substitute another measure within his or her powers. He or she may also recommend other measures, such as a transfer.", "The file containing the proposal to prolong solitary confinement must be sent to the head office of the Prison Service at least one month before the preceding measure expires. The central authority must be given time to examine the file and to seek alternatives. 5.3. The decision of the Minister of Justice The central authority will send the Minister of Justice’s decision (which will normally be taken by the director of the Prison Service under delegated authority) to the Regional Director’s Office at least one week before the preceding period of solitary confinement expires so that the prison can be informed in time. The prisoner should be provided with a copy of the decision and an original should be placed in the file.", "A verbal report on the final decision should be made to the Sentence Enforcement Board. The head office of the Prison Service will retain the power to decide on further quarterly extensions beyond a year. The matter will be referred back to the central authority in accordance with the procedure described in this paragraph at least one month before the new period of solitary confinement is due to end. Apart from the cases of automatic lapse set out in Chapter 3, power to lift the measure after a year is also vested in the central authority. ... IV.", "THE SOLITARY CONFINEMENT REGIME 1. European and national recommendations Following its visit to France of 6 to 18 October 1996, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that ‘a balance [be struck] between the requirements of the case and the application of a solitary confinement type regime’, in view of the harmful consequences that that regime could have on the prisoner. It proposed organising the segregation unit in a way that would give prisoners continued access to better exercise areas and to activities, including outdoor activities. These recommendations tie in with the findings of the working groups that have been set up by or at the request of the Prison Service. 2.", "Implementation of the ordinary prison regime In accordance with Article D. 283-2 of the Code of Criminal Procedure, prisoners in solitary confinement are subject to the ordinary prison regime. 1o Prisoners must be permitted to make full use of their rights of defence, which are protected by instruments of constitutional or international rank, in accordance with the procedure set out in the Code of Criminal Procedure and the distinction it makes between convicted and remand prisoners. The prohibition on communication referred to in Article 145-4 cannot apply to communication with lawyers. 2o The right to relations with members of one’s family and others are exercised through prison visits. Subject to the arrangements for individual access to the visiting room, there shall be no restrictions on prison visits unless a court has ordered solitary confinement.", "There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence. However, stricter monitoring of correspondence may be justified by court-imposed imperatives, the prisoner’s classification as a high-security risk in accordance with Article D. 276-1 of the Code of Criminal Procedure, or a recommendation for the prisoner to be placed on suicide watch. Similarly, prisoners’ rights to make telephone calls in penal establishments in accordance with Article D. 417 of the Code of Criminal Procedure are not suspended by solitary confinement. 3o There is no general restriction on the right of prisoners in solitary confinement to access to news, subject to the normal supervision prisoners receive throughout their term in prison. Prisoners in solitary confinement retain the right to buy newspapers of their choice, or to use a radio or television subject to the usual conditions.", "If the library operates a direct-access system, it must arrange special opening hours for prisoners in solitary confinement or keep a separate stock for the segregation unit. 4o Religious observance. Religious observance in the segregation unit shall take place in accordance with the rules set out in Articles D. 437 to D. 439 of the Code of Criminal Procedure. Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners, they may be authorised to attend special services arranged in agreement with the chaplain. 5o Health.", "The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle: (i) Cells must receive natural light through a window which also affords adequate ventilation, as required by Article D. 350 of the Code of Criminal Procedure. (ii) The exercise yard must provide access to the open air. Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard. Exercise periods should be for the same length as for ordinary-regime prisoners. (iii) Sporting activities should be made available in the segregation unit, for example by the provision of an exercise bike, gym mat or table-tennis table.", "2.6. Activities in the segregation unit Although access to communal activities provided for ordinary-regime prisoners is suspended during solitary confinement, prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times. Thus, whenever possible, the prison governor must permit prisoners in solitary confinement to assemble in groups of two or three for exercise or activities. A room, which may be multipurpose (sport, reading) should be set aside for this purpose. It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner’s placement in solitary confinement, the aim pursued and the character and conduct of the prisoner or prisoners concerned.", "Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged, as they ensure that activities are also directed towards training. ... 4. Monitoring of and dialogue with prisoners in solitary confinement 4.1. Monitoring A record of observation must be compiled for all prisoners in solitary confinement; it will be supplemented by any relevant comments by duty staff or the persons in charge of the unit on the prisoner’s behaviour in solitary confinement. The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner.", "Staff should consult it regularly and in any event if it is intended to propose prolonging the measure. A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure. All prisons shall be responsible for creating a record of observation meeting the stated objective or, if one already exists, improving it. 4.2. Dialogue In order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement.", "Not only does this reduce the degree of isolation, especially for prisoners who do not receive visits, it also assists in monitoring the prisoner’s character. For the same reasons, senior prison officers and socio-educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners.” 82. 3. Case-law of the Conseil d’Etat In a judgment of 30 July 2003, the Conseil d’Etat departed from its previous case-law when it held: “The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting, cultural, teaching and training activities and paid work that are available to other prisoners collectively. Such a measure may be imposed for a period of up to three months and may be prolonged.", "In these circumstances, even though Article D. 283-2 of the Code of Criminal Procedure states that solitary confinement is not a disciplinary measure, as the prisoners concerned are subject to the ordinary prison regime, a decision to place a prisoner in solitary confinement against his or her wishes will, in view of the effects it has on the conditions of detention, be amenable to judicial review. Accordingly, the Minister of Justice’s submission that the Administrative Court of Appeal erred in law in declaring admissible an application by Mr X for judicial review of a decision by the governor of Bois d’Arcy Prison to place him in solitary confinement is unfounded. The Administrative Court of Appeal did not err in law when it held that a decision to place a prisoner in solitary confinement was one of the decisions for which the first section of the Act of 11 July 1979 requires reasons to be stated. In finding that insufficient reasons had been stated in the impugned decision, the Paris Administrative Court of Appeal reached a decision in its unfettered discretion which, in the absence of any distortion of the facts, cannot be challenged in this Court. It follows from the foregoing that the Minister of Justice is not entitled to make an order setting aside the impugned judgment.", "It is appropriate in the circumstances of this case to make an order requiring the State to pay Mr X the sum of 2,300 euros he claimed under Article L. 761-1 of the Administrative Courts Code.” III. INTERNATIONAL MATERIALS 83. Extracts from the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the responses of the government of the French Republic (unofficial translation) Report on the visit of 6 to 18 October 1996 “158. The CPT pays particular attention to prisoners held under conditions akin to solitary confinement. It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary-confinement regime, which is a step that can have very harmful consequences for the person concerned.", "Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. 159. The delegation visited the segregation units in ... and in the remand prisons of Paris-La Santé ... It met a number of prisoners who had been held in solitary confinement for long, and in some instances very long, periods.", "... Furthermore, the solitary-confinement cells in Paris-La Santé Prison could be described as reasonable (cf. paragraphs 100 and 101). As regards the prison regime, which according to the Code of Criminal Procedure is an ordinary regime, the delegation found that the activities remained limited (reading, television, and in some instances in-cell educational or training activities). ...", "There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons (such as religious representatives) and some daily contact with warders. As regards outdoor exercise, the prison authorities said that a one to three hour walk was authorised every day, although conditions were less than satisfactory. 160. The CPT pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement. In paragraph 380 of their interim report, the French authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded.", "Doctors were required to inform the prison governor in writing if they considered the prisoner’s physical or mental health to be at risk. In that connection, the French authorities informed the delegation that a draft decree (which is due to come into force on 1 December 1996) would establish new rules for gaining access to a doctor and assessing a prisoner’s condition. 161. As to the other safeguards, it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary. The manner of its implementation also appears to vary from one region to another.", "... At Paris-La Santé Prison, the delegation heard allegations by prisoners in solitary confinement that this was no longer the case. These were credible allegations, since, unlike in Marseille, the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement. The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of the Code of Criminal Procedure. Furthermore, the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief. 162.", "In the light of the foregoing, the CPT recommends that the French authorities: (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact; (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report; (iii) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds). The CPT would also like to know whether the decree announced by the French authorities has come into force and to receive a copy if it has.” Responses of the government of the French Republic to the 1996 report Observations (interim report) “(i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162) The rules governing solitary confinement are being revised. Articles D. 283-1 and D. 283-2 of the Code of Criminal Procedure and the circular of 12 July 1981, which are currently in force, need supplementing in order to improve the procedure and to limit the duration of the measure. Draft Article D. 283-1 accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit. It also makes the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year.", "The entry into force of this Article, which will be included in a vast decree amending more than 300 Articles of the Code of Criminal Procedure, has been delayed, as the decree is part of a governmental programme of State reform. It is intended that a draft circular will be issued when the decree comes into force. It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement, in particular through the organisation of regular meetings. The provision of individual teaching or training programmes will also be recommended. (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162) A draft circular is being prepared.", "(iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162) A draft circular is being prepared.” Follow-up report “(i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162) The draft decree referred to in the interim report, which brings the regulatory section of the Code of Criminal Procedure into line with a number of statutes that are already in force, is in the process of promulgation. It will amend, inter alia, Article D. 283-1 of the Code of Criminal Procedure by making the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year. It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care. Pursuant to this provision, a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime, which entails, inter alia: (a) full compliance with prisoners’ ordinary rights to relations with their family, representatives and others; (b) continued dialogue between staff and the prisoner in solitary confinement through regular meetings; (c) the organisation, to the extent possible, of special activities in the segregation unit and of individual teaching and training programmes. This draft was prepared after wide consultation of decentralised services.", "An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular, which could be available immediately after publication of the aforementioned decree. (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162) The draft circular establishes a mechanism for controlling the length of solitary-confinement measures: before a decision to prolong the measure beyond three months can be taken, the regional director must examine an observation report from the prison governor based, in particular, on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation. Any event with suspensive effect that either entails release or is for a period exceeding fifteen days will result in the lapse of the solitary-confinement measure and the prisoner’s return to ordinary detention. (iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162) The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement. The prison governor will not, however, be required to disclose information to a prisoner that may put people or the prison at risk; this has been accepted by the CPT.” report on the visit from 14 to 26 may 2000 “111.", "In its reports of both 1991 and 1996 the CPT stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. Following its visits, the CPT advised of its concerns regarding various aspects of solitary confinement in France (cf. paragraphs 140 et seq., and 158-63 of the reports).", "Subsequently, in a circular dated 14 December 1998, the Minister of Justice issued instructions concerning, inter alia, the grounds on which prisoners could be placed in solitary confinement, the procedure to be followed and the regime for prisoners in solitary confinement. These instructions address some of the concerns expressed by the CPT in its reports on previous visits. Nevertheless, during its visits the CPT delegation found serious shortcomings in the manner in which the earlier recommendations of the CPT and the ministerial instructions had been implemented in practice. The CPT has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons that the delegation met during its visit. Its reservations concern both the length of the confinement (which in some instances had been for years on end) and the highly restrictive regime to which such prisoners are subject (total lack of structured or communal activities).", "112. The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable. However, the cells accommodating such prisoners at the Paris-La Santé Prison had only limited access to natural light. In addition, in the four institutions visited, the exercise yards – which were often also used by prisoners in solitary confinement for disciplinary reasons – were uninviting. 113.", "The ministerial instructions state: ‘The essential features of the ordinary prison regime must, so far as possible and subject to practical constraints, be retained in the segregation unit’ (point 4.1). They further state, inter alia: ‘there shall be no restrictions on prison visits’ (point 4.2.2) and ‘prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times’, that ‘it is for the prison governor to assess how and when such groups may be organised’ and ‘individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged’ (point 4.2.6). The instructions further require increased surveillance of prisoners and specify: ‘in order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement’ (point 4.4.2). From the information obtained by the delegation, it would seem that, with the odd exception (for instance as regards contact with the outside world), the vast majority of the aforementioned requirements have not been complied with. For example, the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was Lyon-Saint Paul Prison and even there association was restricted (to exercise outdoors and in the fitness room).", "The CPT recommends that the authorities take measures without delay to give full effect to the Minister of Justice’s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular. 114. The CPT also has reservations about the effectiveness of the procedural safeguards on solitary confinement for administrative reasons. The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure (for instance, in one case, the measure was imposed for: ‘serious damage to property belonging to the prison that put prison security at risk’) or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped (‘to maintain order in the prison’ or ‘risk of escape’). In one case the prisoner had been held in solitary confinement since 1997 ‘because of the nature of the offences of which he had been convicted’.", "In summary, it would appear that the ministerial instructions, namely ‘Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm’, are not always fully complied with (cf. point 1.4.2). The CPT recommends that the French authorities carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons. 115. Lastly, the CPT understands that the issue of the nature and extent of available remedies has not yet been resolved (cf.", "paragraph 146 of the report on the 1991 visit). In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority. The CPT recommends the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority, preferably a judge. Indeed, that is the spirit of the various proposals that are currently pending before the French authorities (for instance, the Canivet report and the report of the Senate investigation).” Response of the government of the French Republic “(i) take measures without delay to give full effect to the Minister of Justice’s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular (paragraph 113) (ii) carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons (paragraph 114) Power to take decisions on solitary confinement is vested in the Minister of Justice if the confinement has exceeded one year. There are currently 77 prisoners who have been in solitary confinement for more than a year.", "Of these, 23 are in prisons for convicted prisoners and 54 in prisons for remand prisoners. The majority of these prisoners were placed in solitary confinement at their own request, either on account of the offence for which they were imprisoned, or of their occupation before they were imprisoned. Improvements are being made to the segregation units to make them compliant with the circular of 14 December 1998. The prisons to be built as part of the ‘4000 programme’ will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular. Furthermore, in accordance with the circular of 14 December 1998 on solitary confinement, it is the regional director of the Prison Service or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement.", "In addition, the prison inspectorate verifies compliance with these obligations when carrying out prison visits. (iii) reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority, preferably a judge (paragraph 115) Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons.” 84. Extracts from the Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002 “III. Lawfulness of anti-terrorist measures 1. All measures taken by States to combat terrorism must be lawful.", "2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued. IV. Absolute prohibition of torture The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted. ... XI.", "Detention 1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity. 2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to: (i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client; (ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters; (iii) the separation of such persons within a prison or among different prisons, on condition that the measure taken is proportionate to the aim to be achieved.” 85. 1.", "Extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules adopted on 11 January 2006 “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Having regard to the European Convention on Human Rights and the case-law of the European Court of Human Rights; Having regard also to the work carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports; Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law; Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society; ... Recommends that governments of member States: – be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules: ... Appendix to Recommendation Rec(2006)2 ... Basic principles 1.", "All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.", "... 18.2 In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; ... ... 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ... 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. ... 24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.", "... 24.10 Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case. ... 25.1 The regime provided for all prisoners shall offer a balanced programme of activities. 25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction. 25.3 This regime shall also provide for the welfare needs of prisoners. ... 27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.", "27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise. 27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes. 27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment. 27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them. 27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them.", "27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities. ... 29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs. ... 37.1 Prisoners who are foreign nationals shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their State. ... 39. Prison authorities shall safeguard the health of all prisoners in their care.", "... 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. ... 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. ... 43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff. 43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement.", "... 51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. 51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control. 51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.", "Safety 52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. ... 53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.", "53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.", "... 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority. ...” 2. Extracts from the report by Mr Alvaro Gil-Robles, Commissioner for Human Rights of the Council of Europe, on the effective respect for human rights in France following his visit from 5 to 21 September 2005 (published on 15 February 2006) “123. ... At the same time, another administrative procedure, which comes fully under the responsibility of the prison administration, is totally lacking in transparency and calls for rapid action on the part of the legislature. This is the procedure for placing prisoners in solitary confinement.", "124. When one visits prisons, and more specifically the disciplinary blocks, one can usually see the solitary confinement blocks close by. Every prison has them. Under the law, any prisoner may be placed in solitary confinement either at his/her own request or as a precautionary or security measure[1]. In some cases, this regime is used to remove prisoners who are troublesome, under suspicion or ringleaders from the other inmates without their having committed a disciplinary offence.", "125. According to the legislation currently in force, solitary confinement is not a disciplinary measure[2]. Prisoners in solitary confinement must be subject to the ordinary prison regime. However, they must not have contact with other prisoners, except by express decision of the prison director, to take part in one-off activities with other solitary confinement prisoners. The movements of solitary confinement prisoners within the prison are organised in such a way that they do not meet anyone on their way.", "In a few establishments, solitary confinement prisoners may engage in a gainful occupation by doing work in their cells. Usually, however, they do not have access to any gainful activity and are entirely dependent on any funds which may be sent to them from outside. All solitary confinement prisoners may, however, receive visits and exchange correspondence in the normal way. 126. There is also a stricter solitary confinement regime for prisoners regarded as particularly dangerous ‘because of [their] involvement in organised crime or in a terrorist movement or [their] legal and criminal background’.", "It is for the prison director to determine which solitary confinement prisoners fall within this category. They are subject to particular security measures. Some are regularly transferred from one prison to another, roughly every six months. They remain constantly in solitary confinement and never mix with other prisoners. 127.", "Solitary confinement is usually ordered by the prison director. It may also be ordered by an investigating judge in the course of an investigation. Here I should like to dwell on the administrative procedure for which the prison director is responsible, because I feel that it raises a number of issues likely to undermine respect for the fundamental rights of persons placed in solitary confinement. 128. It emerged from most of my discussions with prisoners, lawyers, representatives of the prison administration and voluntary organisations that the procedure for placing prisoners in solitary confinement depends entirely on an administrative decision by the prison director.", "There are no legislative provisions or regulations governing this procedure which guarantee the rights of those subject to it, particularly by ensuring that they are given a hearing and the assistance of a lawyer. 129. In principle, there is general legislation which should govern this situation. This is Article 24 of the Law of 12 April 2000 on the rights of citizens in their dealings with the public administration. Under this provision, representatives of government bodies who intend to take an administrative decision against an individual citizen must in principle notify the person concerned in writing with sufficient advance notice, specifying the reasons for the procedure.", "The person in question must have the opportunity to submit written observations or, if he/she so wishes, oral observations and has the right to be assisted by a lawyer or a representative (approved or not). He/she may also have access to his/her file. 130. Clearly, the decision to place a prisoner in solitary confinement would normally be covered by this. However, we were told that this legislation has remained inoperative where solitary confinement is concerned.", "At present, therefore, the prison director retains sole discretion where solitary confinement is concerned. 131. According to what we heard in the course of our discussions, at present the prisoners concerned are usually informed immediately before the hearing of the intention to place them in solitary confinement. They usually only have an hour in which to prepare their observations before being given a hearing, without any legal assistance, by the prison director. I believe that, as things stand, this procedure must be described as being contrary to the recommendations of the Committee for the Prevention of Torture (CPT).", "Furthermore, the purely administrative and non-adversarial nature of this procedure greatly increase the risk of abuses of prisoners’ rights. I therefore feel that there is currently a real need to introduce legislation or regulations bringing this procedure into line with European standards. 132. Furthermore, it is particularly disturbing to see that solitary confinement may be ordered for an indefinite period, despite its frequently harmful effects on the mental state of the persons subjected to it. The initial period of solitary confinement ordered by the prison director may not exceed three months.", "It may be extended beyond that period only after a report to the Sentence Enforcement Board and following a decision by the regional director of prisons. In exceptional cases, solitary confinement may be extended beyond one year following an initial decision by the Minister for Justice. In such cases, the prison director compiles a file including, among other things, the opinion of the prison doctor and of the Sentence Enforcement Board. The minister is responsible for subsequent extensions, for three months at a time, in accordance with the same procedure. 133.", "As may be seen, this procedure is entirely administrative. At present, there is no judicial involvement whatsoever. Yet it is a particularly serious measure, because, although it is not recognised as punishment, the solitary confinement regime imposes significant material restrictions on prisoners’ rights, not to mention its psychological impact. During the visit, I had the opportunity to talk with persons placed in solitary confinement. Some complained about the harshness of their living conditions.", "According to them, being unable to communicate with anyone for long periods, sometimes well in excess of a year, is hard to bear. Prisoners placed in solitary confinement have no effective administrative remedy at their disposal, and most of those I spoke to regard solitary confinement as a disguised disciplinary punishment. In the course of the visit I met people who had been in total solitary confinement for several years. 134. It is difficult not to agree with them when you see some of the restrictions placed on solitary confinement prisoners.", "In view of the fact that one of the requirements of the solitary confinement regime is that the prisoners concerned should have no contact with other prisoners, it is very difficult to allow them to exercise the rights vested in all prisoners not subject to a disciplinary punishment, which should clearly be the case for those in solitary confinement. For example, to allow them to use the library or a sports hall, care must be taken to ensure that no one else enters these premises at the same time. As we know, owing to prison overcrowding, it is already quite difficult to ensure access for ordinary prisoners to these services. Most of those I spoke to therefore complained that it was impossible for them to exercise the rights to which they should normally be entitled. The same applies to the possibility of engaging in a gainful occupation.", "In theory, prisoners in solitary confinement are entitled to that, but in practice they may only do so inside their own cell, which is highly problematical in view of the scarcity of work opportunities in general. 135. Lastly, the exercise areas available to this category of prisoners are usually the same as those used by the prisoners in the disciplinary block. We visited one such area at Fleury-Mérogis short-stay prison. It is located on the roof of one of the prison buildings, closed in by concrete walls on all sides and covered by wire netting.", "It is so small that it is more a room in the open air than anything else. 136. I should like to stress that we are talking here about people who are not subject to a disciplinary measure. Furthermore, the fact that a person is left deprived of the rights secured to every prisoner is purely the result of an administrative decision against which it is difficult to appeal. I therefore call on the French authorities to take rapid action to bring solitary confinement into line with European standards, in particular those upheld by the CPT.", "I think there is a need for legislative provisions or regulations to govern the solitary-confinement procedure. The adversarial system already introduced for disciplinary punishments should apply to the solitary-confinement procedure. Lastly, I think it would be in keeping with the spirit of the principle of legal certainty if a judicial body were henceforth able to participate in the procedure, for example the judge responsible for sentence enforcement. 137. Furthermore, without waiting for legislative reform, the authorities should act to ensure that prisoners in solitary confinement are able to participate in organised activities, particularly as regards work, culture and sports.", "Their walks and outdoor sports activities should be organised as soon as possible in appropriate places intended for the prison population as a whole, and not for prisoners being held in disciplinary cells. Excluding prisoners from these activities amounts to a disguised punishment. Such changes are bound to lighten the already quite heavy atmosphere which I found in the places of detention visited. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 86.", "The applicant complained, firstly, that his prolonged solitary confinement from 15 August 1994 to 17 October 2002 and from 18 March 2004 to 6 January 2006 constituted inhuman and degrading treatment and had therefore violated Article 3 of the Convention. Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Chamber judgment 87. The Chamber held that there had been no violation of Article 3 of the Convention. It found that the applicant had not been kept in complete sensory isolation or total social isolation.", "Having regard in particular to the applicant’s character and the exceptional danger he posed, it further found that the conditions in which he was being held and the length of time he had spent in solitary confinement had not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. B. The parties’ submissions 1. The applicant 88. The applicant contested the conclusion that had been reached by the Chamber.", "He submitted that the Chamber had been wrong to accept, without any prima facie evidence, the Government’s claim that there was a danger he would engage in proselytism or plan an escape. In his submission, it could not be maintained that solitary confinement had made such conduct impossible, just as it was impossible to draw any conclusion from the period in which he had ceased to be in solitary confinement. 89. He also considered that the Chamber should not have referred to his “character” or “exceptional dangerousness” in the absence of any concrete evidence from the Government to back up the “abstract” profile that had systematically been relied on in all the decisions to keep him in solitary confinement. Likewise, the reference to a possible ascendancy over the other prisoners showed that the reasons that had been given for keeping him in solitary confinement were fictitious.", "90. In his submission, the systematic renewal of his solitary confinement had resulted in its continuation for a period that did not conform with the CPT’s recommendations or the undertakings that had been given by the Government after the CPT’s visit in 1996. Furthermore, he had never been convicted of a terrorist offence and was entitled to the presumption of innocence on that point, in accordance with Article 6 § 2 of the Convention. 91. As regards the conditions in which he was detained, he said that the strict ban on his communicating with other people, including prison warders, had resulted in his total social isolation.", "He had been refused permission to have French lessons, even on an individual basis, and none of his family had been officially informed of his imprisonment or his whereabouts. He alleged that the investigating file showed that it was the French authorities’ intention to arrest any member of his family who travelled to France. As to the visits from the clergyman, the applicant said that initially they had been allowed only occasionally; subsequently, however, he had been permitted visits approximately once a month. He pointed out that visits by diplomatic representatives were a legal entitlement and that the Venezuelan authorities had not been informed of his situation until a late stage. With regard to sanitary conditions, the applicant said that he took showers at the same intervals as other prisoners and had not requested a special regime.", "He had been forced to stop going to the cardio-training room after being provoked and assaulted, although he did not identify those responsible. 92. The visits he had received from his lawyers were not social visits, but an indefeasible means of exercising his defence rights. He said that the Chamber had been wrong to accept that the visits had reduced his isolation and added that there had been numerous instances of delay in his lawyers’ being granted permission to visit him. Arguing that the Government’s production of the list of visits of just one of his lawyers was misrepresentative, he furnished a list of all 58 lawyers and of the more than 860 visits they had made between 16 August 1994 and 29 April 2002.", "The visits from his lawyers had only been made with any frequency during his stay in La Santé Prison in Paris. On his transfer to the other prisons, such visits had become far less frequent because of the distance involved. Since October 2002, he had been receiving visits on a weekly basis. 93. The applicant further pointed out that, although the circular of 8 December 1998 to which the Chamber had referred in its judgment provided that a doctor’s opinion should be obtained prior to each extension, the Government had not produced evidence to show that the necessary medical examination had taken place.", "94. He added that, in saying that the conditions in which he was detained were dictated by the layout of La Santé, the Government had sought to suggest that it would have been more appropriate to hold him in a maximum security prison, although these were all at some distance from Paris. 95. The applicant added that his excellent mental and physical health was due to his strength of character and the efforts he had made to keep his mind active and to retain mental balance. The adverse physical effects had, however, taken the form of broken sleep cycles as a result of his being noisily awoken by warders at hourly intervals from midnight to 6 a.m. throughout his stay in solitary confinement.", "He had also suffered from recurring respiratory and skin allergies as a result of the prison conditions. 96. His lawyer pointed out that it had been discovered in January 2004 that he was suffering from diabetes, a condition he had not previously had. She also said that he had lost 20 kilograms between March and December 2004. 2.", "The Government 97. The Government invited the Grand Chamber to endorse the Chamber’s finding that keeping the applicant in solitary confinement did not contravene Article 3. 98. Firstly, the applicant’s prison regime was wholly exceptional and dictated by the fact that, as a unique figure known internationally for acts of terrorism, there was a danger he would cause serious disruption within the prison population by engaging in proselytism, or even planning an escape. 99.", "In any event, the regime for prisoners in solitary confinement at La Santé Prison was strictly aligned to the rules applicable to ordinary prisoners, the only restrictions being those entailed by the fact that prisoners in the segregation unit had no possibility of meeting one another or of being in the same room together. 100. Referring to the facts as established (see paragraphs 11 and 12 above), the Government submitted that the physical conditions of the applicant’s detention complied with Article 3 of the Convention. 101. With regard to visits, the Government explained that the applicant had been a remand prisoner until 30 January 2000 and that by virtue of Article D. 64 of the Code of Criminal Procedure visits could only be authorised by the judge in charge of the investigation.", "Once the applicant’s conviction became final on 30 January 2000 the power to authorise visits had been transferred to the prison governor. 102. The applicant’s family, who did not reside in France, had never made contact. Furthermore, the applicant was allowed to see a priest – subject to one being available – whenever he wished, and received regular visits from consular authorities, in particular the Venezuelan Ambassador’s representative. 103.", "The Government added that the applicant had had very frequent meetings with his lawyer, who had become his fiancée and later his wife under Islamic law, as she had visited him more than 640 times in four years and ten months (see paragraph 14 above). They added that visits from lawyers took place in special conference rooms without any barrier between the prisoner and his or her lawyer. Lastly, although the applicant had been refused access to a communal class to learn French, he had been offered individual lessons, which he had declined. 104. The Government pointed out that by virtue of the Law of 18 January 1994 responsibility for the organisation and provision of health care for prisoners had been transferred to the public health service and social welfare protection had been made available to all prisoners.", "105. In addition to any consultations requested by the prisoner or prison staff, medical care included mandatory check-ups (for new arrivals in a prison or for prisoners in the disciplinary unit). Prisoners in solitary confinement were systematically seen by a doctor twice a week. Relations between prisoners and doctors were covered by medical confidentiality. Accordingly, the medical information the Government had supplied was non-confidential information which the medical team responsible for the applicant’s health had communicated to the French authorities.", "106. From the strictly somatic standpoint, the applicant had attended the Outpatient Consultation and Treatment Unit (“the OCTU”) for specialist dental and ophthalmologic care. He had never complained of impaired eyesight as a result of his solitary confinement. From the psychiatric standpoint, the medical team had at no stage during the eight years the applicant had been held in solitary confinement mentioned any disorder, while the applicant had said that he was perfectly sane. 107.", "It was clear from the medical certificates that were issued regularly on each renewal of the solitary confinement that the doctors had at no stage found any contraindication to the measure. 108. The vast majority of the certificates drawn up between August 1994 and July 2000 had expressly stated that the applicant’s health was compatible with his continued confinement. In many instances, the certificates had been signed by different doctors who would necessarily have examined the applicant with a fresh pair of eyes. Lastly, the certificate of 13 July 2000 had even added that the applicant “is in quite astounding physical and mental condition after six years in solitary confinement”.", "109. With regard to the period from July 2000 to September 2002, the Government did not deny that some of the certificates had referred to the problem of the possible physical and mental consequences of prolonged solitary confinement. However, the certificates did not state that the applicant had suffered any definite, actual harm as a result of his solitary confinement. The certificate of 20 September 2001 said that the applicant’s physical and mental condition was entirely reasonable after seven years in solitary confinement and in a later certificate dated 29 July 2002 the same practitioner stated that the applicant was in excellent somatic health. He also said that the applicant had refused any psychological counselling from the Regional Medical and Psychological Service (“the RMPS”), which in the Government’s submission showed that he had not felt the need for any counselling.", "110. The Government further denied that the applicant had been woken at hourly intervals throughout the night, as he alleged. They referred to Articles D. 270 and D. 272 of the Code of Criminal Procedure, which governed prison rounds at night, and said that the applicant had been subjected to the same surveillance and checks as other prisoners in solitary confinement, as no special instructions had been issued in his case. In particular, when performing their night rounds, warders were not authorised to open cells unless there was good reason or imminent danger. The applicant could not, therefore, assert that he had been noisily woken at hourly intervals throughout the night on a regular basis.", "At most, it was possible that warders had shone a light into his cell briefly to check that he was there and what he was doing. Further, the applicant had never complained to a domestic authority about night-time surveillance, whereas he had complained on a number of occasions during his spell in solitary confinement about the conditions in which he was being held. 111. The Government concluded from all these factors that the applicant’s health did not appear to have been affected by solitary confinement and that the conditions in which the applicant was being held had not attained the minimum level of severity required to fall foul of Article 3 of the Convention, despite the CPT’s finding that the general conditions in which prisoners in solitary confinement were held in France were not entirely satisfactory. C. The Court’s assessment 112.", "The Court must first determine the period of detention to be taken into consideration when examining the complaint under Article 3. It points out that the “case” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber’s decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139-41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos.", "41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II; and Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005‑IV). More specifically, within the compass thus delimited by the decision on the admissibility of the decision, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996‑V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996‑VI). 113. In the present case, the applicant’s solitary confinement was interrupted between 17 October 2002 and 18 March 2004 when he was detained in Saint-Maur Prison, near Châteauroux, under normal prison conditions.", "He was then held in solitary confinement successively in Fresnes, Fleury-Mérogis and La Santé. Since 6 January 2006 he has been in Clairvaux Prison, where normal conditions have been restored. The parties have not provided any information on the conditions in which the applicant was kept in solitary confinement in the various prisons to which he was transferred during the period from March 2004 to January 2006. Nor has the applicant ever challenged his solitary confinement on the merits since that became possible on 30 July 2003 (see paragraph 82 above). In particular, he did not make use of any remedy on the merits during this latter period (March 2004 to January 2006) although he could have done so from the moment he returned to solitary confinement.", "The Court will return to this point when it examines the complaint under Article 13. 114. In these specific circumstances, the Grand Chamber, like the Chamber, considers it appropriate to restrict its examination to the conditions in which the applicant was held from 15 August 1994 to 17 October 2002 (contrast Öcalan, cited above, § 190). 1. General principles 115.", "Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. 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. 116. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, 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 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal, cited above, § 79). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Indelicato v. Italy, no.", "31143/96, § 30, 18 October 2001). 117. 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, for instance, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).", "In assessing the evidence on which to base the decision whether there has been a violation of Article 3, 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. 118. 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 or 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, among other authorities, Kudła v. Poland [GC], no.", "30210/96, § 92, ECHR 2000‑XI). In considering whether a punishment or 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, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, no. 28524/95, § 74, ECHR 2001‑III). 119.", "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 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004‑VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003). In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element.", "Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).", "120. The applicant’s allegations in the present case specifically concern the length of time spent in solitary confinement. The European Commission of Human Rights expressed the following opinion on this particular aspect of detention in Ensslin, Baader and Raspe v. Germany (nos. 7572/76, 7586/76 and 7587/76, Commission decision of 8 July 1978, Decisions and Reports (DR) 14, p. 64): “The Commission has already been confronted with a number of such cases of isolation (cf. Decisions on Applications No.", "1392/62 v. FRG, Coll. 17, p. 1; No. 5006/71 v. UK, Coll. 39, p. 91; No. 2749/66 v. UK, Yearbook X, p. 382; No.", "6038/73 v. FRG, Coll. 44, p. 155; No. 4448/70 “Second Greek Case” Coll. 34, p. 70). It has stated that prolonged solitary confinement is undesirable, especially where the person is detained on remand (cf.", "Decision on Application No. 6038/73 v. FRG, Coll. 44, p. 151). However, in assessing whether such a measure may fall within the ambit of Article 3 of the Convention in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. Complete sensory isolation coupled with complete social isolation can no doubt ultimately destroy the personality; thus it constitutes a form of inhuman treatment which cannot be justified by the requirements of security, the prohibition on torture and inhuman treatment contained in Article 3 being absolute in character (cf.", "the Report of the Commission on Application No. 5310/71, Ireland v. the United Kingdom; Opinion, p. 379).” 121. In Kröcher and Möller v. Switzerland (no. 8463/78, Commission’s report of 16 December 1982, DR 34, p. 24), the Commission also considered the length of the solitary confinement, which lasted for approximately ten and a half months. It observed: “With regard to the duration of their detention on remand and detention under security conditions, the Commission finds that each of these periods was fairly brief considering the circumstances of the case.", "As to the special isolation measures to which the applicants were subjected, neither the duration nor the severity of these exceeded the legitimate requirements of security. In any case, the applicants’ exclusion from the prison community was not prolonged excessively.” 122. The Commission reiterated in a later case that prolonged solitary confinement was undesirable (see Natoli v. Italy, no. 26161/95, Commission decision of 18 May 1998, unreported). 123.", "Similarly, the Court has for its part established the circumstances in which the solitary confinement of even a dangerous prisoner will constitute inhuman or degrading treatment (or even torture in certain instances). It has thus observed: “... complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.” (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V; Öcalan, cited above, § 191; and Ilaşcu and Others, cited above, § 432) 124.", "Similarly, in Ilaşcu and Others, the Court stated: “As regards the applicant’s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 ..., in which it described isolation for so many years as indefensible.", "The applicant’s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment ... and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health.” (see Ilaşcu and Others, cited above, § 438; contrast Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005) 2. Application of the principles to the present case 125.", "As to the present case, the Court accepts that the applicant’s detention posed serious problems for the French authorities. The applicant, who was implicated in various terrorist attacks that took place in the 1970s, was at the time considered one of the world’s most dangerous terrorists. It is to be noted on this point that on the many occasions he has since had to state his views (in his book, newspaper articles and interviews) he has never disowned or expressed remorse for his acts. Accordingly, it is understandable that the authorities should have considered it necessary to combine his detention with extraordinary security measures. (a) Conditions in which the applicant was held (i) Physical conditions 126.", "The physical conditions in which the applicant was held must be taken into account when examining the nature and duration of his solitary confinement. 127. The Court notes that the cell which the applicant occupied when in solitary confinement at La Santé Prison was large enough to accommodate a prisoner, was furnished with a bed, table and chair, and had sanitary facilities and a window giving natural light. 128. In addition, the applicant had books, newspapers, a reading light and a television set at his disposal.", "He had access to the exercise yard two hours a day and to a cardio-training room one hour a day. 129. These conditions of detention contrast with those that were examined by the Court in the case of Mathew, in which the Court found a violation of Article 3. The applicant in that case had been detained in conditions similar to solitary confinement for more than two years in a cell on the last (second) floor of the prison. For seven or eight months, a large hole in the ceiling allowed rain to enter.", "In addition, the fact that the cell was directly under the roof exposed the applicant to the tropical heat. Lastly, since he had difficulty going up or down stairs, he was frequently prevented from going to the exercise yard or even outside (see Mathew v. the Netherlands, no. 24919/03, ECHR 2005-IX). 130. In the present case, the Court finds that the physical conditions in which the applicant was detained were proper and complied with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006.", "These conditions were also considered to be “globally acceptable” by the CPT (see its report on the visit from 14 to 26 May 2000, cited at paragraph 83 above). Accordingly, no violation of Article 3 can be found on this account. (ii) Nature of the applicant’s solitary confinement 131. In the present case, the applicant received twice-weekly visits from a doctor, a once-monthly visit from a priest and very frequent visits from one or more of his 58 lawyers, including more than 640 visits over a period of four years and ten months from his representative in the proceedings before the Court, now his wife under Islamic law, and more than 860 visits in seven years and eight months from his other lawyers (see paragraphs 14 and 92 above). Furthermore, the applicant’s family, who are not subject to any restrictions on visiting rights, have never requested permission to visit and the only two requests which have been refused came from journalists.", "Nor has the applicant provided any evidence in support of his allegations that members of his family risk arrest if they set foot in France. As to the allegation that the family has never been officially informed of the applicant’s imprisonment or place of detention, the Court notes that it is not certain that the French authorities had the names and addresses of his family members and it considers that the consular authorities, the applicant himself and his lawyers were in any event perfectly capable of informing them themselves. 132. The Court notes that the conditions of solitary confinement in which the applicant was held were not as harsh as those it has had occasion to examine in connection with other applications, such as in the cases of Messina (no. 2) and Argenti, in which the applicants, who had been in solitary confinement for four and a half years and twelve years respectively, were subject to a ban on communicating with third parties, a restriction on receiving visits – behind a glass screen – from members of their families (with a maximum of a one-hour visit per month), and bans on receiving or sending money over a certain amount, on receiving parcels from outside containing anything other than linen, on buying groceries that required cooking and on spending more than two hours outdoors (see Messina (no.", "2), cited above, and Argenti v. Italy, no. 56317/00, § 7, 10 November 2005). 133. Likewise, in the case of Öcalan, in which the isolation was stricter, the Court noted that the applicant, who had been the sole inmate of an island prison for six years when the judgment was adopted, had no access to a television and that his lawyers, who were only allowed to visit him once a week, had often been prevented from doing so by adverse weather conditions that meant that the boat was unable to make the crossing. It found that in the circumstances of the case the conditions of detention were not incompatible with Article 3 of the Convention (see Öcalan, cited above, in particular §§ 190-96).", "134. The Court considers that the applicant’s conditions are closer to those it examined in Rohde in which it held that there had been no violation of Article 3 of the Convention. The applicant in that case was held in solitary confinement for eleven and a half months. He had access to television and newspapers, was excluded from activities with other prisoners, had language lessons, was able to meet the prison chaplain and received a visit once a week from his lawyer and some members of his family (Rohde, cited above, § 97). 135.", "The Court accordingly concludes that the applicant cannot be considered to have been in complete sensory isolation or total social isolation. His isolation was partial and relative. (b) Duration of the solitary confinement 136. It is true that the applicant’s situation was far removed from that of the applicants in the aforementioned case of Ilaşcu and Others and that he was not subjected to complete sensory isolation or to total social isolation, but to relative social isolation (see also on this point, Messina (no. 2), cited above).", "However, the Court cannot but note with concern that in the present case he was held in solitary confinement from 15 August 1994 to 17 October 2002, a period of eight years and two months. In view of the length of that period, a rigorous examination is called for by the Court to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant’s physical and mental condition was compatible with his continued solitary confinement. 137. Reasons for keeping a prisoner in solitary confinement are required by the circular of 8 December 1998 which refers to “genuine grounds” and “objective concordant evidence of a risk of the prisoner causing ... serious harm”. In the instant case, the reasons given for renewing the measure every three months were his dangerousness, the need to preserve order and security in the prison and the risk of his escaping from a prison in which general security measures were less extensive than in a high-security prison.", "The circular also provides that solitary confinement should only continue for more than a year in exceptional circumstances. However, regrettably there is no upper limit on the duration of solitary confinement. 138. It is true that a prisoner’s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners.", "These arrangements, which are intended to prevent the risk of escape, attack or disturbance of the prison community, are based on separation of the prison community together with tighter controls (see Kröcher and Möller, cited above). 139. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner’s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by.", "Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner’s physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement. 140. The Court notes that the applicant has received very regular visits from doctors, in accordance with the instructions set out in the circular of 8 December 1998. 141.", "While it is true that, after 13 July 2000 the doctors no longer sanctioned his solitary confinement, none of the medical certificates issued on the renewals of the applicant’s solitary confinement up to October 2002 expressly stated that his physical or mental health had been affected, or expressly requested a psychiatric report. 142. In addition, on 29 July 2002 the doctor in charge of the OCTU at La Santé Prison noted in his report on the treatment the applicant had been receiving that the applicant had refused “any psychological help from the RMPS”. 143. Likewise, in his findings following an examination of the applicant on 17 October 2002 on his arrival at Saint-Maur Prison, the Indre Health Inspector said that, from the psychiatric standpoint, the applicant had been seen by a psychiatrist from the RMPS as part of the standard induction procedure.", "No follow-up treatment had been prescribed at the time and the applicant had not asked to see a psychiatrist since. The applicant had been examined on 26 August 2003, but no follow-up to that appointment had been recommended. 144. The Court notes in this connection that the applicant refused the psychological counselling he was offered (see paragraph 70 above) and has not alleged that the treatment he received for his diabetes was inappropriate. Nor has he shown that his prolonged solitary confinement has led to any deterioration in his health, whether physical or mental.", "Furthermore, the applicant himself stated in his observations in reply that he was in excellent mental and physical health (see paragraph 95 above). 145. The Court nevertheless wishes to emphasise that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover, it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement. In the instant case, that only became possible in July 2003.", "The Court will return to this point when it examines the complaint made under Article 13. It also refers in this connection to the conclusions of the CPT and of the Human Rights Commissioner of the Council of Europe (see paragraphs 83 and 85 above). 146. It would also be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate. 147.", "The Court notes with interest on this point that the authorities twice transferred the applicant to prisons in which he was held in normal conditions. It emerges from what the Government have said that it was as a result of an interview which the applicant gave over the telephone to a television programme in which he refused among other things to express any remorse to the victims of his crimes (he put the number of dead at between 1,500 and 2,000), that he was returned to solitary confinement in a different prison. The authorities do not, therefore, appear to have sought to humiliate or debase him by systematically prolonging his solitary confinement, but to have been looking for a solution adapted to his character and the danger he posed. 148. The Court notes that when the applicant was being held in normal conditions in Saint-Maur Prison, his lawyer sent a letter to the Registry of the Court in which she complained of “dangerous company, particularly in the form of drug addicts, alcoholics, and sexual offenders who are unable to control their behaviour” and alleged a violation of human rights.", "Furthermore, the applicant complained during that period of being too far away from Paris, which, he said, made visits from his lawyers more difficult, less frequent and more costly and inevitably caused another form of isolation. 149. Lastly, the Government’s concerns that the applicant might use communications either inside the prison or on the outside to re-establish contact with members of his terrorist cell, to seek to proselytise other prisoners or to prepare an escape also have to be taken into account. These concerns cannot be said to have been without basis or unreasonable (see on this point, Messina (no. 2), in which the Court noted, before declaring the complaints about the conditions of detention inadmissible, “the applicant was placed under the special regime because of the very serious offences of which he [was] convicted”, a statement that is equally applicable to the applicant in the present case; see also Gallico v. Italy, no.", "53723/00, 28 June 2005). 150. The Court shares the CPT’s concerns about the possible long-term effects of the applicant’s isolation. It nevertheless considers that, having regard to the physical conditions of the applicant’s detention, the fact that his isolation is “relative”, the authorities’ willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. Despite the very special circumstances obtaining in the present case, the Court is concerned by the particularly lengthy period the applicant has spent in solitary confinement and has duly noted that since 5 January 2006 he has been held under the ordinary prison regime (see paragraph 76 above), a situation which, in the Court’s view, should not in principle be changed in the future.", "Overall, having regard to all the foregoing considerations, it finds that there has been no violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 151. The applicant complained that he had not had a remedy available to challenge his continued solitary confinement. He relied on Article 13, which provides: “Everyone whose rights and freedoms as set forth in th[e] 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 Chamber judgment 152. The Chamber found a violation of Article 13 of the Convention. It noted in particular that prior to the Conseil d’Etat’s judgment of 30 July 2003, prisoners in solitary confinement did not have any remedy available to challenge the original measure or any renewal of it. B. The parties’ submissions 153.", "The applicant invited the Grand Chamber to endorse the Chamber’s finding of a violation. He also alleged that the authorities had not followed the procedure laid down by Article D. 283-1 of the Code of Criminal Procedure for prolonging solitary confinement. He added that on a number of occasions he had been forced to complain because he not been given the requisite medical check-up before the decision to prolong his solitary confinement was taken. Lastly, he said that the proposals and decisions to prolong the measure were almost systematically based on the nature of the offences for which he was in prison and that the authorities had been unable to provide the genuine grounds or evidence of objective and concordant incidents required by the applicable provisions. 154.", "The Government noted that in a judgment of 30 July 2003 the Conseil d’Etat had ruled that a decision to place a prisoner in solitary confinement could be the subject of judicial review owing to the effect such decisions had on the conditions of detention. That judgment was part of a continuing process which had seen the scope of internal administrative measures increasingly circumscribed. 155. They added that the applicant had to date challenged only one order renewing his solitary confinement, that being the decision of 17 February 2006. Even then he had only contested the formal validity of the measure, not the underlying reasons.", "Consequently, he had never sought to challenge the measure in the administrative courts on the merits by arguing that it violated Article 3 of the Convention. The Paris Administrative Court, which gave its judgment on 15 December 2005, had set the decision aside on the ground that the regional director of the Prison Service had omitted to obtain the opinion of the Sentence Enforcement Board, as he was required to do by Article D. 283‑1 of the Code of Criminal Procedure, before lodging his report with the Minister of Justice. 156. The Government said in conclusion that it left it to the Court’s discretion to decide whether or not an effective remedy had existed prior to the Conseil d’Etat’s decision of 30 July 2003 . C. The Court’s assessment 157.", "As the Court has held on many occasions, 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 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, cited above, § 157). 158. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy must be “effective” in practice as well as in law (see, among other authorities, İlhan v. Turkey [GC], no.", "22277/93, § 97, ECHR 2000-VII). 159. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, § 113, Series A no.", "61, and Chahal, cited above, § 145). 160. The Court must now determine whether it was possible under French law for the applicant to complain about the decisions to prolong his solitary confinement and about any procedural irregularities, and whether the remedies were “effective” in the sense that they could have prevented the alleged violation occurring or continuing or could have afforded the applicant appropriate redress for any violation that had already occurred. 161. The Government accepted that, under the settled case-law of the Conseil d’Etat prior to 30 July 2003, decisions to place a prisoner in solitary confinement were equated to internal administrative measures in respect of which no appeal lay to the administrative courts.", "162. The applicant lodged an appeal with the Administrative Court on 14 September 1996. However, this was dismissed in a judgment of 25 November 1998 on the ground that it was an internal measure that could not be referred to the administrative courts. 163. The Court notes on this point that the decision was consistent with the settled case-law of the Conseil d’Etat at the material time which the Government have themselves cited.", "164. It was not until 30 July 2003 that the Conseil d’Etat changed its jurisprudence and ruled that an application for judicial review could be made in respect of decisions concerning solitary confinement and the decision quashed if appropriate. 165. The Court notes that the applicant has made only one application to the Administrative Court since the change in the case-law. Although he only challenged the lawfulness of the measure imposed on him on 17 February 2005, it is of the view that, having regard to the serious repercussions which solitary confinement has on the conditions of detention, an effective remedy before a judicial body is essential.", "The aforementioned change in the case-law, which would warrant being brought to the attention of a wider audience, did not in any event have retrospective effect and could not have any bearing on the applicant’s position. 166. The Court accordingly considers that in this case there has been a violation of Article 13 of the Convention on account of the lack of a remedy in domestic law that would have allowed the applicant to challenge the decisions to prolong his solitary confinement taken between 15 August 1994 and 17 October 2002. III. 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 made no claim for compensation. B. Costs and expenses 169.", "The applicant’s lawyer submitted an invoice for the total cost of visiting the applicant between June 1997 and October 2002. This included the hourly rates for the visits, travel expenses and procedural disbursements. The invoice came to a total of 426,852.40 euros (EUR). The second lawyer who represented the applicant at the hearing produced a statement showing the cost of visits made to the applicant between 22 May 1998 and 7 October 2002 in the amount of EUR 87,308, comprising EUR 69,846.40 for the visits themselves and EUR 17,461.60 for travel and the costs of formalities. The first lawyer expressed regret that the Chamber should have refused that request without taking into account lawyers’ fixed overheads and asked the Court to grant it.", "170. The account for costs and expenses incurred in presenting the application to the Court came to EUR 41,860, to which were to be added EUR 800 for travel and accommodation for the two lawyers for the hearing in Strasbourg. 171. The Government submitted that the applicant’s claims were unreasonable and referred to their previous submissions. 172.", "They pointed out, firstly, that he had provided no evidence to show that he had actually paid the costs and expenses. 173. They added that the amount sought in respect of the visits had been calculated for the period from 1997 to 2002, although the application had not been lodged until 20 July 2000. There was consequently no causal link between the work done on the application and the visits that had been made prior to that date. 174.", "The Government also pointed out that, in view of the considerable number of hours (1,830) that had been claimed for visits without any breakdown, it was impossible to distinguish between visits by Ms Coutant Peyre in her capacity as a lawyer and those she had made personally as the applicant’s partner. They concluded that that claim had to be dismissed. 175. As to the claim for costs and expenses, the Government submitted that it must necessarily include the costs of visits made in a professional capacity. Noting that this claim was not based on a verifiable calculation either, they said that accordingly it could not be upheld.", "In conclusion, the Government proposed a payment of EUR 6,000 to the applicant for his costs and expenses in the event of the Court finding a violation in the case. 176. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it, but also those incurred before the national courts for the prevention or redress of the violation (see, among other authorities, Hertel v. Switzerland, 25 August 1998, Reports 1998-VI, and Yvon v. France, no. 44962/98, ECHR 2003‑V), provided they have been necessarily incurred, the requisite vouchers have been produced and they are reasonable as to quantum (see, among other authorities, Kress v. France [GC], no. 39594/98, ECHR 2001‑VI).", "177. The Court notes that no explanation or evidence has been provided in the present case in support of the claim for reimbursement of the costs of the visits. Accordingly, it cannot make any award under this head. 178. The Court notes that no details or vouchers whatsoever have been provided in support of the claim for the costs and expenses incurred in presenting the application to it.", "However, having regard to the complexity of the questions raised by the application and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 10,000 in respect of all his costs incurred in the proceedings before the Court. C. Default interest 179. 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. Holds by twelve votes to five that there has been no violation of Article 3 of the Convention; 2.", "Holds unanimously that there has been a violation of Article 13 of the Convention; 3. Holds unanimously (a) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros) for 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 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 by twelve votes to five the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 July 2006. Lawrence EarlyLuzius Wildhaber RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Casadevall joined by Judges Rozakis, Tsatsa-Nikolovska, Fura-Sandström and Popović is annexed to this judgment.", "L.W.T.L.E. DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY JUDGES ROZAKIS, TSATSA-NIKOLOVSKA, FURA-SANDSTRÖM AND POPOVIĆ (Translation) Unlike the majority, we consider that the applicant was subjected to treatment proscribed by Article 3 of the Convention in that he was held in solitary confinement for the lengthy period of eight years and two months and that such a long period of solitary confinement attained the minimum level of severity required to constitute inhuman treatment. Our reasons for so finding are as follows. 1. We wish to preface our remarks by saying that we share the concerns which national authorities in general may have in confronting the problems posed by the fight against terrorism and organised crime.", "However, in accordance with the case-law of the Convention institutions, the measures the States are forced to take to protect democracy against this scourge must be consistent with the essential values of democracy – of which respect for human rights is the prime example – and must avoid undermining those values in the name of protecting them. More specifically, we recognise that the danger posed by someone of the applicant’s character can give rise to complicated problems for the prison authorities and that there may be no alternative but to resort to high-security prisons and special prison regimes for certain categories of remand and convicted prisoners. However, it must nevertheless be borne in mind that the guarantees provided by Article 3 are absolute and allow of no exception, and that the nature of the alleged offence is of no relevance under that provision. 2. The solitary confinement regime.", "The basis for the prison regime to which the applicant was subjected is to be found in the relevant statutory and regulatory provisions, in particular Decree no. 98-1099 and its associated circular of 8 December 1998, which regulate the solitary confinement of prisoners “as a precautionary or security measure”. By virtue of these provisions (see paragraphs 80-81 of the judgment): (i) solitary confinement may exceed three months only if a new report has been made to the Sentence Enforcement Board; (ii) solitary confinement may exceed one year only if the minister so decides on the basis of a recent report by the regional director after the regional director has obtained the opinions of the Sentence Enforcement Board and the prison doctor; (iii) “solitary confinement shall not constitute a disciplinary measure” and “the seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement”. This is the ratio legis underpinning the French solitary-confinement regime: it constitutes an exceptional measure that is justified on precautionary or security grounds and which, once it has been in place for a year, only the minister is empowered to take, on the basis of a recent report and a medical opinion. By its very nature, it is not a measure that is intended to last indefinitely.", "On the contrary, its duration must be as short as possible. 3. Physical conditions. It is not disputed that the physical conditions in which the applicant was held in solitary confinement left much to be desired: the cell was run-down and poorly insulated and had an open toilet area, the applicant was not allowed any contact and his sole permitted out-of-cell activity was a two-hour daily walk in a walled-in triangular area smaller than a swimming pool (see paragraph 12 of the judgment). Despite this, we are able to agree with the CPT and the majority that the conditions were “globally acceptable”.", "Nonetheless, it is undeniable that physical conditions are closely related to the length of detention and that conditions which it may be humanly possible to bear for several months will inevitably become increasingly harsh and unbearable as the years go by and the level of suffering grows. 4. Nature of the applicant’s solitary confinement. After comparing the present case to previous cases the Court has examined, the majority found that the situation that most closely resembled the facts of the present case was the one it had examined in the Rohde case, in which it held that there had been no violation. We agree with that assessment.", "However, it is important to compare like with like. As the judgment rightly states (see paragraph 134), in the Rohde case the applicant was held in solitary confinement for eleven and a half months (less than the one-year period for which ministerial review is required under French law), whereas Mr Ramirez Sanchez was held under the same regime for eight years and two months, in other words for a period eight times as long. The majority is comforted in its view by the fact that “the applicant cannot be considered to have been in complete sensory isolation or total social isolation” (see paragraph 135). One might readily imagine that if he had been, the finding of a violation would not have been in doubt, as such regimes represent the gravest and most unacceptable form of regime to be found in democratic societies. In the present case, the Court described the applicant’s isolation as “partial and relative”, as if a scale of the seriousness of such a prison regime had been established.", "However, no such scale exists. The French legislation does not contain any qualifiers, but simply refers to “solitary confinement” (mise à l’isolement), “solitary-confinement measure” (mesure d’isolement) and “placement in solitary confinement” (placement à l’isolement). The same is true of the CPT reports, the Guidelines adopted by the Committee of Ministers of the Council of Europe, the Recommendation of the Committee of Ministers on the European Prison Rules and the report of the Commissioner for Human Rights (see paragraphs 80-86). As we have already mentioned, at the heart of the problem, over and above the question of physical conditions, is the issue of the length of the applicant’s solitary confinement. Even if his isolation was only partial or relative, the situation became increasingly serious with the passage of time.", "Indeed, despite the legislature’s oversight in not setting a maximum period (and it is this that is perhaps the source of the arbitrariness), it is implicit in the detailed statutory regulations on solitary confinement that extending the measure beyond a year is inherently dangerous and should only be done in exceptional circumstances. 5. Duration of the solitary confinement. The terms of the circular of 8 December 1998 are clear. Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective evidence of a risk of serious incident, and the statement of reasons must identify the risks the measure seeks to avoid (the list includes the risk of escape, violence, disruption or connivance and danger to physical integrity).", "In the present case, the orders successively prolonging the applicant’s solitary confinement did not set out any real reasons. They are statements in general terms that are often reproduced from one document to the next and which are devoid of the genuine reasons and objective evidence required by the legislation. In addition, they are contradicted by the factual reality, as the applicant was held under the ordinary prison regime for a year and a half (between October 2002 and March 2004) and again from January 2006 onwards without any incidents being reported. By analogy, one may consider that in similar situations the Court’s case-law concerning the rules applicable under Article 5 § 3 of the Convention for keeping an accused in detention pending trial beyond a certain time should apply. A period of more than eight years cannot stand up to any objective examination.", "Whatever the physical conditions, such a lengthy period is bound to aggravate the prisoner’s distress and suffering and the risks to his or her physical and mental health that are inherent in any deprivation of liberty. The majority note with concern the length of the solitary confinement, consider that in view of its length a rigorous examination is called for to determine whether it was justified, regret that no upper limit has been provided for (see paragraphs 136 and 137), share the CPT’s concerns about the possible long-term effects of the applicant’s isolation and repeat their concern about the particularly lengthy period the applicant spent in solitary confinement. However, they fail to draw the logical conclusions from their findings, preferring instead to note that since 5 January 2006 the prisoner has been held in normal prison conditions (see paragraph 150). We cannot agree with that approach. 6.", "Solitary confinement and the applicant’s health. In paragraph 141 of the judgment the majority attempt to minimise the significance of the medical opinions on the applicant’s health by drawing a distinction between the period prior to October 2002 and the period thereafter. However, as far back as 23 May 2001, the doctor in charge of the Outpatient Consultation and Treatment Unit wrote to the governor of La Santé Prison to say that even though the applicant was in reasonable physical and mental condition “strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm” and that it was his duty as a doctor to alert the governor “to these potential consequences” (see paragraph 58 of the judgment). On 13 June 2002 an assistant doctor from the Outpatient Consultation and Treatment Unit at La Santé Prison stated that, from the medical standpoint, “the problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner’s physical and mental health” (see paragraph 65). On 29 July 2002 the same doctor stated: “I am not qualified to express an opinion on his mental health” (see paragraph 66).", "The applicant was subsequently transferred to Saint-Maur Prison where he was held under the ordinary prison regime from October 2002 to March 2004. On 18 March 2004 he was transferred to Fresnes in the Paris area, apparently (from what the Court was told at the hearing) in order to facilitate the investigating judge’s investigations, and was again placed in solitary confinement. From that date on and despite some ambiguity, all the medical certificates consistently speak of risks to the applicant’s health (see paragraphs 72-75). Neither his physical robustness nor his mental stamina can make a period of solitary confinement in excess of eight years acceptable. [1].", "See Article D. 283-1 of the Code of Criminal Procedure. [2]. Ibid., Article D. 283-2." ]

[ "FIRST SECTION CASE OF ESKI v. AUSTRIA (Application no. 21949/03) JUDGMENT STRASBOURG 25 January 2007 FINAL 25/04/2007 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 Eski v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E.", "Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 4 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21949/03) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Refet Eski (“the applicant”), on 10 July 2003. 2. The applicant, who had been granted legal aid, was represented by Mr L. Binder, a lawyer practising in Vienna.", "The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. The applicant complained, in particular, of the Austrian courts' decision to grant permission to adopt his daughter without his consent. 4. By a decision of 2 March 2006 the Court declared the application partly admissible.", "5. 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. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1963 and lives in Vienna.", "Between 1987 and 1995 he lived together with J.W. On 9 April 1993 J.W. gave birth to a daughter, M., of whom the applicant is the father. 7. In March 1995 the couple split up and J.W.", "went to live with her daughter in Linz. The applicant stayed in Linz during the summer and autumn of 1995 and then returned to Vienna. 8. On 25 December 1996 the applicant, while visiting his daughter, threatened and injured J.W., who subsequently refused him access to M. 9. On 3 July 1997 the applicant applied to the Linz-Land District Court (Bezirksgericht) seeking visiting rights in respect of his daughter.", "On 19 August 1997 the district court heard evidence from the applicant and J.W. On 24 October 1997 a visit took place. On 26 February 1998 the applicant and J.W. concluded a visiting agreement, under the terms of which visits were to take place on the premises of a youth centre in the presence of J.W. 10.", "On 26 June 1998, at J.W. 's request and with the approval of the Youth Welfare Office (Jugendwohlfahrtsträger) attached to the Linz–Land District Administrative Authority (Bezirkshauptmannschaft), the Linz-Land District Court withdrew the applicant's visiting rights. It noted that, at the first arranged visit on 9 March 1998, the applicant had insulted J.W. and told M. that her mother was an evil witch and a whore. M. had subsequently suffered from anxiety, sleep disturbances, gastro-intestinal problems and pneumonia.", "The court further noted that even before the visiting agreement had been concluded, the arrangements for and exercise of the applicant's visiting rights had been complicated by the applicant's constant aggression towards J.W. The court found that the repeated threats against her mother were seriously jeopardising M.'s mental development. Accordingly, the applicant's visiting rights were not in the best interest of the child; on the contrary, they were harmful to her mental and physical well-being. 11. On 14 January 1999 the Linz Regional Court (Landesgericht) upheld this decision.", "12. In June 1999 J.W. started cohabiting with her new partner, A.F. They married in September 1999. 13.", "Another contact visit between the applicant and his daughter took place during Christmas 2000. 14. On 26 June and 4 July 2001 the applicant again lodged applications for visiting rights with the Linz-Land District Court. He further stated that he objected to the possible adoption of M. by A.F. 15.", "On 16 July 2001 the Linz-Land District Court rejected the applications. It noted that the applicant's visiting rights had been withdrawn and that the applicant had not submitted any arguments to suggest that the circumstances upon which that decision had been based had changed. The decision became final. 16. On 27 July 2001 A.F.", "instituted proceedings with the Linz-Land District Court seeking to adopt M. He requested that the court overrule the applicant's refusal to give the required consent. 17. The district court summoned the applicant to a hearing scheduled for 2 October 2001. In written submissions of 13 September 2001 the applicant informed the court that he had not changed his attitude towards the adoption request and still objected to adoption. A hearing was therefore not necessary.", "He added that the letter should be regarded as his submissions in the case. In further submissions to the Linz Court of Appeal, the applicant filed a motion accusing judge V., the competent judge of the Linz-Land District Court, of bias, and reiterated his request for visiting rights. 18. The district court subsequently informed the applicant that a hearing in the adoption proceedings was necessary and that any unexcused absence was punishable by a pecuniary penalty (Ordnungsstrafe). On 23 September 2001 the applicant informed the court that he was unable to attend the hearing scheduled for 2 October 2001, as he was attending lectures at Vienna University.", "He further referred to his motion accusing judge V. of bias, and submitted that his case would not be given objective consideration. He could, however, agree to another date under different circumstances. 19. On 12 October 2001 the President (Vorsteher) of the Linz-Land District Court dismissed the applicant's motion accusing judge V. of bias. On 7 January 2002 the Linz Regional Court upheld this decision.", "It noted that the applicant had referred to a statement made by judge V. during a hearing in August 1997 in the proceedings concerning the withdrawal of his access rights in respect of M. However, the applicant had not complained at the time of any alleged bias on the part of the judge. The motion had therefore been submitted out of time. On 14 May 2002 the President of the Linz-Land District Court rejected a further motion by the applicant accusing judge V. of bias, for the same reasons. 20. Meanwhile, on 12 March 2002, the applicant gave evidence to the Josefstadt District Court in Vienna under letters rogatory.", "At the hearing he argued that he had developed a close relationship with his daughter in her first two years. He had not lost interest in his daughter and still wished to obtain visiting rights. However, J.W. had sought to prevent any contact. In further written submissions to the court he argued that he did not know A.F., who had no family ties with his daughter.", "His daughter's alleged psychological problems had been caused by her mother, who herself had similar problems. 21. On 17 September 2002 the Linz-Land District Court heard evidence from A.F., M. and J.W. On 16 October 2002 the court, with the approval of the Youth Welfare Office attached to the Linz-Land District Administrative Authority, overruled the applicant's refusal to give consent and granted A.F. permission to adopt M. It noted that A.F.", "had developed a close relationship with M., who had said she was in favour of the adoption as she regarded A.F. as her father. The adoption would secure M.'s position within the family and also act as a material safeguard, as A.F. was able to support her financially. With regard to the applicant, the court found that his allegedly close relationship with M. did not correspond to reality.", "The last contact visit, during Christmas 2000, had been disappointing for the child, as the applicant had taken no initiatives, had not complied with the child's wishes for a special Christmas present and, during dinner, had not spoken with the child for three quarters of an hour. In the past the applicant had repeatedly tried to interfere in the relationship between M. and her mother, causing M. to develop physical and psychological problems. He had not made any effort to prove his feelings for M. in practice. Furthermore, he had not made maintenance payments for the past five years. The court therefore considered that the applicant's objection to the adoption was unjustified.", "22. The applicant appealed against this decision. He complained that the lack of a public oral hearing in the presence of his daughter, A.F. and J.W. was contrary to Article 6 of the Convention.", "He had not been able to put questions to A.F. and J.W. or challenge the criticism made of him in several reports by the social-welfare authorities. In particular, no evidence had been heard from him concerning the accusation that he had told M. that her mother was an evil witch and a whore. He further complained that the court had not instructed him to request an opinion from an expert in child psychology.", "He was of Turkish origin, and adoption in these circumstances was tantamount to a denial of half of the child's genetic background. Furthermore, without an expert opinion there was nothing to substantiate the courts' findings that he had caused M.'s physical and psychological problems. The court should also have instructed him to request that evidence be heard from the social workers who had submitted negative reports about him. Instead, it had based its findings on their written submissions. Finally, the applicant contended that there were not sufficient reasons for M.'s adoption.", "A.F. could instead request joint custody with the child's mother and undertake to make maintenance payments on a contractual basis. The applicant's visiting rights had been withdrawn only temporarily and he had not failed to make efforts to keep in contact with M. He had been paying maintenance for M. for the past two years. 23. On 25 February 2003 the Linz Regional Court dismissed the applicant's appeal.", "It found that, even in the absence of an oral hearing in the presence of all the parties, which in the proceedings at issue was not obligatory, the applicant had been given a proper hearing for the purposes of Article 6 of the Convention. In that regard it noted in particular that the Linz-Land District Court had made several attempts to hear evidence from the applicant; this had eventually been possible only by issuing letters rogatory to another court. The applicant had declared at the beginning of the adoption proceedings that he did not wish to participate further in the proceedings, that his personal appearance before the district court was not necessary and that the letter to that effect should be regarded as his personal statement. Moreover, the applicant had had sufficient opportunity to comment in written submissions, namely in the appeal proceedings, on the accusations made against him. The court further considered that it had not been necessary to seek an expert opinion or to hear evidence from the social workers concerned.", "In this regard it noted that the regional court had already confirmed the applicant's aggressive behaviour and its consequences in its decision of 14 January 1999, and had rejected the applicant's arguments to the contrary. Nor had the applicant, in his present appeal, been able satisfactorily to show that his conduct had not been the reason for the child's problems. The district court had given sufficient and extensive reasons why the adoption should be authorised, namely by referring to the applicant's conduct. Finally, the regional court noted that the fact that A.F. was in a better financial position than the applicant had not been a reason for granting the adoption.", "Accordingly, it did not go into the applicant's arguments regarding the maintenance payments. It refused the applicant leave to lodge an ordinary appeal with the Supreme Court (Oberster Gerichtshof). This decision was served on the applicant's counsel on 18 April 2003. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 24.", "Article 179a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides that adoption requires a written contract between the person seeking the adoption and the person to be adopted in addition to authorisation by a court. 25. Pursuant to Article 181 § 1, the court may not authorise an adoption if the parents of a minor child have not given their consent to the adoption. 26. Article 181 § 3 provides that, at the request of one of the parties, the court may overrule the refusal of consent by the parent of a minor child, where the person concerned has not given justifiable reasons for his or her refusal.", "27. Article 5 of the European Convention on Adoption of 1967, which is binding on several of the Council of Europe's Member States, including Austria, provides as follows: “1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect; (b) the consent of the spouse of the adopter. 2. The competent authority shall not: a) dispense with the consent of any person mentioned in paragraph 1 of this article, or b) overrule the refusal to consent of any person or body mentioned in the said paragraph 1, save on exceptional grounds determined by law.", "3. If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.” 28. In its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe's Committee of Experts on Family Law states as follows: Principle 15: “1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn: ­ the consent of the mother ­ the consent of the father. States may also require the consent of the child considered by the internal law as having sufficient understanding.", "2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead. 3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 29. The applicant complained about the Austrian courts' decision to grant A.F.", "permission to adopt his daughter without his consent. The Court considers that this issue should be considered under 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, 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.” 30.", "The applicant submitted in this regard that the fact of having a new father also affected his child's right to her biological father. He further contended that the reasons given by the domestic courts did not justify the interference with his right to respect for his family life. A good relationship between the child and her mother's husband was not incompatible with the relationship between the child and her father. There were ways to circumvent the problems between the parents during the exercise of visiting rights without destroying the relationship between the child and her father. 31.", "The Austrian courts had not taken any measures to secure an agreement between the parties. 32. The Government argued that, while the adoption of M. constituted interference with the applicant's right to respect for his family life under Article 8 of the Convention, the interference was justified under paragraph 2 of that Article. It had a legal basis, namely Article 181 § 3 of the Civil Code, and pursued the legitimate aim of protecting the rights of the applicant's minor daughter, by protecting her health, including her psychological well-being, and her legal interest in consolidating and formalising de facto family ties with her adoptive father. According to the case-law of the Austrian courts, the well-being of the child concerned was in itself not sufficient to justify overruling a parent's refusal of consent under Article 181 § 3.", "Only persistent conduct absolutely contrary to family values on the part of a parent could justify such a decision. In the present case, the applicant had demonstrated such conduct by repeatedly threatening and grossly insulting the child's mother in the presence of the child, at that time very young, during previous contact visits. As result, the child had suffered from anxiety and severe somatic disorders. The applicant had acted as the child's father only in the first months of her life. After the breakdown of his relationship the applicant, by his conduct towards the child's mother who had custody of the child, had made the exercise of his rights and duties as a father impossible.", "His refusal to consent to the adoption prevented the husband of the child's mother from taking on a role which he himself could no longer fulfil. Furthermore, he had discontinued maintenance payments for the child five years prior to the adoption being granted, thereby leaving it to others to care for his daughter. When questioned about the reasons for his refusal to give consent, the applicant had merely stated that he wished to visit his daughter and that her mother was preventing him from doing so. Such submissions could not be regarded as decisive reasons. Furthermore, the applicant had insisted on evidence being heard from the child in his own and the other parties' presence, apparently without caring much about the stress that would inevitably be caused to the child.", "The applicant had been sufficiently involved in the decision-making process. As it had transpired after several unsuccessful attempts that the applicant, for personal reasons, was unable to attend a hearing by the court competent to deal with the case, he had given evidence before another court under letters rogatory. Moreover, he had expressly stated at the beginning of the proceedings that he did not wish to be further involved in the proceedings and that his written submissions should be regarded as his statements. 33. The district court had been unable to make a reasonable attempt at securing a settlement because the applicant had not been prepared to enter into talks.", "The Austrian courts endeavoured in principle to ensure that adoptions took place with the consent of all those involved, and did their best to secure agreement to that end. In the present case their attempts had, however, been unsuccessful because of the applicant's conduct. 34. The Court notes that is undisputed that the adoption of the applicant's child without his consent amounted to interference with his right to respect for his family life under Article 8 § 1 of the Convention. It had a legal basis, namely Article 181 § 3 of the Austrian Civil Code, and pursued the legitimate aim of protecting the rights of the child.", "It remains to be examined whether the decision allowing the adoption without the applicant's consent was “necessary in a democratic society”. 35. In that connection, the Court reiterates at the outset that in cases of this kind the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court's task to substitute itself for the domestic authorities, but rather to review, in the light of the Convention, the decision taken by those authorities in the exercise of their power of appreciation (see Kuijper v. the Netherlands (dec.), no. 64848/01, 3 March 2005).", "However, 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. While the Court has recognised that the authorities enjoy a wide margin of appreciation in particular when deciding on custody, a stricter scrutiny is called for as regards any further limitations and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Article 8 requires that the domestic authorities strike a fair balance between the interests involved and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see, mutatis mutandis, Sommerfeld v. Germany [GC], no. 31871/96, §§ 62-64, ECHR 2003‑VIII (extracts)) 36. The Court reiterates that legislation permitting the placing for adoption of a child by a mother shortly after the child's birth without the natural father's knowledge or consent may be in breach of Article 8 of the Convention (see Keegan v. Ireland, judgment of 26 May 1994, Series A no.", "290, p. 16). In another case, concerning the deprivation of a mother's parental rights and access in the context of compulsory and permanent placement of her daughter in a foster home with a view to adoption by foster parents, the Court stressed that such a particularly far-reaching measure should only be applied in exceptional circumstances and be motivated by an overriding requirement pertaining to the child's best interests (see Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996‑III, p. 30). In two more recent cases (Söderbäck v. Sweden, judgment of 28 October 1998, Reports 1998-VII and Kuijper v. the Netherlands, cited above), the Court, in finding no violation of the Convention, noted in particular that the natural parent concerned had not had custody of the child and that contacts with the child were very limited. The adoptions had served to consolidate and formalise de facto family ties and the natural parent opposing adoption had been given the opportunity to state his or her case. In the Kuijper case the Court had regard also to the fact that the request for adoption was fully supported by the child, who had almost come of age.", "37. In this context, reference should also be made to the European Convention on the Adoption of Children, which is binding on several of the Council of Europe's Member States, including Austria. This text requires in principle the consent of the mother and, where the child is legitimate, of the father, to their child's adoption, save on exceptional grounds determined by law. If the father or mother has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe's Committee of Experts on Family Law recommends that an adoption shall not be granted unless the mother's and the father's consent has been given.", "The competent authority may overrule the refusal of such consent only on exceptional grounds determined by law. However, the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility (see paragraphs 27 and 28 above). 38. In the present case, the adoption of M. by the husband of the applicant's former partner had the legal effect of totally depriving the applicant of further family life with his daughter. This was certainly a far‑reaching measure and the Court will therefore carefully examine the reasons given by the domestic courts for overruling the applicant's refusal of consent.", "39. The Court notes that an important reason given by the domestic courts when overruling the applicant's refusal to give consent was their argument that the applicant's allegedly close relationship with his daughter did not correspond to reality. The Court notes that the child, who was about nine and a half years old at the time of the adoption, had been living exclusively with her mother since she was two years old. The applicant had not had custody, nor had he apparently assisted in any other capacity in the upbringing of the child. Furthermore, his contacts which the child were, at least from 25 December 1996 onwards, infrequent and limited in character.", "In June 1998 the district court withdrew his visiting rights as it found that the applicant's aggression towards the child's mother was harmful to the child's health and well-being. Thereafter, only one further contact visit took place, during Christmas 2000. The child, meanwhile, had been living with her adoptive father since she was six years old. Thus, when the adoption was granted, de facto family ties had existed between the adoptive parent and the child for more than three years. The adoption, therefore, did not set in motion the bonding of the child with the adoptive parent (see, mutatis mutandis, Keegan v. Ireland, cited above, § 55) but, on the contrary, consolidated and formalised already existing ties, as in the cases of Söderbäck and Kuijper, cited above.", "40. The Court further observes that the district court granted the adoption after having heard evidence from the child, her adoptive father and the child's mother. On that occasion the child, then aged nine and a half, stated that she considered her adoptive father as her father and supported the adoption. The district court also obtained the opinion of the competent Youth Welfare Office, which approved the proposed adoption. 41.", "The Court finally notes that the applicant, contrary to his assertions, was given the opportunity to state his case before the competent court. However, he refused to do so and subsequently gave evidence under letters rogatory to another court in the town where he was living. 42. Against this background, the Court considers that the domestic courts were better placed to strike a fair balance between the interests involved. Having regard in particular to their assessment of the child's best interests and to the limited relationship which the applicant had with his child at the relevant time, the Court finds that their decision to grant the adoption fell within their margin of appreciation.", "Given the aims sought to be achieved by allowing the adoption to go ahead, it cannot be said that the adverse effects it had on the applicant's relations with the child were disproportionate (see, mutatis mutandis, Söderbäck v. Sweden and Kuijper v. the Netherlands, cited above). 43. There has, accordingly, been no violation of Article 8 of the Convention in the present case. 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 25 January 2007, 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 joint dissenting opinion of Mrs Tulkens and Mr Spielmann is annexed to this judgment.", "C.L.R.S.N. JOINT DISSENTING OPINION OF JUDGES TULKENS AND SPIELMANN (Translation) For several reasons which we will set out below, we do not share the majority's opinion that there has been no violation of Article 8 of the Convention in this sensitive case, which raises the question of adoption without the consent of a child's father. 1. From a legal perspective, adoption remains an “essentially consensual institution” in Europe[1]. It follows that the adoption of a child without the consent of one of his or her biological parents may occur only in exceptional circumstances.", "The international law texts cited in the judgment are clear on this point and, in our opinion, it is important to draw the appropriate conclusions from them. Thus, the European Convention on the Adoption of Children of 24 April 1967 specifically states that the competent authority may not dispense with consent “save on exceptional grounds determined by law” (Art. 5 § 2, (b)). Equally, principle 15 of the White Paper on principles relating to the establishment and legal consequences of parentage, dated 15 January 2002 and drawn up by the Committee of Experts on Family Law, specifies that “the competent authority may overrule the refusal to consent only on exceptional grounds determined by law” (§ 3). In domestic law, the legislation of the Council of Europe's member States also provides, in exceptional circumstances, for the possibility of a child being adopted without the consent of at least one of his or her biological parents.", "Whilst, in the majority of countries, waiving of the consent requirement is determined on the basis of objective circumstances (death, uncertain paternity, deprivation of parental authority, etc. ), in other countries subjective circumstances are also taken into consideration when permitting the authorities to overrule a refusal to grant consent. This is the situation in the instant case in so far as Article 181 § 3 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) provides that “at the request of one of the parties, the court may overrule the refusal of consent by the parent of a minor child, where the person concerned has not given justifiable reasons for his or her refusal”. Thus, it is the scenario of an unjustified refusal which is at issue here and constitutes a reason for depriving the father and mother of the right to consent to the adoption. 2.", "Under the Convention, the right to consent or disagree to the adoption of a child may be considered an element of the father's and mother's right to respect for private and family life, guaranteed by Article 8 § 1, and even that of the child itself. Admittedly, this right is not absolute and is subject to limitations. In accordance with Article 8 § 2, there may be interference by a public authority justified, inter alia, by the protection of health or morals or the protection of the rights and freedoms of others. The Court must therefore engage in a careful examination of the interests at stake in order to determine whether, exceptionally, a decision on adoption taken without the consent of the biological parent may be justified under the Convention. 3.", "In the present case, the Linz-Land District Court held on 16 October 2002 that it could overrule the applicant's refusal to grant consent and authorise his daughter's adoption by her mother's new partner. On the one hand, the district court noted that the child had developed a close relationship with her mother's new partner and that adoption would secure her position in the family and be a material safeguard. At the same time, it considered that the applicant's allegedly close relationship with his daughter did not correspond to reality. In those circumstances, the refusal of consent was considered unjustified (paragraph 21). The Linz Regional Court dismissed the applicant's appeal on 25 February 2003.", "The regional court held that it was not necessary to request an expert opinion or to hear evidence from the social workers concerned. It considered that the reasons given by the lower court were sufficient, particularly in relation to the applicant's conduct; nonetheless, it minimised the argument concerning the adoptive father's financially more advantageous position, stating that the fact that A.F. was in a better financial position than the applicant had not been a reason for granting the adoption (paragraph 23 in fine). 4. We do not find that these reasons were, in the circumstances of this case, relevant and sufficient to justify the adoption of the applicant's daughter against his will.", "We note, firstly, that the applicant's contacts with his daughter were certainly limited at the time of the adoption. However, this was not due to the applicant's lack of interest but a consequence of the fact that, following his aggression towards his former partner, the latter refused him access to the child and the courts subsequently withdrew his visiting rights. Prior to these events, the applicant had been living with his daughter for some two years and had maintained visiting contact for another year and some nine months. Furthermore, the applicant had constantly expressed his wish to visit his child. He had applied to the courts after his former partner refused him access, had appealed against the withdrawal of his visiting rights and had filed further repeated requests for visiting rights in the subsequent years.", "The present case, therefore, falls to be distinguished from other cases before the Court (see Söderbäck v. Sweden, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII and Kuijper v. the Netherlands (dec.), no. 64848/01, 3 March 2005) which also concerned the adoption of a child against the biological parent's wishes but where the parent in question had accepted the lack of contact with his/her child for several years. We further observe that the domestic courts referred to the fact that the applicant had repeatedly interfered in the relationship between the child and her mother, causing the child to develop physical and psychological problems. The applicant had threatened and injured the child's mother in December 1996. Some two years later, in March 1998, he had insulted the child's mother and informed the child that her mother was an evil witch and a whore, thus causing distress to the child.", "Whilst we agree with the domestic courts' finding that in behaving in such a manner the applicant had acted contrary to family values, we nevertheless find it difficult to accept that this conduct must be considered of such seriousness as to justify the severing of the applicant's bonds with his child against his will. This opinion is strengthened if we note that, at the time of the adoption, the impugned events dated back more than four years and three years respectively and that a later contact visit in December 2000 had passed without similar incident. 5. While not overlooking the domestic courts' reasoning that the adoption was in the child's best interest, we find that, in view of its far‑reaching impact on the relationship between the applicant and his child and its irrevocable character, such a measure presupposed a particularly careful investigation and consideration of other possible solutions. On the one hand, we cannot find that the procedure applied by the courts in the present case met these requirements.", "We note, in particular, that the child's overriding interest was found to be established on the basis of the above-cited facts without any further investigation into the matter such as, for instance, the taking of an expert opinion on child psychology. On the other hand, the courts overruled the applicant's lack of consent without a prior attempt to reach an agreement between the parties. We do not believe that the child's real interests lie in depriving her biological father or mother of their right to consent to her adoption. Such an extreme situation, which may only occur in duly established exceptional circumstances, is one of failure, and potentially a source of deep suffering for the child. In the area of adoption, it is for the State to take all possible measures to ensure a balance, within the adoption triangle, of the rights of the biological parents, the candidates for adoptive parenthood and children themselves.", "6. Against this background, we find that the fact of permitting the adoption of the applicant's child without his consent represented an interference with his right to family life which has not been shown to be necessary in a democratic society. There has therefore been a violation of Article 8 of the Convention. [1] I. Lammerant, L’adoption et les droits de l’homme en droit comparé, Bruxelles, Bruylant, 2001, n° 323, p. 368." ]

[ "AFFAIRE BERNARD c. FRANCE CASE OF BERNARD v. FRANCE (159/1996/778/979) ARRÊT/JUDGMENT STRASBOURG 23 avril/April 1998 Cet arrêt peut subir des retouches de forme avant la parution de sa version définitive dans le Recueil des arrêts et décisions 1998, édité par Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Cologne) qui se charge aussi de le diffuser, en collaboration, pour certains pays, avec les agents de vente dont la liste figure au verso. The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf. Liste des agents de vente/List of Agents Belgique/Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B-1000 Bruxelles) Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare) Pays-Bas/The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC La Haye/’s-Gravenhage) SUMMARY[1] Judgment delivered by a Chamber France – statements by two psychiatric experts at a trial in an assize court I.Government’s preliminary objection (non-exhaustion of domestic remedies) Submitted that applicant had neglected to ask investigating judge to order independent expert report.", "Submission referred to expert reports filed during investigation stage, whereas applicant had challenged remarks made by two experts at his trial in the Assize Court. Applicant had raised complaint in question before Assize Court and later before Court of Cassation. Conclusion: objection dismissed (unanimously). II. Article 6 of the Convention Reference to Court’s case-law.", "Purpose of psychiatric examinations: to determine whether applicant was suffering from some mental or psychological disorder, if so whether there was a link between disorders found and offences he stood accused of, and whether he was dangerous. Two experts logically had to start from working hypothesis that he had committed the crimes in question. Their conclusions had been filed during the investigation and contained comments complained of. Before Indictment Division applicant had had opportunity to challenge expert reports and ask for them to be declared null and void – no attempt to do so by his lawyers. Before Assize Court applicant had lodged an interlocutory application, but court refused to declare experts’ evidence inadmissible, on ground that phrases challenged did not prove that they had prejudged merits of case or expressed their opinion as to defendant’s guilt.", "Record of hearings showed that all witnesses called by applicant had been heard and that defence had had opportunity to make observations after each witness had given evidence. Court of Cassation dismissed applicant’s argument that presumption of innocence had been infringed, on ground that comments complained of had not revealed any breach of oath sworn by experts to assist court on their honour and according to their conscience. Applicant’s conviction based on all charges preferred and evidence obtained during investigation and discussed at trial hearings – Court could not regard statements in issue, which formed only one part of evidence submitted to jury, as contrary to requirements of fair trial and presumption of innocence. Conclusion: no violation (eight votes to one). COURT'S CASE-LAW REFERRED TO 27.2.1980, Deweer v. Belgium; 25.3.1983, Minelli v. Switzerland; 16.12.1992, Edwards v. the United Kingdom; 10.2.1995, Allenet de Ribemont v. France; 18.3.1997, Mantovanelli v. France In the case of Bernard v. France[2], The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A[3], as a Chamber composed of the following judges: MrR.", "Bernhardt, President, MrF. Gölcüklü, MrF. Matscher, MrL.-E. Pettiti, MrsE. Palm, MrR. Pekkanen, MrG.", "Mifsud Bonnici, MrP. Jambrek, MrU. Lōhmus, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 31 January and 25 March 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 5 December 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention.", "It originated in an application (no. 22885/93) against the French Republic lodged with the Commission under Article 25 by a French national, Mr Jean-Paul Bernard, on 29 May 1993. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 §§ 1 and 2 of the Convention. 2.", "In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30). 3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 20 January 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr R. Macdonald, Mrs E. Palm, Mr G. Mifsud Bonnici, Mr P. Jambrek and Mr U. Lōhmus (Article 43 in fine of the Convention and Rule 21 § 5). 4.", "As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the French Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 28 and 31 October 1997 respectively. 5. On 10 December 1997 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 6.", "On 7 January 1998 Mr R. Bernhardt, the Vice-President of the Court, replaced as President of the Chamber Mr Ryssdal, who was unable to take part in the further consideration of the case (Rule 21 § 6). 7. On 26 January 1998 the applicant’s counsel filed documents at the registry. 8. In accordance with Mr Ryssdal’s decision of 15 May 1997, the hearing took place in public in the Human Rights Building, Strasbourg, on 28 January 1998.", "The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)for the GovernmentMrJ.-F. Dobelle, Deputy Director of Legal Affairs, Ministry of Foreign Affairs,Agent,MrsM. Dubrocard, magistrat, on secondment to the Legal Affairs Department, Ministry of Foreign Affairs,MrA. Buchet, Head of the Human Rights Office, European and International Affairs Department, Ministry of Justice,MrB. Dalles, magistrat, Criminal Justice and Individual Freedoms Office, Criminal Cases and Pardons Department, Ministry of Justice,Advisers; (b)for the CommissionMrJ.-C. Soyer,Delegate; (c)for the applicantMsC.", "Brun-Schiappa, of the Marseilles Bar,Counsel. The Court heard addresses by Mr Soyer, Ms Brun-Schiappa and Mr Dobelle. 9. As Mr Macdonald was unable to take part in the deliberations on 25 March 1998, he was replaced by Mr R. Pekkanen, substitute judge, (Rules 22 § 1 and 24 § 1). AS TO THE FACTS I.the CIRCUMSTANCES OF THE CASE 10.", "In the course of a judicial investigation into a charge brought against Mr Bernard on a number of counts of armed robbery, an investigating judge at Nevers ordered two expert opinions on him: a psychiatric report from a Dr Guggiari and a medical and psychological report from a Dr Debitus. 11. On 13 July 1988 Dr Guggiari submitted his report, in which he concluded: “As the subject does not accept that he is either ill or guilty, he cannot be regarded as curable. From what illness should he be cured? His social and affective environment will play a far greater role in his rehabilitation than any medical or psychiatric treatment, which he refuses.", "All things considered, his chances of rehabilitation appear to be considerably compromised by both his criminal record and his personality.” 12. The applicant requested a second opinion, which the investigating judge commissioned on 19 May 1989 from a Dr Dumoulin. 13. On 24 June 1989 Dr Dumoulin filed his report, which contained the following passage: “Mr Bernard is a gangster (from the English word ‘gang’, which denotes the members of a criminal conspiracy). The conduct of the operation shows (see the case file) (a) that it was very well planned: - customers unaware that staff were being threatened (raiders not masked), - ‘remarkable calm’ of the raiders, who wore gloves and were armed, - booby-trapped bundles not stolen, - cash dispenser loaded for the weekend, - raiders checked that security camera was a dummy.", "(b) that it was the work of an experienced team: - numerous bank robberies committed according to the same pattern by the same men, - Mr Bernard is practically a weapons expert and has the advantage of the commando training he received when he did his national service in the marines. All Mr Bernard’s major offences (both past and present) fall into the category of organised crime, sharing the following features: - formation of a criminal organisation, - aggravated robberies committed by armed criminals, - targets chosen to bring immediate, large gains. Mr Bernard is not a casual offender, but a real professional. In addition to hold-ups, it seems that his criminal activities have spread into new fields (see the other charges). The back-up provided by his accomplices (the gang) is essential, as they provide both material support, in the form of vehicles, safe houses, alibis etc., and moral support, since the recklessness of each member makes the group bolder and incites the others to repeat their crimes while controlling the risks better.", "Mr Bernard’s responsibility is aggravated by many factors, for example: - he is a habitual reoffender, - he employs violence, threatening people with weapons, - he acts in association with accomplices… At no time did Article 64 of the Criminal Code apply to him. Mr Bernard is always highly dangerous because of his sang-froid and his criminal determination. He showed his astuteness throughout the investigation – as he did when committing the offences – and during our interview, constantly denying that he took part in them. He cannot be intimidated by the judiciary. His dangerousness even seems to be directed towards the judges investigating his cases.", "He claims that Mr Roussel and Miss C. Enfoux were appointed to persecute him and makes alarmingly virulent verbal attacks on them. This dangerousness is intensified by his habitual use of firearms. Mr Bernard’s extreme dangerousness makes the following special measures essential: - he must be permanently banned from carrying weapons of any kind, including those whose sale is not controlled,- he must be placed on permanent probation after his release from prison, - imprisonment in an open prison is unthinkable, - inside prison he must be kept under special surveillance, in view of the likelihood that he will attempt to escape (high-security wing or similar). Mr Bernard is liable to a criminal penalty, which must be directly proportionate to his extreme dangerousness. Mr Bernard is not curable by criminal treatment (he is not in any case a suitable case for medical treatment).", "A number of sentences have not been sufficient to attenuate his delinquent behaviour. On the contrary, he adopts an omnipotent and defiant attitude which is reinforced still further by his imprisonment. His sthenia (aggressive attitude) is unbounded. He feels invincible. Treatment by means of a criminal penalty is only a social-protection measure aimed at preventing the certain repetition of serious offences.", "Mr Bernard can never be rehabilitated. His allegiance to the world of organised crime seems irreversible. No sentence can be heavy enough to break his spirit; he will always try to escape from prison or strengthen his links with other criminals there. He is certain to reoffend, as is proved by his criminal record.” This report was served on the applicant on 18 July 1989. He requested a third opinion, but on 25 July 1989 the investigating judge refused this request.", "14. In the course of a separate investigation concerning an attempted escape the same judge ordered a psychiatric report and once again appointed Dr Dumoulin. After this report had been filed Mr Bernard requested a second opinion, but this request was refused by the investigating judge on 15 September 1989. The applicant appealed on 25 September 1989 but, in an order of 3 October 1989, the President of the Indictment Division of the Bourges Court of Appeal refused him leave to appeal to that Division. 15.", "The applicant was committed for trial before the Rhône Assize Court in a judgment delivered by the Indictment Division of the Lyons Court of Appeal on 11 October 1991. The Indictment Division observed that Mr Bernard had initially admitted his involvement in an armed robbery in which 430,350 French francs (FRF) had been stolen on 5 June 1987 from a branch of Crédit Agricole in Nevers. It further noted that the applicant had been picked out by witnesses from a five-man identity parade as the person who had stood guard at the door during the robbery. The Indictment Division also found that the investigation had yielded sufficient evidence tending to establish that the applicant had robbed a branch of Crédit Agricole in Le Mans of FRF 190,000 on 26 November 1986, with the aggravating circumstance that the offence had been committed with the assistance or threatened use of a weapon. 16.", "At the trial on 9 June 1992, after the experts had given evidence, Mr Bernard’s lawyer requested in his submissions that a formal note be entered in the record to the effect that the experts had stated an opinion on the question of the applicant’s guilt. 17. In an interlocutory decision of 12 June 1992 the Assize Court dismissed the applicant’s lawyer’s request for the evidence of two experts examined during the trial to be ruled inadmissible, on the following grounds: “Whereas one of the lawyers of the defendant Bernard Jean-Paul requested in his submissions that a formal note be entered in the record to the effect that the expert Dumoulin had stated: ‘The facts themselves prove that he is dangerous’ and that the the expert Guggiari had stated: ‘As he does not accept that he is either ill or guilty, he cannot be regarded as curable’ and that those experts had therefore stated an opinion at the trial on the question of Bernard Jean-Paul’s guilt; And whereas it was submitted that the evidence given by those experts should be ruled inadmissible; Whereas, while the experts were giving evidence, Bernard Jean-Paul’s lawyer noted down certain statements or isolated phrases which they are alleged to have made and which, it is submitted, prove that they stated an opinion on the question of Bernard Jean-Paul’s guilt; But whereas these statements or isolated phrases, even if they were spoken, have been taken out of context and do not establish that the experts prejudged the merits of the case or expressed their opinion as to the defendant’s guilt, especially as, while giving their evidence, they were always careful to specify that they were stating their conclusions concerning offences which Bernard Jean-Paul denied committing; …” 18. On 12 June 1992 the Assize Court sentenced the applicant to ten years’ imprisonment for armed robbery. 19.", "Mr Bernard appealed on points of law. He submitted in his appeal, among other arguments, that the experts’ comments had infringed the principle of the presumption of innocence, according to which they were under a duty not to express their opinion as to a defendant’s guilt. 20. On 31 March 1993 the Court of Cassation dismissed the appeal, holding that the comments referred to in that ground of appeal did not constitute a breach of the oath sworn by the experts to assist the court on their honour and according to their conscience, as provided for in Article 168 of the Code of Criminal Procedure. II.Relevant domestic law A.Appointment of experts 21.", "The appointment of experts is governed by the following provisions of the Code of Criminal Procedure: Article 156 “Where a technical question arises, any investigating judicial authority or court of trial may, at the request of the prosecuting authorities, or of its own motion, or at the request of any party, order an expert report. Where an investigating judge decides not to grant a request for an expert report, he shall make an order stating his reasons. Experts shall undertake their assignment under the supervision of the investigating judge or other judge duly appointed by the court ordering the expert report.” Article 157 “Experts shall be chosen from the natural or legal persons appearing either in a national list drawn up by the Council of the Court of Cassation or in one of the lists drawn up by the Courts of Appeal, with the advice of the principal state prosecutor. The terms and conditions of inclusion in and removal from these lists shall be determined by a regulation of the Prime Minister. In exceptional circumstances the courts may, by means of a decision stating reasons, choose an expert who does not appear in any of these lists.” Article 160 “Upon their inclusion in one of the lists referred to in Article 157, experts shall take an oath, before the Court of Appeal for the district in which they reside or have their registered office, to assist the courts on their honour and according to their conscience.", "They are not required to renew that oath before each assignment.” Article 168 “Experts shall, if necessary, give evidence in court on the results of their technical investigations, after swearing to assist the court on their honour and according to their conscience...” B.Preparation of expert reports 22. The preparation of expert reports is governed by the following provisions of the same code: Article 158 “The terms of an expert’s assignment, which is confined to examining technical matters, shall be specified in the decision ordering the expert report.” Article 161 “... In carrying out their assignment, experts shall liaise with the investigating judge or other judge; they must keep him informed of the progress of their assignment so that at any time he can take any measures that may be necessary.” Article 165 “During the course of the expert’s assignment, any party may ask the court which has ordered the report to instruct the experts to make particular enquiries or to interview any named person who is likely to be able to provide them with technical information.” Article 167 “The investigating judge shall inform the parties and their counsel of the experts’ conclusions ... In all cases, the investigating judge shall stipulate a period within which the parties must submit any observations or requests, particularly for a supplementary report or second opinion. During that period the case file shall be made available to the parties’ counsel.", "Where the investigating judge refuses a request, he shall do so in a decision stating reasons which must be made within one month of receipt of the request...” Article 186-1 “The accused or a civil party may also appeal against the orders provided for in ... the fourth paragraph of Article 167.” C.Psychiatric reports 23. Psychiatric reports are the subject of the following provisions: Article 164 “... Where they [the experts] consider it necessary to question the accused ... the interview shall be conducted in their presence by the investigating judge or judge appointed by the court and shall in all cases comply with the formalities and conditions provided for in Articles 118 and 119.” Article 81, paragraph 7 “An investigating judge may prescribe a medical examination, instruct a doctor to carry out a medical and psychological examination or order any other necessary measures. If the investigating judge decides to refuse a request for such an examination by the accused or his counsel, he must do so by means of an order stating his reasons.” PROCEEDINGS BEFORE THE COMMISSION 24. Mr Bernard applied to the Commission on 29 May 1993. He complained of an infringement of his right to a fair trial and of the principle of the presumption of innocence, and relied on Article 6 §§ 1 and 2 of the Convention.", "25. The Commission (Second Chamber) declared the application (no. 22885/93) admissible on 18 October 1995. In its report of 22 October 1996 (Article 31), it expressed the opinion, by seven votes to seven with the President’s casting vote, that there had been a violation of Article 6 § 1 and that it was not necessary to consider the complaint relating to Article 6 § 2. The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[4].", "FINAL SUBMISSIONS TO THE COURT 26. The Government asked the Court to hold that there had been no breach of Article 6 §§ 1 and 2 of the Convention. 27. The applicant’s counsel asked the Court to hold that there had been a breach of Article 6 § 1 and to award his client just satisfaction. as to the law I.the Government’s preliminary objection 28.", "The Government pleaded, as they had done before the Commission, that the applicant had failed to exhaust domestic remedies, in that he had neglected to ask the investigating judge to order an independent expert report after the second expert filed his report. The appeal of 25 September 1989, mentioned in the Commission’s report, against the investigating judge’s refusal of his request for a third expert opinion concerned a decision taken by a different investigating judge in the course of proceedings against the applicant for attempted escape with violence. According to the Government the appointment of a third psychiatric expert would incontestably have provided a remedy for the complaint relating to Article 6 § 1 of the Convention. 29. Like the Delegate of the Commission, the Court observes in the first place that the Government’s submission refers to the expert reports filed during the investigation conducted by the Nevers investigating judge, whereas Mr Bernard challenged the comments made by the experts Guggiari and Dumoulin at his trial on 9 June 1992 in the Rhône Assize Court.", "Secondly – and the Commission rightly recognised this in its decision on the admissibility of the application – the applicant raised the complaint in question before the Assize Court, by means of an interlocutory application, and later by appealing to the Court of Cassation. Domestic remedies were therefore exhausted. 30. In any event, the Nevers investigating judge was at the relevant time conducting two investigations concerning the applicant, one of which was for armed robbery and the other for attempted escape. If the appeal of 25 September 1989 (see paragraph 14 above) concerned the psychiatric report filed by Dr Dumoulin in the context of the second investigation – and Mr Bernard admitted as much – it can reasonably be presumed that any further request for an independent opinion made after Dr Dumoulin had filed his report on 24 June 1989 (see paragraph 13 above) would have been bound to fail.", "ii.alleged violation of Article 6 of the Convention 31. The applicant submitted that the comments made by the two psychiatric experts at his trial on 9 June 1992 in the Rhône Assize Court had infringed his right to a fair trial and the principle of the presumption of innocence. He argued that this had breached Article 6 §§ 1 and 2 of the Convention, which provide: “1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing ... by [a] … tribunal... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 32.", "The Government contended that the way the psychiatrists gave evidence at the trial, regard being had to the content of the reports they had filed during the investigation, had not infringed the applicant’s right to a fair trial and the presumption of innocence. They observed that experts were not members of the court called upon to determine whether a defendant was guilty, nor was it their role to take part in establishing whether he had committed the acts he stood accused of. The sole purpose of their contribution was to assess the defendant’s personality, in order to determine in particular to what extent he was responsible for his actions at the time of the offence, supposing that it had been proved that an offence had been committed. In other words, the opinions expressed by the psychiatric experts in carrying out their assignment did not have any bearing on either the investigations conducted by the investigating judge about the facts which had given rise to the prosecution or the way the defendant’s guilt was determined. 33.", "The Government submitted that the questions raised in the present case had to be determined in the light of the general context of the proceedings as a whole, which necessarily meant, according to French law, that the pre-trial investigation stage had to be included in the overall consideration of the Assize Court proceedings. The fresh consideration of all the charges against a defendant followed extensive proceedings during which all the offences of which he stood accused had been looked into, first by the investigating judge and then by the Indictment Division of the Court of Appeal. In the present case Mr Bernard had been committed for trial in the Rhône Assize Court pursuant to a decision taken on 11 October 1991 by the Indictment Division of the Lyons Court of Appeal after hearing his lawyers. That hearing had given them a perfect opportunity to raise the complaints relating to the content of the psychiatric experts’ reports and ask for these to be ruled inadmissible on the ground that they infringed the principle of the presumption of innocence. Moreover, if the Indictment Division had refused such a request, they could also have appealed to the Court of Cassation against the decision to commit their client for trial.", "However, no challenge was made. Lastly, before the Assize Court the applicant had made an interlocutory application for a formal note to be entered in the record, but, after considering the allegations, the Assize Court had refused this request and the Court of Cassation had upheld that decision. In any event, even supposing that the two psychiatric experts’ statements had been capable of persuading the jurors that Mr Bernard was guilty, his conviction was based on an extensive body of factual evidence, including the fact that he had been identified by several witnesses. 34. The Commission considered that the question whether the psychiatric reports had infringed the applicant’s right to a fair trial had to be determined by examining them in the light of the trial as a whole.", "It acknowledged, however, that this was no easy task given the specific features of assize court procedure, in which evidence was taken orally at the hearing, no reasons were given in the judgment declaring the defendant guilty and no official transcript of the trial was provided for by the Code of Criminal Procedure. In the present case the members of the jury had heard the experts for the first time at the hearing in the Assize Court. The fact that experts were officially appointed and were required to swear a special oath, different from the one sworn by ordinary witnesses, together with their prestige as specialists, might give particular importance to the opinions they expressed in the minds of lay judges, which was what jurors were. The Commission accordingly took the view that the President of the Assize Court should have reminded the experts what their task was, namely to assist the court on their honour and according to their conscience, thus enabling the applicant, by means of an interlocutory application, to remedy if necessary a situation contrary to the requirements of the Convention. The only possibility which remained open to the defence, namely of asking the court to enter a formal note of the comments concerned in the record and rule them inadmissible, was not sufficient to protect the applicant’s right to a fair hearing within the meaning of Article 6 § 1, given the importance of what was at stake, the severity of the penalty to which he was liable and, above all, the special nature of assize court procedure.", "35. As to the alleged infringement of the presumption of innocence, the Commission did not consider it necessary to examine that complaint, in view of the fact that it had found a violation of paragraph 1 of Article 6. 36. The applicant argued that, because of the special nature of a psychiatric report, experts’ objectivity and impartiality had to be irreproachable. A psychiatric expert, who was both an officer of the court and a doctor, acted outside the normal principles governing the conduct of criminal proceedings and the rules of medical ethics.", "When being examined, a defendant could not be assisted by counsel or by another medical expert and could not submit observations. The only remedy available to him was to request a second opinion. On the other hand, the psychiatrist was sometimes privy to highly personal confidences but nevertheless reported these to the investigating judge and later to a court at a public hearing. Because of these special features, experts had a duty to be particularly cautious and provide a scientific or medical justification for any answers they gave to the questions they were asked. In the present case the comments in issue had not had any medical or scientific basis but had, on the contrary, demonstrated the partiality of those who had made them.", "According to Mr Bernard, these comments had heavily influenced the jurors, who, from the very first hearing, had decided he was guilty. 37. The Court reiterates in the first place that “the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1” (see, among other authorities, the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 30, § 56, the Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62, p. 15, § 27, and the Allenet de Ribemont v. France judgment of 10 February 1995, Series A no.", "308, p. 16, § 35). It will accordingly consider the applicant’s complaints from the standpoint of these two provisions taken together. In so doing, it must consider the criminal proceedings as a whole. It is admittedly not the Court’s task to substitute its own assessment of the facts and the evidence for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see, mutatis mutandis, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no.", "247-B, pp. 34 and 35, § 34, and the Mantovanelli v. France judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, pp. 436–37, § 34). 38. The purpose of the psychiatric examinations Mr Bernard underwent was to obtain, inter alia, an answer to the question whether he was suffering from some mental or psychological disorder and, if so, whether there was a link between the disorders found and the offences he stood accused of.", "They were also intended to assess how dangerous he was. The two specialists appointed by the investigating judge logically had to start from the working hypothesis that the applicant had committed the crimes which had given rise to the prosecution. Their conclusions were filed on 13 July 1988 and 24 June 1989, during the investigation stage (see paragraphs 11 and 13 above), and contained the comments complained of. Mr Bernard himself had moreover requested the second expert opinion and his request for a third had been refused. At the hearing before the Indictment Division of the Lyons Court of Appeal on 11 October 1991 the applicant had the opportunity to challenge the expert reports and ask for them to be declared null and void, but the judgment of that date committing him for trial did not mention any attempt to do so by his lawyers.", "39. At Mr Bernard’s trial in the Rhône Assize Court on 9 June 1992 his counsel lodged an interlocutory application after Dr Guggiari and Dr Dumoulin had given evidence, but the court refused to declare their evidence inadmissible, on the ground that the phrases challenged did not prove that they had prejudged the merits of the case or expressed their opinion as to the defendant’s guilt. In its interlocutory decision of 12 June 1992 the court noted that the experts had always taken care to specify that they were stating their conclusions concerning offences which the applicant denied committing (see paragraph 17 above). In addition, the record of the hearings shows that all the witnesses called by Mr Bernard were heard and that his counsel had the opportunity to make observations after each witness had given evidence. On 31 March 1993 the Court of Cassation dismissed the applicant’s argument that the statements in issue had infringed the principle of the presumption of innocence, on the ground that the comments referred to did not reveal any breach of the oath sworn by the experts to assist the court on their honour and according to their conscience, as provided for in Article 168 of the Code of Criminal Procedure (see paragraph 20 above).", "40. The file shows that the applicant’s conviction was based on all the charges preferred and on the evidence obtained during the investigation and discussed at the hearings in the Assize Court. That being so, the Court cannot regard the statements in issue, which formed only one part of the evidence submitted to the jury, as contrary to the requirements of a fair trial and the presumption of innocence. 41. In conclusion, there has been no breach of Article 6 §§ 1 and 2.", "For these reasons, the court 1. Dismisses unanimously the Government’s preliminary objection; 2. Holds by eight votes to one that there has been no breach of Article 6 §§ 1 and 2 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 April 1998. Signed: Rudolf Bernhardt President Signed: Herbert Petzold Registrar In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr Bernhardt; (b) dissenting opinion of Mr Lōhmus.", "Initialled: R.B.Initialled: H.P. CONCURRING OPINION OF JUDGE BERNHARDT I voted with the majority in finding no violation of Article 6 of the Convention. However, I would have preferred the judgment to express misgivings on the part of the Court about the way in which the experts in the present case performed their duties. The excerpts from the expert opinions quoted in paragraphs 11 and 13 of the present judgment contain statements which are in my view unacceptable and hardly compatible with the task of a neutral and objective expert. Nevertheless, when considering all the elements of the case, I have come to the conclusion that these statements did not make the trial as a whole unfair.", "The defence had the opportunity to respond to and to comment on the experts’ opinions. It must also be assumed that all members of the Assize Court knew the specific role of experts in criminal proceedings and took their own decision in accordance with their own conviction and conscience. DISSENTING OPINION OF JUDGE LŌHMUS In paragraph 37 the Court recalls that “the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1”. I entirely agree with this principle, as expressed in this judgment and in other judgments of the Court. Contrary to the majority of the Court, I have reached the conclusion that there has been an infringement of the applicant’s rights under Article 6 §§ 1 and 2.", "According to my understanding, the majority based their reasoning on the fact that the psychiatric reports formed only one part of the evidence submitted to the jury and that the applicant’s conviction was based on the evidence obtained during the investigation and discussed at the hearing in the Assize Court (see paragraph 40). I am of the opinion that this reasoning, leading to the finding that there was no breach of Article 6 §§ 1 and 2, is in some respects in contradiction with the principle set forth in paragraph 37. It is not the Court’s task to substitute its own assessment of the facts and the evidence for that of the domestic courts. The Court’s task is to ascertain whether the proceedings in their entirety were fair. The expressions that were used in the reports by the experts went beyond medical or psychiatric terminology.", "The experts overstepped the limits of their competence by expressing their opinion as to the applicant’s guilt. Both experts were appointed by an investigating judge, that is, by the judicial authority. As no reasons are given in the Assize Court’s judgment it cannot be known to what extent the jurors, in declaring the applicant guilty, took the psychiatric reports into account. Jurors are very sensitive to opinions expressed by qualified experts. By using such expressions in the reports, the experts reinforced the opinion that the applicant was guilty and so created a situation in which the principles of presumption of innocence and fair trial were not observed.", "[1]. This summary by the registry does not bind the Court. [2]Notes by the Registrar . The case is numbered 159/1996/778/979. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number).", "The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [3]. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.", "[4]. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry." ]

[ "SECOND SECTION CASE OF GÜZELER v. TURKEY (Application no. 13347/07) JUDGMENT STRASBOURG 22 January 2013 This judgment is final but it may be subject to editorial revision. In the case of Güzeler v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President,Paulo Pinto de Albuquerque,Helen Keller, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 11 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13347/07) 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 four Turkish nationals, Ms Hatice Güzeler, Mr Birol Güzeler, Mr Kamil Güzeler and Ms Oya Güzeler (“the applicants”), on 14 March 2007.", "2. The applicants were represented by Mr C. Altıparmak, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3. On 14 October 2010 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1924, 1963, 1965 and 1963 respectively and live in İzmir. 5. On 21 September 1989 the applicants brought a case before the Seferihisar Cadastral Court in claim of possession on a plot of land 6. On 18 September 2006 the case was finalised.", "7. In the course of the proceedings there was only one judge authorised to hear cadastral cases and in the entire proceedings only eight hearings were presided by the same judge. 8. The Cadastral Court decided to conduct on-site examination after four years and five months from the beginning of the proceedings. The decision to conduct on-site examination was implemented nine years and four months after the decision.", "9. In cadastral cases courts were authorised by the law to issue the certificate of inheritance, replacing magistrate civil courts. However, in the case at hand the cadastral court avoided to exercise such authority and preferred to give deadlines to the parties to apply to the magistrate civil courts that caused about six years of delay. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 10.", "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 his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...” 11. The Government contested that argument. 12. The period to be taken into consideration began on 21 September 1989 and ended on 18 September 2006. It thus lasted seventeen years for two levels of jurisdiction.", "A. Admissibility 13. 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 14. 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, Daneshpayeh v. Turkey, no. 21086/04, § 28, 16 July 2009). 15. 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. 16. There has accordingly been a breach of Article 6 § 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 17.", "The applicants further complained that the length of the proceedings had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1. 18. The Government contested that argument. 19.", "The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 20. Having regard to its finding under Article 6 § 1 (see paragraph 15 above), 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 Zanghì v. Italy, 19 February 1991, § 23 Series A no. 194-C).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. 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 22. The applicants claimed 200,000 euros (EUR) in respect of pecuniary and EUR 100,000 in respect of non-pecuniary damage.", "23. The Government contested these claims. 24. 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 applicants jointly EUR 14,400 in respect of non-pecuniary damage.", "B. Costs and expenses 25. The applicants did not claim any amount under this head. C. Default interest 26. 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 is no need to examine the complaint under Article 1 of Protocol No. 1; 4.", "Holds (a) that the respondent State is to pay the applicants jointly, within three months, EUR 14,400 (fourteen thousand and four hundred 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; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosDragoljub PopovićDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF DANILENKOV AND OTHERS v. RUSSIA (Application no. 67336/01) JUDGMENT This version was rectified on 23 April 2010 under Rule 81 of the Rules of the Court STRASBOURG 30 July 2009 FINAL 10/12/2009 This judgment may be subject to editorial revision. In the case of Danilenkov and Others v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President,Renate Jaeger,Karel Jungwiert,Anatoly Kovler,Mark Villiger,Isabelle Berro-Lefèvre,Zdravka Kalaydjieva, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 14 April and 7 July 2009, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 67336/01) 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 thirty-two Russian nationals, listed below (“the applicants”), on 9 February 2001.", "All the applicants are members of the Kaliningrad branch of the Dockers' Union of Russia (“the DUR”). 2. The applicants, who had been granted legal aid, were represented by Mr M. Chesalin, Chairman of the DUR in Kaliningrad seaport. The Russian Government (“the Government”) were represented successively by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.", "The applicants alleged, in particular, that their right to freedom of association and freedom from discrimination had been breached and that they had not had effective domestic remedies in respect of their discrimination complaint. 4. On 19 October 2004 the application was declared admissible. 5. The applicants and the Government each filed observations on the merits (Rule 59 § 1).", "The Court decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are: (1) Mr Sergey Nikolayevich Danilenkov, born in 1965; (2) Mr Vladimir Mikhaylovich Sinyakov, born in 1948; (3) Mr Boris Pavlovich Soshnikov, born in 1951; (4) Mr Anatoliy Nikolayevich Kasyanov, born in 1958; (5) Mr Viktor Mikhaylovich Morozov, born in 1947; (6) Mr Anatoliy Yegorovich Troynikov, born in 1947; (7) Mr Dmitriy Yurievich Korchazhkin[1], born in 1969; (8) Mr Yuriy Ivanovich Zharkikh, born in 1970; (9) Mr Anatoliy Ivanovich Kiselev, born in 1949; (10) Mr Yuriy Anatolyevich Bychkov, born in 1969; (11) Mr Aleksandr Igorevich Pushkarev, born in 1961; (12) Mr Gennadiy Ivanovich Silvanovich, born in 1960; (13) Mr Ivan Vasilyevich Oksenchuk, born in 1946; (14) Mr Gennadiy Adamovich Kalchevskiy, born in 1957; (15) Mr Aleksandr Ivanovich Dolgalev, born in 1957; (16) Mr Vladimir Fedorovich Grabchuk, born in 1956; (17) Mr Aleksandr Fedorovich Tsarev, born in 1954; (18) Mr Aleksandr Yevgenyevich Milinets, born in 1967; (19) Mr Lukshis Aldevinas Vintso, born in 1955; (20) Mr Aleksandr Fedorovich Verkhoturtsev, born in 1955; (21) Mr Igor Nikolayevich Vdovchenko, born in 1966; (22) Mr Igor Yuryevich Zverev, born in 1969; (23) Mr Nikolay Grigoryevich Yegorov, born in 1958; (24) Mr Aleksandr Konstantinovich Lemashov, born in 1955; (25) Mr Nikolay Nikolayevich Grushevoy, born in 1957; (26) Mr Petr Ivanovich Mironchuk, born in 1959; (27) Mr Nikolay Yegorovich Yakovenko, born in 1949; (28) Mr Yuriy Yevgenyevich Malinovskiy, born in 1971; (29) Mr Oleg Anatolyevich Tolkachev, born in 1964; (30) Mr Aleksandr Viktorovich Solovyev, born in 1956; (31) Mr Aleksandr Mikhaylovich Lenichkin, born in 1936; (32) Mr Vladimir Petrovich Kolyadin, born in 1954. 7.", "The applicants are Russian nationals who live in Kaliningrad. The twentieth and thirty-first applicants died on unspecified dates. A. Background to the application 8. A branch of the Dockers' Union of Russia was established in 1995 in Kaliningrad seaport as an alternative to the traditional Maritime Transport Workers' Union.", "The branch was officially registered with the Kaliningrad Justice Department on 3 October 1995. 9. The applicants' employer, the private company Kaliningrad Commercial Seaport Co. Ltd. (ЗАО «Морской торговый порт Калининград» – “the seaport company”), was established on 30 June 1998 as a result of the reorganisation of the limited company Commercial Seaport of Kaliningrad and was the legal successor to the latter. On 20 July 1998 the Administrative Authority of the Baltiyskiy District of Kaliningrad officially registered the new legal entity. On 25 April 2002 the private company was converted into a public company under the same name (ОАО «МПТК»).", "10. The applicants indicated that on 4 March 1997 the Governor of the Kaliningrad Region had issued Resolution no. 183 establishing the Kaliningrad Regional Development Fund (“the Fund”) and appointing five officials of the Kaliningrad Regional Administrative Authority to its board of management. The Governor himself became the chairman of the board and Mr Karetniy, the first deputy Governor, was appointed Fund manager. 11.", "According to the applicants, between 1998 and 2000 Mr Karetniy was a member of the board of directors of the seaport company. During that time Mr Karetniy also managed, through a company called Regionk which was controlled by him, a further 35% of the seaport company shares. Thus, the applicants inferred that their employer had at the material time been under the effective control of the State: both directly (20% of shares owned by the Fund) and indirectly (35% of the shares managed by an official of the regional administrative authority). 12. According to the documents submitted by the Government, Kaliningrad seaport had been in private ownership and the Fund had acquired only 19.93% of its shares (0.09% in May 1997 and 19.84% in May 1998); therefore it could not be said that the State had effective control over its activity.", "Moreover, the seaport company's shares held by the Fund had been transferred on 28 November 2000 to the joint-stock company Zemland Eskima (ЗАО «Земланд Эскима»). With regard to Mr Karetniy, the Government submitted that he had been a member of the board of directors of the seaport company; however at that time he had not been a civil servant. The applicants' allegation that he controlled Regionk was not supported by any evidence. They further alleged that the extent of effective State control had been limited to monitoring the company's compliance with the applicable laws. B.", "Alleged discrimination by the seaport management 13. In May 1996 the DUR took part in collective bargaining. A new collective labour agreement was signed, which provided for longer annual leave and better pay conditions. As a result, over a period of two years DUR membership grew from eleven to 275 (on 14 October 1997). The applicants stated that Kaliningrad seaport employed over 500 dockers at the material time.", "14. On 14 October 1997 the DUR began a two-week strike over pay, better working conditions and health and life insurance. The strike failed to achieve its goals and was discontinued on 28 October 1997. 15. The applicants submitted that since 28 October 1997 the management of Kaliningrad seaport had been harassing DUR members to penalise them for the strike and incite them to relinquish their union membership.", "1. Reassignment of DUR members to special work teams 16. On 28 October 1997 the managing director of Kaliningrad seaport issued an order whereby two special work teams (nos. 109 and 110), referred to as “dockers' reserve teams”, with a staff capacity of up to forty workers each, were formed. These teams had originally been created for older or health-impaired dockers who could not perform at full capacity.", "They had had insufficient numbers of workers (six persons compared with fourteen to sixteen persons in other work teams) to handle cargo and, after their merger into one team (no. 109), they had been assigned to work in day shifts lasting eight hours, while other teams worked alternating day and night shifts of eleven hours. Under the terms of the order of 28 October 1997, older and health-impaired dockers were transferred to a newly formed team, no. 117, and the majority of dockers who had taken part in the strike were assigned to the re-formed “reserve teams”, nos. 109 and 110.", "17. According to the applicants, their earning time was substantially reduced as a result of their transfer to “reserve teams” assigned to work day shifts only. In late November 1997 the managing director attempted to encourage their co-workers to relinquish their DUR membership by immediately transferring those who left the union into non‑DUR teams which had access to actual cargo-handling work. 18. On 1 December 1997 the new composition of the teams was made official and the managing director ordered the teams to be re-numbered.", "The applicants were transferred to four teams which comprised only DUR members who had taken part in the strike (teams nos. 9, 10, 12 and 13). Teams nos. 12 and 13 had a work schedule similar to other teams, while teams nos. 9 and 10 (formerly nos.", "109 and 110) were assigned to work eleven‑hour day shifts on two consecutive days followed by two days off. 2. Decrease in the earning potential of DUR-member teams 19. According to the applicants, until December 1997 it had been established practice for the leaders of the teams on duty to take turns to choose the work for their team. After 1 December 1997 the managing director unofficially excluded the leaders of the DUR teams from the traditional arrangement, effectively confining their options to the least lucrative work.", "The applicants' income fell by half to three quarters because they did not receive any cargo-handling work paid at piece rates, but performed only auxiliary work paid by the hour at half the normal rate. 20. On 21 January 1998 the State Labour Inspector ordered the human resources director of the applicants' employer to compensate dockers in the reorganised teams for lost earnings. On 2 February 1998 the human resources director replied that the reorganisation of teams was an internal matter for the seaport and that, given that all dockers received equal pay for equal work, there was no legal basis for granting compensation. 21.", "The applicants further alleged that their employer had deliberately kept the DUR teams understaffed (in August 1998 there had been three persons in teams nos. 9 and 10 and six persons in teams nos. 12 and 13) so as to have an excuse not to give them access to cargo-handling work. 22. The first and second applicants complained to the State Labour Inspectorate about the reassignment of DUR members to the special teams.", "On 25 August 1998 the head of the State Labour Inspectorate for the Kaliningrad Region issued an instruction (предписание) to the acting managing director of the seaport company. The Inspectorate found, in particular, that dockers were being assigned to teams on the basis of their trade union membership. Such an arrangement was in breach of section 9(1) of the Trade Union Act and prevented several teams from performing at full capacity as they were understaffed. The Inspectorate ordered that all the changes to the composition of work teams be reversed, in order to restore their staff numbers to normal levels. 23.", "On 4 November 1998 the managing director ordered the reassignment of dockers from the four DUR teams, each of which had fewer than five workers at the time, to other teams. On 1 December 1998 the remaining workers in the four DUR teams were brought together to form a new team (no. 14) and the first applicant was appointed as team leader. 3. Holding of the safety regulations test 24.", "Between 15 April and 14 May 1998 the annual test of dockers' knowledge of the work safety regulations was held. The DUR representative was not allowed to be a member of the test committee or even to be present during the test. 25. The applicants submitted that the test conditions had not been fair and had been prejudicial to DUR members: 79 out of the 89 dockers who failed the test had been DUR members, whereas on 1 June 1998 the seaport had employed 438 dockers, of whom only 212 were DUR members. According to the Government, only 44 dockers who failed the test had had DUR membership.", "Dockers who failed the test were suspended from cargo‑handling work for one week. 26. At the second attempt on 3-5 June, twenty workers again failed the test, seventeen of them DUR members. The applicants submitted that a week after the test two non-DUR members had been permitted to work, while the DUR members had been laid off and not given an opportunity to retake the test. The applicants submitted that the seaport management had rewarded those who agreed to relinquish their union membership with a pass mark in the test and permission to return to work.", "One applicant had had to hand in his dismissal and find employment outside the seaport. 27. On 25 August 1998 the State Work Safety Inspector ordered the annulment of the results of the safety regulations test on the ground that the composition of the test committee had not been agreed with the DUR. The Inspector ordered that the test be organised again within one month with the participation of the DUR and that the dockers be provided with reference materials on the safety regulations. 28.", "On 29 October 1998 the test was held for the third time in the presence of a DUR representative and an official of the State Work Safety Inspectorate. Out of five DUR members who sat the test, four received the highest mark and the fifth person received the second-highest mark. 4. Dockers' redundancies in 1998-99 29. On 26 March 1998 the seaport management issued a notice to the effect that 112 dockers would be made redundant.", "30. On 10 August 1998 thirty-three dockers, formerly staff members, were transferred to “as-needed” contracts. The applicants pointed out that twenty-seven of the transferred dockers (81.8%) had been DUR members, while at the material time the average rate of DUR membership in the seaport was 33%. The applicants alleged that the transferred dockers were on average better qualified than their co-workers who had been retained. 31.", "On 11 November 1998 the managing director ordered that forty‑seven dockers be made redundant. On 20 November 1998 the human resources director served notice on thirty-five dockers, of whom twenty‑eight were DUR members (according to the applicants). The applicants submitted that the actual dismissal did not take place because it required the consent of their trade union, which would never have been granted and had not been sought. Instead, on 18 December 1998, fifteen dockers from the DUR team were informed that as of 18 February 1999 their working time would be reduced from 132 hours to 44 hours a month. Having examined a complaint lodged by the applicants, the Baltiyskiy transport prosecutor found that the arbitrary establishment of a part-time schedule for an extremely small number of workers (15 out of 116 dockers with the same qualifications and 365 port dockers in total) without their consent was in breach of the constitutional principle of equality and contrary to Article 25 of the Labour Code.", "On 10 February 1999 the prosecutor ordered that the seaport company's managing director remedy the violations. 32. The first to sixth, ninth, tenth, eleventh and eighteenth applicants also brought court proceedings. They requested that the court declare their transfer unlawful, find that they had been discriminated against on the ground of their trade union membership and award them compensation for lost earnings and non-pecuniary damage. 33.", "On 25 January 2000 the Baltiyskiy District Court of Kaliningrad allowed the applicants' claims in part. The court found that the transfer of a small number of dockers to a part-time schedule had had no valid reason and was therefore unlawful. The court ordered the seaport company to compensate the claimants for lost earnings and non-pecuniary damage. However, the court declined to find that the claimants had been discriminated against on the ground of their DUR membership, as they had not proved discriminatory intent on the part of the seaport company management. 5.", "Complaint to the ITF and new collective agreement 34. On 26 January 1999 the DUR complained to the International Transport Workers' Federation, the ITF. The ITF called on the seaport company management to stop discriminating against the DUR and threatened an international boycott of cargo originating in Kaliningrad seaport. 35. Following international trade union pressure orchestrated by the ITF, the seaport company management and the DUR signed an agreement on 22 March 1999.", "The DUR-only teams were disbanded, DUR members were transferred to other teams with full access to cargo-handling work, and a uniform system of bonuses was put in place. 36. The applicants submitted that the conditions of the agreement had been complied with until 19 August 1999, when the most active members of the DUR were transferred again to a DUR-only team. C. Proceedings before the domestic authorities 1. Attempted criminal proceedings against the seaport company's managing director 37.", "In 1998 the DUR requested the Baltiyskiy transport prosecutor's office to open a criminal investigation into the activities of Mr Kalinichenko, the managing director of the seaport company, and to charge him under Article 136 of the Criminal Code with infringement of equality of rights in respect of the applicants. 38. On 24 September 1998 the Baltiyskiy transport prosecutor's office declined to open a criminal investigation concerning Mr Kalinichenko, as a preliminary inquiry had failed to establish direct intent on his part to discriminate against the applicants. 39. A further request by the applicants to have criminal proceedings instituted against the seaport company management for alleged discrimination, lodged on 29 November 2004, was rejected on 9 December 2004 for lack of corpus delicti, as the Baltiyskiy transport prosecutor's office had not established direct intent to discriminate against the applicants.", "According to the Government, the applicants did not appeal against this decision. 2. Proceedings seeking a finding of discrimination and compensation 40. On 12 December 1997 the DUR filed an action on behalf of its members, including six applicants (Mr Sinyakov, Mr Kasyanov, Mr Korchazhkin, Mr Zharkikh, Mr Kalchevskiy and Mr Dolgalev), with the Baltiyskiy District Court of Kaliningrad. The DUR requested the court to find that the seaport management's policies had been discriminatory and to order compensation for lost earnings and non‑pecuniary damage sustained by the claimants.", "41. On 18 August 1998 the DUR joined further claimants to the action (twelve applicants – Mr Danilenkov, Mr Soshnikov, Mr Morozov, Mr Troynikov, Mr Kiselev, Mr Bychkov, Mr Pushkarev, Mr Silvanovich, Mr Oksenchuk, Mr Grabchuk, Mr Tsarev and Mr Milinets) and also submitted new facts corroborating their discrimination complaint. 42. On 21 April 1999 the DUR lodged the action on behalf of its members in its final form. 43.", "On 28 May 1999 the Baltiyskiy District Court of Kaliningrad dismissed the DUR's action. The court found the complaints unsubstantiated and held that the seaport management could not be held responsible for the uneven distribution of well-paid cargo-handling work. The claimants appealed against the judgment. 44. On 6 October 1999 the Kaliningrad Regional Court quashed the judgment of 28 May 1999 on appeal and remitted the case for fresh examination.", "The court pointed out that the first-instance court had failed to assess whether the transfer of dockers between teams could have been motivated by retaliation against the claimants for their participation in the strike and membership of the DUR. The court also found that the first‑instance court had ignored the claimants' complaint about a decrease in their wages after the transfer compared with their co-workers' earnings. The court reprimanded the first-instance court for the failure to obtain documents on dockers' wages from the defendant and for refusing the claimants' request to this effect. The court concluded that the first-instance court's finding as to the absence of discrimination had not been lawful or justified because the above-mentioned shortcomings had prevented it from assessing the claimants' arguments in the light of all the relevant information. 45.", "On 22 March 2000 the Baltiyskiy District Court of Kaliningrad delivered a new judgment. The court held that the discrimination complaint was unsubstantiated because the applicants had failed to prove the management's intent to discriminate against them. The court based its conclusion on statements from port managers and stevedores. The managers explained that DUR-only teams had been formed to mitigate tension in the workforce created by the animosity of strikers towards their co-workers who had not taken part in the strike. The stevedores denied that they had received any instructions from the management concerning the distribution of cargo‑handling work.", "The court also referred to the decision of the prosecutor's office of 24 September 1998 and ruled that the seaport company could not be held liable for the alleged acts of discrimination, since no intent to discriminate had been established on the part of its management. The court pointed to the insignificant number of claimants (29) compared with the total number of strikers (213), and held as follows: “...the very request for a finding of discrimination on the general ground of membership of a certain public association made by only a small group of its members is an indication of the absence of the alleged discrimination, while the situation of the claimants is the result of their individual actions and characteristics and of objective factors.” 46. The court attributed the decrease in the claimants' wages to their individual omissions (such as the failure to pass the work safety test) and the overall reduction in cargo-handling work in the seaport. However, on a proposal from the defendant the court awarded the claimants nominal compensation in the form of the difference in wages for two months following their transfer to new teams. The applicants appealed against the judgment.", "47. On 14 August 2000 the Kaliningrad Regional Court ordered the discontinuance of the civil proceedings in the part concerning the discrimination complaint. The court decided that the existence of discrimination could only be established in the framework of criminal proceedings concerning a specific official or another person. Legal entities such as the seaport company could not be held criminally liable. Therefore, the court concluded that it lacked jurisdiction to examine the discrimination complaint against the seaport company.", "In the remainder, the court upheld the judgment of 22 March 2000. 48. On 9 July 2001 all the applicants brought a fresh action against the seaport company. They sought a declaration that they had been discriminated against on the ground of their DUR membership and that their rights to equal pay for equal work and access to work had been violated; they also requested that the violations be made good by the seaport company and that they be awarded compensation for non-pecuniary damage. 49.", "On 18 October 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad, in an interim decision (определение), dismissed the application for a declaration. The court followed the reasoning of the judgment of 14 August 2000. It held that it lacked jurisdiction to establish whether there had been discrimination because such a fact could only be established in criminal proceedings; however, a legal entity could not be held criminally liable. 50. The applicants appealed against the decision to the Baltiyskiy District Court of Kaliningrad, which on 6 December 2001 upheld the decision of 18 October 2001.", "3. Decision of the Kaliningrad Regional Duma 51. The DUR complained to the Kaliningrad Regional Duma, alleging a violation by the employer of the rights of its members. On 15 November 2001 the Duma's Standing Committee on Social Policy and Health Care issued a resolution expressing concern at the situation described by the complainants. In particular, it stated as follows: “...3.", "In the Kaliningrad seaport company different labour conditions apply to workers depending on their trade union membership. As a result members of the DUR are placed at a disadvantage by their employer compared with those who do not belong to the above-mentioned trade union. 4. The DUR reasonably raised an issue of discrimination at the Kaliningrad seaport company in connection with trade union membership...” 52. On 29 November 2001 the Duma Committee addressed a letter to the Kaliningrad prosecutor with a request to take immediate measures to defend the rights of DUR members and to consider the possibility of instituting criminal proceedings against the management of the seaport company.", "4. Other domestic proceedings concerning various complaints (a) Deprivation of bonuses and loss of earnings 53. From 8 to 15 November 1998 the second, third, fourth, ninth and eighteenth applicants and four of their co-workers took part in a trade union conference in Denmark. They had applied in advance to the seaport company management for permission to attend the conference, but received no reply. By orders of 18 December 1998 and 30 March 1999 the conference participants had their annual bonuses withdrawn because they had allegedly taken absence without leave.", "The dockers appealed to a court. 54. On 1 November 1999 the Baltiyskiy District Court of Kaliningrad found that the seaport company management had been required to grant the claimants leave to attend a trade union conference, as their right to such leave was unconditionally guaranteed by section 25(6) of the Trade Union Act. The court declared the orders depriving the claimants of their annual bonuses to be unlawful and ordered the seaport company to pay compensation. The judgment was not appealed against.", "(b) Lifting of a disciplinary sanction against the eighteenth applicant 55. On 10 January 1999 the eighteenth applicant was issued with a disciplinary reprimand for his failure to appear for work on 14 December 1998, which was a public holiday. The eighteenth applicant appealed against the sanction; he stated that he was an elected leader of a trade union and that therefore the trade union's consent was required in order to impose the sanction. 56. On 11 January 2000 the Baltiyskiy District Court of Kaliningrad allowed the eighteenth applicant's complaint.", "The court annulled the disciplinary sanction on the ground that the seaport company management had failed to seek the trade union's consent before imposing it, as required by Article 235 of the Labour Code. (c) Lifting of a disciplinary sanction for refusal to perform unskilled work 57. On 15 January 1999 dockers of DUR-only team no. 14 were ordered to clear the port of snow. The dockers refused because the collective bargaining agreement provided that they could be required to perform unskilled work only if such work was auxiliary to their cargo-handling work, which was not the case.", "They remained on standby in the port until the end of the shift. On 21 January 1999 the seaport company management ordered that the day in question be counted as absence without leave, imposed a disciplinary reprimand and withheld their January bonus. 58. The DUR lodged a court action on behalf of the second to sixth applicants and the ninth applicant. It claimed that the disciplinary sanction should be lifted and the wages and bonuses withheld should be paid.", "59. On 10 October 2000 the Baltiyskiy District Court of Kaliningrad found in favour of the claimants. The court found that the unjustified redeployment of qualified dockers to unskilled work violated their labour rights and that they could not be penalised for an unauthorised absence as they had stood by waiting for cargo-handling work within the port confines. In addition, the court pointed out that the claimants were elected leaders of a trade union and that the union's consent was required in order to impose a sanction; no such consent had been obtained. The seaport company was ordered to lift the sanction and to pay the claimants compensation for lost earnings and bonuses, as well as to bear the court fees.", "(d) Unlawful dismissal of the sixteenth applicant 60. On 14 May 1999 the sixteenth applicant was dismissed on the ground that he had allegedly appeared for work in an inebriated state. The sixteenth applicant appealed to a court against the decision to dismiss him. 61. On 25 August 1999 the Kaliningrad Regional Court, ruling at final instance, upheld the applicant's complaint and ordered the seaport company to reinstate him and pay compensation for lost earnings.", "The court found, in particular, that there was no evidence showing that the sixteenth applicant had been drunk. (e) Unlawful disciplinary sanction 62. By an order of 10 December 1999 the nineteenth, twentieth, twenty‑sixth and thirty-second applicants were severely reprimanded in the course of disciplinary proceedings against them for allegedly leaving their workplace early without authorisation. The DUR, acting on behalf of the applicants concerned, appealed against the disciplinary sanction to a court. 63.", "On 29 November 2001 the Baltiyskiy District Court of Kaliningrad allowed the DUR's action. The court found it established that the defendant (the seaport company) had failed to prove unauthorised absence. The court quashed the contested order and awarded the applicants concerned compensation for non-pecuniary damage. (f) Unlawful finding of responsibility for accident 64. On 20 June 2000 the eighteenth applicant was injured in the workplace.", "A special commission found that he had been responsible for the accident himself as he had allegedly failed to observe the safety regulations. A DUR representative (the twenty-fourth applicant) disagreed with the commission's conclusion. Nevertheless, the eighteenth applicant was reprimanded in disciplinary proceedings and he and his team leader (the third applicant) lost their June bonus. On behalf of the eighteenth and third applicants, the DUR appealed against these decisions to a court. 65.", "On 13 April 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad found that the conclusions of the special commission were not sustainable in the light of the testimony given by eyewitnesses. The court quashed the disciplinary sanction imposed on the eighteenth applicant and ordered the seaport company to pay the June bonus to him and to his team leader. (g) Unlawful demotion of the third applicant 66. By an order of 19 July 2000 the third applicant was demoted from the position of team leader to that of a simple docker, on the ground that he had allegedly failed in his leadership duties. The DUR challenged the order, lodging a court action on behalf of the third applicant.", "67. On 7 May 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad allowed the action in part. The court found that the demotion had not been agreed to by the DUR, of which the third applicant was an elected leader. The court quashed the demotion order and ordered the seaport company to pay compensation for lost earnings and non‑pecuniary damage, and the court fees. (h) Restriction of access for trade union leaders to the port 68.", "On 15 May 2001 the seaport company's human resources director ordered that DUR representatives be admitted to the port only in order to visit DUR members at their workplaces and during their working hours. Under the order, the second applicant was not allowed into the port. 69. On 20 June 2001 the Baltiyskiy transport prosecutor found that the order violated the guarantees of free access for trade union leaders to the workplaces of union members, contained in Article 231 of the Labour Code and section 11(5) of the Trade Union Act, and ordered the managing director of the seaport company to remedy the violation. 70.", "On 16 July 2001 the seaport company's managing director issued a new order, no. 252, regulating access for DUR leaders to the port. It provided, inter alia, that access was only possible between 8 a.m. and 8 p.m. on the basis of “one-off” permits obtained in advance and specifying the itinerary and purpose of the visit. 71. On 26 November 2001 the Baltiyskiy transport prosecutor requested the seaport company's managing director to annul order no.", "252 on the ground that it was unlawful. The request was refused by the seaport company management. 72. On 23 January 2002 the Baltiyskiy transport prosecutor lodged a civil action on behalf of the second applicant against the seaport company, requesting that order no. 252 be declared invalid.", "73. On 9 July 2002 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad allowed the action and declared that the order restricting trade union leaders' access to the port was unlawful and that, in so far as it required advance permission to be obtained, it was also in breach of Article 231 of the Labour Code. The judgment was not appealed against. D. Transfer of non-DUR-members to a new company 1. Establishment of a new company and transfer of personnel 74.", "In August-September 1999 the seaport company management founded a subsidiary stevedoring company, TPK (ООО «Транспортно‑погрузочная компания»), which hired thirty new dockers. Between September 1999 and November 2000 TPK's dockers worked together with the seaport company dockers in mixed teams. 75. On 27 November 2000 a new collective labour agreement was signed between the Kaliningrad seaport company management and the Maritime Transport Workers' Union. The agreement provided, inter alia, that all cargo-handling work would be assigned to TPK and that the employees of this company would receive a pay rise, complementary medical insurance and a special allowance for sport activities.", "76. In December 2000 and January 2001 the seaport company management offered most dockers lucrative transfers to TPK, but all the DUR members were allegedly excluded from the transfer. In January 2001 the remaining DUR members were put into two work teams. The seaport company's managing director announced to the applicants that all stevedoring work would be assigned to TPK, as the seaport company's licence for stevedoring expired on 1 October 2001. 77.", "In April 2001 DUR members found their potential earning time cut in half after they were forbidden to work night shifts. Their income fell to around USD 55 per month, as against an average for non-DUR workers of USD 300 per month. 78. In June 2001 DUR members' wages fell again to USD 40 per month. 79.", "As a result of the conflict, DUR membership shrank from 290 (in 1999) to only twenty-four on 6 December 2001. 80. In February 2002 the remaining DUR members (twenty-two dockers) were made redundant and dismissed. The second applicant was retained: he was a deputy chairman of the DUR steering committee and the DUR's consent was required for his dismissal. The applicants submitted that he had been kept in his position for the sake of appearances only as he did not have any earning opportunities.", "2. Civil action concerning the transfer of personnel 81. On 18 March 2002 the DUR, on behalf of the first to fifth, ninth to eleventh, sixteenth and eighteenth to thirty-second applicants, brought a civil action against the seaport company and TPK, seeking reinstatement of the DUR members and compensation for lost earnings and non-pecuniary damage. It also asked the court to find a violation of the applicants' right to freedom of association and to declare that the employer's actions had discriminated against the claimants on the ground of their DUR membership. 82.", "On 24 May 2002 the Baltiyskiy District Court of Kaliningrad delivered its judgment. The court found that in November 2000 the board of directors of the Kaliningrad seaport company had decided to reassign the cargo-handling work to TPK. Between 30 November 2000 and April 2001, 249 dockers had been transferred to TPK and in December 2000 the cargo‑handling terminals and equipment had been either sold or leased to the new company. The court inferred from this that the employer's real intention had been to change the structural subordination of the stevedoring unit and that there had been no lawful grounds for making the unit's employees redundant. It found the applicants' dismissal to be unlawful and ordered their reinstatement with TPK and payment of lost earnings and compensation for non-pecuniary damage.", "83. The court also examined the applicants' allegations of discrimination against them. Relying on statements by several leaders of dockers' teams, it established that in November 2000 all the dockers had been invited to a meeting where their transfer to TPK had been discussed. The applicants had not been prevented from attending and they had been offered the opportunity to apply for transfer. However, they had refused to do anything without the steering committee chairman's advice.", "When asked by the court why they had not applied for transfer individually, the applicants stated that they had been certain they would receive a negative response from their employer. 84. The team leaders also testified that the second applicant (the deputy chairman of the steering committee) had been present at the meeting and had argued against the transfer to TPK. The court further inspected leaflets distributed by the DUR and the twenty-fourth applicant's complaint to a prosecutor's office. It appeared from the leaflets that the DUR had consistently campaigned against the transfer to TPK and advocated staying with the seaport company, and that the complaint had exposed alleged compulsion to apply for a transfer to TPK.", "The court found that the evidence gathered contradicted the applicants' allegations that the DUR had not been informed of the transfer or had been excluded from it. It dismissed as unsubstantiated the applicants' complaints of discrimination against them and of a violation of their right to freedom of association. 85. Finally, the court ordered immediate enforcement of the judgment in the part concerning the applicants' reinstatement. 86.", "On 7 August 2002 the Kaliningrad Regional Court upheld the judgment of 24 May 2002 on an appeal by the seaport company. 3. Enforcement of the judgment of 24 May 2002 87. On 27 May 2002 the managing director of the seaport company annulled the orders for the applicants' dismissal of 20 February 2002 and reinstated them. However, they were not transferred to TPK.", "88. On 24 June 2002 the TPK limited company was reorganised to form the public company Maritime Commercial Port (ОАО «Морской торговый порт» – “MTP”). On 11 September 2002 the Kaliningrad Regional Court clarified that the applicants were to be reinstated into MTP, which was the legal successor to TPK. 89. On 7 August 2002 all the applicants were again dismissed from the seaport company for absence without valid reasons.", "However, they pointed out that as far back as 10 June the seaport company's managing director had confirmed to them in writing that there were no earning opportunities for them in the old company because the stevedoring licence had expired in 2001. The applicants appealed against their dismissal to a court. 90. On 7 October 2002 the Baltiyskiy District Court of Kaliningrad granted the applicants' claim. The court found that the defendant had failed to enforce the judgment of 24 May in the part concerning the dockers' transfer to TPK and that their dismissal for unauthorised absence had therefore been unlawful.", "It ordered payment of lost earnings and compensation for non-pecuniary damage. On 22 January 2003 the Kaliningrad Regional Court upheld the judgment on appeal. 91. On 30 October 2002 the applicants' employment with the seaport company was terminated “in connection with their transfer to another company”. On the following day the managing director of MTP ordered the hiring of the applicants as second-category stevedores.", "The applicants submitted that the positions offered were below their professional qualification as dockers. 92. On 30 December 2002, at the applicants' request, a judge of the Baltiyskiy District Court of Kaliningrad clarified the judgment of 24 May 2002 to the effect that the applicants were to be hired by MTP as dockers. On 26 February 2003 this clarification was confirmed by the Kaliningrad Regional Court. II.", "RELEVANT DOMESTIC LAW A. Constitution of the Russian Federation 93. Article 19 of the Russian Constitution provides that the State shall guarantee equality of rights and freedoms to all citizens, regardless of sex, race, nationality, language, origin, property and official status, place of residence, religion, beliefs, membership of public associations and other circumstances. 94. Article 30 § 1 guarantees the right of association, including the right to create trade unions for the protection of one's interests.", "B. Code of Labour Laws of the RSFSR (of 25 September 1992) 95. Article 2 of the Code (in force at the material time) guaranteed, in particular, the right to equal pay for equal work without any discrimination and the right to apply to a court for the protection of one's labour rights. C. Criminal Code of the Russian Federation (of 13 June 1996) 96. Article 136 prohibits infringements of equality as regards human rights and freedoms, committed on grounds of, inter alia, affiliation to a public association, which harm the rights or lawful interests of citizens.", "D. Trade Union Act (Law no. 10-FZ of 12 January 1996) 97. Section 9 prohibits any restriction of citizens' social, labour, political or other rights or freedoms on the ground of their membership or non‑membership of a trade union. It is prohibited to make the recruitment, promotion or dismissal of an employee conditional on his or her membership or non-membership of a particular trade union. 98.", "Section 29 guarantees judicial protection of the rights of trade unions. A court must examine cases concerning alleged violations of the rights of trade unions, brought on an application from a prosecutor, as a civil action or as a complaint by a trade union. 99. Section 30 provides that State and municipal officials, employers and officers of employers' associations shall be subject to disciplinary, administrative or criminal liability for breaches of the laws on trade unions. E. Civil Code of the Russian Federation (of 30 November 1994) 100.", "Article 11 provides that courts must examine claims for the protection of civil rights which have been breached or contested. 101. Article 12 specifies that the protection of a civil right may take the form of, inter alia, confirmation of a right, restoration of the status quo, an injunction in respect of actions that violate or threaten to violate a right, and compensation for loss and non-pecuniary damage. III. RELEVANT INTERNATIONAL DOCUMENTS A.", "Council of Europe 102. Article 5 of the European Social Charter (revised), not ratified by the Russian Federation, provides as follows: Article 5 - The right to organise “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 103. The European Committee of Social Rights of the Council of Europe (formerly the Committee of Independent Experts), which is the supervisory body of the European Social Charter, has held that domestic law must guarantee the right of workers to join a trade union and include effective punishments and remedies where this right is not respected.", "Trade union members must be protected from any harmful consequence that their trade union membership or activities may have on their employment, particularly any form of reprisal or discrimination in the areas of recruitment, dismissal or promotion because they belong to a trade union or engage in trade union activities. Where such discrimination occurs, domestic law must make provision for compensation that is adequate and proportionate to the harm suffered by the victim (see, for example, Conclusions 2004, Bulgaria, p. 32). 104. It has further held that in order to make the prohibition of discrimination effective, domestic law must provide for appropriate and effective remedies in the event of an allegation of discrimination; remedies available to victims of discrimination must be adequate, proportionate and dissuasive (see, for example, Conclusions 2006, Albania, p. 29). Domestic law should provide for an alleviation of the burden of proof in favour of the plaintiff in discrimination cases (see Conclusions 2002, France, p. 24).", "B. The International Labour Organisation (“ILO”) 105. Article 11 of Convention No. 87 of the International Labour Organisation (ILO) on Freedom of Association and Protection of the Right to Organise (ratified by the Russian Federation) provides as follows: “Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.” 106. Article 1 of ILO Convention No.", "98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (ratified by the Russian Federation) reads as follows: “1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to - (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.” 107. The Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (2006) includes the following principles: “... 769.", "Anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. ... 818. The basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed. ... 820. Respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial.", "... 835. Where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention. ...” 108. On 18 April 2002 the ILO Committee on Freedom of Association forwarded to the Committee of Experts case No. 2199, concerning the Complaint against the Government of the Russian Federation presented by the Russian Labour Confederation (KTR) (Report No.", "331). The KTR alleged that members of the DUR, the affiliated organisation of the KTR at Kaliningrad seaport, were subject to anti-union discrimination. The Committee found, inter alia, as follows: “... 702. While noting that the Baltic District Court judgement found that the allegations of anti-union discrimination had not been proven, the Committee notes that, since the court's decision to reinstate the [DUR] members at the re-subordinated production section of the TPK due to the nevertheless illegal grounds for their dismissal, the [Kaliningrad seaport] administration has persistently refused to fully implement this decision, despite repeated clarifications and confirmation from this and higher courts. In the light of these circumstances, the Committee feels bound to query the motivation behind the employer's acts, in particular its persistent refusal to reinstate dockers, all of whom happen to be members of the [DUR], despite repeated judicial orders in this respect.", "Further noting the Duma resolution expressing extreme concern about this situation and adding that the question of anti-union discrimination has been reasonably posed, the Committee therefore requests the Government to establish an independent investigation into the allegations of acts of anti-union discrimination and if it is proven that acts of anti-union discrimination were taken against [DUR] members, in particular as concerns the non-transferral to the subordinated production sectors at TPK in accordance with the court's decision to take all necessary steps to remedy this situation, to ensure reinstatement at the TPK, as requested by the courts, as well as payment of lost wages. Furthermore, noting that the dockers were once again dismissed and a new case was filed, the Committee requests the Government to keep it informed of the outcome of this case. 703. As concerns the means of redress against alleged acts of anti-union discrimination, the Committee recalls that the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 742).", "Noting that in the present case, the complainant has been addressing the different judicial bodies since 2001 with allegations of anti-union discrimination, which were, until May 2002 rejected on procedural grounds, the Committee considers that the legislation providing for protection against acts of anti‑union discrimination is not sufficiently clear. It therefore requests the Government to take the necessary measures, including the amendment of the legislation, in order to ensure that complaints of anti-union discrimination are examined in the framework of national procedures which are clear and prompt...” THE LAW I. PRELIMINARY ISSUES A. The complaints of the twentieth and thirty-first applicants 109. The Court notes that in their letter of 10 September 2007 the applicants informed it that the twentieth and thirty-first applicants (Mr Aleksandr Fedorovich Verkhoturtsev and Mr Aleksandr Mikhaylovich Lenichkin) had died.", "However, no information was provided concerning their heirs or whether the latter wished to pursue the application. 110. Article 37 § 1 of the Convention, in its relevant part, reads: “1. The Court 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 ... (c) ... it is no longer justified to continue the examination of the application.” The Court finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application in respect of the twentieth and thirty-first applicants. Accordingly, the application should be struck out of the Court's list of cases in so far as it relates to these two applicants.", "111. The Court reiterates that it has been its practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed a wish to pursue the application (see Scherer v. Switzerland, 25 March 1994, § 31, Series A no. 287; Karner v. Austria, no. 40016/98, § 23, ECHR 2003-IX; and Thevenon v. France (dec.), no. 2476/02, ECHR 2006-...).", "B. The Government's preliminary objection 112. In their submissions following the Court's decision on the admissibility of the application, the Government stated that the applicants had failed to challenge the prosecutor's office's decisions not to institute criminal proceedings for alleged discrimination, and thus had not exhausted the available domestic remedies. 113. The Court reiterates that, under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see K. and T. v. Finland [GC], no.", "25702/94, § 145, ECHR 2001‑VII, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). However, in their observations on the admissibility of the application the Government did not raise this point. 114. Consequently, the Government are estopped at this stage of the proceedings from raising the preliminary objection of failure to make use of a domestic remedy (see, mutatis mutandis, Bracci v. Italy, no.", "36822/02, §§ 35-37, 13 October 2005). It follows that the Government's preliminary objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 11 115. The remaining applicants complained under Articles 11 and 14 of the Convention of a violation of their right to freedom of association in that the State authorities had tolerated the discriminatory policies of their employer and refused to examine their discrimination complaint owing to the absence of an effective legal mechanism in domestic law.", "Article 11 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.” 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.", "Scope of the State's obligations under Article 14 of the Convention taken together with Article 11 of the Convention 1. Submissions by the parties (a) The applicants 116. The applicants maintained that their rights guaranteed by Article 11 of the Convention had been breached since their employer had acted with the intention of deterring and penalising trade union membership. They submitted that the State had been directly involved in a number of unfavourable acts against them as members of the DUR trade union, as it controlled the Kaliningrad seaport company. They alleged that twenty percent of the shares had been held by the Kaliningrad Regional Development Fund and a further thirty-five percent had been controlled by Mr Karetniy, who had held simultaneously the positions of first deputy Governor, manager of the Fund and member of the board of the seaport company.", "117. The applicants claimed that their membership of the DUR had had harmful consequences for their employment and remuneration, and that their employer had exerted various forms of pressure in order to create a distinction between them and their colleagues who did not belong to that trade union. They mentioned the reassignment of DUR members to special teams, as acknowledged by the key managers of the Kaliningrad seaport company in their oral and written submissions to the Baltiyskiy District Court, reflected in the judgment of 22 March 2000 (see paragraph 45 above). The applicants emphasised that the same judgment had confirmed a decrease in their wages, which had already been substantially lower than those in other teams. They also referred to the allegedly biased way in which the safety regulations test had been conducted and the allegedly prejudicial decisions concerning dismissal on grounds of redundancy.", "(b) The Government 118. The Government contested these allegations. They submitted that the Kaliningrad Regional Development Fund, the State agency concerned, had owned less than twenty per cent of the Kaliningrad seaport company and for only a short period of time, namely between May and November 1998. As to Mr Karetniy, he had never combined the positions of civil servant and member of the seaport company's board. Therefore, in their view, the State could not be held liable for the anti-union actions complained of.", "119. The Government further submitted that the complaint concerning the alleged sharp decrease in the applicants' wages had been examined by the Kaliningrad State Labour Inspectorate, which had found the DUR teams to be earning approximately the same amount as non-DUR teams. No violation of the labour rights of port workers had been established, nor was there any indication of discrimination against DUR members in the administration of the safety regulations test or in the dismissal of employees. 2. The Court's assessment 120.", "The Court notes that the parties disagree as to whether the circumstances of the present case involved direct intervention by the State, given the status of the Kaliningrad seaport company. It considers that it is not necessary to rule on this issue, since the responsibility of the Russian Federation would, in any case, be engaged if the matters complained of resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002‑V). 121. The Court reiterates that Article 11 § 1 presents trade union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, 27 October 1975, § 38, Series A no.", "19, and Swedish Engine Drivers' Union v. Sweden, 6 February 1976, § 39, Series A no. 20). The words “for the protection of his interests” in Article 11 § 1 are not redundant, and the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (see Wilson, cited above, § 42). 122. The Court observes that the applicants obtained State protection in respect of one-off measures by their employer which they believed violated their rights.", "Thus, a domestic court ordered compensation in the form of two months' wages for their reassignment to DUR-only work teams, which had allegedly resulted in a decrease in their earnings (see paragraph 46 above); the allegedly prejudicial safety regulations test was organised again as ordered by the State Work Safety Inspectorate (see paragraphs 27-28 above); a regional prosecutor found that there had been an arbitrary decrease in working hours, giving rise to an award of lost earnings and compensation for non-pecuniary damage by a court of law (see paragraphs 31 and 33 above); compensation in respect of lost earnings and non‑pecuniary damage was also granted for non-enforcement of the judgment of 24 May 2002 (see paragraph 90 above); and in most instances the courts also granted compensation to individual trade union members affected by their employer's actions (see paragraphs 53-73 above). Furthermore, the domestic courts carefully examined the applicants' grievances in connection with the lucrative transfer to a new stevedoring company offered to their co-workers but not to them and granted their claims for lost earnings, reinstatement and non-pecuniary damage (see paragraph 82 above). The applicants did not complain that the judgments of the domestic courts in this connection had been ill-founded or arbitrary. 123. Nevertheless, as to the substance of the right of association enshrined in Article 11, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade union freedom, subject to its margin of appreciation (see Demir and Baykara v. Turkey [GC], no.", "34503/97, § 144, 12 November 2008). An employee or worker should be free to join or not join a trade union without being sanctioned or subject to disincentives (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 39, ECHR 2007‑...). The wording of Article 11 explicitly refers to the right of “everybody”, and this provision obviously includes a right not to be discriminated against for choosing to avail oneself of the right to be protected by a trade union, given also that Article 14 forms an integral part of each of the Articles laying down rights and freedoms whatever their nature (see National Union of Belgian Police, cited above, § 44). Thus, the totality of the measures implemented to safeguard the guarantees of Article 11 should include protection against discrimination on the ground of trade union membership which, according to the Freedom of Association Committee, constitutes one of the most serious violations of freedom of association, capable of jeopardising the very existence of a trade union (see paragraph 107 above).", "124. The Court finds crucially important that individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and should have the right to take legal action to obtain damages and other relief. Therefore, States are required under Articles 11 and 14 of the Convention to set up a judicial system that ensures real and effective protection against anti-union discrimination. 125. The Court thus has to consider whether sufficient measures were taken by the authorities to protect the applicants from the alleged discriminatory treatment based on their choice to join the trade union.", "B. Sufficiency of protection against discrimination on the ground of the applicants' trade union membership 1. Submissions by the parties (a) The applicants 126. The applicants pointed out that all the domestic courts to which they had applied – the Baltiyskiy District Court of Kaliningrad, the Kaliningrad Regional Court and the Justice of the Peace of the Baltiyskiy District – had uniformly refused to examine the merits of their complaint concerning a violation of their right to freedom of association and discrimination, on the grounds that it could be determined only in criminal proceedings (see paragraphs 45, 47 and 49 above). The applicants indicated that civil proceedings differed fundamentally from a criminal prosecution, in that the latter protected the public interests of society as a whole, while the former were called upon to afford redress for encroachments on individuals' private interests. Since, in the present case, it was precisely the private rights of the applicants which were at stake, the refusal of the domestic courts to examine their discrimination complaint in civil proceedings had deprived them of an effective remedy.", "In any event, the prosecutor's office had also refused the applicants' request to start a criminal investigation in connection with an alleged infringement of the equality principle and had not taken any steps to establish whether the applicants' complaints were well-founded. 127. The applicants contended that the generic anti-discrimination provisions in the Russian legislation to which the Government referred were ineffectual in the absence of a working mechanism for their implementation and application. As to the Government's reliance on the provisions of criminal law, they had failed to show that anyone had ever been charged, tried or convicted under Article 136 of the Criminal Code. (b) The Government 128.", "The Government denied these allegations. They submitted that the DUR had been registered as a trade union in 1995 and re-registered in 1999; therefore, the domestic authorities had not hindered the establishment or functioning of the DUR. The Trade Union Act prohibited any interference by State bodies with the functioning of trade unions (section 5(2)) and provided that social and labour rights could not be made conditional on trade union membership (section 9). The Code of Labour Laws in force at the material time contained a number of guarantees: the approval of the trade union was required before a trade union member could be dismissed on grounds of redundancy, insufficient professional qualifications, frail health or similar. More stringent guarantees were provided for elected leaders of trade unions: without the prior consent of their trade union they could not be transferred to another position, dismissed or subjected to disciplinary sanctions.", "Lastly, the Government indicated that the Code prohibited discrimination on the ground of membership of a public association (Article 16 § 2) and provided for judicial protection of violated rights (Article 2). 129. The Government asserted that the applicants had enjoyed the same protection of their rights and freedoms as all other Russian citizens. In particular, they had made use of their right to strike and had applied to the State Labour Inspectorate and to various prosecutors' offices. As to the court action seeking a finding of discrimination, the Government referred to the decision of the Kaliningrad Regional Court to the effect that the applicants' complaint concerned, in substance, an alleged violation of equality between individuals and as such was to be determined in criminal proceedings under Article 136 of the Criminal Code.", "They further submitted that since 1997 six persons had been convicted under this provision. The Government pointed out that the applicants had failed to challenge the decisions of the prosecutor's office not to institute criminal proceedings for alleged discrimination, and thus had not exhausted the available domestic remedies. 2. The Court's assessment 130. The Court notes that various techniques were used by the Kaliningrad seaport company in order to encourage employees to relinquish their trade union membership, including their reassignment to special work teams with limited opportunities, dismissals subsequently found to be unlawful by the courts, reductions in earnings, disciplinary sanctions and refusals to reinstate employees following court judgments.", "As a result, DUR membership shrank dramatically from 290 in 1999 to twenty-four in 2001. The Court also refers to the findings of the Kaliningrad Regional Duma (see paragraph 51 above) and the ILO Committee on Freedom of Association (see paragraph 108 above) to the effect that the question of anti-union discrimination was reasonably raised by the applicants. It therefore agrees that the clear negative effects of DUR membership on the applicants were sufficient to constitute a prima facie case of discrimination in the enjoyment of the rights guaranteed by Article 11 of the Convention. 131. The Court further notes that the applicants in the present case requested the authorities to prevent abuse on the part of their employers aimed at compelling them to leave the union.", "They drew the courts' attention to repeated discriminatory actions against them over a long period of time. In their view, allowing their discrimination complaint would have been the most effective means of protecting their right to join a trade union without being sanctioned or subject to disincentives. 132. The Court observes that Russian law at the material time contained a blanket prohibition on all discrimination on the ground of trade union membership or non-membership (section 9 of the Trade Union Act). Under domestic law the applicants were entitled to have their discrimination complaint examined by a court, by virtue of the general rules of the Russian Civil Code (Articles 11-12) and the lex specialis contained in section 29 of the Trade Union Act.", "133. These provisions, however, remained ineffective in the instant case. The Court notes that the domestic judicial authorities, in two sets of proceedings, refused to entertain the applicants' discrimination complaints, holding that the existence of discrimination could be established only in criminal proceedings and that the applicants' claims could not therefore be determined via a civil action (see paragraphs 47 and 49 above). This position, also confirmed in the Government's observations, was nevertheless overruled on one occasion, when the Baltiyskiy District Court examined on the merits yet another discrimination complaint, lodged barely a year later (see paragraphs 83-84 above). 134.", "The principal deficiency of the criminal remedy is that, being based on the principle of personal liability, it requires proof “beyond reasonable doubt” of direct intent on the part of one of the company's key managers to discriminate against the trade union members. Failure to establish such intent led to decisions not to institute criminal proceedings (see paragraphs 38-39, 45, 47 and 49 above). Furthermore, the victims of discrimination have only a minor role in the institution and conduct of criminal proceedings. The Court is thus not persuaded that a criminal prosecution, which depended on the ability of the prosecuting authorities to unmask and prove direct intent to discriminate against the trade union members, could have provided adequate and practicable redress in respect of the alleged anti-union discrimination. On the other hand, civil proceedings would have made it possible to perform the far more delicate task of examining all elements of the relationship between the applicants and their employer, including the combined effects of the various techniques used by the latter to induce dockers to relinquish DUR membership, and to afford appropriate redress.", "135. The Court will not speculate as to whether the effective protection of the applicants' right not to be discriminated against could have prevented future unfavourable actions against them on the part of their employer, as the applicants suggested. Nonetheless, it considers that given the objective effects of the employer's conduct, the lack of such protection could engender fears of potential discrimination and discourage other persons from joining the trade union. This in turn could lead to its disappearance, with adverse effects on the enjoyment of the right to freedom of association. 136.", "In sum, the Court considers that the State failed to fulfil its positive obligations to adopt effective and clear judicial protection against discrimination on the ground of trade union membership. It follows that there has been a violation of Article 14 of the Convention taken together with Article 11. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 137. The applicants complained they had not had any effective remedy for their discrimination complaints.", "They relied on Article 13 of the Convention. 138. The Court notes that this complaint is directly connected with those examined under Articles 11 and 14 of the Convention. Having regard to the grounds on which it has found a violation of Article 14 of the Convention taken together with Article 11 (see paragraphs 130-136 above), the Court considers that no separate issue arises under this provision. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 139. 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 140. The applicants claimed compensation for the loss of earnings they had sustained as a result of being discriminated against as members of the trade union. The claims under this head varied from approximately 17,387 Russian roubles (RUR) to approximately RUR 1,207,643.", "They further claimed 100,000 euros (EUR) each in respect of non-pecuniary damage. 141. The Government considered these claims groundless and excessive. 142. The Court reiterates that the principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he would have enjoyed had the violation of the Convention not occurred.", "The Court will award financial compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible (see Wilson, cited above, § 54). 143. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the authorities refused to examine the applicants' complaints of discrimination against them. The Court cannot speculate as to whether the applicants would indeed have been able to keep their earnings if these complaints had been effectively examined. It therefore rejects the applicants' claims in respect of pecuniary damage.", "However, the unsuccessful attempts to protect their right not to be discriminated against on the ground of their trade union membership must have caused the applicants justifiable anger, frustration and emotional distress (see Wilson, cited above, § 61). The Court considers that, on an equitable basis, each applicant should be awarded EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 144. The applicants made no claim for costs and expenses.", "Noting that the applicants were paid EUR 701 in legal aid by the Council of Europe, the Court makes no award under this head. C. Default interest 145. 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 out the application in so far as it concerns the complaints of the twentieth and thirty-first applicants (Mr Aleksandr Fedorovich Verkhoturtsev and Mr Aleksandr Mikhaylovich Lenichkin); 2.", "Holds that there has been a violation of Article 14 of the Convention taken together with Article 11 in respect of the remaining applicants; 3. Holds that there is no need to examine the complaint under Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable, 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; 5. Dismisses the remainder of the applicants' claim for just satisfaction.", "Done in English, and notified in writing on 30 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait MarusteDeputy RegistrarPresident [1] The seventh applicant’s name was rectified on 23 April 2010. The former version read “Dmitriy Yurievich Korzhachkin”." ]

[ "SECOND SECTION CASE OF MIKÓ v. HUNGARY (Application no. 40360/04) JUDGMENT STRASBOURG 27 May 2008 FINAL 27/08/2008 This judgment may be subject to editorial revision. In the case of Mikó v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Antonella Mularoni,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Dragoljub Popović,András Sajó,Nona Tsotsoria, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 6 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 40360/04) 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, Ms Istvánné Mikó (“the applicant”), on 7 September 2004.", "2. The applicant was represented by Ms Cs. Lakatos, a lawyer practising in Miskolc. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. 3.", "On 8 February 2006 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 application at the same time. THE FACTS 4. The applicant was born in 1961 and lives in Putnok. 5.", "On 31 August 1998 the applicant filed an action in damages with the Ózd District Court. In the context of unsuccessful ophthalmologic surgery, she claimed compensation from a teaching hospital for medical malpractice. 6. On 7 October 1998 the case was transferred to the competent Pest Central District Court. After having held several hearings and obtained two expert opinions, this court found in part for the applicant on 31 January 2003.", "7. On 14 April 2004 the Budapest Regional Court upheld this decision. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 8. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement 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 ... hearing within a reasonable time by [a] ... tribunal...” 9.", "The Government contested that argument. 10. The period to be taken into consideration began on 31 August 1998 and ended on 14 April 2004. It thus lasted over five years and seven months for two levels of jurisdiction. A. Admissibility 11.", "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 12.", "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). 13. 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). 14.", "Having examined all the material submitted to it, the Court notes 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 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. II. 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.” A. Damage 16. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 17. The Government contested the claim.", "18. The Court considers that the applicant must have some sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 3,200 under that head. B. Costs and expenses 19.", "The applicant also claimed EUR 1,000 for the legal fee incurred before the Court. According to her statement, this corresponds to 12.5 hours of work (studying the file /5 hours/ and preparation of submissions /7.5 hours/) spent by her lawyer on the case, charged at an hourly rate of EUR 80. 20. The Government contested the claim. 21.", "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 that the sum claimed should be awarded in full. C. Default interest 22. 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 according to Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 3,200 (three thousand two hundred 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 notified in writing on 27 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF SEKRETAREV AND OTHERS v. RUSSIA (Applications nos. 9678/09 and 8 others – see appended list) JUDGMENT STRASBOURG 7 February 2017 This judgment is final but it may be subject to editorial revision. In the case of Sekretarev and Others 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 17 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in nine 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”) who were represented before the Court by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights. 3. The Government objected to the examination of the applications by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS 4.", "The list of applicants and the relevant details of the applications are set out in the Appendix. 5. 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 6.", "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. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION 7. The applicants complained that the conditions of their detention had been in breach 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.” 8. The Government claimed that there had been no overcrowding in their respective facilities and that other aspects of detention had been in compliance with national law.", "9. The Court reiterates the principles established in its case-law regarding inadequate conditions of detention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012, and Muršić v. Croatia [GC], no. 7334/13, §§ 96-141, 20 October 2016). It recalls that where the personal space available to a detainee is less than 3 sq.", "m in multi-occupancy accommodation, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is then on the respondent Government which could rebut that presumption by demonstrating that there were all of the following mitigating factors: short, occasional and minor duration of such periods; sufficient freedom of movement outside the cell and adequate out-of-cell activities; and the applicant is confined in an appropriate detention facility and there are no other aggravating aspects of the conditions of his or her detention (see Muršić, cited above, §§ 136-37). 10. In the leading case Butko v. Russia (no. 32036/10, §§ 54-64, 12 November 2015), the Court already found a violation of Article 3 of the Convention on account of the applicant’s detention in the conditions which were relevantly similar to those obtaining in the present case.", "Having examined all the material submitted by the parties, 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. The Government did not show that an acute lack of personal space, if only during the night, was sufficiently compensated for by any mitigating factors (compare Butko, cited above, § 60). Rather the contrary, in some cases the crammed conditions were exacerbated on account of a shortage of sanitary facilities or, in the case of Mr Romanenko, the absence of a functioning flush toilet which was replaced by a bucket. 11. Having regard to its case-law on the subject, the Court declares the complaint under Article 3 of the Convention admissible and finds a breach of that provision on account of inhuman and degrading conditions of the applicants’ detention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 12. The applicants Mr Turlupkhanov, Mr Chukhlantsev and Mr Chuev also complained under Article 13 of the Convention that they did not have at their disposal an effective domestic remedy in respect of poor conditions of detention. 13. The Government submitted that the applicants had not tried to exhaust any domestic remedies.", "14. In Ananyev and Others (cited above, § 119), the Court has already found that the Russian legal system did not provide an effective remedy that could be used to prevent the alleged violation or its continuation and provide applicants with adequate and sufficient redress in connection with a complaint about inadequate conditions of detention. The Court later arrived at the same conclusion in a number of cases (see, for example, Butrin v. Russia, no. 16179/14, §§ 43-45, 22 March 2016). The Government have presented no arguments or evidence to enable the Court to reach a different conclusion in the cases at hand.", "In the light of the violation found in respect of the applicants’ complaint under Article 3 of the Convention, thus confirming its “arguable” nature, the Court concludes that the complaint under Article 13 is admissible. It further finds that the applicants had no effective domestic remedy at their disposal in respect of their complaint concerning the conditions of detention. 15. There has accordingly been a violation of Article 13 of the Convention, taken in conjunction with Article 3. IV.", "ALLEGED VIOLATION OF ARTICLE 3 ON ACCOUNT OF LACK OF ADEQUATE MEDICAL TREATMENT IN DETENTION 16. The applicant Mr Romanenko also complained that he had not been provided with adequate medical treatment in detention. 17. The Government submitted that the prosecutor’s inspections did not reveal any faults in medical service. The Government also claimed that the applicant’s issue did not relate to a structural problem, he had had to exhaust domestic remedies by lodging complaints with the colony administration, the regional prosecutor’s office, or domestic courts.", "18. The applicant maintained that many requests for dental treatment he had lodged since 25 November 2010 went unheeded by the colony administration. 19. The Court reiterates that it has already found on several occasions that there existed no effective remedies in the Russian legal system capable of addressing a situation of an ongoing violation such as inadequate medical care (see, among other authorities, Reshetnyak v. Russia, no. 56027/10, §§ 62-80, 8 January 2013).", "20. Accordingly, the Court rejects the Government’s objection alleging non-exhaustion of domestic remedies and declares this complaint admissible. 21. The Court notes that the applicant provided a detailed description of his requests for dental treatment and showed his readiness to cover all relevant costs. It was not denied that the pain he suffered was of such intensity as to be above the minimum threshold of severity which is required for Article 3 to apply.", "The Government, for their part, did not advance a cogent explanation for the prison administration’s failure to provide the applicant with dental services for more than a year. 22. There has accordingly been a violation of Article 3 of the Convention. V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 23. Lastly, the applicants Mr Sekretarev, Mr Kasarakin, Mr Mitrofanov, Mr Chavelashvili, Mr Turlupkhanov, Mr Tsesar, Mr Chukhlantsev, and Mr Chuev complained of other violations of the Convention.", "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 the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. 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.” 25.", "Regard being had to the documents in its possession and to its case‑law (see, in particular, Ananyev and Others, cited above, §§ 169-174, and Butko, cited above, § 68), the Court considers it reasonable to award the sums indicated in the appended table. 26. 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 concerning the conditions of detention, the lack of effective remedies in that regard, and inadequacy of medical care in Mr Romanenko’s case admissible and the remainder inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of detention; 4. Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 3, in respect of the applicants Mr Turlupkhanov, Mr Chukhlantsev and Mr Chuev; 5. Holds that there has been a violation of Article 3 of the Convention on account of inadequate medical assistance for the applicant Mr Romanenko; 6. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the Appendix, 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 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident APPENDIX Application number Lodged on Applicant Date of birth Place of residence Facility Start and end date The applicant’s description of the conditions of his detention The applicant’s complaints The Court’s award 9678/09 26 December 2008 Aleksandr Vladimirovich SEKRETAREV 28/03/1980 Tolikovo IK-9 Republic of Chuvashiya 12 July 2008 to 1 March 2010 1.6-1.8 sq. m 6 sinks instead of the normative 9 Article 3 7,000 42122/09 30 June 2009 David Napoleonovich CHAVELASHVILI 11/02/1965 Bataysk IK-15 Rostov Region 2 December 2006 to 23 December 2010 2.1 sq. m no ventilation Article 3 15,000 13886/10 2 February 2010 Islam Lechayevich TURPULKHANOV 14/09/1980 Arkhangelsk Region IK-22 Arkhangelsk Region 6 March 2006 to 29 January 2009 2.85 sq. m, poor state of sanitary facilities Articles 3 and 13 10,750 19115/10 2 March 2010 Aleksey Borisovich TSESAR 30/03/1971 Rybolovo IK-4 Tomsk Region 26 January 2008 to 3 March 2010 1.9 sq.", "m 6 toilets and 14 sinks for 124 inmates Article 3 8,500 73499/10 28 May 2010 Igor Aleksandrovich CHUKHLANTSEV 02/11/1976 Svetlograd IK-13 Sverdlovskiy Region 16 January 2009 to 1 December 2009 1.7-1.9 sq. m Articles 3 and 13 5,000 8797/11 13 January 2011 Igor Anatolyevich CHUYEV 01/10/1968 Moscow IK-10 Tver Region 18 March 2009 to 15 January 2011 2.1-2.7 sq. m Articles 3 and 13 7,500 34310/12 14 March 2012 Yuriy Viktorovich ROMANENKO 07/02/1966 Tulun IK-56 Sverdlovskiy Region 25 September 2010 to 8 August 2012 3.5 sq. m a bucket instead of a lavatory which the applicant had to carry out and empty into a cesspool outside the building while wearing handcuffs Article 3 on account of conditions of detention and inadequate dental care 15,500 63933/12 24 September 2008 Aleksandr Vasilyevich KASARAKIN 17/05/1970 Ulan-Ude Prison YuU-323/ST-2 Lipetsk Region 20 August 2004 to 31 August 2010 2.5 sq. m Article 3 15,000 63951/12 5 March 2010 Andrey Yevgenyevich MITROFANOV 25/02/1964 St Petersburg IK-9 Republic of Karelia 27 July 2008 to 25 October 2009 1.8 sq.", "m 5 sinks and 5 toilets for 100 inmates Article 3 5,750" ]

[ "FIRST SECTION CASE OF SUNTSOVA v. RUSSIA (Application no. 55687/00) JUDGMENT STRASBOURG 17 November 2005 FINAL 17/02/2006 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 Suntsova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President, MrsS. Botoucharova, MrA.", "Kovler, MrsE. Steiner, MrK. Hajiyev, MrD. Spielmann, MrS.E. Jebens, judges, and Mr S. Quesada, Deputy Section Registrar, Having deliberated in private on 25 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 55687/00) 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 Lyudmila Grigoryevna Suntsova, a Russian national, on 12 September 1999. 2. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 30 September 2003 the Court decided to communicate 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 1948 and lives in Volgograd.", "5. Pursuant to a decision of the Volgograd Central District Administration of 14 October 1987 the applicant began receiving a monthly single mother allowance in respect of her daughter who was born on 15 April 1986. 6. In 1998, from April to July, the applicant received no payments. On 4 September 1998 the applicant brought proceedings before the Central District Court of the City of Volgograd (Центральный районный суд города Волгограда) requesting the payment of outstanding sums.", "7. By a judgment of 21 September 1998 the court allowed the applicant’s claim and ordered the Finance Department of the Volgograd Regional Administration (Волгоградское облфинуправление) to pay the applicant 467.56 roubles (RUR). 8. Following the entry into force of the judgment, the court’s bailiff instituted enforcement proceedings for recovery of the sum awarded to the applicant. However, the applicant was informed that in 1998 the court judgment could not be enforced, because the defendant lacked sufficient funds.", "9. The applicant complained about the non-enforcement of the judgment to the Department of Justice of the Volgograd Regional Administration (Управление юстиции администрации Волгоградской области), which on 16 February 1999 forwarded her complaint to the bailiff’s service of the first instance court for reply and necessary measures. In an undated letter of 1999, the bailiff’s service informed the applicant that it had issued a writ of execution, but had not yet received from the defendant the sum due to the applicant. 10. According to the Governments submissions, which were not contested by the applicant, the sum of RUR 467.56 was paid to her twice – on 29 September 2000 and on 9 October 2002.", "II. RELEVANT DOMESTIC LAW 11. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.", "12. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 13.", "The applicant complained about the prolonged non-enforcement of the judgment in her favour. The court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. These Articles, in so far as relevant, 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 14. The Government contested the admissibility of the application on the grounds that the judgment concerned had been executed and the applicant had failed to challenge the bailiff’s actions in court, i.e. she had not exhausted the domestic remedies. Furthermore, the applicant had failed to initiate any domestic proceedings with respect to her claim for compensation of non-pecuniary damage caused by the non-enforcement of the judgment in her favour.", "15. The applicant maintained that she complained against the bailiff’s inactivity to the Department of Justice of the Volgograd Regional Administration. 16. As regards the Government’s argument that the judgment in question has already been enforced, the Court considers that the mere fact that the authorities complied with the judgment after a substantial delay cannot be viewed in this case as automatically depriving the applicant of her victim status under the Convention (see, e.g., Petrushko v. Russia, no. 36494/02, § 16, 24 February 2005).", "17. As to the alleged non-exhaustion of domestic remedies by the applicant, the Court reiterates that Article 35 § 1 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. However, 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 the requirement (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999‑V).", "The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are 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; it falls to the respondent State to establish that these various conditions are satisfied (see Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002‑VIII). 18. Turning to the present case, the Court notes that the Government put forward no reasons why an action against the bailiff’s service should be considered an effective remedy.", "There is no suggestion that it was inefficiency of the bailiff’s service which prevented the enforcement of the judgment at issue. In fact, the Government conceded that the delays in enforcement of the judgment concerned had been caused by circumstances beyond the bailiff’s control. Apparently, the reason for the delay was the lack of funds. The Court therefore finds that an action against the bailiff’s service would not have enhanced the applicant’s prospects of receiving her award. The Court considers that in the present case it could not be said to have constituted an effective remedy against non‑enforcement (see Plotnikovy v. Russia, no.", "43883/02, § 17, 24 February 2005). 19. The Court therefore does not accept that the applicant was required to exhaust domestic remedies through a further court action against the bailiff’s service. 20. The Court observes 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 21. The Government stressed that the judgment in the applicant’s favour had been executed.", "The delays in the enforcement of the judgment had been caused by circumstances beyond the bailiff’s control. At the relevant time, the Bailiff’s Service of the Volgograd Region had had to deal with more than 18,000 enforcement documents concerning recovery of child benefit arrears totalling RUR 18,500,000. 22. The applicant maintained her complaints. 23.", "The Court observes that the judgment of 21 September 1998 remained inoperative for about two years. No acceptable justification was advanced by the Government for this delay. 24. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, among other authorities, Burdov v. Russia, no.", "59498/00, ECHR 2002-III and, more recently, Petrushko, cited above, or Poznakhirina v. Russia, no. 25964/02, 24 February 2005). 25. Having examined the material submitted to it, the Court notes that the Government did 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 finds that by failing for two years to comply with the enforceable judgment in the applicant’s favour the domestic authorities prevented her from receiving the money she could reasonably have expected to receive.", "26. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.", "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.” 28. The applicant claimed RUR 100,000 in respect of pecuniary and non-pecuniary damage. 29. The Government objected to the claim, noting that the applicant had not initiated any settlement of this issue in domestic courts. 30.", "The Court notes that the applicant has not submitted any documents supporting her claim for pecuniary damage. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 31. As regards the compensation for non-pecuniary damage, the Court would not exclude that the applicant might have suffered distress and frustration resulting from the State authorities’ failure to enforce the judgment in her favour. However, having regard to the nature of the breach in this case and making its assessment on an equitable basis, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see, in a similar context, Poznakhirina, cited above, § 35).", "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 to the Convention; 4.", "Dismisses the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago Quesada Christos Rozakis Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF PETUKHOVA v. RUSSIA (Application no. 28796/07) JUDGMENT STRASBOURG 2 May 2013 FINAL 02/08/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Petukhova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 9 April 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "28796/07) 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, Ms Alla Yakovlevna Petukhova (“the applicant”), on 18 June 2007. 2. The applicant was initially represented before the Court by Mr A. Priyatelchuk, a human rights activist residing in Moscow, and subsequently by Mr Yu. Yershov, 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. The applicant alleged, in particular, that her deprivation of liberty for the purposes of conducting an involuntary psychiatric examination was in violation of Article 5 § 1 of the Convention. 4. On 3 June 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 5. The applicant was born in 1937 and lives in Moscow. 6. On 13 December 2005 she complained to the police about her neighbours.", "She stated that a “gang” of neighbours had damaged her property and had used “psychotronic generators” in their apartments and cars to cause damage to her health and mind. The applicant also mentioned in the complaint that she had in the past made submissions to the Federal Security Service, the President of the Russian Federation and the State Duma, which had been unsuccessful. 7. On 20 January 2006 a police officer took statements from the applicant’s neighbours, who stated that she had behaved unreasonably, walked naked on the streets, shouted at people and accused them of various illegal activities. A.", "Proceedings for involuntary psychiatric examination 8. The Psychoneurological Outpatient Clinic no. 20 of Moscow (“the POC”) was requested by the police on 20 January 2006 to carry out a psychiatric examination of the applicant. 9. On 14 July 2006 a resident psychiatrist at the POC (Ms K.) issued a report confirming the need for a psychiatric examination of the applicant relying on the evidence obtained seven months before.", "The report stated that the nature of the applicant’s complaints to various authorities gave reason to believe that they were brought about by a pathology associated with a psychiatric disorder. The psychiatrist concluded that an examination of the applicant was necessary, because progressive development of the disorder might cause a deterioration in her health and aggressive behaviour towards others. The report was certified by the head physician of the POC. It is not clear whether the psychiatrist examined the applicant in person before issuing the report. 10.", "On the same day Ms K. filed an application with the Kuzminskiy District Court of Moscow (“the District Court”) seeking authorisation for an involuntary psychiatric examination under section 23, subsection 4 (c) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of the Citizens’ Rights Related to Its Administration 1992 (“the Psychiatric Assistance Act”). The application stated that there was evidence of “a psychiatric disorder resulting in significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance”. It also indicated that on 20 January 2006, during a police interview, the applicant had refused to consent to undergo a voluntary psychiatric examination. The application was also certified by the head physician of the POC. 11.", "Evidence attached to the application included the above-mentioned psychiatrist’s report of 14 July 2006, the applicant’s complaint to the police of 13 December 2005, the police officer’s request of 20 January 2006, and the applicant’s neighbours’ statements of 20 January 2006. 12. The application was received by the District Court on 27 July 2006 and a hearing was scheduled for 18 August 2006. On 14 August 2006 the court sent a summons to the applicant by registered letter, but that was later returned to the sender after several unsuccessful delivery attempts. 13.", "On 18 August 2006 the District Court considered the psychiatrist’s application for involuntary psychiatric examination of the applicant. Neither the applicant nor the representative of the POC were present at the hearing. It was noted in the court transcript and decision that both parties had been duly notified of the hearing but that neither had chosen to appear in court. The District Court authorised a psychiatric examination of the applicant without her consent and ordered it to be carried out either at her home or at the POC. It reasoned as follows: “The court, having examined the evidence, namely the report of the POC on the need for a psychiatric examination, considers the application well-founded ... for the following reasons.", "In accordance with Section 23, subsection 4 of the Psychiatric Assistance Act 1992 ... a psychiatric examination of a person may be carried out without his or his legal representative’s consent when the evidence available suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes feebleness, i.e. the inability to autonomously satisfy one’s basic needs, or significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance. The said condition ... has been proven by the POC’s medical report, a copy of the applicant’s complaint to [the police] concerning the use of various types of secret weapons, a copy of a statement by Ms Sh. (Ms Petukhova’s neighbour), who stated that Ms Petukhova behaved unreasonably, walked naked on the streets and shouted at people, as well as by other evidence confirming the need for a psychiatric examination of Ms Petukhova.” 14. The Court has received no evidence to suggest that the applicant was either notified of the decision or provided with a copy.", "15. More than three months later, on 1 December 2006, the POC sent a request to the police seeking their assistance in the applicant’s apprehension in order to prevent her from potentially behaving aggressively towards others. The request stated that the clinic was unable to ensure that the applicant would attend an examination. 16. On the same day at around 10 a.m. three policemen visited the applicant’s flat and took her by force to a police station.", "Having spent four hours there she was transferred by ambulance to Psychiatric Hospital no. 13 (“the PH-13”). At 2.30 p.m. on arrival at the hospital, the applicant was informed that she had been brought there under the authorisation of the District Court. It is not clear whether she was allowed to read the court order. 17.", "Later that day at 4.30 p.m. the applicant was examined by a medical counselling panel and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome. 18. After her release from the hospital on 4 December 2006 the applicant requested the District Court to provide her with a copy of its decision of 18 August 2006 authorising her involuntary psychiatric examination. 19. On 18 December 2006 the applicant appealed against that decision.", "She argued, inter alia, that the District Court had examined the case in her absence and that she had not been duly notified of the hearing; that the decision did not contain reasons and that it was based on a single psychiatric report which was accepted by the court without scrutiny. 20. On 15 February 2007 the Moscow City Court after hearing the applicant and her representative dismissed the applicant’s appeal and upheld the authorisation for an involuntary psychiatric examination. The court reasoned that the applicant’s presence at the District Court hearing was not required under Article 306 of the Code of Civil Procedure. Furthermore, it stated that the psychiatric report was well-founded because it contained details of the applicant’s actions giving grounds to presume the existence of a psychiatric disorder.", "21. The applicant applied for supervisory review, but to no avail. 22. The applicant lodged a constitutional complaint about Article 306 of the Code of Civil Procedure. She alleged that this legal provision did not guarantee her a right to be present during the hearing of an application for involuntary psychiatric examination, since it specified that such applications shall be considered by “a single judge”.", "23. On 18 December 2007 the Constitutional Court of the Russian Federation dismissed the applicant’s complaint. It argued that the term “single judge” for the purposes of Article 306 of the Code of Civil Procedure referred only to the composition of a court and did not preclude the parties’ participation in a hearing. B. Proceedings for involuntary hospitalisation to a psychiatric facility 24.", "On 1 December 2006 after the applicant was brought to the hospital and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome (see paragraphs 16-17 above), the medical panel of the PH-13 concluded that involuntary hospitalisation of the applicant was required under section 29 of the Psychiatric Assistance Act 1992 in order to prevent potentially significant damage to her health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance. The application for involuntary hospitalisation was filed with the Lyubinskiy District Court of Moscow on the same day. 25. On 4 December 2006 the applicant was discharged from PH-13 and advised to follow an outpatient treatment programme. Later that day the deputy head physician of PH-13 requested the Lyubinskiy District Court of Moscow to discontinue the proceedings concerning the applicant’s involuntary hospitalisation in the light of her discharge from the facility.", "The request was granted and the proceedings discontinued on 6 December 2006. 26. The applicant did not initiate any proceedings for review of her hospitalisation. II. RELEVANT DOMESTIC LAW A.", "Relevant domestic law in respect of involuntary psychiatric examination 1. Code of Civil Procedure 2002 27. Article 306 of the Code of Civil Procedure of the Russian Federation of 2002, which entered into force on 1 February 2003, regulates the procedure for the judicial authorisation of involuntary psychiatric examinations. It reads as follows: Article 306. Involuntary psychiatric examination “An application for involuntary psychiatric examination of a citizen shall be lodged by a psychiatrist with the court at the place of the citizen’s place of residence.", "A reasoned report by a psychiatrist on the need to conduct such an examination and other evidence shall be attached to the application. Within three days of the application being filed, a single judge shall consider the application for involuntary psychiatric examination and shall decide to either authorise the involuntary psychiatric examination of a citizen or refuse [it].” 2. Psychiatric Assistance Act 1992 28. The Psychiatric Assistance Act 1992 in section 5 subsection 2 provides a list of the rights of persons suffering from a psychiatric disorder, including the right to be informed of their rights, the nature of their disorder and available treatment, the right to the least restrictive methods of treatment, and the right to the assistance of a lawyer, legal representative or other person. Section 5 subsection 3 prohibits restrictions on the rights of persons suffering from a psychiatric disorder solely on the basis of their diagnosis or their admission to a specialised facility.", "29. Sections 23 and 25 of the Act regulate the procedure for conducting involuntary psychiatric examinations. The relevant parts read as follows: Section 23: Psychiatric examination “(1) A psychiatric examination shall be conducted in order to determine whether the examinee suffers from a psychiatric disorder and needs psychiatric assistance, and to determine the type of such assistance. (2) A psychiatric examination, as well as a prophylactic examination, shall be conducted at the examinee’s request and with his consent ... ... (4) A psychiatric examination of a person may be carried out without his or his legal representative’s consent in cases when the available evidence suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes: ... c) significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance ...” Section 25: Procedure for submission and consideration of an application for the psychiatric examination of a person without his or his legal representative’s consent “... (4) In cases when a person does not present an immediate danger to himself or others, the application for a psychiatric examination shall be submitted in writing and shall contain detailed information giving reasons for the need for examination and an indication of the refusal by the person or his or her legal representative to consult a psychiatrist. The psychiatrist may request additional information necessary for making the decision.", "(5) Having established that the application ... is well-founded the psychiatrist submits to a court at the place of the person’s residence his written reasoned conclusion as to the need of the examination as well as the application for examination and other available materials. The judge gives sanction within three days from receiving all of the materials ...” 3. Police Act 1991 30. The Police Act 1991 in section 10 establishes the duties of police in law enforcement. In the relevant part it reads as follows: Section 10.", "Duties of the police “The police in line with assigned tasks shall: ... (22) deliver to healthcare institutions ... for medical treatment persons refusing to appear, suffering from diseases and presenting danger to themselves and others, and also ... to ensure together with healthcare institutions in cases and under a procedure prescribed by law supervision over persons suffering from mental disorders ... and presenting danger to others ...” 4. Constitutional Court of the Russian Federation 31. In its decision of 10 March 2005 (no. 62-O) interpreting the Psychiatric Assistance Act 1992, the Constitutional Court stated that judicial proceedings in cases concerning psychiatric assistance must be adversarial and respect the principle of equality of parties. Consequently, a psychiatric facility lodging an application with a court was under an obligation to provide evidence confirming the information stated in such an application.", "32. In the decision of 21 April 2011 (no. 592-O-O) concerning procedural guarantees afforded to individuals subjected to involuntary psychiatric examination, the Constitutional Court concluded that such guarantees were essentially the same as those afforded in the course of involuntary hospitalisation and that they included the duty of the courts to verify all the evidence presented to them. B. Relevant domestic law in respect of involuntary hospitalisation to a psychiatric facility 1.", "Code of Civil Procedure of 2002 33. Article 304 of the Code of Civil Procedure of 2002 establishes the procedural guarantees afforded to a person placed in a psychiatric facility. In the relevant part it reads as follows: Article 304. Consideration of an application for involuntary placement to a psychiatric facility, or extension of a period of involuntary placement, of a citizen who is suffering from a psychiatric disorder. “1.", "An application for involuntary placement to a psychiatric facility, or extension of a period of involuntary placement, of a citizen who is suffering from a psychiatric disorder shall be considered by a judge within five days from the date on which the proceedings were initiated. The court shall hold a hearing in the courtroom or in the psychiatric facility. The citizen has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility. 2.", "The case shall be considered with the participation of a prosecutor, a representative of the psychiatric facility which applied to the court ... , and the citizen’s representative ... .” 34. Articles 220 and 221 of the Code of Civil Procedure establish the grounds for discontinuation of the proceedings and its consequences. In the relevant part they read as follows: Article 220. Discontinuation of the proceedings on the case “The court discontinues the proceedings on the case, if: ... a plaintiff withdraws his lawsuit and the court accepts the withdrawal ...” Article 221. The procedure and consequences of discontinuation of the proceedings in the case “The proceedings in the case are discontinued by a decision of the court, which states that repeated submission of the lawsuit regarding the dispute between the same parties, on the same matter and the same grounds in not permitted.” 2.", "Psychiatric Assistance Act 1992 35. Section 7 subsections 1 and 3 of the Act (as in force at the material time) specified that persons suffering from a psychiatric disorder had the right to a representative of their own choosing. The administration of the psychiatric facility had the obligation to ensure the opportunity for the individual to obtain legal representation by a lawyer (except for urgent cases). 36. Section 29 of the Act sets out the following grounds for involuntary placement of a person in a psychiatric facility: Section 29 “A person suffering from a mental disorder may be hospitalised at an inpatient psychiatric facility without his or his representative’s consent prior to judicial authorisation only if his medical examination or treatment is not possible outside of an inpatient facility, the mental disorder is severe and causes: a) a immediate danger to himself or others, or b) feebleness, i.e.", "the inability to autonomously satisfy basic needs c) significant damage to health due to the deterioration or aggravation of the psychiatric condition in the absence of psychiatric assistance.” 37. Section 32 of the Act specifies the procedure for the examination of patients involuntarily placed in a psychiatric facility: Section 32 “1. A person placed in a psychiatric hospital on the grounds defined by section 29 of the present Act shall be subject to compulsory examination within 48 hours by a panel of psychiatrists of the hospital, who shall take a decision as to the need for hospitalisation. ... 2. If hospitalisation is considered necessary, the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital, within 24 hours, for a decision as to the person’s further confinement in the hospital.” 38.", "Sections 33-35 set out the procedure for judicial review of applications for the involuntary in-patient treatment persons suffering from a psychiatric disorder: Section 33 “1. Involuntary hospitalisation for in-patient psychiatric treatment on the grounds laid down in section 29 of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital. 2. An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is confined ... 3. A judge who accepts an application for review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.” Section 34 “1.", "An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge, on the premises of the court or hospital, within five days of receipt of the application. 2. The person has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility ...” Section 35 “1. After examining the application on the merits, the judge shall either grant or refuse it.", "... ” III. RELEVANT COUNCIL OF EUROPE DOCUMENTS 39. On 22 September 2004 the Committee of Ministers adopted Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder. In the relevant part the Recommendation provides: Article 17 – Criteria for involuntary placement “2. The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if: i. his or her behaviour is strongly suggestive of such a disorder; ii.", "his or her condition appears to represent such a risk; iii. there is no appropriate, less restrictive means of making this determination; and iv. the opinion of the person concerned has been taken into consideration.” Article 20 – Procedures for taking decisions on involuntary placement and/or involuntary treatment “1. The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should: i. take into account the opinion of the person concerned; ii.", "act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted ... 4. Involuntary placement, involuntary treatment, or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience, and in accordance with valid and reliable professional standards.” Article 22 – Right to information “1. Persons subject to involuntary placement or involuntary treatment should be promptly informed, verbally and in writing, of their rights and of the remedies open to them ...” 2. They should be informed regularly and appropriately of the reasons for the decision and the criteria for its potential extension or termination.” Article 32 – Involvement of the police “1. In the fulfilment of their legal duties, the police should coordinate their interventions with those of medical and social services, if possible with the consent of the person concerned, if the behaviour of that person is strongly suggestive of mental disorder and represents a significant risk of harm to him or herself or to others.", "2. Where other appropriate possibilities are not available the police may be required, in carrying out their duties, to assist in conveying or returning persons subject to involuntary placement to the relevant facility. 3. Members of the police should respect the dignity and human rights of persons with mental disorder. The importance of this duty should be emphasised during training.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 1 (b) OF THE CONVENTION 40. The applicant complained that on 1 December 2006 she had been unlawfully deprived of her liberty for the purposes of conducting an involuntary psychiatric examination. Her complaint raises issues under Article 5 of the Convention, which, in so far as is 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 ...” A. Admissibility 41.", "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 of the parties 42. The applicant contended that the order of the Kuzminskiy District Court of Moscow of 18 August 2006 had been unlawful within the meaning of Article 5 § 1 of the Convention and domestic law, since the District Court had issued it in the parties’ absence without properly reviewing the evidence or giving sufficient reasons for its decision. She argued that on no occasion had she been requested by the police or psychiatrists to undergo a voluntary psychiatric examination. Equally, she had never been notified of the court order and had had no opportunity to comply with or appeal against it before being apprehended by the police on 1 December 2006. 43.", "The applicant further argued that the involvement of the police in enforcing the court order had lacked sufficient legal basis and at any rate had been devoid of reasons, since she had never refused to attend a psychiatric facility in order to undergo a psychiatric examination. 44. The Government argued that the competent national authorities had not relied on the exception set out in Article 5 § 1 (e) of the Convention allowing detention of persons of unsound mind to justify the applicant’s apprehension, confinement in the police station and subsequent transfer to PH‑13 for psychiatric examination. No decision was made by the domestic courts as to whether the applicant suffered from a psychiatric disorder necessitating her involuntary hospitalisation. 45.", "The Government contended that restrictions on the applicant’s right under Article 5 § 1 of the Convention had been necessary to ensure compliance with the lawful and valid order of a national court. They further argued that while Article 306 of the Code of Civil Procedure did not require parties to be present at a hearing, in the present case the District Court had duly notified the parties of the hearing but both parties chose not to attend. Lastly, they argued that involving the police in the enforcement of the court order had been lawful and foreseen by domestic law. 2. The Court’s assessment 46.", "The Court reiterates that the physical liberty of a person is a fundamental right protecting the physical security of an individual (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X). While Article 5 § 1 of the Convention provides for a list of exceptions which might be used to restrict this right (Article 5 § 1 (a) to (f)), these exceptions must be interpreted narrowly and in no circumstances may they allow arbitrary deprivation of liberty (see Vasileva v. Denmark, no. 52792/99, § 33, 25 September 2003). 47.", "In the present case the parties did not dispute that the enforcement of the court order to conduct an involuntary psychiatric examination of the applicant had involved a deprivation of liberty. 48. The Court notes that the Government’s observations in the present case rely in substance on the exception provided in Article 5 § 1 (b) of the Convention permitting deprivation of liberty with a view to ensuring compliance with “the lawful order of a court”. There are no reasons to disagree with the Government’s position that the applicant’s complaint must be considered in the light of Article 5 § 1 (b) of the Convention. 49.", "Despite a significant degree of resemblance between this case and cases concerning involuntary hospitalisation which have been examined by the Court under Article 5 § 1 (e) of the Convention, the distinction between them is clear. The purpose of the order issued by the District Court on 18 August 2006 was not to authorise detention of the applicant as a person of “unsound mind”, but to ensure that she submitted herself to a psychiatric examination, which was necessary in the opinion of the competent national authorities. 50. Accordingly, the Court must examine whether, in the light of Article 5 § 1 of the Convention and the exception provided in sub‑paragraph (b), the applicant was lawfully deprived of her liberty, specifically, whether the court order was lawful and whether it was enforced in a manner compliant with the above-mentioned provisions of the Convention. It is for the Court to review the lawfulness of the order issued by the District Court on 18 August 2006 and the applicant’s detention on 1 December 2006 between her apprehension by police and admittance to PH-13 for involuntary hospitalisation and treatment.", "51. The Court reiterates that the notion of “lawfulness” in the context of Article 5 § 1 of the Convention may have a broader meaning than in the national legislation and that it presumes a “fair and proper procedure”, including the requirement “that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary” (see Winterwerp v. the Netherlands, 24 October 1979, § 45, Series A no. 33). 52. Section 23, subsection 1 of the Psychiatric Assistance Act of 1992 provides that a psychiatric examination is conducted in order to determine whether the examinee suffers from a psychiatric disorder and needs psychiatric assistance, and to determine the type of such assistance.", "Subsections 2 and 4 states that such examinations shall normally be voluntary and rely on the consent of the person to be examined, and that only in exceptional circumstances (inter alia, substantial aggravation of a mental disorder in absence of psychiatric assistance) they may be conducted without consent. The refusal to undergo an examination must be recorded by a psychiatrist submitting an application for involuntary examination (section 25, subsection 4 of the Act). In the light of the rulings of the Constitutional Court (see paragraph 31 above) the lack of consent must be supported by evidence, which must subsequently be reviewed by the court. 53. In the present case the applicant argued that she had never refused to undergo a psychiatric examination and therefore the District Court had had no grounds to order an involuntary examination.", "The Government maintained that the court order of 18 August 2006 had been in compliance with the requirements of the domestic law. 54. The Court notes that the refusal of the applicant to undergo a psychiatric examination was only mentioned in the application for an involuntary examination submitted by the psychiatrist Ms K. and was substantiated by reference to a conversation with a police officer on 20 January 2006 (see paragraph 10 above). No supporting report or witness statement was attached to the application. 55.", "Nevertheless, on 18 August 2006 the District Court issued the order authorising the involuntary psychiatric examination of the applicant. Neither the reasoning of the District Court (see paragraph 13 above) nor the court transcripts referred to whether or not the applicant had consented to the procedure or gave any indication that the domestic court had considered that issue. 56. The Court notes that the application for examination was received by the court on 27 July 2006 and the hearing took place twenty-two days later, while section 25 sub-section 5 of the Psychiatric Assistance Act 1992 the decision had to be taken within three days (see paragraph 9 above). 57.", "The Court observes that a judge considering an application for an involuntary psychiatric examination did not deem it necessary to verify whether the applicant had indeed objected to the examination seven months before the hearing was held or whether she had changed her mind within the seven months between her alleged conversation with a police officer and the court hearing. Even if the District Court may be presumed to have taken notice of the lack of consent on the part of the applicant in January 2006 despite avoiding its acknowledgment in writing, did not act in compliance with the domestic law as interpreted by the Constitutional Court, since no corroborating evidence was produced by the psychiatrist, who herself relied on the evidence obtained seven months before her report was drafted. In the light of such negligence on the part of the District Court, its order of 18 August 2006 was unlawful. 58. Turning to the manner in which the above-mentioned order was enforced by the police and healthcare authorities, the Court is mindful that Article 5 § 1 (b) of the Convention semantically presumes that before a person may be deprived of liberty for “non-compliance” with a “lawful order of a court” that person must have had an opportunity to comply with such an order and have failed to do so (see Beiere v. Latvia, no.", "30954/05, § 49, 29 November 2011). At the very least an individual may be considered to have had an opportunity to comply with an order when he was duly informed of it and either implicitly or explicitly refused to follow it (see Beiere v. Latvia, cited above, §§ 49-50 with further references). 59. The Court finds it necessary to highlight that a refusal of a person to undergo certain measures or to follow a certain procedure prior to being ordered to do so by a competent court has no presumptive value in decisions concerning compliance with such a court order. While the person might have refused to undergo certain measures suggested by the authorities (a healthcare institution and the police in the present case) prior to such measures being ordered by a court, this does not necessarily imply refusal of the person to comply with authoritative judicial decisions.", "60. In the circumstances of the present case the Court observes that there is no evidence that the applicant was either informed of the order of the District Court of 18 August 2006 to undergo a psychiatric examination, or given an opportunity to comply with it. 61. Three months after the order was issued the applicant was unexpectedly taken by the police from her apartment to the police station (see paragraph 16 above). While the applicant did not resist her apprehension by the police she was detained in the station for four hours without any clear reason.", "The Court does not doubt that the police under section 10 subsection 22 of the Police Act 1991 had the right and duty to be involved in enforcement of the court order. However, nothing in the case materials clarifies why the applicant was taken to police station and detained there instead of being taken directly to a psychiatric facility for examination. 62. Neither of the parties gave reasons in their submissions to suggest that the applicant had been aware of the court order, had refused (implicitly or explicitly) to comply with it, and that the four-hour detention in the police station was necessary for the enforcement of the order. 63.", "The foregoing findings are sufficient to enable the Court to conclude that the applicant’s detention on 1 December 2006 between her apprehension by police and admittance to the PH-13 for involuntary hospitalisation and treatment was unlawful and did not comply with the requirements of Article 5 § 1 (b) of the Convention. 64. There has accordingly been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 (e) OF THE CONVENTION 65.", "The applicant also complained that between 1 and 4 December 2006 she had been unlawfully hospitalised to a psychiatric hospital against her will. Her complaint raises issues under Article 5 of the Convention, which, in so far as is 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: ... (e) the lawful detention ... of persons of unsound mind ...” 66. The applicant contended that her placement to a psychiatric facility between 1 and 4 December 2006 was unreasonable, since there was no convincing evidence of a severe mental disorder, and unlawful, since it was not authorised according to the procedure prescribed by law.", "67. The Government argued that the applicant’s complaint is manifestly ill-founded, since the national authorities applying for involuntary hospitalisation of the applicant relied on the medical evidence and followed the procedure prescribed by law. 68. The Court notes that the applicant was involuntary hospitalised to the PH-13 between 1 and 4 December 2006. On the day of the applicant’s discharge from the hospital the deputy head physician of PH-13 requested the Lyubinskiy District Court of Moscow to discontinue the proceedings concerning the applicant’s involuntary hospitalisation.", "The request was granted and the proceedings discontinued on 6 December 2006. The Court further notes that the applicant did not pursue any other proceedings in this regard and that the Government did not claim that the applicant failed to exhaust the domestic remedies. 69. Consequently, in line with the well-established practice of the Court the applicant should have complained of a violation of her rights under Article 5 of the Convention by involuntary placement to a psychiatric hospital within six months from 6 December 2006 when the Lyubinskiy District Court of Moscow discontinued the proceedings on the matter. The applicant submitted her complaint to the Court on 18 June 2007.", "The Court finds that the complaint under Article 5 of the Convention regarding the deprivation of the applicant’s liberty between 1 and 4 December 2006 was lodged outside of six-month time-limit and must be rejected in accordance with Article 35 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 70. The applicant also lodged complaints under Articles 6 and 8 of the Convention regarding her involuntary psychiatric examination. 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 these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 (a) of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. 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 72. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.", "73. The Government considered the claim excessive and unreasonable. 74. Having regard to the circumstances of the present case and acting on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage plus any tax that may be chargeable. B.", "Costs and expenses 75. The applicant also claimed EUR 5,000 for the costs and expenses incurred before the Court. 76. The Government argued that the applicant failed to properly substantiate that the expenses were actually and necessarily incurred. 77.", "Having regard to the Court’s case-law on the matter and all the documents in its possession, the Court considers it reasonable to award to the applicant the sum of EUR 850 for the proceedings before the Court, plus any tax that may be chargeable to her on that amount. C. Default interest 78. 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 5 § 1 of the Convention concerning unlawful deprivation of liberty for the purposes of conducting an involuntary psychiatric examination admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 5 § 1 (b) 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 Russian roubles at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 850 (eight hundred and 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 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 2 May 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FOURTH SECTION CASE OF STASIK v. POLAND (Application no. 21823/12) JUDGMENT STRASBOURG 6 October 2015 FINAL 06/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stasik v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Guido Raimondi, President,George Nicolaou,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Krzysztof Wojtyczek,Yonko Grozev, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "21823/12) 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 Mirosław Stasik (“the applicant”), on 4 April 2012. 2. The applicant was represented by Mr W. Kozłowski, a lawyer practising in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that the Polish authorities had failed to take effective steps to enforce his right of contact with his son and that the length of the divorce proceedings was excessive. 4. On 21 January 2013 the application was communicated to the Government. 5. On 11 March 2015 the Judge appointed as Rapporteur requested the parties pursuant to Rule 49 § 3 (a) of the Rules of Court to submit factual information concerning the course of the divorce proceedings.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1974 and lives in Sulejówek. A. Divorce proceedings and access proceedings 7. In April 2007 the applicant’s wife left the matrimonial home and moved to Zakopane with the couple’s son M., who was born on 1 July 2004.", "8. On 22 November 2007 the applicant lodged an application with the Zakopane District Court (Sąd Rejonowy) for the establishment of contact. 9. On 7 February 2008 he withdrew the application in the light of the parties’ agreement to establish the contact arrangement by way of a friendly settlement. On the same date the Zakopane District Court discontinued the proceedings.", "10. On 4 July 2008 the applicant again requested that the Zakopane District Court regulate his contact with his child. On 22 August 2008 he asked the same court to issue an interim contact order in that regard. 11. On 3 September 2008 the Zakopane District Court issued an interim contact order.", "It ruled that the applicant was allowed to visit the child at the mother’s home on the first and third Saturday of each month from 2 to 7 p.m. The applicant was also allowed to take the child outside his place of residence accompanied by his mother. The court noted that the applicant had encountered difficulties in having regular contact with his son and that he had not seen his child since July 2008. The court further observed that at the material time it had not been established whether the applicant could be granted access without the child’s mother’s presence. 12.", "Meanwhile, on 29 August 2008 the applicant’s wife brought an action for separation before the Nowy Sącz Regional Court (Sąd Okręgowy) on the basis of the applicant being the party at fault. She requested that she be granted custody of her son and that the child have his place of residence with her. She also requested that the court hear evidence from nine witnesses. 13. On 20 October 2008 the applicant filed for separation on the basis of his wife being the party at fault.", "He asked that the court hear evidence from twenty-two witnesses. 14. On 21 October 2008 the case was transferred to the Siedlce Regional Court. 15. On 23 February 2009 the applicant lodged a petition for divorce with the Siedlce Regional Court on the basis of his wife being the party at fault.", "He also requested that the court grant him custody of his son and rule that the child’s place of residence was to be with him. On the same date he asked the court to issue an interim order for contact for the duration of the divorce proceedings. 16. The cases for separation and for divorce were subsequently joined and the first hearing was scheduled for 30 June 2009. At the request of the applicant’s wife, the hearing was adjourned until 25 August 2009.", "The court instructed the court’s guardian (kurator sądowy) to conduct a local assessment (wywiad środowiskowy) at the child’s place of residence. 17. The first hearing in the divorce case was held by the Siedlce Regional Court on 25 August 2009. The court heard evidence from the parties. 18.", "On the same date the Siedlce Regional Court issued an interim contact order pending the outcome of the divorce proceedings. The applicant was allowed to have contact with his son every second and fourth weekend of the month and every Wednesday, outside the child’s place of residence but in the presence of the child’s mother. 19. Both the applicant and his wife lodged appeals against this decision. 20.", "On 14 December 2009 the applicant requested that the court authorise him to contact his son by phone three times a week. 21. On 29 December 2009 the Siedlce Regional Court issued an interim contact order and granted the applicant the right to two thirty-minute phone calls with his son per week. The phone calls were to take place every Wednesday and Friday, between 6.30 and 7 p.m. 22. Meanwhile, on an unspecified date in 2009 the applicant’s wife moved to Warsaw and subsequently, in 2010, to Poznań.", "23. On 19 January 2010 the Siedlce Regional Court rejected the applicant’s wife’s appeal against the decision of 25 August 2009. 24. On 9 March 2010 the Lublin Court of Appeal (Sąd Apelacyjny) examined the applicant’s appeal against the same decision and decided to amend the interim contact order, allowing the applicant to have contact with his son without the presence of the mother. 25.", "The hearing scheduled for 23 March 2010 was adjourned due to legitimate absence of the applicant’s wife’s lawyer. 26. On 29 April 2010 the Siedlce Regional Court held a hearing in the divorce proceedings. The court heard one witness of the eight who had been called. The applicant withdrew his application regarding the taking of evidence from all but three witnesses.", "27. The hearing scheduled for 28 May 2010 was cancelled due to the absence of both the applicant’s wife and the witnesses. 28. On 8 July 2010 the Siedlce Regional Court held another hearing. It heard the witnesses and the parties.", "It also instructed the Poznań Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno‑Konsultacyjny) to prepare an expert report as regards the family’s situation. 29. Meanwhile, on 21 June 2010 the applicant requested that the interim contact order be varied. On 21 July 2010 the Siedlce Regional Court decided to grant the applicant contact every second and fourth weekend of the month from 10 a.m. on Saturday until 7 p.m. on Sunday outside the child’s home and without the mother’s presence. He was also authorised to spend one day with his son at Christmas and Easter, one week of the winter holidays and two weeks of the summer holidays.", "30. On 26 July, 12 August and 24 September 2010 the Siedlce Regional Court issued requests for the witnesses in the divorce proceedings to be heard under the courts cooperation scheme (pomoc sądowa) by the Łódź District Court, the Poznań District Court and the Wrocław District Court, respectively. 31. On 27 January 2011, in reply to a letter urging it to submit the expert report, the Family Consultation Centre informed the Regional Court that, due to the high volume of cases, the report would only be prepared some time during the following five months. The Regional Court issued further requests for acceleration of the preparation of the report on 17 March and 7 June 2011.", "By letter of 15 July 2011 the Family Consultation Centre informed the court that the report could not be finalised due to the failure of the applicant’s wife to attend either an appointment scheduled for 15 May 2011, or further appointments that were scheduled for 29 June and 8 July 2011. 32. On 8 August 2011 the Family Consultation Centre experts issued a report on the family’s situation for the purposes of the divorce proceedings. They recommended that the decision given in July 2010 should remain in force and should be respected. M. did not have any emotional problems in having contact with his father, but he was well aware that the mother reacted negatively to such contact and he wanted to obtain her approval.", "Both parties challenged the report’s conclusions. 33. On 12 September 2011 the Siedlce Regional Court dismissed the applicant’s wife’s request for the interim access arrangements to be varied. Her appeal against this decision was dismissed by the Lublin Court of Appeal on 23 January 2012. 34.", "On 10 March 2012, in response to applications from the parties, the Family Consultation Centre experts submitted a supplementary report on the family’s situation. Both parties challenged the supplementary report. 35. On 16 May 2012 the experts submitted their replies to further questions from the parties. 36.", "On 12 June 2012 the Siedlce Regional Court held a hearing. It decided to instruct the Siedlce Family Consultation Centre to prepare a new expert report. 37. On 3 December 2012 the Siedlce Family Consultation Centre returned the case file to the Regional Court. It informed the court that it had not been possible to prepare the requested report due to applicant’s wife’s failure to attend the scheduled appointments.", "38. On 3 January 2013 the Siedlce Regional Court scheduled a hearing for 14 February 2013. At the applicant’s wife’s request the hearing was postponed until 26 March 2013. 39. On 26 March 2013 the Siedlce Regional Court dissolved the applicant’s marriage.", "It found that both parties had been at fault in the breakdown of the marital relationship. It further held that full parental authority was to be exercised by the applicant’s former wife, whereas the parental rights of the applicant were to be limited. The child’s place of residence was to be with the mother. The court authorised the applicant to have contact with his son without the presence of his mother every second and fourth weekend of the month and to spend one day at Christmas and Easter, one week of the winter holidays and two weeks of the summer holidays with him. The applicant was also authorised to contact the child by phone every Thursday and Friday between 6.30 and 7.30 p.m. 40.", "Both parties lodged appeals against the first-instance judgment. 41. On 24 October 2013 the Lublin Court of Appeal dismissed the appeals. B. Enforcement of the access arrangements 42.", "On 20 February 2009 the applicant applied to the Warsaw-Wola District Court for the imposition on his wife of a fine in the amount of 1,000 Polish zlotys (PLN) for failure to comply with the access arrangement of 3 September 2008 (see paragraph 11 above). He alleged that M.’s mother had repeatedly refused to comply with the access arrangement and had obstructed his contact with the child, in particular, by arranging the meetings in unsuitable places. 43. On 28 April 2009 the Warsaw-Wola District Court imposed on the child’s mother a fine in the amount of PLN 500 for her failure to respect the decision of the Zakopane District Court of 3 September 2008. 44.", "On 7 August 2010 the applicant notified the police that the child’s mother had refused to open the door when he had come to visit his son. 45. On 2 September 2010 the Warsaw-Wola District Court discontinued the enforcement proceedings concerning the decision of 3 September 2008 in the light of subsequent decisions regulating the applicant’s contact with his son pending the outcome of the divorce proceedings (see paragraphs 18, 24 and 29 above). 46. On 30 December 2010 the applicant requested that the Poznań-Nowe Miasto and Wilda District Court assist him in the effective enforcement of the interim contact order of 21 July 2010 issued by the Siedlce Regional Court.", "He asked the court to impose on the child’s mother a fine in the amount of PLN 10,000 due to her failure to comply with this order. He also requested that the court impose a fine in the same amount for the mother’s failure to comply with the decision of 29 December 2009 of the Siedlce Regional Court setting out his right to contact his son by phone. He submitted that the child’s mother had repeatedly failed to respect his access rights and had obstructed his contact with his son. 47. On 21 February 2011 the court returned the applicant’s application as regards the enforcement of the decision of 29 December 2009.", "48. On 23 May 2011 the applicant resubmitted his application in this regard. 49. The proceedings were joined on 16 June 2011. 50.", "Meanwhile, at the applicant’s request, the hearing scheduled for 19 May 2011 was postponed until 24 May 2011. Neither of the parties attended the hearing. The applicant submitted that he had not attended this hearing because he had been informed of his wife’s intended absence. 51. The parties filed their written submissions on 30 June 2011.", "52. The Government submitted that the hearing scheduled for 6 September 2011 had been postponed until 20 October 2011 at the applicant’s request. The applicant submitted that the hearing had taken place on that date and that he had been present. 53. Due to the applicant’s absence, the hearing scheduled for 20 October 2011 was postponed until 1 December 2011.", "54. On 6 December 2011 the Poznań-Nowe Miasto and Wilda District Court gave a decision. The court set a fourteen-day time-limit for the mother to allow the applicant access to M. on the terms set out by the interim order of 21 July 2010 on pain of a fine in the amount of PLN 1,000. It further held that she was to observe the same time-limit in respect of the decision concerning telephone contact on pain of a fine of PLN 500. The court had no doubt that M.’s mother had failed to respect the access arrangements as regards the applicant’s personal contact with M. The weekend visits had almost never taken place in accordance with the access arrangement.", "The applicant’s wife had enrolled M. in fencing classes and had organised other activities for him on Saturdays, when the applicant was due to pick up the child, meaning that the applicant had been unable to collect his son and spend time with him alone. At the same time the court noted that the applicant had failed to visit his son regularly on Saturdays. However, the child’s mother had also not respected the applicant’s rights as regards spending parts of Christmas, Easter and summer holidays with M. The court also found that M.’s mother had failed to respect the court’s decision concerning the telephone contact between the applicant and his son. The court established that the applicant had only rarely been able to contact M. by phone. 55.", "On 12 March 2012 the Poznań Regional Court dismissed the applicant’s wife’s appeal against this decision. 56. On 29 March 2013 the Poznań-Nowe Miasto and Wilda District Court discontinued the enforcement proceedings regarding the decision of 21 July 2010 due to the applicant’s inactivity in the proceedings. 57. Meanwhile, on 8 February 2012 the applicant lodged a further request for enforcement of his contact rights as set out in the decision of 21 July 2010 under the amended provisions of the Code of Civil Procedure (see paragraph 66 below).", "The hearing in those proceedings was scheduled for 24 September 2013. On 9 January 2015 the Poznań Regional Court discontinued the proceedings as the applicant’s contact rights had meanwhile been regulated in the final divorce judgment (see paragraphs 39 and 41 above). No further information about the course of the proceedings concerning this latest request has been submitted by the parties. C. Proceedings under the 2004 Act 58. On 5 October 2011 the applicant lodged a complaint with the Lublin Court of Appeal under the Law of 17 June 2004 on a complaint about a breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”).", "He submitted, in particular, that the last hearing in the divorce proceedings had been held in July 2010 and that the court had been powerless in the face of his wife’s efforts to protract and obstruct the proceedings. 59. On 9 November 2011 the Lublin Court of Appeal dismissed the applicant’s complaint. It acknowledged that the proceedings had been ongoing since August 2008, but was of the view that their length had essentially been caused by the parties’ attitude, while the court could be held responsible only for its own conduct. Both parties had repeatedly submitted numerous pleadings and applications which the court had been obliged to examine.", "No delays on the part of the court in examining these applications had been established. The parties had appealed against various interlocutory decisions on six occasions. Furthermore, as a result of the attitude of both parties, the issue of access to the child had become the main problem in the case. This had further protracted the proceedings. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 60. The relevant domestic law – as in force prior to 13 August 2011 –concerning enforcement of a parent’s visiting rights is set out in the Court’s judgment in the case of P.P. v. Poland, no. 8677/03, §§ 69-74, 8 January 2008. 61.", "Pursuant to a resolution of the Supreme Court, in cases where a parent who has been ordered by a court decision to respect the other parent’s contact rights refused to comply with that decision, the decision will be subject to enforcement proceedings. The provisions of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) (“the Code”) on the enforcement of non‑pecuniary obligations were applicable to the enforcement of court decisions on parental rights or contact rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8). 62. In particular, where a court has ordered a parent with custody to ensure contact for a child with the other parent, Article 1050 of the Code of Civil Procedure was applicable to the enforcement of this obligation. This Article provides, in so far as relevant: “1.", "If a debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted shall, at the request of a creditor and after hearing the parties, shall set a time-limit within which the debtor must comply with his obligation, on pain of a fine .... 3. If the debtor fails to comply with this obligation within the prescribed time-limit, at the request of the creditor the court shall impose the fine and shall set a further time-limit within which the debtor must act, on pain of a more severe fine.” 63. Article 1052 of the Code of Civil Procedure provides as follows: “In one decision the court may impose a fine not exceeding PLN 1,000 unless the fine has already been imposed three times and this has proved ineffective. The total amount of fines in the same case may not exceed PLN 100,000 (...).” 64. On 28 August 2008 the Supreme Court adopted a resolution (III CZP 75/08) which provided as follows: “Decisions regulating contact between a parent and a child, ordering the parent who has the custody of the child to put the child at the disposal of the other parent, and ordering that other parent to return the child (to accompany the child back to his home), are enforced in the proceedings regulated in Article 5981 and subsequent of the Code of Civil Procedure.” 65.", "Article 5986 of the Code provides that if a person who has been ordered to return a child does not comply with the court’s order, at the request of the creditor the court shall instruct a court-appointed guardian to forcibly remove the child in question (przymusowe odebranie osoby). 66. On 13 August 2011 certain amendments to the Code entered into force and Chapter 6 on “Cases concerning the execution of contact with a child” was added. The amendments are applicable only to applications lodged after that date. Articles 59815 to 59821 now provide for a separate procedure imposing a fine on a parent who fails to comply with the access arrangements.", "In accordance with these provisions, the court will first threaten to order the non-compliant party to pay a specified amount for each failure to comply with the access arrangements, and subsequently, in the event of continued non-compliance, it will order this party to pay the sum proportional to the number of their infringements of the access arrangements. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 67. The applicant complained that the Polish authorities had failed to take effective steps to enforce his right of contact with his son. He alleged a violation of 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.” 68. The Government contested that argument. A. Admissibility 69.", "The Government argued that the applicant had not exhausted the domestic remedies available to him, as required by Article 35 § 1 of the Convention. 70. They submitted that the applicant should have lodged an application under Article 5986 of the Code for the forcible removal of his son by a court-appointed guardian (see paragraph 65 above). Had the domestic court granted such a request, a court-appointed guardian would have accompanied the applicant on each visit and would have supervised the execution of the access arrangements. 71.", "The applicant submitted that he had availed himself of the available remedies in that he had lodged applications for the imposition of a fine on the child’s mother. He further argued that an application for forcible removal of the child by a court-appointed guardian would have been an inadequate remedy in the particular circumstances of his case. He referred to possible adverse effects of such forcible removal on his relationship with his son. 72. The Court notes that a similar objection raised by the Government in a case against Poland concerning the enforcement of access rights has already been examined and rejected by the Court (see D. v Poland (dec.), no.", "8215/02, 8 February 2002). The applicant in the present case also instituted enforcement proceedings concerning the access arrangements in force, and the domestic courts had twice allowed his applications for the imposition of a fine on the child’s mother. The arguments raised by the Government are similar to those already examined and they have not submitted any new factors which would lead the Court to depart from its previous findings. 73. It follows that the Government’s plea of inadmissibility on the grounds of non‑exhaustion of domestic remedies must be dismissed.", "74. The Court notes that the 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 (a) The applicant 75. The applicant submitted that his attempts to have regular and effective contact with his child had started in 2007. Those attempts had, however, remained for the large part ineffective. He argued that the domestic authorities had failed to apply domestic law in a way which could effectively have secured his contact rights.", "He emphasised that due to his wife’s behaviour he had been prevented from having regular and uninterrupted contact with M. during the divorce proceedings in which the issues of custody and contact rights were also to be finally decided. The child’s place of residence had been designated as that of his mother during the divorce proceedings. Accordingly, it had been of vital importance that the applicant had regular and unobstructed contact with the child in accordance with the interim contact orders. He submitted that Polish law did not afford adequate protection to a parent who had not been granted custody rights for the duration of the divorce proceedings. 76.", "The applicant acknowledged that the child’s mother’s behaviour had not amounted to a complete denial of access to the child for the whole period in question. But he pointed out that by posing obstacles to his contact with his son she had nevertheless failed to comply with the access arrangements. This fact had been confirmed by the corresponding decisions of domestic courts given in the enforcement proceedings. However, due to the delays in conducting those proceedings, the domestic authorities had failed to effectively prevent M.’s mother from obstructing the applicant’s contact with the child. Moreover, the fines imposed by the domestic authorities had not been sufficient to deter her from this obstructive behaviour.", "(b) The Government 77. The Government submitted that the authorities had taken all the appropriate steps to facilitate the applicant’s contact with his son and to ensure the effective exercise of the applicant’s right to respect for his family life. They referred to the conflict between the applicant and the child’s mother as the main reason for the applicant’s problems in exercising his contact rights. They argued that the applicant’s difficulties derived from the obstructive behaviour of the child’s mother and, subsequently, also from the applicant’s own behaviour. They stressed that the applicant himself had failed to fully comply with the relevant access arrangements.", "They also emphasised that the applicant had not been denied access to his son and had generally maintained regular contact with his child. 78. The Government were of the opinion that the domestic authorities had conducted the relevant proceedings in a swift and diligent manner. They noted that, in order to regulate the custody of M. and his contact with his father in accordance with the child’s best interests, the domestic court had obtained an expert report on the family’s situation in the course of the divorce proceedings. They further argued that the enforcement proceedings had been effective in that the domestic courts had twice decided to impose a fine on the child’s mother.", "2. The Court’s assessment (a) General principles 79. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among many other authorities, Vojnity v. Hungary, no. 29617/07, § 28, 12 February 2013). 80.", "The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005).", "81. The Court has repeatedly held that in matters relating to child custody the child’s best interests must be the primary consideration (see, to that effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX) and may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003-VIII). 82.", "The Court’s case-law has consistently held that Article 8 includes both the right for a parent to have measures taken with a view to his or her being reunited with the child and an obligation for the national authorities to take measures to facilitate that reunion, in so far as the interest of the child dictates that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family; the State’s obligation is not one as to results, but one as to means (see, among other authorities, Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000‑VIII; Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A; Gnahoré, cited above, § 59, ECHR 2000‑IX; Nistor v. Romania, no. 14565/05, §§ 70, 109, 2 November 2010; and Cristescu v. Romania, no. 13589/07, § 57, 10 January 2012).", "This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures (see, among other authorities, Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250, pp. 35-36, § 90) but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Hokkanen, cited above, § 55, and Zawadka, cited above, § 55). 83.", "In such cases the obligations of the national authorities are not, however, absolute. The key consideration is whether those authorities have taken all the appropriate steps for facilitating such contact as can reasonably be demanded in the particular circumstances of each case (see, mutatis mutandis, Hokkanen, cited above, § 58). Another important factor in proceedings concerning children is that time takes on a particular significance, because there is always a danger that any procedural delay will result in the de facto determination of the issue before the court (see P.F. v. Poland, no. 2210/12, § 56, 16 September 2014).", "Moreover, the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see, for example, Kuppinger v. Germany, no. 62198/11, § 102, 15 January 2015). (b) Application of the above principles to the present case 84. It is not disputed that the matters concerned in the present case relate to “family life” within the meaning of Article 8 of the Convention and that this provision is applicable. 85.", "In the light of the above principles the Court considers that the decisive question in the present case is whether or not the Polish authorities took all the appropriate steps that can reasonably be demanded to facilitate the enforcement of the contact arrangements as specified by the domestic courts on 3 September 2008, 25 August and 29 December 2009 and 9 March and 21 July 2010 (see paragraphs 11, 18, 21, 24 and 29 above). All these decisions authorised the applicant to have regular contact with his son, initially in the presence of the child’s mother then subsequently – from 9 March 2010 – without the mother’s presence and, from 29 December 2009, also by telephone. 86. The Court notes at the outset that the applicant and his wife separated in 2007, when their son M. was three years old. The applicant’s wife moved with the child to another town.", "It appears that initially the applicant and his wife managed to solve the issue of the applicant’s contact with M. between themselves. However, difficulties in arranging the applicant’s visits arose as early as 2008 and the applicant submitted a request to the domestic court to issue a contact order. On 3 September 2008 the Zakopane District Court issued an interim contact order and allowed the applicant contact with his son at the child’s place of residence (see paragraphs 7-11 above). Nevertheless, the applicant’s wife failed to fully comply with this order. On 20 February 2009 the applicant lodged an enforcement request, asking the domestic court to impose a fine of PLN 1,000 on her.", "On 28 April 2009 the Warsaw-Wola District Court imposed a fine in the amount of PLN 500 (see paragraphs 42-43 above). 87. The Court observes that the applicant’s enforcement request was examined by the District Court promptly and without any delays. It notes that under the applicable law it was open to the applicant to lodge further applications for the imposition of larger fines in these enforcement proceedings (see paragraphs 62-63 above). Nevertheless, the applicant failed to make any requests and the proceedings were eventually discontinued on 2 September 2010 (see paragraph 45 above).", "Accordingly, given that no further applications were lodged by the applicant, the Court considers that the authorities took all the steps to enforce the access order of 3 September 2008 that could reasonably be required in these circumstances. 88. Nevertheless, the applicant continued to experience problems in having regular and uninterrupted contact with his child. On 30 December 2010 he lodged an enforcement request concerning the interim contact orders of 21 July 2010 and on 23 May 2011 – an enforcement request relating to phone contact as set out in the decision of 29 December 2009 (see paragraphs 46-48 above). 89.", "As regards the swiftness of these proceedings, the Court notes that the domestic court examined both requests on 6 December 2011 and that the examination of the applicant’s request of 30 December 2010 had therefore lasted for almost one year (see paragraph 54 above). It is true that, as argued by the Government, the delay can be partly attributed to the applicant since the hearings scheduled for 19 May and 20 October 2011 did not take place, either at his request or due to his absence (see paragraphs 50-53 above). Nevertheless, the Court observes that it took the domestic court almost five months to schedule the first hearing, and subsequently – as the hearing did not take place due to the absence of the parties – over three months to reschedule it. The Government did not submit any explanation for these delays in the examination of the applicant’s requests. 90.", "The domestic court ultimately found that the applicant’s wife had failed to comply with the contact orders of 29 December 2009 and of 21 July 2010 and set fourteen-day time-limits for her to act in accordance with those decisions on pain of fines (see paragraph 54 above). The applicant did not lodge any requests for the imposition of these fines. It appears that M.’s mother, at least for a very limited period of time, acted in accordance with this decision (see paragraphs 55-56 above). However, as early as 8 February 2012 the applicant lodged yet another request for enforcement of his contact rights under the interim contact order of 21 July 2010. It appears that this request was also not examined promptly and that the child’s mother was not ordered to pay any fines in the proceedings, which were eventually discontinued (see paragraph 57 above).", "The Government did not submit any explanation for the length of these proceedings either. 91. The applicant alleged that the Polish legal system did not afford adequate legal protection to a parent who has not been granted custody during divorce proceedings. The Court reiterates in this connection that it is not its task to review domestic law in the abstract, but to examine the manner in which that law has been applied to the applicant (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 153, Series A no. 324).", "Having regard to the particular circumstances of the case, the Court observes that the applicant’s enforcement request led to a decision setting a time-limit for the mother to comply with the contact order on pain of a fine. In accordance with the provisions of domestic law as applicable at the material time, if the child’s mother had failed to comply with this decision, upon another request from the applicant, the domestic court would have imposed the fine on her and would have set another time-limit (see paragraph 62 above). The Court therefore observes that the protracted examination of the applicant’s enforcement request prevented both him and the domestic court from taking any further steps in order to execute the contact order. 92. The Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see paragraph 83 above).", "It is all the more pressing in cases such as the present one, where the passage of time may also have an impact on the outcome of a pending custody dispute. Even though, as argued by the Government, the applicant in the present case was not entirely deprived of contact with his son, he experienced considerable difficulties in having regular and uninterrupted contact with M. in the course of the pending divorce and custody proceedings. The Court further notes in this connection that at the material time, the parents’ relations with M. were being assessed by the experts for the purposes of compiling a report on the family’s situation (see paragraphs 31-32 above). 93. The Court acknowledges that the task of the domestic courts was rendered difficult by the particularly strained relationship between the applicant and his former wife.", "However, in the present case the Government referred in general terms to the conflict between the applicant and the child’s mother as the source of the applicant’s problems in maintaining contact with M. (see paragraph 77 above). There are no indications that this conflict affected the course of the enforcement proceedings or was the reason for the delays therein and their lack of effectiveness (compare and contrast P.K. v. Poland, no. 43123/10, §§ 88-96, 10 June 2014, and P.F. v. Poland, no.", "2210/12, §§ 60-63, 16 September 2014). 94. Having regard to the facts of the case, in particular the passage of time, and the criteria laid down in its own case‑law, the Court concludes that, notwithstanding the State’s margin of appreciation, the Polish authorities failed to make adequate and effective efforts to execute the interim contact order of 21 July 2010. 95. There has accordingly been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 96. The applicant complained that the length of the divorce 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...” 97. The Government contested that argument. 98.", "The period to be taken into consideration began on 29 August 2008 and ended on 24 October 2013. It thus lasted five years and some two months for two levels of jurisdiction. A. Admissibility 99. 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 (a) The applicant 100. The applicant submitted that the proceedings in the divorce case had been excessively long.", "He referred, in particular, to the fact that it had taken the Siedlce Regional Court over four years to give a first-instance judgment. He argued that a substantial part of that period had been taken up with the preparation of the expert reports. He further submitted that the domestic court had failed to take any measures to secure his wife’s attendance at the appointment scheduled by the experts. He also argued that he had not contributed to the length of the proceedings because he had withdrawn his request as regards most of the evidence from witnesses to be heard by the trial court. (b) The Government 101.", "The Government were of the opinion that there was no violation of Article 6 of the Convention, as the domestic courts had acted with due diligence and expediency. They argued that responsibility for the overall length of the divorce proceedings should be attributed to the applicant and his wife. They considered that the case had been of a complex character due to the voluminous pleadings of the parties and their numerous applications. They submitted that the proceedings had been further protracted by the parties’ appeals against various interim decisions of the trial court. They also argued that – referring to the personal conflict between the applicant and his wife – the former had significantly contributed to the length of the proceedings.", "102. They acknowledged that the applicant’s wife had failed to attend the appointments scheduled by the experts and that the trial court had been notified of her behaviour. They, however, considered that the behaviour of the applicant’s wife had been a consequence of the strong animosity between the parties. They stressed that the domestic courts could be only held responsible for their own conduct. 2.", "The Court’s assessment 103. 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). 104. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of justifying the delay in the present case.", "105. The Court acknowledges that the proceedings were of a certain complexity, given that they concerned petitions for separation and divorce and that the domestic court had to rule on custody of the parties’ child, who was a minor, and contact arrangements with a non-custodial parent. A significant number of interim decisions had also been given by the trial court. 106. However, in cases relating to civil status, what is at stake for the applicant is also a relevant consideration, and special diligence is required in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life (Laino v. Italy [GC], no.", "3158/96, § 18, ECHR 1999-I). 107. As to the conduct of the authorities dealing with the applicant’s case, the Court notes that, whereas the second-instance proceedings were concluded fairly speedily, the case was examined by the first-instance court over a period in excess of four years (see paragraphs 12 and 39 above). A substantial part of this period – approximately eighteen months - elapsed awaiting the preparation of the expert reports (see paragraphs 28-32 and 36‑37 above). The second report could not be completed in the end, as the applicant’s wife failed to attend the scheduled appointments, but the domestic court failed to take any measures to discipline her or the experts.", "The Court reiterates in that context that, contrary to the Government’s view, the State is responsible for delays in the presentation of the opinions of court‑appointed experts (see, for instance , Capuano v. Italy, 25 June 1988, § 32, Series A no. 119, and Nibbio v. Italy, 26 February 1992, § 18, Series A no. 228 A). Moreover, the parties’ attitude does not dispense the courts from ensuring the expeditious trial required by Article 6 § 1 (see, for example, Guincho v. Portugal, 10 July 1984, § 32, Series A no. 81).", "108. The Court further notes that the Government did not submit any information or evidence to substantiate their contention that the applicant had substantially contributed to the length of proceedings. 109. Having regard to the above circumstances and 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 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 110. The applicant complained under Article 12 of the Convention that, due to the excessive length of the divorce proceedings, he had been deprived of the right to re-marry. Article 12 provides: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 111. However, the Court observes that the applicant has not shown that he actually wanted to and was prevented from re-marrying (see Capoccia v. Italy, no.", "16479/90, decision of the Commission of 13 October 1993; S.D.P. v. Italy, no. 27962/95, decision of the Commission of 16 April 1996; Bolignari v. Italy, no. 37175/97, decision of the Commission 22 April 1998; Truszkowska v. Poland no. 52586/99 (dec.), 11 December 2001, compare and contrast V.K.", "v. Croatia, no. 38380/08, 27 November 2012). Therefore, this part of the application is unsubstantiated and must be rejected as being manifestly ill-founded, pursuant to Article 35 § 3 and 4 of the Convention. 112. Lastly, the applicant complained under Article 13 of the Convention that he had had no ‘effective remedy’ against the alleged breach of his rights under Article 8 of the Convention.", "Article 13 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.” 113. However, the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Bensaid v. the United Kingdom, no. 44599/98, § 56, ECHR 2001-I). 114. In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant’s right to an effective remedy under Article 13 of the Convention has not been respected.", "115. 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. IV. 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 500 euros (EUR) for every month of the violation of his rights under the Convention in respect of non-pecuniary damage. 118. The Government found this sum exorbitant. 119.", "The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,200 under that head. B. Costs and expenses 120. The applicant did not make any claim for costs and expenses involved in the proceedings C. Default interest 121.", "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 8 of the Convention about the enforcement of the applicant’s contact rights and the complaint under Article 6 § 1 of the Convention concerning the excessive length of the divorce proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds that there has been a violation of Article 6 § 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, EUR 4,200 (four thousand two hundred euros) in respect of non-pecuniary damage, 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; (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 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGuido RaimondiDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF BULATOVIĆ v. MONTENEGRO (Application no. 67320/10) JUDGMENT STRASBOURG 22 July 2014 FINAL 22/10/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bulatović v. Montenegro, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,András Sajó,Nebojša Vučinić,Egidijus Kūris,Robert Spano,Jon Fridrik Kjølbro, judges,and Abel Campos, Deputy Section Registrar, Having deliberated in private on 1 July 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "67320/10) 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 Željko Bulatović (“the applicant”), on 15 November 2010. 2. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin. 3. The applicant complained, in particular, about the conditions and length of his detention on remand.", "He also complained of a lack of medical care while in detention on remand. 4. On 5 November 2012 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 Podgorica. A. The criminal proceedings 6. On 8 May 2001 the applicant murdered X and immediately thereafter left the country. 7.", "On 6 March 2002 the applicant, in his absence, was found guilty of murder and sentenced to twenty years in prison. 8. On 27 June 2002 the applicant was arrested in Spain pursuant to an international arrest warrant (potjernica), and placed in custody. 9. On 14 May 2003 he was extradited to Montenegro.", "10. On 3 February 2004 the criminal proceedings against the applicant were re-opened (ponavljanje krivičnog postupka). 11. On 10 April 2009 the High Court (Viši sud) in Podgorica found the applicant guilty, sentenced him to fourteen years’ imprisonment and ordered him to pay the costs of the proceedings as well as court fees (na osnovu sudskog paušala). 12.", "On 29 January 2010 the Court of Appeal (Apelacioni sud) in Podgorica quashed the judgment and ordered a retrial. 13. On 4 October 2010 the High Court found the applicant guilty, sentenced him to fourteen years’ imprisonment, and ordered him to pay the costs of the proceedings and court fees. 14. On 21 March 2011 the Court of Appeal upheld that decision.", "It would appear that on 26 April 2011 the decision was served on the applicant and he was transferred to prison. 15. On 19 September 2011 the Supreme Court (Vrhovni sud) in Podgorica dismissed an appeal on points of law (zahtjev za ispitivanje zakonitosti pravosnažne presude) lodged by the applicant. 16. On 25 November 2011 the applicant lodged a constitutional appeal complaining, in substance, about the reasoning of the courts, their assessment of the evidence and their interpretation of the law.", "He also complained of various irregularities in dealing with his request for review and his action for fair redress (see paragraphs 17-22 below). On 2 November 2012 the applicant withdrew his constitutional appeal and the Constitutional Court terminated the proceedings (obustavio je postupak) on 27 November 2012. B. The applicant’s attempts to have the criminal proceedings expedited 17. On 10 November 2009 the applicant lodged a request for review (kontrolni zahtjev), complaining that the Court of Appeal had not ruled on his appeal within three months (see paragraph 75 below).", "18. On 11 January 2010, having received no reply to the previous request, the applicant appealed to the Supreme Court. 19. On 7 July 2010, having still received no reply, the applicant lodged an action for fair redress (tužba za pravično zadovoljenje). 20.", "On 29 September 2010 the Supreme Court rejected the action on the grounds that the applicant had not lodged a request for review. 21. On 10 May 2011 the applicant lodged another action for fair redress. 22. On 17 June 2011 the Supreme Court ruled that the criminal proceedings had been unreasonably long.", "Considering that the applicant’s detention required urgent proceedings, but also that it had been a complex case and that the applicant had contributed to the overall length of the proceedings, the court awarded him 2,000 euros (EUR). The applicant’s proposal that that decision be published was refused as the court did not consider it to be a “serious breach” of the right to a trial within a reasonable time. It was also noted that the applicant had indeed submitted a request for review beforehand, which had not been considered, and that his appeal in that regard had never been forwarded by the Court of Appeal to the Supreme Court. 23. On 25 July 2011 the applicant lodged a constitutional appeal against that decision, complaining, in particular, about the Supreme Court’s rejection of his first action for fair redress, the conclusion that he had contributed to the overall length of the criminal proceedings, and the amount awarded.", "He also requested that the Supreme Court’s decision be published. In March 2013, when the Government submitted their observations, the constitutional appeal was still pending. C. The applicant’s detention 24. On 6 March 2002 the High Court issued a detention order against the applicant in his absence. 25.", "On 20 April 2004, after the applicant was extradited to Montenegro, the High Court issued a new detention order for fear that he might abscond, especially in view of the fact that he had already been in hiding and had been arrested pursuant to an international warrant. 26. The detention was further extended by the High Court on 1 June 2004, 26 September 2005, 8 September 2008, 23 December 2008, 27 February 2009 and 10 April 2009. The decisions to extend the detention appear to have been subsequently upheld by the Court of Appeal. 27.", "The decision rendered on 8 September 2008 also took account of the gravity of the criminal offence of which the applicant was accused and the sentence that might be imposed on him. 28. In its decision of 10 April 2009 the High Court took account in addition of the applicant’s personal circumstances, considering that his being unemployed and single increased the risk that he might flee. The decision specified that the applicant’s detention could last until a final decision was issued in the criminal proceedings or, at the most, until he had served fourteen years in prison. 29.", "The authorities did not consider in any of those decisions the possibility of ensuring the applicant’s presence at trial by the use of other preventive measures. 30. On 14 January 2010 the applicant lodged a constitutional appeal complaining about the length of his detention. It would appear that he amended this appeal on three occasions thereafter, 1 March 2010, 8 December 2010 and 9 December 2010, enclosing some of the relevant documents, such as his request for review, the subsequent appeal, the action for fair redress, as well as the Supreme Court’s decision thereon. In March 2013, when the Government submitted their observations, the constitutional appeal was still pending.", "31. It would appear that the applicant remained in detention until his conviction became final by the Court of Appeal’s ruling in 2011, after which he was transferred to prison to serve his sentence. D. Conditions of detention 32. The parties’ submissions in this regard differed. 33.", "The applicant maintained, in particular, that the cell in which he had been detained had been overcrowded, and that he had lacked drinking water and daily exercise. 34. More specifically, the cell had measured 25 m2 and had housed fourteen detainees, sleeping on three-tier beds. The cell had also contained closets, a sanitary facility and a dining table. Apparently, the detainees were given a television set in 2007.", "35. Furthermore, between 2003 and 2007, especially in the summer, there was no running water during the day. The detainees, including the applicant, had to collect water in containers during the night so that there would be enough during the day, for both drinking and cleaning purposes. A well was dug in 2007, but this water was apparently not suitable for drinking as it was dirty. 36.", "Lastly, until 2007 the daily walks lasted for forty minutes instead of the 120 minutes provided for by the relevant law, and were cancelled altogether on Thursdays and Fridays, as well as on rainy days. It would appear that after the prisoners’ strike in 2007 the duration of walks was increased to sixty minutes and that they were reintroduced on Thursdays. There would still appear to be no walks on Fridays. Until 2009 detainees were not allowed outdoors at all on rainy days and sometimes they would not get out of the cell for twenty days. 37.", "The Government, for their part, submitted that the applicant had been detained in a cell measuring 28 m2 with four or five other persons, and only occasionally with nine other detainees. There were general shortages of water supply in the area where the prison was situated and the applicant had two thirty-minute long outdoor walks on a daily basis. They also submitted that the conditions in prison had been significantly improved after the visit of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (“the CPT”) in 2008 (see paragraphs 114-118 below). E. Medical care 38. On 14 May 2003, when he was extradited to Montenegro and remanded in custody, the applicant was examined by a prison doctor.", "On that occasion the applicant claimed that he had no illnesses. In December 2003 he had blood and urine tests. There is no evidence in the case file that he was suffering from any illness at the time. 39. In March 2006 the applicant was examined at the clinical centre of Montenegro.", "The medical report issued at the time is mostly illegible. The legible part states that two months earlier when he was under stress, the applicant had had an abnormal pain in his chest which had not recurred, and that his blood pressure was also high at the time. The doctor recommended a cardiological examination (holter monitoring) and a check-up in three months. 40. Between 15 August 2006 and 26 January 2007 the applicant had four blood tests, the results of which showed that at various times one or two parameters were slightly increased while the remaining parameters were either within the normal range or illegible.", "There is no evidence in the case file that the applicant underwent the recommended cardiological examination or check-up. 41. In March 2011 the applicant was again examined at the clinical centre by a specialist in internal medicine (internista). The medical report issued at the time states that the applicant had been having spasms (stezanje) behind the breast bone, which had become more frequent and stronger. The prison doctor recommended holter monitoring by a cardiologist and specified that the applicant’s condition could worsen if the tests were delayed.", "42. Between 22 March and 4 April 2011 the applicant was examined by a cardiologist (holter, electrocardiogram and ergometric tests). The results showed that the applicant’s left heart chamber was slightly enlarged, with hypertrophic walls. There was also a grade I diastolic dysfunction. 43.", "On various dates between February 2005 and May 2011 the applicant was examined several times by a dermatologist, a urologist, a physiatrist and a surgeon, and his abdomen and spine were x-rayed. He was prescribed the relevant treatment where needed. F. Other relevant facts 44. On 7 December 2006 the Ombudsman (Zaštitnik ljudskih prava i sloboda) lodged an application with the Constitutional Court for an assessment of the constitutionality of Article 572 of the Criminal Procedure Code 2003 (see paragraph 70 below). On 3 July 2008 the Constitutional Court terminated the proceedings (obustavio postupak) as a new Constitution had been adopted in the meantime, whereas the Ombudsman’s request related to the Constitution that was no longer in force.", "45. On 12 September 2008 several detainees, including the applicant, wrote to the President of the Supreme Court complaining about the length of their detention. 46. It would appear that in 2008 and 2010 two amnesties were granted to prisoners who had been convicted before those dates. On 6 June 2011 the Court of First Instance (Osnovni sud) in Podgorica dismissed the applicant’s request that one of those amnesties be granted to him as well.", "On 30 June 2011 the High Court upheld that decision. 47. On various dates in 2009 the applicant complained to different international organisations represented in Montenegro, as well as to the Montenegrin Ombudsman, about the length of his detention and of the criminal proceedings. Some of the organisations apparently did not reply at all and others replied that they had no competence to deal with individual cases. The Court of Appeal, in response to an enquiry by the Ombudsman, replied that all realistic measures would be undertaken to expedite the proceedings at issue, although it would be difficult because there had been an influx of urgent and complex cases.", "48. On 14 January 2010, as well as lodging a constitutional appeal in respect of the length of his detention, the applicant also applied for an assessment of the constitutionality of Article 572 of the Criminal Procedure Code 2003. On 10 May 2012 the Constitutional Court rejected (odbacuje se) the request, as the Code had ceased to be in force as of 1 September 2011 (see paragraph 76 below) and thus there was no legal ground to examine if the above-mentioned provision had been in accordance with the Constitution while it had been in force. 49. On 22 November 2011 the applicant appears to have requested the State Prosecutor (Osnovno državno tužilaštvo) to investigate some of the employees of the Court of Appeal responsible for not having forwarded his request for review to the Supreme Court.", "On 21 February 2012 the Deputy State Prosecutor (zamjenik osnovnog državnog tužioca) informed the applicant that she would not pursue any criminal prosecution ex officio in this regard. The applicant could, however, take on the prosecution as a subsidiary prosecutor. There is no evidence in the case file as to whether the applicant did so. 50. On 22 February 2012 the applicant’s sentence was reduced by six months following an amnesty (pomilovanje) granted to him by the President.", "51. On 19 August 2013 the applicant’s sentence was further reduced in view of an amnesty provided for by the new legislation (see paragraph 81 below). On 27 August 2013 that decision became final and the applicant was released. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Constitution of the Republic of Montenegro 1992 (Ustav Republike Crne Gore, published in the Official Gazette of the Republic of Montenegro - the OG RM - no. 48/92) 52. Article 23 of the Constitution contained details on detention. In particular, paragraph 3 provided that the duration of detention must be as short as possible (mora biti svedeno na najkraće vrijeme). B.", "Constitution of Montenegro 2007 (Ustav Crne Gore, published in the Official Gazette of Montenegro - the OGM - no. 01/07) 53. Article 30 of this Constitution corresponds to Article 23 of the 1992 Constitution. 54. Article 32 provides that everyone is entitled to a fair and public trial within a reasonable time by an independent and impartial tribunal established by law.", "55. Article 149 provides that the Constitutional Court will rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted. 56. The Constitution entered into force on 22 October 2007. C. Montenegro Constitutional Court Act (Zakon o Ustavnom sudu Crne Gore, published in the OGM no.", "64/08) 57. Section 48 of the Act provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies have been exhausted. 58. Sections 49 to 59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it will quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.", "59. This Act entered into force in November 2008. D. Criminal Procedure Act 1977 (Zakon o krivičnom postupku, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/77, 14/85, 74/87, 57/89 and 3/90, and in the Official Gazette of the Federal Republic of Yugoslavia nos. 27/92 and 24/94) 60.", "Section 182 of the Act provided that the defendant’s participation in the criminal proceedings could be secured by means of sending summonses, his forcible appearance in court, a promise on the part of the defendant that he would not leave his residence (boravište), as well as through the imposition of bail or detention. The competent court would not apply a more severe measure in order to secure the defendant’s presence if a less severe measure could achieve the same purpose. Also, the measures would cease automatically when the reasons for their application ceased to exist, or would be replaced with other less severe measures once the conditions had been met. 61. Sections 183 to 200 set out details as to each of those measures.", "62. Section 190(2), in particular, provided that the detention period would be as short as possible and that all the bodies involved in the criminal proceedings would act with particular urgency if the accused was in detention. 63. Section 197 provided for limitations on detention before any charges had been brought. No such limitations were envisaged for the period after an individual had been indicted.", "E. Criminal Procedure Code 2003 (Zakonik o krivičnom postupku, published in the OG RM nos. 71/03, 07/04, and 47/06) 64. Article 16 provided, inter alia, for an obligation on the part of the courts to conduct proceedings without delay, and to keep the duration of detention to the shortest time needed. 65. Article 136 provided that a defendant’s participation in criminal proceedings could be secured by means of summonses, his forcible appearance in court, surveillance measures, as well as the imposition of bail and detention.", "The competent court would ensure that a more severe measure was not applied if a less severe measure could achieve the same purpose. Also, the measures would be ceased automatically when the reasons for their application ceased to exist, or would be replaced with other less severe measures once the conditions had been met. 66. Articles 137 to 153 set out details as to each of these measures. 67.", "Article 147 § 2, in particular, provided for a duty on the part of all the bodies involved in the criminal proceedings to act with particular urgency if the accused was in detention. 68. Article 148 § 1 (1) provided that detention could be ordered if there was a reasonable suspicion that the accused had committed a criminal offence, and there were circumstances indicating that he or she might abscond. 69. Article 152 provided, inter alia, that the detention could last for two years at most after an individual had been indicted.", "If the accused did not receive a first-instance judgment within two years, the detention would be repealed and the accused released. After the delivery of the first-instance decision the detention could last for another year at most. If no second‑instance judgment overturning or upholding the first-instance judgment was delivered within that year, the detention would be repealed and the accused released. If the second-instance court quashed the first‑instance judgment, the detention could last for at most another year after the delivery of the second-instance judgment. 70.", "Article 572 provided that the limitations on detention prescribed by section 152 of this Code were applicable only to proceedings instituted after the Code had entered into force. 71. Article 155 § 2 provided that every detainee would be able to walk outdoors (obezbjedi[će] se kretanje) for at least two hours every day. 72. Article 156 provided that, following a request by a detainee and with the approval of an investigating judge, detainees could be visited by, inter alios, a doctor.", "73. Article 158 provided that the president of the competent court would supervise the execution of detention. The president of the competent court, or another judge designated by him, would, at least once a month, visit detainees and enquire as to how they were being treated. He would take measures to remove any irregularities observed during his visit. The president of the court and the investigating judge could, at all times, visit all detainees, talk to them and receive their complaints.", "74. Article 397 provided, inter alia, that a second-instance court could quash a first-instance judgment and order a retrial. If the accused was in detention, the second-instance court would examine whether the reasons for detention still persisted and issue a decision either extending or terminating the detention. No appeal was allowed against that decision. 75.", "Under Article 401 § 2 the second-instance court was obliged to deliver its decision, together with the entire case file, to the first-instance court within three months at the latest if the accused was in detention. 76. This Code entered into force on 6 April 2004. The previous Act was thereby repealed, except for the chapters relating to international legal assistance and the extradition of accused and convicted persons, which is irrelevant in the present case. F. Criminal Procedure Code 2009 (Zakonik o krivičnom postupku, published in the OGM nos.", "570/9 and 49/10) 77. The Code entered into force on 1 September 2011, thus repealing the previous Code, except for the provisions of Chapter XXIX, which is irrelevant in the present case. G. Right to a Trial within a Reasonable Time Act (Zakon o zaštiti prava na suđenje u razumnom roku, published in the OGM no. 11/07) 78. This Act provides, under certain circumstances, for the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje).", "79. Section 2, in particular, provides that in the event of a violation of the right to a trial within a reasonable time, the right to court protection applies to the parties and interveners in civil proceedings, parties and interested persons in administrative disputes, as well as the accused and the injured party in criminal proceedings. 80. Section 44 provides, inter alia, for retroactive application of the Act to all proceedings from 3 March 2004, taking into account the duration of the proceedings before that date. H. Amnesty of Persons Convicted of Criminal Offences provided for in the Legislation of Montenegro and of Persons Convicted by a Foreign Judgment enforced in Montenegro Act (Zakon o amnestiji lica osuđenih za krivična djela propisana zakonima Crne Gore i lica osuđenih stranom krivičnom presudom koja se izvršava u Crnoj Gori, published in the OGM no.", "39/13). 81. This Act provides, inter alia, for the granting of an amnesty to persons convicted of murder by means of a final judgment before the date on which the Act entered into force, and for the reduction of their sanction by 25%. The Act entered into force on 15 August 2013. I.", "Detention Rules (Pravilnik o kućnom redu za izdržavanje pritvora, published in the Official Gazette of the Socialist Republic of Montenegro no. 10/87) 82. Rule 14 provides that a detainee will be examined by a general practitioner immediately on admission to prison. A medical report will be included in the detainee’s medical file. 83.", "Rule 21(2) provides that a prison doctor will visit detainees at least once a week and, where necessary, suggest adequate measures for the removal of any irregularities observed. 84. Rule 23 provides that in the event of illness the detainee will receive medical treatment in the prison infirmary. If he needs to be hospitalised he will be transferred to a prison with a hospital department. In urgent cases he will be transferred to the nearest hospital.", "The body conducting the proceedings against the detainee will decide on the transfer to another prison, following a proposal by the prison doctor. In urgent cases, this decision will be made by a prison director, who must immediately inform the body conducting the proceedings. 85. Rule 24 provides that, if a detainee so requests and with the approval of the conducting body and under its surveillance, the detainee may be examined by a doctor of his own choice. Such an examination is, in principle, conducted in the prison in the presence of the prison doctor.", "Prior to the examination the detainee must first be examined by the prison doctor. 86. Rule 53(3) provides that the prison doctor will examine the detainee at the time of his release, and the medical report will be included in the detainee’s medical file. J. Constitutional Court’s practice following constitutional appeals 87.", "The Government submitted in their observations that between 1 January 2008 and 31 December 2012 the Constitutional Court received 2,171 constitutional appeals, on which 1,391 decisions were rendered: 32 appeals were upheld, 727 appeals were rejected on the merits (odbijene), 617 were rejected on procedural grounds (odbačene) and in 5 cases the proceedings were terminated (obustavljeni). III. RELEVANT INTERNATIONAL DOCUMENTS A. Report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment in respect of Montenegro 88. Between 15 and 22 September 2008 the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (“the CPT”) visited Montenegro.", "[1] 89. During its visit the CPT noted, inter alia, “the alarming level of overcrowding” in the remand prison in Podgorica. In particular, a cell measuring 28 m² with fifteen sleeping places (provided on five three-tier beds) was holding twenty-one male prisoners. In many cells prisoners had to sleep on mattresses or just folded blankets placed directly on the floor. The majority of the cells were stuffy and humid, despite the presence of large windows and air conditioners.", "Remand prisoners remained for twenty‑three hours or more a day inside their cells, in some cases for several years. The only out-of-cell activity available to them was outdoor exercise taken in two thirty-minute periods, which was apparently not available on Fridays (see paragraphs 55 and 57 of the CPT report). 90. The situation in terms of health-care staff resources was far from satisfactory. General health care was provided by a sole doctor who was on call continuously, which could lead to long delays in receiving health care and affect its quality (see paragraph 62 of the CPT report).", "91. There was no systematic approach to the handling of complaints by prisoners, nor was there any register of complaints. The prisoners’ complaints and the reactions to them were kept in the personal files of the inmates concerned, some of the complaints having remained without a written answer (see paragraph 81 of the CPT report). 92. The CPT noted that prison establishments were visited by investigating judges, the Ombudsman and NGOs, but that such visits appeared to be rather infrequent and limited in scope as the visitors did not have any direct contact with prisoners (see paragraph 82 of the CPT report).", "93. The CPT recommended that the Montenegrin authorities take a number of steps with regard to the above issues, one of them being a significant reduction of the occupancy level in the cells at the Remand Prison in Podgorica, the objective being to comply with the standard of 4 m² of living space per prisoner (see paragraphs 58, 64, 81 and 82 of the CPT report). 94. In February 2012 the CPT visited Montenegro again. The report prepared after that visit is not yet available.", "B. European Commission Reports 95. The issue of prison conditions was also raised in the context of the process of Montenegro’s accession to the European Union. In particular, in its Progress Reports of 2011 and 2012, the European Commission stated that although the prison conditions were improving, they were still not in line with international standards, overcrowding remaining a concern. [2] THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 5 § 3 OF THE CONVENTION 96.", "Relying on Articles 3 and 5 § 3 of the Convention, the applicant complained about the conditions of detention on remand. He also complained of a lack of medical care while in detention, as well as about the length of his detention. 97. The said Articles read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 5 § 3 “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 1.", "Six months 98. The Government maintained that the applicant’s submissions sent to the Court after the initial application had been lodged should be rejected as outside the six-month time-limit. 99. The applicant made no comment in that regard. 100.", "The Court has already held that multiple, consecutive detention periods should be regarded as a whole, and that the six-month period should only start to run from the end of the last period of pre-trial custody (see Solmaz v. Turkey, no. 27561/02, § 36, 16 January 2007). It is noted in this regard that the applicant’s pre-trial detention ended on 4 October 2010, when he was convicted by the High Court (see paragraph 13 above). It is clear from the case file that the applicant’s complaint about the length of detention was introduced on 15 November 2010 and that his complaints of poor conditions of detention and lack of medical care were submitted on 18 March 2011. It follows that those complaints were introduced within six months and cannot therefore be rejected as having been introduced outside the time-limit fixed by Article 35 of the Convention.", "2. Non-exhaustion a. Arguments of the parties 101. The Government maintained that the execution of detention was supervised by the president of the court (see paragraph 73 above), who reported in that regard to the Supreme Court and the Ministry of Justice. In particular, he or she could visit all detainees at any time, including following a request on the part of detainees, when they could complain about any aspect of the execution of their detention.", "The president of the court, or a judge designated by him or her, had a duty to take all necessary measures to remove any irregularities thus observed. 102. The Government further maintained that the applicant had failed to make use properly of a constitutional appeal, which was an effective domestic remedy. They submitted statistical data in that regard (see paragraph 87 above). The Government averred that in deciding on constitutional appeals, the Constitutional Court also decided on the rights which the applicant had invoked in his application.", "They did not submit any such decision or any other details in this connection. 103. The applicant, for his part, submitted that he had lodged constitutional appeals, two of which were still pending, which clearly meant that they were not a priority. Furthermore, deciding on his constitutional appeal in respect of his detention no longer made any sense, given that his conviction had become final in the meantime and his detention in the remand prison had thus ceased. He also maintained that in nine years he had witnessed only one delegation of the Supreme Court judges visiting the remand prison.", "b. Relevant principles 104. The Court reiterates 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. 105.", "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 capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success. However, 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 the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV). 106. 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 Akdivar and Others, cited above, § 69).", "c. The Court’s assessment i. Supervision of detention 107. The Court observes that the relevant legislation indeed provides for supervision of the execution of detention by the president of the competent court. However, the relevant legislation does not provide for a complaints procedure – before a court or an administrative authority – which would satisfy the effectiveness requirement in respect of the applicant’s complaints (see paragraph 73 above; see also, mutatis mutandis, Đermanović v. Serbia, no. 48497/06, § 41, 23 February 2010).", "In addition, the CPT also noted the lack of a systematic approach to the handling of prisoners’ complaints. It also observed that visits to prison establishments by judges, the Ombudsman and NGOs were rather infrequent and limited in scope (see paragraph 92 above). 108. In view of the above the Court considers that the supervision of detention by the president of the competent court cannot be considered an effective domestic remedy in this respect. The Government’s objection in this regard must therefore be dismissed.", "ii. Constitutional appeal 109. As regards the applicant’s complaint about the conditions of detention and of a lack of medical care, the Court observes that pursuant to section 48 of the Constitutional Court Act of Montenegro, a constitutional appeal can only be lodged against an individual decision concerning one’s human rights and freedoms (see paragraph 57 above). Taking into account that the Government have presented no case-law to the contrary, the Court considers that the constitutional appeal to the Constitutional Court of Montenegro cannot be considered an available remedy in cases of conditions of detention and lack of medical care, given that there was no “individual decision” concerning the applicant’s rights in this respect against which such an appeal could have been lodged (see, mutatis mutandis, Mijušković v. Montenegro, no. 49337/07, §§ 73-74, 21 September 2010).", "110. As regards the applicant’s complaint about the length of the detention, the Court notes that he did lodge a constitutional appeal in this regard on 14 January 2010, but that the appeal was still pending more than three years later (see paragraph 23 above). As the applicant’s detention ceased on 4 October 2010, and taking into account that the proceedings upon his constitutional appeal were still pending at least until March 2013, the Court considers that a subsequent examination of his constitutional appeal by the Constitutional Court of Montenegro cannot be considered an effective domestic remedy. 111. The Government’s objection must therefore be dismissed.", "3. The Court’s conclusion 112. 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. Article 3 of the Convention a. Conditions of detention i. The parties’ submissions α.", "The applicant 113. The applicant complained about the conditions of his detention. He maintained, in particular, that the cell in which he had been detained had been overcrowded, and that he had lacked drinking water and daily exercise (see paragraphs 33-36 above). He submitted that this had been witnessed and recorded in 2008 by a CPT delegation which had visited, inter alia, his cell and to which he and his cellmates had complained. All the improvements noted by the Government had taken place after the CPT’s visit, and were irrelevant to his case.", "β. The Government 114. The Government maintained that the cell in which the applicant had been detained had measured 28 m2. Depending on the overall number of detainees at the time, there had usually been five or six people detained in the cell. Only during one short period of time had ten detainees been held in the cell.", "They further submitted that the applicant had had outdoor walks for thirty minutes twice a day, in the mornings and in the evenings, and that a shelter had been built over the exercise area. As of 2007 the president of the High Court had allowed the applicant to have weights in the cell. 115. The Government averred that in the summer of 2003 and 2004 there had been occasional shortages of water supply in general in the entire area where the Podgorica Prison is situated. However, they had lasted for several hours only and had not occurred on a daily basis.", "As of 2007 the problem had been resolved by building two wells within the prison, the water from which was both chemically and bacteriologically safe for use. 116. The Government further submitted that after the CPT’s visit in 2008 the prison administration had taken a series of measures aimed at improving prison conditions, including in the remand prison. The most significant improvement was the reduction of inmates: at the time of the CPT visit in 2008 there had been 568 detainees, while in March 2013 there were 295. Furthermore, the remand prison was refurbished in the course of 2009 and 2010 by removing the infirmary and certain equipment, thereby creating seven new cells.", "Refurbishment of the remand prison continued at the end of 2012, and by March 2013 the first and second floors had been refurbished as well as forty-five cells on the ground floor. The refurbishment involved changing the electricity, sewage and water supply installations. 117. Most of the prison premises were also refurbished and adapted with the aim of resolving the problem of overcrowding, including the wing for short-term prisoners. Other measures included: refurbishment of the kitchen; renovation of sports rooms and outdoor sports grounds; increase in the number of employees, including in the medical service, and their training; preparation of a strategy aimed at preventing violence amongst persons deprived of their liberty; setting up a team for mediation and peaceful resolution of disputes amongst the persons deprived of their liberty; as well as the adoption of a new Criminal Procedure Code and new Detention Rules.", "There were also plans to build a wing for long-term prisoners, a prison hospital, and a structure for religious purposes. 118. The detainees could also complain to the Ombudsman by means of boxes installed in all the pavilions of the prison, which could be opened only by the Ombudsman’s Office staff. ii. The Court’s assessment 119.", "The Court has already held that severe overcrowding raises in itself an issue under Article 3 of the Convention (see Kadiķis v. Latvia (no. 2), no. 62393/00, § 52, 4 May 2006). In particular, Article 3 was breached in a case where an applicant had been detained for almost nine months in extremely overcrowded conditions (10 m2 for four inmates) with little access to daylight, limited availability of running water, especially during the night, and strong smells from the toilet, and with insufficient and poor quality food and inadequate bed linen (see Modarca v. Moldova, no. 14437/05, §§ 60-69, 10 May 2007).", "120. The Court reiterates that Article 3 requires the State to ensure that prisoners are 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 them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012). 121.", "Turning to the present case, the Court notes the applicant’s submissions that the cell in which he had been detained, and which had also contained closets, a sanitary facility and a dining table, had measured 25 m2 and had housed fourteen detainees, sleeping on three-tier beds. 122. The Court observes that these submissions are supported by the CPT, which observed in its report “the alarming level of overcrowding” in the remand prison at the relevant time. In particular, a cell measuring 28 m² with fifteen sleeping places was holding twenty-one male prisoners, which fell well below the 4 m2 per person recommended by the CPT (see paragraph 58 of the CPT report). The majority of the cells were stuffy and humid, despite the presence of large windows and air conditioners.", "Remand prisoners remained inside their cells for twenty-three hours or more a day, in some cases for several years (see paragraph 89 above and the relevant paragraphs of the CPT report cited therein). 123. In the light of the CPT’s observations made during its visit to the remand prison and especially in view of the conditions of overcrowding observed by the CPT, the Court finds unconvincing the Government’s submission that the applicant was only once and for a short period of time detained with more than nine other people in a cell measuring 28 m2. They failed, inter alia, to say exactly when that happened and how long it lasted. The Court notes that even in such conditions the applicant would have had 2.8 m2 for himself, which in itself is sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention (see, for example, Ananyev and Others v. Russia, nos.", "42525/07 and 60800/08, § 148, 10 January 2012, and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 68, 8 January 2013). 124. The Court, however, observes in addition the Government’s acknowledgment that the applicant had been allowed two thirty-minute walks per day, as noted also by the CPT, whereas the relevant legislation provided for at least two hours’ exercise (see paragraph 71 above). They also admitted the shortages of water, although apparently only occasional.", "The parties’ submissions differ as to whether the well built in 2007 resolved that issue. 125. It is noted that the prison administration took a number of measures aimed at improving the conditions in prison, including in the remand prison. It is observed, however, that those measures were taken only after 2008, and that the most significant improvement was the reduction in the number of inmates, which was nearly halved by March 2013. The Court, however, notes that the applicant’s detention on remand ended on 4 October 2010 and it is difficult to see from the Government’s submissions how the reduction achieved over time affected the conditions of the applicant’s detention while it lasted.", "126. While the Government submitted that the remand prison had been renovated in 2009, 2010 and 2012, the Court notes that the works in 2012 took place after the applicant’s detention there had ended and that the Government failed to specify exactly when the renovation undertaken in the course of 2009 and 2010 was finalised, or how it resolved the overcrowding in the applicant’s cell. It is further noted in this connection that the other improvements specified by the Government related to kitchen and sports facilities, staff and their training, and legislative changes. While those improvements were praiseworthy, they did not affect the issue of overcrowded cells, which would appear to have remained a concern still in 2011 and 2012 (see paragraph 95 above). 127.", "In view of the above, the Court concludes that there has been a violation of Article 3 of the Convention in this regard. b. Alleged lack of medical care i. The parties’ submissions 128. The applicant also complained of a lack of medical care in detention.", "In particular, he maintained that medical examinations had been organised at best once a week, regardless of his needs. He submitted two medical reports in this regard, one issued on 7 March 2006 and the other on 15 March 2011 (see paragraphs 39 and 41 above). 129. The Government maintained that the applicant had been examined by the prison doctor as well as by a number of specialists at the clinical centre of Montenegro. In particular, his chest pain had been thoroughly examined in the cardiology centre in 2006 and 2011.", "He had also been duly and promptly treated for all other medical complaints, as was noted in his medical file. They submitted the applicant’s entire medical file. ii. The relevant principles 130. The Court reiterates 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, 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, Verbinţ v. Romania, no. 7842/04, § 63, 3 April 2012, and Gelfmann v. France, no.", "25875/03, § 48, 14 December 2004). 131. The Court reiterates that when assessing the adequacy of medical care in prison, it must reserve, in general, sufficient flexibility in defining the required standard of health care, which must accommodate the legitimate demands of imprisonment but remain compatible with human dignity and the due discharge of its positive obligations by the State. In this regard, it is incumbent upon the relevant domestic authorities to ensure, in particular, that diagnosis and care are prompt and accurate, and that supervision by proficient medical personnel is regular and systematic, and involves a comprehensive therapeutic strategy. The mere fact of a deterioration in an applicant’s state of health, albeit capable of raising, at an initial stage, certain doubts concerning the adequacy of the applicant’s treatment in prison, cannot suffice, by itself, for the finding of a violation of the State’s positive obligations under Article 3 of the Convention, if, on the other hand, it can be established that the relevant domestic authorities have in a timely fashion provided all reasonably available medical care in a conscientious effort to hinder development of the disease in question (see, among many others, Jashi v. Georgia, no.", "10799/06, § 61, 8 January 2013, and Fedosejevs v. Latvia (dec.), no. 37546/06, § 47, 19 November 2013). iii. The Court’s assessment 132. It is noted that when he was arrested the applicant had no illness or special condition.", "Therefore, he did not require any regular and specialised medical supervision or monitoring of the progression rate of any disease at the time (see paragraph 38 above; see also, a contrario, Kozhokar v. Russia, no. 33099/08, § 108, 16 December 2010). 133. The applicant’s dissatisfaction with the medical care afforded to him in detention in substance lies in the fact that medical examinations were allegedly organised only once a week, regardless of his needs, and, implicitly, that he had not been afforded the necessary cardiological examinations (see paragraph 128 above). 134.", "In this respect, the Court notes that during his detention the applicant was examined a number of times by various specialists and duly received the necessary treatment. The only time he did not undergo a further specialist examination was in March 2006 (see paragraph 39 above). However, there is no indication in the case file that the recommended examination was urgent, or that without it the applicant was left to suffer considerable pain, or any pain for that matter (see, mutatis mutandis, Wenerski v. Poland, no. 44369/02, § 64, 20 January 2009). There is no evidence in the case file that on any other occasion the applicant needed or was denied any – let alone necessary and urgent – medical assistance and was in consequence caused suffering.", "In this connection, it is noted that in March 2011 the applicant was duly and thoroughly examined by a cardiologist at the clinical centre of Montenegro (see paragraph 42 above). The applicant, for his part, failed to explain in a detailed and convincing manner why he considered that the medical treatment he received was inadequate or in any other way in breach of the guarantees provided for in Article 3 of the Convention. 135. In these circumstances, on the basis of the evidence before it and assessing the relevant facts as a whole, the Court finds that the failure of the authorities to provide for a further medical examination in March 2006 did not attain a sufficient level of severity to entail a violation of Article 3 of the Convention (see Kudła, cited above, § 99; Matencio v. France, no. 58749/00, § 89, 15 January 2004; Filip v. Romania, no.", "41124/02, §§ 39-44, 14 December 2006). 136. In the light of the foregoing, the Court concludes that has been no violation of Article 3 of the Convention in this regard. 2. Article 5 § 3 of the Convention a.", "The parties’ submissions 137. The applicant complained about the length of his continuous detention between 27 June 2002 and 21 March 2011, when the relevant court’s decision became final. 138. The Government contested the applicant’s claim. They submitted that the relevant period had begun on 20 April 2004, when the applicant was extradited to Montenegro, and had lasted until 26 April 2011, when he was served with the final decision and transferred to prison.", "139. The Government maintained that the applicant’s detention was proportionate to the legitimate aim of ensuring his presence at trial and thus conducting the criminal proceedings. There had been no doubt that he might abscond, given that he had fled before and had been arrested pursuant to an international arrest warrant. Confiscating his passport would not have been sufficient, as when he had fled the country he had crossed the border illegally. In view of all the circumstances of the case, the Government considered that neither bail (jemstvo) nor any other alternative measure would have been effective.", "140. The applicant’s detention was also duly re-examined at reasonable intervals and the courts’ decisions to extend it were reasonable and in accordance with the law, given that there were still relevant and sufficient reasons for the protection of the public interest, which prevailed over the presumption of innocence in favour of the applicant. b. The relevant principles 141. The Court reiterates that the persistence of 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.", "The Court must then 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 be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Solmaz v. Turkey, no. 27561/02, § 40, 16 January 2007). 142.", "While previous absconding is a factor to be taken into account (see Punzelt v. the Czech Republic, no. 31315/96, § 76, 25 April 2000), the Court reiterates that the risk that the accused might flee cannot be evaluated in isolation. Other factors, especially those relating to his or her character, morals, home, occupation, assets, family ties and all kinds of links with the country in which he or she is being prosecuted may either confirm the existence of a risk of absconding, or make it appear so small that it cannot justify detention pending trial. However, the risk of absconding necessarily decreases as the time spent in detention passes by, because the likelihood that the period spent in custody will be deducted from the prison sentence which the detainee may expect if convicted is likely to make the prospect of prison less daunting and reduce his temptation to flee (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8).", "143. Even if detention is justified under Article 5 § 3, that provision may still be infringed if the accused’s detention is prolonged beyond a reasonable time because the proceedings have not been conducted with the required expedition, as Article 5 § 3 requires that in respect of a detained person the authorities show “special diligence in the conduct of the proceedings” (see Herczegfalvy v. Austria, 24 September 1992, § 71, Series A no. 244). While very long periods of detention do not automatically violate Article 5 § 3, the Court notes that it is usually exceptional circumstances that justify such long periods of detention (see, for example, Chraidi v. Germany, no. 65655/01, §§ 46-48, ECHR 2006‑XII).", "c. The Court’s assessment 144. The Court reiterates that 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 Panchenko v. Russia, no. 45100/98, § 90, 8 February 2005, and Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000‑IV). 145.", "Accordingly, the period to be taken into consideration in the applicant’s case consisted of two separate terms: (1) from 3 March 2004, when the Convention entered into force in respect of the respondent State (see Jablonski v. Poland, no. 33492/96, §§ 65-66, 21 December 2000), until his conviction on 10 April 2009; and (2) from 29 January 2010, when the applicant’s conviction was quashed on appeal, until his subsequent conviction on 4 October 2010 (see Đermanović v. Serbia, cited above, §§ 67-68). 146. As the Court should make a global evaluation of the accumulated periods of detention under Article 5 § 3 of the Convention when assessing the reasonableness of the length of the applicant’s pre-trial detention (see Solmaz v. Turkey, cited above, §§ 36-37), the period to be taken into consideration in the applicant’s case amounts to five years eight months and fifteen days. 147.", "The Court notes that at the time when the initial detention was ordered there was a reasonable suspicion that the applicant had murdered X. The detention was ordered for fear that he might abscond owing to the fact that he had already fled before. The subsequent decisions extending the detention evolved so as to take into account the gravity of the criminal offence of which the applicant was accused, the sentence that might be imposed on him, as well as his personal circumstances (see paragraphs 25, 27 and 28 above). 148. The Court considers that the reasons advanced by the domestic authorities were certainly relevant.", "However, in the specific circumstances of the case, it does not consider it necessary to examine whether they were also sufficient or whether the domestic authorities should have considered in addition alternative measures to secure the applicant’s presence at trial as in any event the criminal proceedings in question were not conducted with the required expedition, as acknowledged by the domestic courts themselves (see paragraph 22 above), and as required by Article 5 § 3 (see Herczegfalvy, cited above, § 71). As there were no exceptional circumstances in the present case that could justify such lengthy proceedings (compare and contrast to Chraidi v. Germany, cited above, §§ 43-45), the Court considers that the applicant’s detention exceeding five years was extended beyond a reasonable time (see Korchuganova v. Russia, no. 75039/01, §§ 71 in limine and 77, 8 June 2006; I.A. v. France, 23 September 1998, §§ 98 and 112, Reports of Judgments and Decisions 1998‑VII; and Khudoyorov v. Russia, no. 6847/02, §§ 175 and 189, ECHR 2005‑X (extracts)).", "149. There has accordingly been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 150. Under Article 6 of the Convention the applicant complained about the length of the criminal proceedings, as well as their fairness and outcome.", "A. Length of the proceedings 151. The Court reiterates that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, a breach of the Convention and have provided redress (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). Given the fact that the Supreme Court expressly acknowledged that the criminal proceedings against the applicant had been unreasonably long and awarded him EUR 2,000 on that account, the Court considers that he can no longer claim to have victim status.", "152. Although the applicant’s constitutional appeal in this regard is still pending, the Court has already held that a constitutional appeal cannot be considered an effective remedy with regard to the length of proceedings and that hence it is not necessary to exhaust that remedy (see Boucke v. Montenegro, no. 26945/06, §§ 76-79, 21 February 2012). 153. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.", "B. Fairness and outcome of the proceedings 154. While the Court notes that the applicant withdrew his constitutional appeal in this regard, it does not consider it necessary to examine the effectiveness of the said remedy as, in any event, 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. 155. 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. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 12 156. The applicant also complained, under Article 14 of the Convention and Article 1 of Protocol No. 12 thereto, that the Criminal Procedure Act 1977, which had been applied to him, had not limited the duration of his detention, whereas the Criminal Procedure Code 2003 would have done so.", "157. The Court reiterates that it is not its task to review the relevant law and practice in abstracto, but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention (see, mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257‑B), that is whether the applicant’s detention was too lengthy or not, which question was examined in paragraphs 144 to 150 above. In so far as it can be understood that the applicant also implicitly complained that the Criminal Procedure Code 2003 had not been applied in respect of his case, the Court notes that the relevant provisions clearly provided that this Code would apply only to proceedings instituted after 6 April 2004 (see paragraphs 70 and 76 above), whereas the proceedings against the applicant were initiated before that date (see paragraph 10 above). 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.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 158. 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.” 159. The applicant claimed 300,000 euros (EUR) in respect of pecuniary damage. 160.", "The Government contested the applicant’s claim as unfounded, unrealistic and contrary to the Court’s case-law. 161. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As the applicant submitted no claim in respect of non-pecuniary damage or costs and expenses, 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 complaints concerning conditions of detention, lack of medical care in detention and the length of detention 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 conditions of detention; 3. Holds that there has been no violation of Article 3 of the Convention in respect of medical care in detention; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5. Dismisses the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 22 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposGuido RaimondiDeputy RegistrarPresident [1] The Report prepared by the CPT after the said visit is available at http://www.cpt.coe.int/documents/mne/2010-03-inf-eng.htm . [2] The relevant European Commission reports are available on the following websites: http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/mn_rapport_2011_en.pdf, and http://ec.europa.eu/enlargement/pdf/key_documents/2012/package/mn_rapport_2012_en.pdf" ]

[ "THIRD SECTION CASE OF VOLCHKOVA AND MIRONOV v. RUSSIA (Applications nos. 45668/05 and 2292/06) JUDGMENT (Merits) STRASBOURG 28 March 2017 FINAL 18/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Volchkova and Mironov v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Helena Jäderblom, President,Branko Lubarda,Luis López Guerra,Helen Keller,Dmitry Dedov,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 7 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "45668/05 and 2292/06) 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 two Russian nationals, Ms Tatyana Grigoryevna Volchkova and Mr Boris Petrovich Mironov (“the applicants”), on 9 and 30 December 2005 respectively. 2. The applicants were represented by Ms S. Valiyeva and Ms S. Davydova, lawyers practising in Moscow. 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, in particular, they had not been paid adequate compensation for the expropriation of their property. 4. On 5 January 2010 the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1945 and 1935 respectively and live in Moscow and Lyubertsy. A. The main proceedings 6. The applicants, together with another person, were joint owners of a plot of land and the house built on it. 7.", "The first applicant owned a one-sixth share of a house constructed between 1937 and 1949 (her share amounting to some 24 sq. m, of which some 12 sq. m was living space), and 208 sq. m of land. The property had been her registered address since 2001.", "It appears that her title originated in the inheritance she had received after her late mother’s death in 1995. 8. The second applicant owned a half share in the same house (amounting to some 78 sq. m) and 625 sq. m of the same plot of land.", "It appears that he had first had a right of use (as part of inheritance after another person) in respect of the land and had then acquired title to it in 1993; that he had inherited his share in the house after another person in 1975. 9. The remainder of the house and plot of land were owned by the first applicant’s brother. 1. Demolition project and construction project 10.", "On 28 June 1999 the Ministry of Construction of the Moscow Region issued a decision to “adopt” the general plan of Lyubertsy town, “to invite the Lyubertsy municipality to continue co-operating with the authors of the general plan when preparing future projects, bearing in mind that the plan is the main legal document in relation to town planning”. In August 2005 the decision was amended to indicate that the Ministry “had adopted the plan for further approval in accordance with the established procedure” (see also paragraph 30 below). 11. In November 2001 the Lyubertsy municipality (“the municipality”) adopted a programme aimed at demolishing dilapidated housing. 12.", "In April 2002 the local authorities adopted draft construction guidelines for the Oktyabrskiy Proezdy district where the applicants’ house was situated. The draft guidelines were published in a local newspaper on 6 August 2002. It appears that they were eventually adopted in 2003. 13. A committee composed of officials attached to various public authorities was asked to make a proposal regarding a plot of land for constructing blocks of flats.", "The committee considered that it would be appropriate to construct blocks of flats at Kirova Street. It does not transpire from the committee’s deliberations that they considered any other plots of land. On 30 May 2002 the municipality issued a decision by which it agreed to the construction of several blocks of flats (including one on the applicants’ land) and authorised a specialised State enterprise to start the compiling of the necessary technical documents. 14. In September 2002 the regional administration, the Lyubertsy town administration and a State enterprise signed an investment contract for the construction of multi-storey blocks of flats in the area, including the applicants’ land.", "Under the terms of the contract, the enterprise would arrange to buy the land from private owners and the municipality would acquire title to it. The investor would also take measures to resettle any inhabitants and provide them with compensation. The municipality and the investor would own 5% and 95% of the newly built housing space respectively. The estimated preliminary cost of the project amounted to 14,481,000 euros (EUR). 15.", "As transpires from the available information, the block of flats to be built on the applicants’ land comprised seventeen floors, 352 flats with the total space of 21,146 sq. m. Under the investment contract, the municipality was to receive title to some thirty flats for the overall space of 1,907 sq. m. 16. The investor also agreed to make a contribution of funds corresponding to some 30% of the estimated costs for constructing a kindergarten for 114 children, an annex building for a school and some other amenities or facilities. 17.", "In October 2002 a private company, ORS-Grupp, replaced the State enterprise as the project investor. 18. In December 2002 the municipality issued an order aimed at implementing the demolition programme adopted in November 2001 and “improving the architectural appearance of the town and the resettlement of inhabitants from housing that no longer [met] sanitary requirements”. The above investment project was one of the measures by which the municipality intended to achieve those aims. In total, the order concerned some eleven investment contracts in relation to over seventy dwellings, of which some thirty properties were privately owned and the remainder was owned by the municipality.", "19. The municipality assessed the situation as regards the private owners, including the applicants, and decided to proceed by way of expropriation for municipal needs under the Land Code (see paragraph 59 below). 2. Expropriation decision and resettlement negotiations 20. On 18 March 2003 the municipality ordered the expropriation of the applicants’ house and land for municipal needs, namely the construction of a block of flats under the investment contract.", "21. According to the Government, on 24 April 2003 the second applicant received notice of the planned expropriation. 22. On 19 May 2003 the municipality amended the expropriation order, indicating that pursuant to the investment contract the investor had to provide funds for paying compensation for the land being expropriated and provide inhabitants with comparable alternative housing. The investor was required to request expert valuations to determine the market value of the properties being expropriated (see paragraphs 23 and 27 below) and then buy those properties.", "23. It appears that on 21 May 2003 the investor obtained a valuation report regarding the applicants’ house and land to determine their market value. The company used was Expert Centre, a private company licensed by the State to carry out valuation assessments (see paragraph 64 below). The Court was not provided with a copy of this valuation report. 24.", "According to the Government, on 27 and 29 May 2003 the first applicant was served with notice of the planned expropriation. In January 2004 both applicants were informed that the amended expropriation order had been officially registered. 25. According to the Government, on 3 July 2003 there was a meeting between Kirova Street residents and, apparently, a representative of the local authorities or the private company. The Government stated that the residents had been given access to a construction planning document for the area, documents concerning the choice of plots for such construction, the town plan and some other documents.", "26. As no comparable plots of land were available in the area, having regard to the valuation report of 21 May 2003 (see paragraph 23 above), the first applicant was offered several options of “compensation in kind”, namely one or two-room flats in Lyubertsy or Moscow with market values of up to 150,000 United States dollars (USD), apparently with ownership title. She was also offered monetary compensation for the land and her part of the house of up to USD 50,000. However, she turned down these offers, considering them insufficient or the location of the alternative housing unsuitable. The second applicant appears to have turned down offers of plots of land in nearby areas ranging between USD 60,000 and 140,000 in value.", "The second applicant also turned down another offer: ownership title to two flats measuring at least 35 sq. m and 54 sq. m each together with USD 34,874. The second applicant stated that he was entitled to compensation amounting to USD 330,000. The investor then made a new offer of USD 200,000 as compensation for his part of the house and land.", "The second applicant did not accept it. 27. On 5 May 2004 the investor requested another valuation report regarding the applicants’ house and land from Expert Centre. On 14 May 2004 it issued a report indicating that the overall market value of the first and second applicant’s shares of the house and land were USD 24,488 and USD 73,463 respectively. The Court was provided with part of that report, which reads: “[Description] of the assessment object: a residential house (a single-storey building made of wood, [measuring] 110.8 [sq.", "m], of which 86 [sq. m is] living space) and annexes; a plot of land [measuring] 1,249 [sq. m] ... [Location] of the assessment object: ... The assessment object is situated in the centre of the old town of Lyubertsy. On the one hand, there are old buildings (essentially residential houses dating back to the 1930s to 60s) and, on the other, [there are] new buildings consisting of modern blocks of flats.", "The town’s major traffic arteries are in the immediate proximity of the assessment object. There is a car park on one side of the street and a residential area ont the other ... They have a well-developed infrastructure, good access to transport up to Vykhino metro station, central Lyubertsy and the above residential area ... Description of the plot of land: ...Vykhino metro station is within a ten-minute ride by public transport ... Description of the house: ... the main building was first constructed in 1937; the remaining buildings later, until the 1970s ...", "The house is habitable, although it requires some superficial repairs ...” 28. In November 2004 the district chief architect and the local land authority informed the municipal administration that the town’s general plan of 1999 made no provision for the construction of individual housing. On 23 November 2004, in reply to an enquiry raised by the investor company, the municipality announced that it had no available plots of land that would be equivalent to the land to be expropriated from the applicants, namely those assigned for the construction of individual housing. 29. In late 2004 the town administration brought proceedings in the Lyubertsy Town Court of the Moscow Region (“the Town Court”) seeking judicial authorisation for the expropriation of the applicants’ house and land.", "In December 2004 the first applicant lodged a separate claim against the municipality, arguing that the expropriation orders of 18 March and 19 May 2003 were ultra vires and otherwise unlawful and disproportionate. On 29 December 2004 the Town Court held a hearing. After hearing evidence from a representative of the municipality, it decided to join the cases. An appeal brought by the first applicant was not processed since the procedural order was not amenable to appeal. 30.", "In the meantime, the Moscow Region Prosecutor’s Office replied to a request for information from the second applicant, informing him that the regional ministry had acted ultra vires in taking a decision on the general plan in 1999 and that no copy of it existed (see paragraph 10 above). The applicants informed the court examining their case accordingly. 31. The court held several hearings in the expropriation case. It appears that on 11 February 2005 the court ordered a new report from Expert Centre.", "The applicants did not oppose the choice of company and did not ask for any particular questions to be put to its experts. 32. In February 2005 a group of three experts compiled a report indicating USD 23,300 and 5,200 as the market values of the first applicant’s land and part of the house respectively, and USD 70,000 and 15,600 as the second applicant’s (compare the earlier assessment in paragraph 27 above). The land and house were therefore valued at USD 112 and 216 per sq. m respectively.", "33. In reply to the second applicant’s complaint, on 14 March 2005 the Prosecutor’s Office provided the following reply (see also paragraphs 55 and 56 below): “Regarding your complaint about unlawfulness relating to the adoption of Lyubertsy town plan: I inform you that Articles 18, 28, 35, 39, 58 and 60 of the old Town Planning Code provided for a procedure relating to consultation with the local population in relation to the documents relating to town planning. At the same time, the Code did not specify any particular manner for obtaining the population’s view, and thus consultations could be done in any form. It has been established that Lyubertsy town plan was adopted on 28 June 1999 by the Ministry of Construction of the Moscow Region and not by a municipality, in breach of Article 35 of the Town Planning Code. Moreover, there is a breach of the same provision due to the fact that there is currently no Lyubetsy town plan.", "The municipality will be ordered to remedy the violation of the Code.” 34. On 7 April 2005 the municipality’s mayor wrote to the Town Court asking to speed up the court proceedings, arguing that some of the flats were to be given to the people waiting for social housing and that the procrastination of the proceedings was also prejudicial to the people who had invested in the construction project. 35. On 13 April 2005 the Town Court delivered a judgment, stating as follows. (a) Referring to Articles 3, 11 and 63 of the Land Code (see paragraphs 57, 58 and 61 below), the court rejected the argument that the municipality had had no competence to issue the expropriation orders of 18 March and 19 May 2003.", "(b) As to the allegations that the expropriation did not pursue any genuine public interest, that a decision had been taken on the general plan ultra vires, and that it did not actually exist, the court indicated that a general plan did exist (see paragraph 10 above) but, being a classified document, it could not be adduced as evidence (see, however, paragraph 54 below). In any event, it was deemed unnecessary since the court had examined the construction guidelines for the district (see paragraph 12 above) which contained information concerning planned construction works in the area where the applicants’ house and land were situated. The court also received a statement from the town’s chief architect, who confirmed that to be the case. It thus concluded that the construction project aimed at “providing the population with housing and social infrastructure”. After examining the investment project, the court noted that the municipality would gain 5% of the new housing and the related infrastructure.", "(c) The court considered that the applicants had failed to adduce evidence to substantiate their claims for better housing in Moscow and a higher amount of compensation for the land. It noted that the applicants had refused to have an expert assessment of the property carried out by an independent body. (d) The court also noted that besides being unfounded, the first applicant’s claim challenging the lawfulness of the 2003 administrative decisions had been submitted after the expiry of the three-month time-limit. (e) The court held that the first applicant would receive compensation for the land and her part in the house equivalent to USD 28,500 and a social tenancy contact for a one-room flat in Lyubertsy measuring 31 sq. m. The second applicant would receive compensation for the land and his part in the house of USD 85,600 and a social tenancy contract for a four-room flat in Lyubertsy for his family measuring some 70 sq.", "m. Lastly, the court transferred ownership of the house and land to the municipality. 36. The applicants appealed. They contended, inter alia, that the expert report relied on by the first-instance court had in fact been requested by the municipality and was thus biased and based on the material provided by them; no court-requested report had been prepared. The first applicant also argued that the expert report had failed to take into account the scarcity of land in Lyubertsy for individual housing; the commercially attractive location of the land, which bordered the city of Moscow; the proximity of a metro station under construction (or planned); and the intended use of the land being expropriated for commercial gain arising from the construction of blocks of flats.", "The applicant also contested the expert assessment regarding the value of the house to be demolished pursuant to the expropriation decision. The expert had not used the “method of prospective use” for determining the value of the house and land. The expert valuation was based on the premise that the land’s use was for a summer cottage use rather than for the use relating to multi-storey blocks of flat; this premise was inappropriate, given that the property was already surrounded by similar blocks of flats. With reference to the above considerations, the applicant’s own calculations amounted to USD 246,418 for her part of the land. 37.", "On 4 July 2005 the Moscow Regional Court upheld the first-instance judgment. 38. On 18 August 2005 the first applicant applied for supervisory review of the court decisions of 13 April and 4 July 2005, requesting that the enforcement proceedings be suspended. 39. In the meantime, on 22 August 2005 the applicants were evicted and had their belongings removed from the house.", "According to the Government, the first applicant’s belongings were then delivered to the social housing flat where they were then stored, under the supervision of a local public official, until December 2006 when she received the keys. 40. A bank account was opened for the first applicant, and the expropriation compensation was credited into it on 26 August 2005. The bank issued a certificate allowing the accountholder to use the money. On 29 August 2005 the first applicant was informed of the above.", "41. On 31 August 2005 the Regional Court dismissed the first applicant’s application for supervisory review. The reviewing judge held that the municipality had had competence to issue the expropriation decision, referring to the available general plan and all the other necessary documents. 42. In November 2005 the first applicant lodged a further application for review before the President of the Regional Court.", "On 22 November 2005 the application was examined and rejected by another judge of the Regional Court. In March 2006 the first applicant again applied for review before the President of the Regional Court. In a letter of 10 April 2006 the President of the Regional Court dismissed her application, upholding the earlier refusals. 43. The first applicant lodged an application for supervisory review with the Supreme Court of Russia.", "On 5 July 2006 it was dismissed. The applicant challenged that decision before the Deputy President of the Supreme Court. In a letter of 11 October 2006 he agreed with the lower courts’ decisions. In April 2008, in reply to a new application, the Supreme Court informed the first applicant that she could lodge no further supervisory review applications in respect of the court decisions. 44.", "According to the Government, until November 2006 the first applicant refused to accept the keys to the flat and the bank certificate relating to the account into which the expropriation compensation had been credited. 45. On 1 December 2006 the applicant received the keys for the flat, the bank certificate and her belongings that had been in safekeeping. 46. According to the second applicant, in July 2006 the municipality resold the properties it had acquired under the investment project to the investor.", "B. Ancillary proceedings 1. The second applicant 47. In 2005 the second applicant brought separate proceedings challenging the orders of 18 March and 19 May 2003. On 10 October 2005 the Moscow Regional Court took a final decision rejecting his claim, primarily because it was time-barred but also because the main arguments had already been dealt with in the final judgment of 13 April 2005 (see paragraph 35 above). 2.", "The first applicant (a) Judicial review of the bailiffs’ actions 48. On 26 August 2005 the first applicant brought separate proceedings in the Town Court (i) alleging that the bailiffs had acted unlawfully in the enforcement proceedings, and (ii) claiming compensation in respect of pecuniary and non-pecuniary damage. Her claim was turned down on several occasions because she had failed to comply with the required formalities. It appears that the relevant procedural orders were annulled because they reached the applicant after the respective time limits for complying with them had expired. Several hearings were scheduled in 2007.", "Sometime during that year the Town Court decided that the claims for compensation should be processed separately. 49. In February 2007 the applicant resubmitted her claim for compensation. On 3 July 2007 the Town Court refused to deal with the case because she had failed to comply with its instructions to specify the amount of the claim, to submit calculations concerning the loss and to pay a court fee. 50.", "On 5 September 2007 the Town Court granted the first claim in part, considering that the applicant had not been informed in good time of the order launching the enforcement proceedings in 2005. She had thus been deprived of the right to contest the documents relating to the enforcement. (b) Pecuniary claims relating to delayed enforcement and loss of belongings 51. The applicant sued the municipality, complaining of losses she had suffered because of inflation arising from the delay in enforcement of the judgment of 13 April 2005 in the part relating to the expropriation compensation. On 10 December 2008 the Town Court awarded her 89,712 Russian roubles (RUB) in pecuniary damages arising from the fact that the judgment had actually been enforced on 1 December 2006.", "On 26 February 2009 the Moscow Regional Court quashed that judgment on appeal and instead awarded the applicant RUB 3,161, considering that the judgment had been enforced on 26 August 2005 when the expropriation compensation had been credited into the bank account opened for her. 52. In 2008 the applicant lodged a complaint with the bailiff service, requesting compensation for belongings that had either been lost or damaged during or following demolition of the house. On 22 May 2008 the District Bailiff Office replied that an inventory of her belongings had been compiled before the demolition. They had all been transferred to her social housing flat and entrusted to a public official for safekeeping; she had had three years to reclaim them.", "In February 2009 a new complaint by her was dismissed by the Federal Bailiff Office, which noted that the notices dated 11, 12, and 15 August 2005 of the impending demolition of the house had not been served on her personally as she had been away from her temporary address. Between August 2008 and January 2009 various courts in Moscow declined jurisdiction or turned down for procedural reasons a related civil claim by her against the Federal Ministry of Justice. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Expropriation of private property for public needs 53.", "Article 35 § 3 of the Russian Constitution provides that expropriation of property for State needs requires prior and equivalent compensation. 1. Town Planning Code of the Russian Federation 1998 54. The Town Planning Code 1998 (in force until 2006) provided that a general plan was the principal document of town planning. It had to be adopted by the respective municipality, while general plans for larger towns (cities), including Moscow, had to be adopted by regional authorities (Article 35).", "Prior to adoption the general plan had to be published and discussed with various public authorities and the town’s residents (Article 35 § 7). 55. Pursuant to Articles 18, 28, 35 and 39 of the Code, citizens or legal entities had a right to truthful, full and timely information about their living environment (среда жизнедеятельности), any expected changes to it (for instance, by way of (re)construction of housing or roads) or another similar information, except for the information protected as a State secret. Such information could be provided through mass media outlets or during public debates or exhibitions. Prior to the adoption of a town planning document, citizens had a right to discuss it, make suggestions and participate in the preparation of decisions relating to town planning, by way of taking part in public meetings or debates or by other means; to seek independent expert assessments of town planning documents.", "Where they interfered with a person’s interests, he or she had a possibility to bring administrative or judicial proceedings, inter alia, challenging town planning documents or seeking compensation in respect of pecuniary or health damage. 56. Articles 58 and 60 of the Code required that prior to the adoption by the relevant municipality draft construction guidelines (town planning documents relating to parts of towns or villages) were to be published and discussed with the population. 2. Land Code of the Russian Federation 2001 57.", "Article 3 provides that matters relating to the possession, use and transfer of ownership of land should be regulated by civil legislation, unless the legislation concerning land, forests, environment or other specialist federal statutes otherwise provide. 58. Article 11 § 1 provided at the time as follows: “1. Municipalities have the competence ... to carry out expropriation of land for municipal needs, including by way of compulsory purchase ...” 59. Article 49 of the Land Code provided at the time: “1.", "Expropriation of land (including by way of compulsory purchase) for State or municipal needs shall be carried out in exceptional circumstances relating to: (1) enforcement by the Russian Federation of their international obligations; (2) construction of facilities of State or municipal importance, in the absence of alternative locations for such facilities; (3) other circumstances prescribed by a federal statute ... ; ... 3. The conditions and procedure for expropriation of land (including by way of compulsory purchase) for State or municipal needs are prescribed by Article 55 of this Code.” Subparagraph 2 of Article 49 § 1 was amended in December 2004 to read: “(2) construction of the following facilities of State or municipal importance, in the absence of alternative locations for such facilities: federal and regional energy network facilities, nuclear energy facilities; defence and security facilities; federal transport network facilities ...” 60. Article 55 provided that expropriation (including by way of compulsory purchase) for State or municipal needs could be carried out on the grounds listed in Article 49 and required prior compensation equivalent to the value of the land by a court decision. The procedure for compulsory purchase and the means of determining the relevant price were to be regulated by the Civil Code. 61.", "Article 63 provided that actual expropriation of land for State or municipal needs was to be preceded by (i) the provision of equivalent plots of land, if the person being expropriated so required; (ii) compensation for any property and other buildings on the land being expropriated; and (iii) compensation in respect of all losses, including lost profits. Notice of the planned expropriation had to be given at least one year in advance by the State or municipal authority taking the expropriation decision. 62. Article 83 § 3, at the relevant time, stated as follows: 3. Land plots situated within towns and villages may be expropriated, including by way of compulsory purchase, for State or municipal need relating to construction projects pursuant to general plans of towns and villages ...” The above provision was removed from the Code since January 2007.", "63. In its ruling of 24 March 2005 the Plenary Supreme Commercial Court of Russia stated that State, regional or municipal authorities were competent to carry out expropriations of land by way of compulsory purchase (§ 27). The power of municipalities to carry out expropriations was also confirmed by the Constitutional Court in its decision no. 435-O-O of 17 June 2008. 64.", "Article 66 provided that the market value of a plot of land was to be determined in accordance with the Valuation Assessments Act (at the time, Federal Law no. 135-FZ of 29 July 1998). 3. Civil Code of the Russian Federation 1994 65. Article 279, entitled “Compulsory purchases of land for State and municipal needs” provided at the time that land could be expropriated from its owner for State or municipal needs by way of compulsory purchase.", "Depending on the relevant needs, the compulsory purchase would either be carried out by the Russian Federation, a region or a municipality (§ 1). The decision to expropriate would be taken by a federal executive authority or regional executive authorities (§ 2). The exact State or regional authority competent to carry out the expropriation was to be determined by the Land Code (ibid.). 66. Article 281 provided at the time that compensation for land being expropriated for State or municipal needs included the market value of the land and any immovable property located thereon, as well as all losses sustained by the owner as a result of the expropriation.", "4. Decisions taken by Russian commercial courts in expropriation cases 67. In its decision of 14 June 2005 (case no. F03-A04/05-1/846) the Commercial Court of the Dalnevostochniy Circuit found that the municipality had failed to comply with the lower court’s request to provide a copy of the general development plan for the relevant district in relation to the municipality’s decision to expropriate land, purportedly for the goal of constructing a hotel (or shopping mall) on it. Considering that the document was important and referring to Article 83 of the Land Code, the court ordered a retrial.", "68. In its decision of 9 November 2007 (case no. A08-9698/06-13) the Commercial Court of the Tsentralniy Circuit held that Article 49 in conjunction with Article 31 § 2 of the Land Code required that expropriation only be permissible in the absence of alternative options for meeting the public need relating to the construction of State or municipal premises. The commercial court thus rejected the administration’s claim, noting that their decision did indicate the nature of the premises to be located on the expropriated land and whether those premises corresponded to the general development plan. 69.", "On 5 May 2008 (case no. F09-2162/08-S6) the Commercial Court of the Urals Circuit held that under Article 49 of the Land Code, expropriation of land was permitted in exceptional circumstances, in particular for the construction of State or municipal premises in the absence of other options. Under Article 83 § 3, expropriation of land was permitted for municipal construction projects pursuant to general plans. The court noted that the administration wished to construct blocks of flats on the expropriated land, but rejected its claim for failure to substantiate that the construction project did in fact correspond to the municipal need or that the case could be classified as “exceptional” in the absence of alternative means of meeting the public interest. On 1 September 2008 the decision was upheld at final instance by the Supreme Commercial Court of Russia.", "5. Other relevant legislation 70. Section 137 of the RSFSR Housing Code 1983 provided that where “individual housing” was demolished due to expropriation of the land for State or public needs, the owners and members of their families were to be provided with alternative State-owned or social housing. B. Other matters 71.", "No evidence should be given any predetermined weight by a court (Article 67 § 2 of the Code of Civil Procedure (CCP); see also, for instance, Ruling no. 9 of 25 October 1996 by the Plenary Supreme Court of Russia, paragraph 6). 72. Article 79 of the CCP provided that where a case required special knowledge, a court could request an expert report from a specialist institution, a specific expert or a group of experts. Parties to the case could suggest issues to be raised before the expert.", "The court would then approve the final list of issues, providing reasons for rejecting the parties’ suggestions. The parties were entitled to appoint or challenge a specific expert, have access to the expert’s report and apply to the court for another expert assessment. 73. Article 437 of the CCP provided that a judge had discretion to suspend enforcement proceedings against a debtor in a number of circumstances, such as restructuring of a company debtor; participation in active military service (at the debtor’s request); prolonged absence on a service mission; inpatient treatment in hospital; pending proceedings to determine the whereabouts of a debtor, his property or a child; a bailiff’s court action for judicial clarification of the judgment to be enforced; or a pending complaint against a bailiff. THE LAW I. JOINDER OF THE APPLICATIONS 74.", "In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications because they concern the same properties and the same domestic proceedings. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 75. The applicants complained that the expropriation of their properties had been unlawful and disproportionate, particularly on account of the derisory compensation that they had been awarded.", "76. The first applicant also referred to the delay in the payment of the compensation award, demolition of the house prior to such payment and despite the pending supervisory review proceedings, and the alleged loss, damage to or destruction of the first applicant’s belongings. 77. Article 1 of Protocol No. 1 to the Convention 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. The parties’ submissions 1. The Government 78. The Government argued that the courts’ refusal to assist the applicants in obtaining access to the town plan had not upset the principle of equality of arms.", "The town’s chief architect had informed the Town Court that the construction had been in line with the town plan and the construction guidelines for the district, and that the applicants’ land had fallen within the boundaries of the construction guidelines. The court had taken note of the fact that the town’s general plan had been classified as “confidential” as a document of “internal use with limited access”. Furthermore, it had considered that since the construction guidelines had been based on the town plan, there had been sufficient proof that the construction had been in line with it. The applicants could have objected that the available evidence had prevented examination of the case. 79.", "The court had examined the applicants’ argument concerning the alleged absence of “municipal needs” justifying the expropriation, thus by implication also dealing with the question of “exceptional circumstances” that were required for an expropriation. To that end, it had examined the construction guidelines for the district and the investment contract, and had concluded that the municipality would acquire title to 5% of the newly constructed blocks of flats, as well as title to the utilities and amenities. The latter would include a kindergarten for 114 children, an annex building for a school and other smaller premises amounting to 30% of the planned construction cost. That showed that the construction project had been for the good of the local population. 80.", "Article 49 of the Land Code at the time (see paragraph 59 above) did not require the absence of alternative locations for construction as a condition for expropriating land. 81. As regards the legality of the expropriation decisions, the Government argued that Russian law authorised municipal authorities to carry out expropriations. The applicable legislation provided that written notice had to be given of the public authorities’ preliminary decision to expropriate, while the matter of where the intended construction would be located was being decided. The information regarding the construction guidelines for the district had been published in August 2002.", "82. As to the legitimate aims, the Government submitted that the construction project had been aimed at providing the local population with facilities having social and cultural functions, which was an important social consideration affecting interests of a large portion of economic actors. 83. Article 281 of the Civil Code required that expropriation compensation had to correspond to the market value of the property. The Government submitted that the Town Court had been provided with an assessment report issued by a private company estimating the value of the first and second applicants’ property as USD 24,488 and 73,463 respectively.", "In addition, the court had requested an expert report concerning the market value of the properties. The applicants had agreed to such a report being issued by the same private company. The experts had been warned about criminal liability for providing an intentionally false expert assessment (Article 307 of the Criminal Code). The new report had assessed the applicants’ property at USD 28,500 and 85,600 respectively. The applicants had then missed an opportunity to have a further expert assessment, and had failed to adduce evidence to substantiate their argument that their properties should have been valued higher.", "2. The applicants 84. The applicants argued that they had been deprived of their possessions unlawfully and for private interests. Firstly, Russian law at the time had not conferred expropriation powers on municipalities, except where there had been an express delegation of power on the part of a State authority by way of federal or regional statute. No such delegation had been made in their case.", "85. They had been deprived of their possessions for the benefit of a private investor seeking profit from the sale of newly constructed housing. Under the investment contract, the municipality had agreed to acquire title to a mere 5% of the flats. The second applicant also argued that the investment project had not pursued any social purpose (for instance, making available social housing or housing for affordable prices) because in 2006 the municipality had resold to the investor the properties it had acquired under the investment contract. The investor had not built any infrastructure or other facilities which would become municipal property (see paragraph 14 above) and the new housing was sold at market value.", "86. The construction project could have been carried out on various other available plots of land owned by the municipality. 87. Both applicants argued that the market valuation of their properties should have taken into account the prospective substantial increase in the value of the land as the planned location of a new block of flats, given the immediate proximity of the properties to Moscow, the developed and convenient transport links and other infrastructure. 88.", "The second applicant also argued that he had received inadequate compensation for his share in the house, and had had to move into a social housing flat due to its demolition (see paragraph 35 above). B. The Court’s assessment 1. Admissibility (a) Expropriation decision 89. The Court 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. (b) Grievances relating to the enforcement stage of the expropriation proceedings (essentially regarding the first applicant) 90. The applicants complained about enforcement of the judgment of 13 April 2005 prior to actual payment of the expropriation compensation and despite the pending proceedings for supervisory review, and the alleged loss, damage to or destruction of the first applicant’s belongings. 91.", "The Court notes that the judgment of 13 April 2005 became enforceable on 4 July 2005, that the compensation was credited on 26 August 2005 (of which the first applicant became aware on 29 August 2005), and that she did not receive the keys to the flat and the bank certificate until December 2006. Nothing suggests that that delay was attributable to the respondent State. It is further noted that the second applicant made no similar complaint to the Court. 92. As to the applicants’ argument relating to the allegedly precipitate enforcement, the Court notes that Russian law requires that compensation should be “prior” to expropriation (see paragraphs 53 and 60 above).", "Indeed, at least as regards the first applicant, the Court finds it established that the house was demolished on 22 August 2005, several days before she became aware that the compensation had been paid. Nevertheless, in the Court’s view, nothing suggests that the measure was unlawful under national law, and it did not amount to a disproportionate interference under Article 1 of Protocol No. 1 since by 22 August 2005 compensation was secured to the applicant on the basis of the judgment that had become final. 93. It appears that both the eviction and demolition of the house under the judgment of 13 April 2005 were carried out on 22 August 2005 while the first applicant’s request for supervisory review dated 18 August 2005 was pending.", "Recourse to supervisory review did not and could not suspend enforcement in the absence of certain circumstances listed in the Code of Civil Procedure (see paragraph 73 above). 94. The Court has previously considered, in the context of Article 35 § 1 of the Convention, that the supervisory review procedure (as in force prior to 2008) was not a remedy that had to be used. While it was available to the parties within a one-year time-limit, the proceedings, once launched, could last indefinitely at a number of levels of jurisdiction (see paragraphs 38-43 above). In the Court’s view, such a situation created an uncertainty that would render the six-month rule nugatory (see Denisov v. Russia, (dec.), no.", "33408/03, 6 May 2004). However, what matters in the context of the present complaint is that the applicant had the benefit of appeal proceedings against the judgment of 13 April 2005. Following the appeal decision, it became final and enforceable under Russian law. There was no ascertainable date after which it could have been safely concluded that the judgment was no longer amenable to review. Thus, even though it appears that the applicants had in fact lodged an application for review without delay after the appeal decision, there are no convincing circumstances which would have called for a suspension of the enforcement to enable a reviewing court at one or several levels of jurisdiction to have another look at the expropriation case.", "95. Lastly, as regards the loss of or damage to the first applicant’s belongings after the eviction and demolition of the house, the Court notes that the applicant did not substantiate her allegations. 96. Accordingly, the above complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 2.", "Merits (a) Interference and scope of the complaint 97. The applicants complained about the expropriation decisions of 18 March and 19 May 2003 and the judgment of 13 April 2005. 98. It is undisputed by the Government that the matters relating to the expropriation of the applicants’ house and land amounted to an “interference” under Article 1 of Protocol No. 1 to the Convention, that a municipality is part of the “State” within the meaning of the Convention and that, despite the context and requirements of the investment project carried out by a private company, the “interference” in question originated from an expropriation order issued by a municipality (see paragraphs 14 and 20 above).", "99. The Court reiterates that Article 1 of Protocol No. 1 contains three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions and the third rule, stated in the second paragraph, recognises that States are entitled, amongst other things, to control the use of property in accordance with the general interest. These rules are not, however, unconnected: the second and third concern particular instances of interference with the right to the peaceful enjoyment of possessions and are therefore to be construed in the light of the principle laid down in the first rule (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 93, 25 October 2012).", "In the present case, it is not in dispute that there has been a “deprivation of possessions” within the meaning of the second sentence of Article 1 § 1 of Protocol No. 1. 100. The Court must therefore ascertain whether the impugned deprivation was justified under Article 1 of Protocol No. 1 to the Convention.", "To be compatible with that provision an expropriation measure must fulfil three conditions: it must be carried out “subject to the conditions provided for by law”, which excludes any arbitrary action on the part of the national authorities, must be “in the public interest”, and must strike a fair balance between the owner’s rights and the interests of the community. The Court will examine whether each of those three conditions has been fulfilled in the present case. (b) Justification of the deprivation of possessions (i) Subject to the conditions provided for by law 101. The applicants’ principal argument was threefold: (i) the municipality had had no competence under Russian law to issue a decision on expropriation; (ii) expropriation was unlawful in the absence of a properly approved town plan; and (iii) the municipality had failed to comply with the statutory rules requiring them to prove that there were no alternative locations for the construction project and that there were exceptional circumstances justifying the expropriation. 102.", "In accordance with its case-law on the interpretation and application of domestic law, while the Court’s duty under Article 19 of the Convention is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, 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 Scordino v. Italy (no. 1) [GC], no. 36813/97, § 190, ECHR 2006‑V). Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (ibid.). 103.", "The Court observes that the first-instance court in the applicants’ case did examine in a sufficiently thorough manner the undoubtedly crucial argument that the municipality had had no competence to issue a decision on expropriation (see paragraph 35 above). The Court finds no reason to call into question the domestic courts’ interpretation of the relevant provisions, nor does it find any evidence demonstrating that they acted in bad faith or neglected to apply correctly the legislation regarding the competence of municipalities to issue expropriation decisions. No question arises in the present case as to the quality of the legislation in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I).", "The domestic court clarified the apparent contradictions within the Land Code and between that and the Civil Code (see paragraphs 58, 59 and 65 above) by specifying, with reference to Article 3 of the Land Code, that it was lex specialis in matters relating to land (see, in the same vein, the similar position taken by the Supreme Commercial Court and the Constitutional Court in paragraph 63 above). 104. Furthermore, the Court does not see any particular rules of domestic law or judicial practice suggesting that the matter of a properly approved and accessible general plan (or a development plan) or the matter of some compatibility between that plan and an investment project or construction guidelines for the district, for instance, disclosed at the material time such importance as to have had a bearing on an assessment of the lawfulness of an expropriation (see, conversely, paragraph 67 above for a decision taken by a commercial court). In any event, the matter was dealt with by the first‑instance court that provided reasons for dismissing the argument (see paragraph 35 above). It was ascertained, with reference to other evidence, that construction works affecting the applicants’ land were officially being planned.", "The Court has no convincing arguments at its disposal to which could cast doubt on that assessment. 105. As to the requirement under Article 49 of the Land Code concerning the absence of alternative locations, the Court agrees with the respondent Government that a court of general jurisdiction could have legitimately considered in 2005 that expropriation in the context of an investment contract with a private company for the construction of blocks of flats fell under subparagraph 3 of Article 49 § 1 of the Land Code, which did not contain the same requirement as in subparagraph 2 (see paragraph 59 above; see, conversely, paragraph 69 above for a more recent example from a commercial court). 106. As regards the requirement of “exceptional circumstances” under the same provision, the Court was not provided with any material suggesting that it was considered or should have been considered at the time to be an essential element pertaining to the legality of an expropriation (see, mutatis mutandis, albeit in a different context, Frumkin v. Russia, no.", "74568/12, § 150, ECHR 2016 (extracts), and Gusinskiy v. Russia, no. 70276/01, §§ 63‑65, ECHR 2004‑IV). It does not appear that the applicants raised an argument to that effect before the domestic courts. 107. The above considerations of domestic law may be taken into account, in so far as relevant, for the assessment of the legitimate aim pursued and for analysis of the proportionality of the impugned deprivation of possessions under Article 1 of Protocol No.", "1. The Court would also reiterate in this connection that the Contracting States are not prohibited from setting higher standards for protection of the freedoms and rights set forth in the Convention and its Protocols, or for permitting interferences on the part of public authorities with these rights and freedoms. (ii) “In the public interest” requirement and the requirement of “fair balance” between private and public interests (α) General principles 108. As regards the existence of a “public interest”, the Court reiterates that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest” (see Vistiņš and Perepjolkins, cited above, § 106). Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to whether a problem of public concern exists warranting measures of deprivation of property (ibid.).", "109. The Court reiterates that a deprivation of property effected for no other reason than to confer a private benefit on a private party cannot be “in the public interest” (see James and Others v. the United Kingdom, 21 February 1986, § 40, Series A no. 98). Nevertheless, the compulsory transfer of property from one individual to another may, depending upon the circumstances, constitute a legitimate means for promoting the public interest. The Court stated in 1986 in James and Others that even where the texts in force employed expressions like “for the public use”, no common principle could be identified (at the time) in the constitutions, legislation and case-law of the Contracting States that would warrant understanding the notion of public interest as outlawing compulsory transfer between private parties (ibid.).", "The expression “in the public interest” does not mean that the transferred property should be put into use for the general public or that the community generally, or even a substantial proportion of it, should directly benefit from the taking (ibid., §§ 41 and 45, in the context of legislative measures involving the compulsory transfer of property from one individual to another). 110. Indeed, the Court adopted a stringent test regarding challenges concerning a “public interest” in relation to deprivations of property arising from enactment of laws, in particular, in the context of profound societal changes (see James and Others, cited above, § 46; Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 87-88, ECHR 2000‑XII; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005‑VI) or general measures of economic or social strategy, for instance for the protection of the environment or of a country’s historical or cultural heritage (see, as a recent authority, Dubská and Krejzová v. the Czech Republic [GC], nos.", "28859/11 and 28473/12, § 179, 15 November 2016). Finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, the Court stated that it would respect the legislature’s judgment as to what is “in the public interest” unless that judgment was “manifestly without reasonable foundation” (see, among other authorities, Kozacıoğlu v. Turkey [GC], no. 2334/03, § 53, 19 February 2009, and Vistiņš and Perepjolkins, cited above, §§ 106-07). 111. The same test was mentioned by the Court in Tkachevy v. Russia, no.", "35430/05, §§ 37-39 and 50, 14 February 2012 concerning an expropriation order issued by a court, allegedly on safety grounds, for converting a building into non-residential premises while it eventually became a privately-owned set of luxurious residential premises for sale. 112. Also, in Farrugia v. Malta (dec.), no. 67557/10, § 22, 6 March 2012 while noting that the system of expropriation initiated at the request of third parties in Maltese domestic law was novel, the Court did not consider it unreasonable for the authorities to take into account the interests of third parties when adopting such measures. The Court concluded that the construction of a road which would give access to a housing complex, even though private, had been “in the public interest”.", "113. As regards the requirement of a “fair balance”, the relevant general principles were recently summarised in the case of Vistiņš and Perepjolkins (cited above) as follows: “108. Even if it has taken place ‘subject to the conditions provided for by law’ ‑ implying the absence of arbitrariness – and in the public interest, an interference with the right to the peaceful enjoyment of possessions must always strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions ... 109. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question ...", "Nevertheless, the Court cannot abdicate its power of review and must therefore determine whether the requisite balance was maintained in a manner consonant with the applicants’ right to the peaceful enjoyment of their possessions, within the meaning of the first sentence of Article 1 of Protocol No. 1 ... 110. Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. The Court has already held that the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference. In many cases of lawful expropriation, such as a distinct taking of land for road construction or other ‘public interest’ purposes, only full compensation may be regarded as reasonably related to the value of the property ... [T]he Court cannot equate a lawful expropriation, complying with domestic law requirements, with a constructive expropriation that seeks to confirm a factual situation arising from unlawful acts committed by the authorities ... 111.", "Moreover, the Court reiterates that, where an individual’s property has been expropriated, there should be a procedure ensuring an overall assessment of the consequences of the expropriation, including the award of an amount of compensation in line with the value of the expropriated property, the determination of the persons entitled to compensation and the settlement of any other issues relating to the expropriation ... As to the amount of the compensation, it must normally be calculated based on the value of the property at the date on which ownership thereof was lost. Any other approach could open the door to a degree of uncertainty or even arbitrariness ...” (β) Application of the principles in the present case 114. The Court considers that the matters relating to the “public interest” and the proportionality assessment in the present case are closely intertwined. Thus, it will examine them together. 115.", "The applicants’ central argument was that the expropriation had not pursued a genuine and compelling public interest. They argued, in substance, that the private investor had been its only actual beneficiary, and that the expropriation procedure had been used as a legal means of conferring a disproportionate benefit. The Government submitted that the expropriation was aimed at providing the town population with facilities having social and cultural functions, which was “an important social consideration affecting interests of a large portion of economic actors”. 116. The Court notes that the matter of effective protection of private property underlying complaints under Article 1 of Protocol No.", "1 to the Convention is not necessarily confined to the question of compensation, which is indeed material to the assessment of expropriation under Article 1 of Protocol No. 1 both in related domestic proceedings and before the Court (see Vistiņš and Perepjolkins, cited above, § 110). Nor should the above – undeniably stringent – criteria relating to the “public interest” (see paragraphs 109-110 above) be taken as a carte blanche for recourse to expropriation measures, irrespective of their contexts. 117. In the Court’s view, beyond the evident pecuniary element, expropriations relating to one’s housing (dwellings) for the sake of fostering pecuniary interests of a group of investors or beneficiaries may have serious repercussions on the private owners whose property is being expropriated.", "118. Turning to the present case, the Court notes that it concerns individual administrative decisions issued by a municipality rather than enactment and application of laws expropriating property with regard to special considerations of political, economic and social policies or contexts that could be present, for instance, in the cases cited in paragraph 110 above. The Court also observes that, even though it was related to a larger town planning scheme (see paragraph 18 above) it cannot be said that the expropriation of the applicants’ land sought to address any important general problem. The relevant administrative decision referred to the aims of “improving the architectural appearance of the town and the resettlement of inhabitants from housing that no longer [met] sanitary requirements”. There is nothing to suggest that the applicants’ house was dilapidated so as to become unsuitable for living in it, in which case it might be subject to the demolition procedure for decrepit housing instead of the expropriation procedure used in this case (see paragraph 19 above).", "At least one of the available valuations clearly stated that the house was habitable, although it required some superficial repairs (see paragraph 27 above). As to the aesthetic element of the town planning scheme in question, there is nothing in the available material or the Government’s submissions to substantiate the preference in favour of replacing individual residential houses with blocks of flats or to address the precedence of this consideration over the legitimate interests that the owners’ of these houses had. 119. The Government argued before the Court that the municipality needed the expropriated land for a specific construction project. This project concerns construction of housing, namely blocks of flats with the effect of creating new stock at the market of housing.", "120. It is true that from a formal point of view, recourse to the expropriation procedure was linked to the municipal policies, which might be interpreted as aiming at improving the town’s appearance as well as at renewing and expanding residential housing opportunities (see paragraphs 11 and 18 above). However, having examined the requirements of the investment contract and the other pertinent factors, the Court is not satisfied that it was convincingly shown by the domestic administrative and judicial authorities that the reasons for using the expropriation procedure had a proper reasonable basis and were compelling (compare Tkachevy, cited above, § 50). 121. It has not been substantiated that the choice of land for the impugned construction project was discussed in an adequate manner with the local population, including the applicants, as required by Russian law (see paragraphs 12, 25, 55 and 56 above) or that various alternative locations were considered or that it was concluded that no such alternatives were available (see paragraphs 13 and 25 above).", "The material before the Court does not clearly establish any particular problem relating to the shortage of housing in the relevant geographic area. The Court also considers that the allegedly compelling nature of the public interest was, at the very least, undermined by the remaining doubts relating to the adoption of the main document concerning the town planning, as confirmed by the Moscow Region Prosecutor’s Office (see paragraph 33 above). It is also noted that the municipality received title to 5% of the newly built housing space. The respondent Government have not substantiated the submission that it was classified as social housing. 122.", "In order to assess the conformity of the State’s conduct with the requirements of Article 1 of Protocol No. 1, the Court must conduct an overall examination of the various interests in issue, having regard to the fact that the Convention is intended to guarantee rights that are “practical and effective”, not theoretical or illusory. It must go beneath appearances and look into the reality of the situation at issue, taking account of all the relevant circumstances, including the conduct of the parties to the proceedings, the means employed by the State and the implementation of those means (see Vistiņš and Perepjolkins, cited above, § 114). 123. While bearing in mind the State’s wide margin of appreciation in the context of expropriation, the Court retains doubts as to whether in the particular circumstances of the present case the deprivation of possessions for the sake of collective housing construction sought to achieve a compelling public interest.", "124. In any event, the Court has taken note of the Government’s arguments relating to the compensation matter, namely that the applicants dismissed more advantageous offers from the investor and did not apply to the court to exercise its discretion to order another expert assessment, if they were dissatisfied with the methodology and/or conclusions of the expert report issued in February 2005. 125. Undoubtedly, it was the applicants’ choice not to accept the offers made at the preliminary non-judicial stage of the proceedings. However, such conduct does not amount to a “waiver” of their entitlement to adequate compensation neither in terms of domestic law nor under Article 1 of Protocol No.", "1 to the Convention. The expropriation procedure under Russian law provided that where parties failed to reach an agreement on the compulsory purchase price, the matter would be determined by the courts. It thus remained incumbent on the courts to determine the compensation that would be up to the actual market value of the properties. 126. The available material before the Court does not disclose that the applicants properly voiced any objections or counterarguments regarding the expert report in the course of the proceedings before the first-instance court.", "The Court accepts that by not using the opportunity of seeking another expert valuation, the applicants placed themselves in a disadvantageous position. However, it observes that Russian law did not prevent them from disputing the expert report by other means, which were not limited to another expert assessment (compare Vrzić v. Croatia, no. 43777/13, §§ 113‑14, 12 July 2016). The applicants did make submissions in their statement of appeal and some calculations and related explanations, contesting the expert report and putting forward a different valuation of the property (see paragraph 36 above). In particular, the first applicant argued that the expert should have used the “method of prospective use” for determining the value of the house and land.", "Furthermore, she argued that the expert valuation was based on the premise that the land’s use was for a summer cottage use rather than for the use relating to multi-storey blocks of flat; this premise was inappropriate, given that the property was already surrounded by similar blocks of flats. Those submissions do not appear to be devoid of substance or substantiation. It was thus incumbent on the domestic court to assess the counterarguments and provide reasons for dismissing them in so far they were directly related to the subject matter of the case, namely the market value of the properties to be expropriated. 127. The Court is not satisfied that the judicial valuation of the land took due account of the elements mentioned above.", "128. The above considerations have led the Court to conclude that there has therefore been a violation of Article 1 of Protocol No.1 to the Convention in the present case. III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 129. The applicants complained that the expropriation proceedings had been unfair in that (i) they could not obtain access to an essential piece of evidence, the general plan; and (ii) the courts had not provided sufficient reasons in relation to the key aspects of the case.", "130. The first applicant also complained of a violation of Article 6 of the Convention on account of the delay in paying her the compensation awarded under the judgment of 13 April 2005, and uncertainty concerning any procedural or substantive decisions regarding the proceedings she had initiated against the bailiff service in August 2005. 131. Article 6 of the Convention reads as follows: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time ...” A.", "The parties’ submissions 1. The Government 132. The Government submitted that the trial court had undertaken to ascertain that the planned construction works had been in line with the town plan, by referring to the district guidelines (based on it) and the statement from the town’s chief architect. The applicants had thus not been placed at a disadvantage because the plan had not been examined by the trial court. The Government further submitted that the courts had specifically addressed the matter, as well as the issues relating to the municipality’s competence to order expropriation or the actual legitimate aims pursued by it.", "133. The Government submitted that on 26 August 2005 the compensation had been credited into a bank account opened for the applicant and that she had been informed accordingly, without delay. However, she had not received the relevant bank certificate (providing access to the bank account) until December 2006. 134. As regards the length of the proceedings against the bailiffs, the Government submitted that the applicant had sued the bailiff service in August 2005, her claim concerning the unlawfulness of the bailiff’s actions being determined in the judgment of 5 September 2007.", "As to her pecuniary claim arising from such a finding of unlawfulness, she had (re)submitted it in February 2007 as a separate action. The length of the proceedings between 2005 and 2007 had been justified. In any event, the applicant could have sued the State under the 2010 Compensation Act. 2. The applicants 135.", "The applicants maintained their complaints. B. The Court’s assessment 136. First of all, having regard to the facts of the case, the submissions of the parties and the scope of the Court’s findings under Article 1 of Protocol No. 1 to the Convention concerning the expropriation decision, it is not necessary to give a separate ruling on the admissibility and merits of the complaints relating to issues of fairness in the expropriation proceedings (see, for the approach, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.", "47848/08, § 156, ECHR 2014). 137. As to the enforcement of the judgment of 13 April 2005, the Court observes that the expropriation compensation, the decision for which became enforceable on 4 July 2005, was credited into the relevant bank account on 26 August 2005, and that the first applicant was made aware of its availability soon thereafter. The first applicant was therefore afforded an effective and timely opportunity to use the money. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "138. Furthermore, as has become clear from the Government’s submissions in relation to the first applicant’s case against the bailiffs, on several occasions in 2005 and 2006 she lodged claims which were not accepted for various reasons. Even assessing all those failed attempts cumulatively (which would amount to no less than two years, while deducting some periods of inactivity by the applicant between various attempted actions), the Court considers that the “reasonable time” requirement was respected. The main thrust of the applicant’s complaint being that there was no judicial decision regarding her claim, the Court observes that the decisions were taken in 2007 and the applicant was eventually made aware of them. She did not raise any particular complaint regarding issues adversely affecting her access to a court in relation to her claims against the bailiff service.", "Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (AS REGARDS THE FIRST APPLICANT) 139. Repeating her arguments under Article 1 of Protocol No. 1 to the Convention, the first applicant complained that her eviction from her house had disclosed a violation of 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 parties’ submissions 140. The Government may be understood to be submitting that the applicant had not lived in the house at all or for some time, despite formally having the house as her registered address since 2001.", "The part owned by the applicant (some 20 sq. m of which 12 sq. m was living space) had been disconnected from water, gas and electricity in 2003. Since 2001 her actual permanent residence had been in Moscow at the address she had indicated in her application form to the Court. In any event, she had received adequate compensation for her property and had been given a social tenancy contract for a flat measuring 30 sq.", "m (with 18 sq. m of living space). She had previously dismissed several, arguably more attractive, resettlement offers. Aspects relating to her emotional attachment to the house and amenities and her comfort there had meant to have been taken into consideration in the expropriation compensation. She had not raised that aspect before the courts in the expropriation case or in separate proceedings.", "141. The applicant argued in substance that the expropriation decision had interfered with her private and family life, in that it had adversely affected her comfort and, in a way, her quality of life. She and her husband had enjoyed living in the house since 1969, where she had had a garden, and had made many technical improvements (gas, electricity, water and sewage installations). B. The Court’s assessment 142.", "It appears that the applicant’s concerns expressed under this heading were, in substance and at least in part, taken into account in the expert assessment and the compensation awarded by the court in its judgment of 13 April 2005 and its decision requiring the municipality to provide the applicant with social housing, comparable to what she had been able to enjoy in the house as owner. The applicant did not claim in any proceedings, and has not argued before the Court, that it was legally impossible for her to seek additional compensation on account of non-pecuniary damage in respect of the considerations she had raised before the Court under Article 8 of the Convention, if she thought that any such compensation was necessary. However, the Court does not need to examine any further these and other matters relating to Article 8 of the Convention, in particular whether at the material time the house was the applicant’s “home” within the meaning of this Article or whether the applicant’s “private life” was adversely affected on account of the expropriation decision. 143. Having regard to the facts of the case, the submissions of the parties and the scope of the Court’s findings under Article 1 of Protocol No.", "1 to the Convention concerning the expropriation decision, it is not necessary to give a separate ruling on the admissibility and merits of the complaint raised under Article 8 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 156; see also Kirillova v. Russia, no. 50775/13, § 44, 13 September 2016). V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 144. The Court has examined the remaining issues as submitted by the applicants. 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. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 145. 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 146.", "The first applicant claimed 314,677 euros (EUR) in respect of pecuniary damage as “a fair market price for her private property in 2005”; increased by EUR 286,606 to account for inflation between 22 August 2005 and end of 2009, and EUR 60,000 in respect of non-pecuniary damage. 147. The second applicant claimed EUR 2,569,896 and EUR 50,000 for pecuniary and non-pecuniary damage respectively. 148. The Government considered the non-pecuniary claim excessive.", "The Government also contested the pecuniary claim, reiterating in substance their arguments relating to the merits of the complaint under Article 1 of Protocol No.1. 149. As regards the claim in respect of non-pecuniary damage, the Court accepts that the applicants sustained a degree of non-pecuniary damage on account of the violation found, such that an award on that basis may be regarded as justified (see Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, § 47, ECHR 2014). Ruling on an equitable basis, the Court awards each applicant EUR 3,000, plus any tax that may be chargeable on this amount.", "150. As to the alleged pecuniary damage, the Court considers that the question of just satisfaction in this part is not yet ready for decision. It should therefore be reserved to enable the parties to reach an agreement (Rule 75 §§ 1 and 4 of the Rules of Court). B. Costs and expenses 151.", "The first applicant claimed EUR 170 for postal and various expenses incurred at the national level and before the Court. The Government contested this claim as substantiated in part. 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 awards EUR 100 to the first applicant, plus any tax that may be chargeable. 152.", "The second applicant made no claim for costs and expenses, therefore the Court makes no award. C. Default interest 153. 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 admissible the complaint under Article 1 of Protocol No. 1 to the Convention concerning the expropriation decision; 3. Decides that it is not necessary to examine separately the admissibility and merits of the complaints under Articles 6 and 8 of the Convention concerning the expropriation decision; 4. Declares the remainder of each application inadmissible; 5. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention as regards the expropriation decision; 6. 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, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) to the first applicant: EUR 3,000 (three thousand euros), plus any tax that may be chargeable on this amount, in respect of non-pecuniary damage; EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (ii) to the second applicant: EUR 3,000 (three thousand euros), plus any tax that may be chargeable on this amount, 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; 7. Holds that, as regards pecuniary damage resulting from the violation found, the question of just satisfaction is not ready for decision and accordingly: (a) reserves this question; (b) invites the Government and the applicants to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix it if need be; 8. Dismisses the remainder of the applicants’ claim for just satisfaction on account of non-pecuniary damage and costs and expenses. Done in English, and notified in writing on 28 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsHelena JäderblomRegistrarPresident" ]

[ "FIFTH SECTION CASE OF RADCHIKOV v. RUSSIA (Application no. 65582/01) JUDGMENT STRASBOURG 24 May 2007 FINAL 12/11/2007 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 Radchikov v. Russia, 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,MrA. Kovler,MrM.", "Villiger, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 4 October 2005 and on 2 May 2007, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 65582/01) 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 Valeriy Grigoriyevich Radchikov, on 23 January 2001. The applicant died on 31 January 2001 and his daughters, Mrs Natalia Blinova and Mrs Maria Radchikova, have decided to pursue the application. The applicant was represented before the Court by Mrs. K. Moskalenko and Mrs G. Orozaliyeva, lawyers practising in Moscow.", "2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that the quashing of his acquittal was contrary to Article 6 of the Convention and Article 4 of Protocol No. 7.", "4. By a decision of 4 October 2005, the Court declared the application partly admissible. 5. The Government, but not the applicant's representatives, filed further written observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1956 and lived in Moscow. A. The background of the case 7.", "The applicant engaged in commerce and at some point in the early 1990s became the president of the Russian Afghan War Veterans Fund. 8. In April 1997 the authorities brought criminal proceedings against the applicant and a few other persons on suspicion of several crimes, including masterminding the murder of the applicant's business rivals. B. First-instance judgment 9. On 21 January 2000 the Military Court of the Moscow District (Московский окружной военный суд), sitting as a bench composed of one professional judge and two lay assessors, examined the case presented by the prosecution and acquitted the applicant and his co-accused on all charges for lack of evidence of his involvement in the alleged crimes (за недоказанностью участия в совершении преступлений).", "C. Appeal proceedings 10. On 26 January 2000 the prosecution lodged an appeal against the judgment of 21 January 2000, arguing that the first-instance court had wrongly assessed the evidence in the case and “failed to adopt measures aimed at achieving a comprehensive, full and objective investigation of all the circumstances of the case, to eliminate the inconsistencies in the prosecution case file and to have regard to all possible versions of events, but had pinpointed nonexistent inconsistencies for which the investigative authority allegedly failed to account”. 11. The prosecution suggested that the first instance court ought to have eliminated the inconsistencies in the prosecution case file of its own motion and requested the appeal court to remit the case for re-trial. 12.", "On an unspecified date the parties, including the applicant and alleged victims, filed their own arguments. 13. By decision of 25 July 2000 the Military Division of the Supreme Court of Russia (Военная коллегия Верховного Суда Российской Федерации), sitting as a bench of three professional judges, examined and rejected the arguments of the prosecution and the alleged victims and upheld the judgment of 21 January 2000 in full. The court noted that: “... Despite the arguments in the prosecution's appeal about the incomplete and one‑sided nature of examination of the case by the court, the judicial investigation was sufficiently thorough and comprehensive.", "All pieces of evidence presented by the prosecution and the defence were examined at the court hearing. The court ruled on all applications by the parties concerning the examination of the evidence, took all necessary measures to remedy the shortcomings of the investigation and eliminate the inconsistencies in the oral statements of the questioned persons, and as regards the questions requiring specialist knowledge decided to carry out and then carried out appropriate expert examinations. At the same time, having evaluated the evidence examined in its entirety, the court came to a reasoned conclusion that the evidence was insufficient to convict and that every means of collecting evidence in the court proceedings had been exhausted. In fact, this was confirmed by the prosecutor (государственный обвинитель), who did not make any application for a fresh investigation in court (судебное следствие) with a view to eliminating of the existing or newly discovered inconsistencies, and the prosecutor who took part in the appeal hearing ... The constitutional principle of adversarial proceedings and equality of arms in the administration of justice presupposes the separation of the function of consideration of cases from the functions of the prosecution and the defence submitting argument before the court.", "Thus, the task of prosecution before the court pertains to the prosecution bodies, whilst the court has an obligation to formulate conclusions about the established facts, regard being had to the evidence examined in the court hearing, to evaluate objectively the lawfulness and validity of the charges, to decide on the issue of acquittal or conviction, have due regard to the evidence collected by the investigation bodies and the arguments of the defence, thus securing the just and impartial resolution of the case and granting the parties equal opportunities to defend their positions. Hence, the court is empowered to determine the guilt of a person only on condition that it has been proven by the prosecuting bodies and officials. The lower court in the present case has fully complied with this requirement of the Constitution of the RF ... Having considered the evidence of guilt and innocence presented in court by the parties, the court came to the conclusion that it was insufficient to convict and that [the court] has exhausted all statutory means of collecting additional evidence, which is why it took a well-grounded decision to acquit [the applicant and two co-accused] for lack of evidence of their involvement in the criminal actions in respect of which they had been accused by the investigative bodies, having interpreted, in accordance with the requirements of the legislation and the Constitution of the RF, all doubts about the guilt in their favour.” D. Supervisory review proceedings 14. On 25 August 2000 the Deputy Prosecutor General applied for supervisory review of the judgments in the case, arguing that the lower courts ought to have reacted to the breaches of the domestic law and various deficiencies in the prosecution case file by remitting the case for an additional investigation instead of acquitting the accused. He referred to, among other things, paragraph 2 of Article 232(1) of the RSFSR Code of Criminal Procedure in this connection.", "15. On 13 December 2000, the Presidium of the Supreme Court, sitting as a bench of nine professional judges, heard the parties, including the applicant and his counsel, and accepted the prosecution's arguments. 16. The court stated that: “... the Presidium finds that the prosecution appeal is well-founded and that it should be granted, as the preliminary investigation and the trial, despite the requirements of Article 20 of the RSFSR Code of Criminal Procedure, were conducted in an incomplete and one-sided manner, without proper inquiry into incriminating and exculpatory circumstances. ...” 17.", "The court pointed out several breaches of the domestic procedure by the investigating authorities and various inconsistencies in the prosecution case file and gave a number of detailed instructions as to how these deficiencies should be eliminated. The court quashed the judgment of 21 January 2000 and the appeal decision of 25 July 2000 and remitted the case for a fresh investigation E. Subsequent developments 18. On 31 January 2001 the applicant died in a car accident. 19. On 2 April 2001 the prosecution discontinued the case in respect of the applicant on account of his death, and pursued the investigation against S., one of the persons who had stood trial and been acquitted together with the applicant.", "20. On 28 May 2003 co-accused S. was found guilty and sentenced to fourteen years' imprisonment. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Applicable legislation 21. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as in force at the material time, allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure.", "The supervisory review procedure (Articles 371-83 of the Code) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 384-90). However, similar rules apply to both procedures (Article 388). 1. Date on which a judgment becomes effective 22. Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or, if no appeal has been lodged, once the time‑limit for appeal has expired.", "2. Grounds for supervisory review and reopening of a case Article 379Grounds for setting aside judgments which have become effective “The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not taken effect) on appeal] ...” Article 342Grounds for quashing or varying judgments [on appeal] “The grounds for quashing or varying a judgment on appeal are as follows: (i) prejudicial or incomplete investigation or pre-trial or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) a grave violation of procedural law; (iv) misapplication of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person's personality.” Article 384Grounds for reopening cases due to new circumstances “Judgments, decisions and rulings which have become effective may be set aside on account of newly discovered circumstances. The grounds for reopening a criminal case are as follows: (i) with regard to a judgment which has become effective, the establishment of false witness testimony or false expert opinion; forgery of evidence, investigation records, court records or other documents; or an indisputably erroneous translation which has entailed the pronouncement of an unfounded or unlawful judgment; (ii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by judges when examining the case; (iii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by investigation officers dealing with the case, where this has entailed the pronouncement of an unfounded or unlawful judgment or a decision to terminate the prosecution; (iv) other circumstances, unknown to the court at the time when the case was examined, which, alone or combined with other previously established facts, prove a convicted person's innocence or the commission by him or her of an offence which is more or less serious than that of which he or she was convicted, or which prove the guilt of a person who was acquitted or whose prosecution was terminated.” By ruling no. 4-P of 2 February 1996 the Constitutional Court of the Russian Federation considered the fact that the applicable provisions of the Code of Criminal Procedure did not provide for the supervisory review of decisions of the Presidium of the Supreme Court and ruled that Article 384 of the Code, which limited the possibilities of contesting the merits of such decisions in the light of newly established facts to “other circumstances, unknown to the court at the time when the case was examined” was too restrictive since it prevented the correction of judicial mistakes breaching personal rights and freedoms. It therefore quashed part (iv) of paragraph 2 of that Article as unconstitutional.", "3. Authorised officials 23. Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor-General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of those officials for a review. 4.", "Limitation period 24. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal could be brought by an authorised official. The period ran from the date on which the acquittal took effect. 5. The effect of a supervisory review on acquittals 25.", "Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review. 26. The Presidium could dismiss or grant the request. If it dismissed the request, the earlier judgment remained in force.", "If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, to order a fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to vary or uphold any of the earlier judgments. 27. Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant's advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for a new examination. 28.", "On 17 July 2002 the Constitutional Court of the Russian Federation examined the challenge to the laws which allowed supervisory review of a final acquittal. In its ruling no. 13-P of the same date, the Constitutional Court declared incompatible with the Constitution the legislative provisions permitting the re-examination and quashing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing or on the ground of inaccurate assessment of the facts of the case, save in cases where new evidence had emerged or there had been a fundamental defect in the previous proceedings. 29. The Constitutional Court's ruling stated, in particular: “...", "Article 4 of Protocol No. 7 to the Convention provides that the right not to be tried or punished twice does not prevent the reopening of the case in accordance with the law and criminal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. It follows ... that, subject to the above requirements, the national legislation may provide for a system by which a case may be reopened and a final judgment quashed, and may specify where, depending on the case, a procedure for reopening on the grounds of new or newly discovered evidence or a supervisory review should apply. Any exemption from the general prohibition on reopening proceedings to the detriment of the acquitted or convicted person may be justified only in exceptional circumstances, where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act and would upset the required balance between the constitutionally protected values involved, including the rights and legitimate interests of convicted persons and those of the victims of crime. In the absence of any possibility of reversing a final judgment resulting from proceedings tainted by a fundamental defect that was crucial for the outcome of the case, an erroneous judgment of this type would continue to have effect notwithstanding the principle of general fairness ... and the principle of judicial protection of fundamental rights and freedoms.", "3.2. Under the [Constitution and the Convention] any possibility provided for at national level of quashing a final judgment and reviewing a criminal case must be subject to strict conditions and criteria clearly defining the grounds for such review, given that the judgment concerned is already binding and determinative of the individual's guilt and sentence. However, the grounds for review of final judgments provided for in the Code of Criminal Procedure [of 1960] go beyond these limits. When establishing a procedure for the review of final convictions and, especially, acquittals ... definite grounds should have been formulated to ensure that such a procedure would be implemented with sufficient distinctness, precision and clarity to exclude its arbitrary application by the courts. In failing to do so, [the legislature] misapplied the criteria which derive from [the Constitution] and Article 4 of Protocol No.", "7 to the Convention for the quashing of final judgments in criminal cases ... Furthermore, [the power] of a supervisory instance to remit a case for fresh investigation where it concludes, through its own assessment of evidence, that the previous investigation has been prejudicial or incomplete, is incompatible with the constitutional principles of criminal procedure and with the Constitutional Court's jurisprudence, in that it gives the prosecution an unfair advantage by providing it with additional opportunities to establish guilt even after the relevant judgment has become operative. It follows that a court of supervisory instance cannot quash a final acquittal only on the ground of its being unfounded ... Accordingly, the prosecutor is not entitled to request the supervisory review of such a judgment on the ground that it is unfounded ...” 6. The provisions of the new Code of Criminal Procedure in respect of supervisory review proceedings 30.", "On 1 July 2002 the new Code of Criminal Procedure came into force. Under Article 405 of the Code, the application of supervisory review was limited to those cases where it did not involve changes that would be detrimental to the convicted person. Acquittals and decisions to discontinue the proceedings cannot be the subject of a supervisory review. 31. By ruling no.", "5-P of 11 May 2005 the Constitutional Court of the Russian Federation quashed Article 405 of the Code in so far as this provision limited the judicial review of decisions, including judgments which became effective, to those cases where it did not involve changes that would be detrimental to the convicted person and thus excluded the possibility of correcting fundamental defects in the previous proceedings, which could affect the outcome of the case. The court declared that the provision was in breach of both the Constitution of the Russian Federation, Article 6 of the Convention and Article 4 of Protocol No. 7, and struck it down. It further ruled that, pending the introduction of amendments in the relevant legislation, the supervisory review of court decisions, including judgments which had become effective, was not limited to cases which did not involve changes that would be detrimental to the convicted person. The time-limit for an application for supervisory review was set at one year.", "7. The remittal of cases for an additional investigation under the old and new Code of Criminal Procedure 32. The old Code of Criminal Procedure empowered the courts of various levels to remit criminal cases for an additional investigation at any stage of court proceedings, including first instance (Articles 221 and 232), appeal (Article 339) and supervisory review (Articles 378 and 380). 33. Article 232(1) of the 1960 Code of Criminal Procedure listed the situations in which the trial court should remit the case to the investigative authorities for an additional investigation.", "In particular, the court should do so in cases of incompleteness of the investigation which could not be remedied in court (paragraph 1); serious violations of the statutory criminal procedure by the investigative authorities (paragraph 2); the existence of grounds for indicting the accused on a new charge which is different but related to the existing charge, or for replacing the charge with more serious or factually different charges from the ones indicated in the bill of indictment (paragraph 3); the existence of grounds for bringing criminal proceedings in the case in respect of persons other than the accused if it is impossible to sever the case (paragraph 4); an erroneous decision to join or sever cases (paragraph 5). When remitting the case for an additional investigation, the court should indicate the grounds for its decision and list the circumstances which ought to be clarified by the investigative authorities during the fresh proceedings. 34. By ruling no. 7-P of 20 April 1999 the Constitutional Court of the Russian Federation quashed paragraphs 1 and 3 of Article 232(1) as unconstitutional in that they breached the principle of the separation of powers and were incompatible with the role of the court as an administrator of justice.", "35. By ruling no. 1-P of 14 January 2000 the Constitutional Court had regard to similar considerations and also quashed paragraph 4 as unconstitutional. 36. Article 20 of the Code provided that a court, a prosecutor and investigative officials were under an obligation to undertake all measures provided for by law to ensure a comprehensive, complete and objective investigation of the circumstances of the case and establish both the circumstances incriminating and exculpating the accused and mitigating and aggravating circumstances.", "37. Under the new Code of Criminal Procedure, the appeal (Article 378 of the Code) and supervisory review courts (Article 410) have the power to remit the case to the lower instance courts for a fresh examination but no power to remit the case to the prosecutor for an additional investigation. B. Relevant materials 38. On 19 January 2000, at the 694th meeting of the Ministers' Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No.", "R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. The recommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there existed adequate possibilities to re-examine the case, including the reopening of proceedings, in instances where the Court had found a violation of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 39. The applicant complained under Article 6 § 1 of the Convention that the supervisory review court had quashed his acquittal.", "This provision, in so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. The parties' submissions 40. The Government submitted, first, that the supervisory review of the applicant's acquittal had been lawful because the domestic procedure had been respected. Secondly, they argued that the supervisory review in the case had been justified by the need to correct the apparent judicial error and therefore had not breached the applicant's Article 6 rights. Thirdly, according to the Government, a supervisory review did not prejudge subsequent judgments by merely remitting the case for a further investigation.", "Fourthly, the Government referred to the Court's ruling in the case of Nikitin v. Russia (no. 50178/99, ECHR 2004‑VIII) that the principle of legal certainty was not absolute and argued that the reopening of the case at issue was justified by the need to correct a “fundamental defect in the previous proceedings which might affect the outcome of the case” within the meaning of Article 4 of Protocol No. 7. 41. The applicant's lawyers argued that the applicant's acquittal had not been quashed because of a fundamental defect in the proceedings or because of new facts.", "In their view, the decision to quash had been unlawful even under the domestic law because the Constitutional Court permitted it only if there was a fundamental defect in the proceedings or new facts had come to light. According to the applicant's lawyers, the supervisory review body had failed to address this point. In response to the Government's reference to Nikitin, cited above, the applicant's counsel described it as erroneous because the present case was factually different. Lastly, they compared the present case to Ryabykh v. Russia (no. 52854/99, ECHR 2003‑IX), where the Court had found a violation of Article 6.", "Overall, they concluded that the supervisory review of the applicant's acquittal had been in breach of that Convention provision. B. The Court's assessment 1. General principles 42. The Court reiterates the importance of one of the fundamental aspects of the rule of law, namely, 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, as leading authorities, Brumărescu v. Romania [GC], no.", "28342/95, § 61, ECHR 1999‑VII, and Ryabykh, cited above, § 51). In the specific context of supervisory review in criminal cases, the Court has previously held that this requirement is not absolute and that any decision deviating from the principle must be assessed in the light of Article 4 § 2 of Protocol No. 7, which expressly permits a State to reopen a case due to the emergence of new facts, or where a fundamental defect is detected in the previous proceedings which was capable of affecting the outcome of the case (see, for example, Nikitin, cited above, §§ 54-57, and Savinskiy v. Ukraine, no. 6965/02, § 23, 28 February 2006). 43.", "Thus, the mere possibility of reopening a final judgment in a criminal case is not as such incompatible with Article 6 of the Convention, provided that the actual manner in which the reopening took place did not impair the very essence of the applicant's right to a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct a supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of criminal justice. In other words, a review of a final and binding judgment should not be granted merely for the purpose of obtaining a rehearing and a fresh determination of the case, but rather to correct judicial errors and miscarriages of justice. 44. The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant's individual situation and whether the reopening resulted from the applicant's own request; the grounds on which the domestic authorities revoked the finality of the judgment in the applicant's case; the compliance of the procedure at issue with the requirements of the domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure by the domestic authorities; and other pertinent circumstances of the case (see Nikitin, cited above, § 60; Bratyakin v. Russia (dec.), no.", "72776/01, 9 March 2006; Fadin v. Russia, no. 58079/00, § 34, 27 July 2006; and Savinskiy, cited above, §§ 24-26). Furthermore, proceedings before the supervisory review court should afford all the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the entire proceedings (see Vanyan v. Russia, no. 53203/99, §§ 63-68, 15 December 2005). 2.", "Application of the above principles to the instant case 45. The Court observes, and it seems undisputed between the parties, that in the present case a final judgment acquitting the applicant on all charges was re-examined and quashed by way of supervisory review at the prosecution's request (see, by contrast, Fadin, cited above, § 34). Having reviewed the case, the supervisory court did not simply order the resumption of the judicial proceedings, but remitted the case to the investigative authorities for an additional investigation. Even despite the applicant's death after the supervisory review proceedings, there is no doubt that this decision adversely affected the applicant's individual situation (see, by contrast, Nikitin, cited above, §§ 18 and 60). The issue arises as to whether on the facts of the case, and regard being had to the supervisory review proceedings and subsequent events, the authorities struck, to the maximum extent possible, a fair balance between the interests of the applicant and the need to ensure the effectiveness of the system of criminal justice and thus complied with Article 6.", "46. Having examined the case file and the parties' submissions, the Court is not persuaded that the authorities respected this requirement in the present case. Whilst the Court accepts that the supervisory review procedure was conducted in compliance with the requirements of the domestic law and procedure, that there existed a one-year time-limit for bringing supervisory review proceedings against the applicant's acquittal which was indeed complied with and that the applicant and his counsel were present at the supervisory review hearing and had ample opportunities to state their case (see, by contrast, Vanyan, cited above, §§ 63-68), these factors taken alone are relevant but not sufficient to justify the quashing of the final acquittal in the applicant's case. 47. At the outset the Court finds it difficult to accept the Government's argument that the supervisory review was aimed at the correction of “fundamental defects in the previous proceedings which might affect the outcome of the case” within the meaning of Article 4 of Protocol No.", "7. In this respect the Court notes that the reviewing court stated as follows: “... the Presidium finds that the prosecution appeal is well-founded and that it should be granted, as the preliminary investigation and the trial, despite the requirements of Article 20 of the RSFSR Code of Criminal Procedure, were conducted in an incomplete and one-sided manner, without proper inquiry into incriminating and exculpatory circumstances. ...” 48. In the Court's view, the mere consideration that the investigation in the applicant's case was “incomplete and one-sided” or led to an “erroneous” acquittal cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice (such as in the above-cited Bratyakin case), indicate the presence of a fundamental defect in the previous proceedings. Otherwise, the burden of the consequences of the investigative authorities' lack of diligence during the pre-trial investigation would be shifted entirely onto the applicant and, more importantly, the mere allegation of a shortcoming or failure in the investigation, however minor and insignificant it might be, would create an unrestrained possibility for the prosecution to abuse process by requesting the reopening of finalised proceedings.", "The fear of an abuse of process is even more serious in situations where, such as in the case at issue, the prosecution authorities, having been fully aware of the alleged deficiencies in the investigation (see paragraphs 10 and 11 above) and free to request the first-instance and appeal courts to remit the case for an additional investigation at earlier stages of proceedings prior to the adoption of a final judgment in the case (see paragraphs 32 and 33 above), choose not to avail themselves of this opportunity and have recourse to an extraordinary remedy instead. 49. The Court further notes that the grounds for supervisory review were identical to the grounds for an appeal under the domestic law (see paragraph 22 above). Such arrangement was in itself slightly conducive to the protection of legal certainty and, in the present case, lead to a situation where the supervisory review court simply failed to consider the implications of its decision for legal certainty by dealing with the prosecutor's arguments as if in ordinary appeal proceedings and reopening finalised proceedings on vaguely formulated and evanescent grounds. 50.", "The Court does not share the reasoning of the Presidium, namely that the preliminary investigation and the trial “were conducted in an incomplete and one-sided manner, without proper inquiry into incriminating and exculpatory circumstances”. The Court considers that the mistakes or errors of the state authorities should serve to the benefit of the defendant. In other words, the risk of any mistake made by the prosecuting authority, or indeed a court, must be borne by the state and the errors must not be remedied at the expense of the individual concerned. 51. Finally, the Court observes that the arguments used by the prosecution to justify the reopening of the proceedings and fresh investigation of the applicant's case were exactly the same as those used by the prosecution in ordinary appeal proceedings to justify the remittal of the case for re-trial.", "Since these arguments were examined and rejected by the Supreme Court sitting as the bench of three professional judges on appeal, the supervisory review proceedings were, in essence, an attempt by the prosecution to re-argue the case on the same points which failed on appeal. 52. In view of the above considerations, the Court finds that the quashing of the applicant's acquittal in the present case was not intended to correct a fundamental judicial error or a miscarriage of justice but was used merely for the purpose of obtaining a rehearing and a fresh determination of the case. 53. Accordingly, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 54. The applicant also contended that the supervisory review proceedings had constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. He relied on Article 4 of Protocol No.", "7 to the Convention, the relevant parts of which provide: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. ...” 55.", "The Court observes that in the present case a final judicial decision was quashed and the case remitted to the investigative authorities for a fresh investigation. Having regard to its findings under Article 6 (see paragraph 51 above), the Court finds that the applicant's complaints raise no separate issue under Article 4 of Protocol No. 7 (see Bratyakin, cited above, and Savinskiy v. Ukraine (dec.), no. 6965/02, 31 May 2005). III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 56. 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 57. The applicant's daughters each claimed 15,000 euros (EUR) for non‑pecuniary damage. They alleged that the quashing of the applicant's acquittal resulted in severe stress and frustration both for the applicant and them.", "58. The Government were of the view that the alleged pecuniary damage was closely linked to the applicant's “personality and his emotional sphere” and that the applicant's daughters could not claim compensation in this respect on his behalf. They further submitted that the applicant's claims were in any event excessive and unsubstantiated. 59. The Court notes, in response to the Government's argument, that it has repeatedly granted claims for compensation in respect of non-pecuniary damage lodged by the next-of-kin on behalf of their deceased relatives (see, for example, Vocaturo v. Italy, judgment of 24 May 1991, Series A no.", "206‑C, pp. 29 and 30, §§ 2 and 19, or Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, pp. 8 and 10, §§ 2 and 49) and that there is nothing in the circumstances of the present case or in the Government's submissions to justify a departure from that practice. The Court observes that the applicant must have suffered a certain degree of stress and frustration as a result of the quashing of his acquittal.", "The actual amount claimed is, however, excessive. Making its assessment on an equitable basis, it awards the applicant's daughters jointly the overall sum of EUR 2,000 in respect of non-pecuniary damage. B. Costs and expenses 60. The applicant's daughters also claimed 928.05 United States dollars (USD) for the costs and expenses incurred before the Court (USD 390.19 in respect of legal fees and USD 537.86 in respect of “other” fees).", "They submitted contracts concluded between the applicant and his lawyers with indications of the fee paid. 61. The Government did not agree with the amounts claimed, stating that the alleged representation expenses had not been proved. The Government also contested the amount claimed in respect of “other fees”. 62.", "The Court reiterates that in order for costs and expenses to be included in an award 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). 63. In the present case, regard being had to the documents submitted by the applicant's daughters, the above criteria and the complexity of the case, the Court awards EUR 300 for costs and expenses. C. Default interest 64.", "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 of the Convention; 2. Holds that no separate issue arises under Article 4 of Protocol No. 7 to the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant's daughters, Mrs Natalia Blinova and Mrs Maria Radchikova, 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 2,000 (two thousand euros) jointly in respect of non‑pecuniary damage; (ii) EUR 300 (three hundred euros) jointly in respect of costs and expenses; (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; 4. 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" ]

[ "THIRD SECTION CASE OF GARBUL v. TURKEY (Application no. 64447/01) JUDGMENT STRASBOURG 19 July 2007 FINAL 19/10/2007 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 Garbul v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrC.", "Bîrsan,MrR. Türmen,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr S. Quesada, Section Registrar, Having deliberated in private on 28 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 64447/01) 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 Hikmettin Garbul (“the applicant”), on 28 July 1999. 2. The applicant, who had been granted legal aid, was represented by Mr A. Terece, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 20 October 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the alleged ill-treatment of the applicant during police custody and his right to a fair hearing by an independent and impartial tribunal. 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 1967 and was serving his sentence in Aydın prison at the time of his application to the Court. A. The detention in police custody and the medical certificates concerning the alleged ill-treatment of the applicant 5. On an unspecified date an arrest warrant was issued in respect of the applicant because of his alleged involvement with the PKK, an illegal armed organisation. After receiving an anonymous phone call, police officers arrested the applicant on 2 July 1997 at around 02.00 a.m.", "The police also searched the house where the applicant stayed. The search and seizure protocol drafted by the police officers and signed by the applicant indicates that he consented to the search. 6. The applicant alleged that he was arrested and taken into custody on 30 June 1997 from his house in the Eskiizmir district and that while he was in custody he was subjected to various forms of torture. In particular, he submitted that he was beaten, sworn at, threatened, blindfolded, given electric shocks and hosed with pressurized water.", "He further claimed that his mother fainted when the police officers started to beat him at his home at the time of his arrest. 7. According to the medical report drawn up on 2 July 1997 at around 11.40 a.m. the applicant complained of blows to his chest. The doctor found that the applicant had a 1 cm graze on the right side of his forehead and a hyperaemic region (redness) in the middle of his chest. 8.", "The applicant was interrogated by the police officers at the Anti-terror branch of the Izmir Security Directorate on 3 July 1997. 9. According to the medical report drafted on 3 July 1997 the applicant complained of blows to his chest. The doctor found that the applicant had a 1 cm graze on the right side of his forehead and a hyperaemic region (redness) in the middle of his chest and a graze of 1 cm on his right leg. B.", "Criminal proceedings against the applicant 10. On 3 July 1997 the applicant was brought before the public prosecutor at the Izmir State Security Court. The applicant stated to the prosecutor, inter alia, that Agit (code name) threatened him and told him to collect money for the PKK while he was working as a musician at wedding ceremonies and that he had to give money from his own pocket. He further gave information about some people and denied knowing Mr M.K, Mr F.Ö, Mr S.T or Mr F.K. He stated that if he did some things it was because he was forced to do so and that he was a victim.", "When he was asked about his previous statements given to the police, he claimed that these statements were his true statements. 11. On the same day, the applicant was brought before the Izmir State Security Court. The applicant reiterated, inter alia, that he was threatened and forced by Agit and some other PKK militants to collect money and to conduct a one minute silence to Kurdistan martyrs during wedding ceremonies. He submitted that he was not a member of the organization.", "He acknowledged his previous statements given to the public prosecutor and denied his statements given to the police. He claimed that they were not his and that he had just signed them. The court ordered his remand in custody. 12. The applicant alleges that during his transfer to prison he was beaten and sworn at by the soldiers.", "13. On an unspecified date, the public prosecutor at the Izmir State Security Court filed a bill of indictment accusing the applicant of aiding and abetting an illegal organisation. He requested that the applicant be convicted and sentenced under Article 169 of the Criminal Code. 14. On an unspecified date, the criminal proceedings against the applicant commenced before the Izmir State Security Court.", "15. On 19 August 1997 the Izmir State Security Court decided that the case brought against the applicant be joined to the case brought against twenty‑five other suspects. In that hearing the applicant's representative submitted that the applicant's statements had been taken under duress and the applicant had only given money to Agit because he mistook him for the organiser of a wedding. 16. In a hearing held on 31 March 1998 the applicant stated that he did not accept the statements of some of the co-accused, claiming that they had given these statements under torture.", "17. Following the decision of the court to join another case-file to the trial, the public prosecutor, on 12 March 1998, accused the applicant of membership of an illegal organisation and requested that he be convicted and charged under Article 168 § 2 and Article 5 of Law no. 3713. 18. On 21 May 1998 the Izmir State Security Court, referring to the statements of Mr A.P., a photo identification report, statements of Mr S.Ç.", "(“Agit”) and Mr S.T., the gun found buried in the applicant's garden and the findings of the ballistic report in this respect, held that it had been established that the applicant had entered into a permanent hierarchical and organic relationship with the organization. The court, referring to the aforementioned evidence, stated that it did not find the applicant's denials convincing. The applicant was convicted under Article 168 § 2 and Article 5 of Law no. 3713 and sentenced to twelve years and six months' imprisonment. 19.", "The applicant appealed. In his petition, he submitted, inter alia, that the court had taken into account, in his view, statements given under duress. He also suggested that the statements of those who accused him had been obtained through illegal methods, in violation of Article 135 (a) of the Criminal Code. 20. On 23 February 1999 the Court of Cassation upheld the judgment of the first-instance court.", "C. Relevant Procedure before the Court 21. By a letter dated 28 July 1999 the applicant lodged an application with the Court. By letters dated 14 November 1999, 17 February 2000, 12 July 2000 and 29 September 2000 the Registry requested the applicant to submit supporting documents in respect of his complaint pertaining to his alleged ill-treatment. D. Investigation instigated into the applicant's alleged ill-treatment 22. On 1 November 2000 the applicant filed a complaint with the İzmir public prosecutor (hereinafter: “the prosecutor”) against the police officers at the anti-terror branch of the Izmir Security Directorate (hereinafter: “the police”).", "The applicant submitted, inter alia, that while he was held in police custody between 30 June and 2 July 1997 he had been subjected to torture. He gave details of the alleged ill-treatment and claimed that when he was brought before the doctor for a medical examination, two police officers were in the room. He further submitted that the police were also next to him while he gave his statements to the public prosecutor and the court on 3 July 1997. Finally, he claimed that he had been beaten and sworn at during his arrest in the presence of his family members and that he was also beaten while he was transferred to remand in custody. He claimed that he did not know their names but would be able to recognise some of them if he saw them.", "23. On an unspecified date the prosecutor heard the applicant who repeated that he had been ill-treated while he was held in detention. 24. On 11 December 2000 the prosecutor decided not to initiate criminal proceedings against the police on account of lack of evidence. In particular, the prosecutor noted that the findings of the medical report issued at the end of the applicant's stay in custody (3 July 1997) mirrored those in the medical report drawn up on the day of his arrest (2 July 1997).", "In this decision, the prosecutor noted that the applicant was caught while hiding in a house in theYamanlar district. 25. On 7 February 2001 the Karşıyaka Assize Court dismissed the applicant's objections. II. RELEVANT DOMESTIC LAW AND PRACTICE 26.", "The relevant domestic law and practice in force at the material time are outlined in the following judgments: Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96‑100, 3 June 2004), Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002), and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003). 27.", "Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, abolished the State Security Courts. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 28. The applicant complained that the treatment to which he was subjected while he was held in police custody amounted to torture, in violation 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.” 29.", "The Government noted that the applicant had lodged his complaint with the Court before he had applied to the public prosecutor. They therefore asked the Court to dismiss the application as being inadmissible for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. As to the merits, the Government maintained that the applicant's allegations were unsubstantiated. 30. The applicant did not specifically deal with the Government's preliminary objection under this head.", "As to the merits, he submitted, inter alia, that he had been subjected to various types and degrees of ill‑treatment starting from the moment of his arrest. He alleged that he and his family members had been beaten, that he had been stripped naked, blindfolded and made to stand in the same position for a long time. He further claimed that he had been threatened, hosed with pressured water and given electric shocks to various parts of his body including his genitals. He further pointed out the deficiencies of medical reports in Turkey and challenged the veracity of the medical reports issued in his respect. 31.", "The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, since the application is anyway inadmissible for the following reasons. 32. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrıkulu and Others v. Turkey (dec.), no. 45907/99, 22 October 2002). 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, judgment of 18 January 1978, Series A no.", "25, pp. 64-65, § 161 in fine). 33. In the instant case the Court notes, firstly, that the facts surrounding the arrest and detention of the applicant are in dispute between the parties. The applicant alleges that he was arrested at his house in Eskiizmir and detained on 30 June 1997.", "The Government deny this. The Court observes that, according to official documents, including the arrest protocol which was signed by him, the applicant was arrested at a house in the Yamanlar district on 2 July 1997. Taking into account the fact that the applicant never sought to challenge the place and date of his arrest during the criminal proceedings against him and raised this matter with the domestic authorities only on 1 November 2000, i.e. three years and four months after the alleged events, the Court finds no reason to dispute the findings of the prosecutor, namely that the applicant was arrested at a house in the Yamanlar district on 2 July 1997 (see paragraph 24). 34.", "In the instant case, the ill-treatment complained of by the applicant consisted of beatings, electric shock treatment to various parts of his body, including his genitals, and being hosed with pressurized water. Nonetheless, several elements cast doubt on the veracity of the applicant's claims. 35. The medical report drawn up at the end of the applicant's stay in custody (3 July 1997) records only a slight graze on the forehead and right leg and an area of redness on the chest, without any indication as to its size and colour. Apart from the minor graze to the right leg, this medical report is identical to the medical report issued in respect of the applicant on the day of his arrest, some nine hours later (2 July 2003).", "The Court considers that the indications noted in these medical reports are insufficient to substantiate the severe ill-treatment described by the applicant (see Ahmet Mete v. Turkey (no. 2), no. 30465/02, § 33, 12 December 2006). In this respect, the Court notes that any ill‑treatment inflicted in the way alleged by the applicant would have left serious marks on his body and would have been observed by the doctor who examined him at the end of his detention in police custody, less than forty-eight hours before he was formally remanded in custody (see Tanrıkulu and Others v. Turkey (dec.), nos. 29918/96, 29919/96 and 30169/96, 24 February 2005).", "Therefore the findings of the medical reports issued on 2 and 3 July 1997 do not confirm or match the applicant's description of ill-treatment. 36. The Court is aware of the lack of details of the medical reports issued in respect of the applicant. However, it notes that there is no material in the case file which could call into question the findings in this report or add probative weight to the applicant's allegations. In particular, it notes that there is no indication in the case file that the applicant requested and had been refused permission to see another doctor at the end of his custody period.", "37. Moreover, even assuming that the injuries noted in the medical report of 2 July 1997 were sustained by the applicant during arrest, their nature does not demonstrate beyond reasonable doubt that any excessive force was exercised on him when he was lawfully arrested on that date. In addition, even if the applicant was subjected to threats and/or verbal abuse as alleged, and as a result he felt apprehension or disquiet, the Court recalls that such feelings are not sufficient to amount to degrading treatment, within the meaning of Article 3 (see, in particular, Hüsniye Tekin v. Turkey, no. 50971/99, § 48, 25 October 2005, and Çevik v. Turkey (dec.), no. 57406/00, 10 October 2006).", "38. In conclusion, the material submitted by the applicant is not sufficient to enable the Court to find beyond all reasonable doubt that he was subjected to treatment which amounted to torture, inhuman or degrading treatment during his arrest and while he was detained. 39. 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. II.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 40. The applicant complained that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge sitting on the bench of the State Security Court which tried and convicted him. He further submitted that he was convicted despite the fact that there was no evidence to support the charges against him. The applicant relied on Article 6 of the Convention. 41.", "The Court considers that these complaints should be examined from the standpoint of Article 6 § 1, which in so far as relevant provides: “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 42. 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 1. Independence and impartiality of the State Security Court 43. The Court has examined a large number of cases raising similar issues to those in the present case and found a violation of Article 6 § 1 of the Convention (see Özel, cited above, §§ 33-34, and Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6 February 2003). 44.", "The Court finds no reason to reach a different conclusion in the instant case. Accordingly, the Court concludes that there has been a violation of Article 6 § 1. 2. Fairness of the proceedings 45. Having regard to its finding of a violation of the applicant's right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine the other complaint under Article 6 of the Convention relating to the fairness of the proceedings before it (see, among other authorities, Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998‑IV, p. 1573, § 74).", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46. In his observations dated 9 May 2006 the applicant, relying on the same facts as above, complained under Articles 8 and 13 of the Convention. In particular, he submitted that he was denied the assistance of a lawyer during his custody, that his family members were not informed of his whereabouts and that his house was searched without a warrant. 47.", "The Court finds that these complaints relate to events or decisions which intervened more than six months before being lodged with the Court on 9 May 2006, and it therefore rejects them in accordance with Article 35 §§ 1 and 4 of the Convention. IV. 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.” A. Damage 49.", "The applicant claimed 27,000 euros (EUR) in respect of non‑pecuniary damage. 50. The Government contested the amount. 51. The Court considers that the finding of a violation of Article 6 § 1 constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Incal, cited above, § 82).", "52. The Court further considers that where an individual, as in the instant case, has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents, in principle an appropriate way of redressing the violation (see Öcalan v. Turkey, no. 46221/99 [GC], § 210, in fine, ECHR 2005 - ...). B. Costs and expenses 53.", "The applicant also claimed EUR 7,500 for the costs and expenses, including those incurred before the domestic courts. The applicant relied on the İstanbul Bar Association's recommended minimum fees list. He, however, did not submit any receipts or any other relevant documents. 54. The Government contested the amount.", "55. 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 rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,000 less EUR 850 received by way of legal aid from the Council of Europe for the proceedings before the Court. C. Default interest 56. 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 applicant's right to a fair hearing by an independent and impartial tribunal admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the lack of independence and impartiality of the İzmir State Security Court; 3. Holds that it is not necessary to consider the applicant's other complaint under Article 6 of the Convention; 4. Holds that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered 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 in accordance with Article 44 § 2 of the Convention, EUR 150 (one hundred and fifty euros) in respect of costs and expenses, to be converted into new Turkish liras at the rate applicable at the date of the settlement and free of any taxes or charges that may be payable; (b) that from the expiry of the abovementioned 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 19 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident" ]

[ "FIRST SECTION CASE OF SOC. DE.RO.SA. v. ITALY (Application no. 64449/01) JUDGMENT STRASBOURG 4 December 2003 FINAL 04/03/2004 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 Soc. De.ro.sa. v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP. Lorenzen,MrG.", "Bonello,MrsF. Tulkens,MrA. Kovler,MrV. Zagrebelsky,MrK. Hajiyev, judges,and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 13 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 64449/01) 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 company, Soc. De.ro.sa. (“the applicant”), on 27 December 2000. 2.", "The applicant was represented by Mr V. Piano, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. On 10 October 2002 the Court declared the application admissible. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant is the owner of a flat in Rome, which it had let to S.S. 5. In a registered letter of 31 May 1983, the applicant informed the tenant that it intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date. 6. The tenant told the applicant that he would not leave the premises.", "7. In a writ served on the tenant on 18 June 1986, the applicant reiterated its intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 8. By a decision of 28 November 1986, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 28 November 1987. 9.", "On 4 December 1987, the applicant served notice on the tenant requiring him to vacate the premises. 10. On 24 December 1987, it informed the tenant that the order for possession would be enforced by a bailiff on 5 February 1988. 11. Between 5 February 1988 and 15 December 2000, the bailiff made sixty-five attempts to recover possession.", "Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 12. On 16 January 2001, the applicant recovered possession of the flat. II. RELEVANT DOMESTIC LAW 13.", "Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no.", "200 of 1 August 2003. A. The system of control of the rents 14. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 15.", "The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 16. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies.", "Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 17. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.", "B. Obligations of the tenant in the case of late restitution 18. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 19. However, Law no.", "61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 20. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution.", "The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 21.", "The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 22.", "The applicant complained of its prolonged inability to recover possession of its flat, owing to the lack of police assistance. It alleged a violation of its right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides: “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.” 23.", "The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 24. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, §§ 34-46, 11 January 2001; Palumbo v. Italy, no. 15919/89, §§ 33-48, 30 November 2000).", "25. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately twelve years and eleven months after the first attempt of the bailiff before being able to repossess the flat. Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.", "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. Pecuniary damage 27. The applicant claimed 46,481 euros (EUR) for the pecuniary damage it had sustained. The applicant submitted this amount as the result of the difference between the market value rent and rent imposed by law for the period of time from August 1992 to January 2001.", "For the purpose of assessing the market value rent, the applicant submitted a rent contract of a similar flat in terms of surface and location (same building). 28. The Government contested the claim. 29. The Court considers that the applicant must be awarded compensation for the pecuniary damage resulting from the loss of rent for the period of time related to the violations found.", "Having regard to the means of calculation proposed by the applicant and in the light of the evidence before it and the period concerned, it decides to award the amount claimed in full. 30. The Court awards a total sum of EUR 46,481 for pecuniary damage. B. Non-pecuniary damage 31. The applicant claimed reimbursement of the non-pecuniary damage.", "It left the matter to be assessed by the Court in an equitable manner. 32. The Government contested the claim. 33. The Court recalls that it has stated in its Comingersoll judgment that it cannot exclude the possibility that a commercial company may be awarded compensation for non-pecuniary damage (Comingersoll S.A. v. Portugal [GC], no 35382/97, ECHR 2000-IV, § 35).", "Whether an award should be made will depend on the circumstances of each case. In the circumstances of the present case, however, the Court finds that it has not been established that the applicant company has suffered any non-pecuniary damage as a result of the duration of the eviction procedure. It therefore dismisses this claim. C. Costs and expenses 34. The applicant also claimed reimbursement of the costs and expenses incurred in the domestic proceedings and before the Court.", "It left the matter to the Court's discretion. 35. The Government contested the claims. 36. On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 3,000 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court.", "37. The Court awards a total sum of EUR 5,000 for legal costs and expenses. D. 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.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 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, the following amounts: (i) EUR 46,481 (forty-six thousand four hundred eighty-one euros) for pecuniary damage; (ii) EUR 5,000 (five thousand euros) for legal costs and expenses; (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; 4. Dismisses the remainder of the applicant's claim for just satisfaction.", "Done in English, and notified in writing on 4 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF KONASHEVSKAYA AND OTHERS v. RUSSIA (Application no. 3009/07) JUDGMENT STRASBOURG 3 June 2010 FINAL 04/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Konashevskaya 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 11 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "3009/07) 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”) on 5 December 2006 by four Russian nationals, Nina Vatslavna Konashevskaya, Margarita Vasilyevna Belikova, Oktyabrina Sergeyevna Zharkova and Lyubov Spiridonovna Gorokhova (“the applicants”). 2. 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. The applicants complained that the authorities had failed to examine a criminal case against them within a reasonable time and to ensure their right to defend themselves in person or through legal assistance of their own choosing.", "4. On 9 January 2009 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 applications at the same time (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicants were born in 1919, 1930, 1939 and 1941 respectively and live in Moscow. 6. Mrs Zharkova filed the application also on behalf of her husband, Mr Evsey Matveyevich Pisman, who had died on 17 January 2005. A. Criminal proceedings against Ms Konashevskaya, Ms Belikova, Mrs Zharkova and Ms Gorokhova 7.", "On 12 April 2002 the applicants were charged with aggravated fraud, a serious offence punishable with up to ten years' imprisonment at the material time. On 25 June 2002 the pre-trial investigation was concluded and on 12 July 2002 the case was allocated to the Babushkinskiy District Court of Moscow for judicial examination. The first hearing was scheduled for 11 August 2003. 8. By a decision of 5 May 2004, the trial court suspended the criminal proceedings in respect of Ms Konashevskaya and Ms Gorokhova owing to their serious illnesses.", "9. On 21 February 2006 the court ordered an expert psychiatric examination of Mr G., the applicants' co-defendant, and suspended the examination of the case. The date when the proceedings were resumed is unknown. 10. By a decision of 29 May 2007, the court suspended the proceedings in respect of Ms Belikova and Mrs Zharkova owing to their illnesses.", "11. On 25 February 2008, at the requests of Ms Belikova, Mrs Zharkova and Ms Gorokhova, the court resumed its examination of the case. 12. On 31 March 2008 the Babushkinskiy District Court of Moscow delivered a judgment by which applicants Belikova, Zharkova and Gorokhova were acquitted of the charges. On 25 June 2008 the Moscow City Court upheld the acquittal on appeal.", "13. The criminal proceedings in respect of Ms Konashevskaya are still pending. On 25 December 2008 the presiding judge telephoned a competent hospital in order to establish the actual state of her health and was informed that the latter suffered from multiple illnesses, including stenocardia, post-infarct cardiosclerosis and chronic cerebral ischemia. B. Criminal proceedings against Mr Pisman 14.", "Mr Pisman was charged with aggravated fraud and forgery of documents on 12 April 2002. He stood trial alongside the applicants. On 17 January 2005 he died. 15. On two occasions the trial court suspended the criminal proceedings against him, that is from 5 May 2004 to 17 May 2005 owing to his illness and his subsequent death and from 29 May 2007 to 25 February 2008 owing to the illness of his widow, Mrs Zharkova.", "16. The decision of 17 May 2005 to resume the proceedings against Mr Pisman was rendered by the trial court at the request of his widow for the purpose of restoring his reputation. 17. By judgments of 31 March 2008 and 25 June 2008, he too was acquitted of the charges. C. The applicants' right to defend themselves in person or through legal assistance of their own choosing 18.", "By a procedural decision of 25 July 2003, the trial court appointed legal-aid lawyers to represent the applicants. 19. On 12 August 2003 the applicants filed applications where they refused to accept the assistance of the lawyers. By a decision of 12 August 2003, the trial court declined to discharge the appointed legal representatives. 20.", "During the hearing of 24 September 2003, Ms Belikova and Mrs Zharkova did not object to the assistance of the lawyers. 21. During the hearing of 27 September 2003, Mrs Zharkova did not object to the assistance of the lawyer. The trial court, however, dismissed her request to appoint a representative of her own choosing. 22.", "By a decision of 26 May 2005, the trial court admitted Mr M., a lawyer called upon by Ms Belikova, to the proceedings. 23. During the hearing of 12 March 2008, Ms Belikova, Mrs Zharkova and Ms Gorokhova agreed to accept the assistance of the appointed lawyers. II. RELEVANT DOMESTIC LAW Russian Code of Criminal procedure 24.", "The aim of criminal court proceedings is the protection of the rights and lawful interests of victims of criminal offences and the protection of a person from unlawful and ungrounded accusation, conviction and restriction of his, or her, rights and freedoms (Article 6). 25. Where the defendant absconds or his “psychiatric disorder”, or other serious illness, precludes his appearance in court, the court shall suspend the proceedings until he has been found or has recovered and shall continue the proceedings in respect of other defendants. If the separation of the proceedings impedes the examination of the criminal case, the entire trial shall be suspended (Article 253 § 3). 26.", "In the cases stipulated in paragraph 5 of Article 247 of the Code, at the request of the parties, the examination of the case shall be conducted in the absence of the defendant (Article 253 § 4). In exceptional cases the examination of the case concerning “serious” or “particularly serious” criminal offences may be conducted in the absence of a defendant who is not in the territory of the Russian Federation and/or declines to appear in court, provided that this person has not been held accountable for the criminal offence in question in the territory of a foreign state (Article 247 § 5). The participation in a hearing of a defence lawyer called upon by the defendant or appointed by the court is mandatory (Article 247 § 6). THE LAW I. LOCUS STANDI OF THE PERSONS CONCERNED 27. The application was lodged on 5 December 2006 by four Russian nationals.", "One of the applicants, Mrs Zharkova, in addition to alleging a violation of her own rights, stated that she wished to complain also on behalf of her husband, Mr Evsey Matveyevich Pisman, who had died on 17 January 2005. 28. The Court reiterates that the existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, 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 v. Austria, 40016/98, § 25, ECHR 2003-IX). 29. In the present case Mr Pisman had died before the application was introduced, and the case is therefore to be distinguished from cases in which an applicant's heirs were permitted to pursue an application which had already been introduced (see Fairfield and Others v. the United Kingdom, (dec.), no.", "24790/04, 8 March 2005, with reference back to Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI). 30. Individuals, who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention, may apply as applicants in their own right under that provision; this is a particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system. However complaints brought under, inter alia, Article 6 § 1 do not in principle fall within this category (see Grădinar v. Moldova, no.", "7170/02, § 91, 8 April 2008; Biç and Others v. Turkey, no. 55955/00, § 22, 2 February 2006 and Georgia Makri and others v. Greece (dec.), no. 5977/03, 24 March 2005). 31. Accordingly, since Mr Pisman died prior to the introduction of the application, the Court cannot accept his standing as an applicant for the purposes of Article 34 of the Convention.", "It follows that the application in his respect is 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. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32. 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: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 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. Submissions by the parties 34.", "The Government submitted that the period under consideration had begun on 10 October 2002, when the applicants had refused to receive the bill of indictment, and had ended on 25 June 2008, when the appeal court had delivered its judgment. They argued that the examination of the case had been slowed down by the illnesses of the elderly applicants and the numerous consequent suspensions of the proceedings. The criminal case in question had been particularly complex owing to the large number of documents in the case file (sixty-four volumes) and the large number of witnesses and victims. Mr G. had been the main defendant and for this reason the necessity to examine his psychological state entailed the suspension of the case in respect of the applicants. In the Government's opinion, the length of the proceedings in the present case was mostly attributable to their conduct and did not breach the “reasonable time” requirement set out in Article 6 § 1 of the Convention.", "35. In the Government's submissions, the national authorities had emphasised their willingness to proceed with the examination of the charges against Ms Konashevskaya. However, apart from her age, she had suffered from multiple illnesses which had prevented her from travelling to the courthouse in order to be present at the trial. The trial court “had examined the possibility of a visiting hearing in her home” but the applicant's relatives had refused to cooperate with the officials in this respect. A commissioned bailiff had tried and failed to contact Ms Konashevskaya, and for that reason her opinion regarding the “visiting hearing” had remained unknown.", "36. The applicants maintained their complaint. They asserted that the period to be taken into consideration had started on 12 April 2002, when they had been charged with the criminal offences in question. They further argued that the national authorities had significantly delayed the examination of the proceedings. Six judges had been appointed to hear the case.", "The decision to suspend the criminal proceedings in respect of all the applicants owing to the necessity to conduct the psychiatric examination of their co-defendant G. had been unjustified. After the criminal proceedings had been resumed in 2008, it had taken the trial court only three weeks to complete the examination of the case and to deliver its judgment. Therefore, the length of the proceedings was attributable to the national authorities. 2. The Court's assessment (a) The period to be taken into consideration 37.", "The Court reiterates that in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court (see, for example, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, § 42), such as the date of arrest, the date when the person concerned was officially notified that he or she would be prosecuted, or the date when preliminary investigations were opened (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, § 19; Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, § 18; and Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, § 110).", "“Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Deweer, cited above, § 46). 38. According to the applicants, they were charged with the criminal offences on 12 April 2002. The Government have not provided any comments in this connection. Therefore, the Court takes the above date as the starting point of the criminal proceedings in the present case.", "39. By the judgment of 31 March 2008 the trial court acquitted Ms Belikova, Mrs Zharkova and Ms Gorokhova of the charges. On 25 June 2008 the appeal court upheld their acquittal in the final instance. It follows that in respect of these applicants the period to be taken into consideration lasted for six years, two months and fifteen days. This period spanned the investigation stage and two levels of jurisdiction.", "40. The criminal proceedings in respect of Ms Konashevskaya are still pending. Accordingly, they have been lasting for eight years. (b) General principles 41. The Court reiterates that Article 6 § 1 imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to hear cases within a reasonable time (see Ledonne v. Italy (no.", "2), no. 38414/97, § 23, 12 May 1999; Agga v. Greece (no. 1), no. 37439/97, § 26, 25 January 2000; and Majarič v. Slovenia, no. 28400/95, § 39, 8 February 2000).", "42. It further refers to its settled case-law to the effect 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 and 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). What is at stake for the applicant also has to be taken into consideration (see, Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI).", "43. It lastly reiterates that an accused in criminal proceedings should be entitled to have his case conducted with special diligence and Article 6 is, in criminal matters, designed to avoid a situation in which an accused should remain too long in a state of uncertainty about his fate (see Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006). (c) Application of the general principles to the present case 44. The Court accepts that the number of defendants, the seriousness of the charges against them and the large volume of documents must have made the trial rather complex.", "However, the complexity of the case does not suffice in itself to account for the length of the proceedings (see Golovkin v. Russia, no. 16595/02, § 39, 3 April 2008). Therefore, the Court will concentrate on the other factors. (i) The conduct of the national authorities 45. As regards the conduct of the national authorities, the Court observes, firstly, that the Government have not submitted any satisfactory explanation for the period of one year and one month that it took the trial court to schedule the first hearing.", "46. It is also noted that they submitted rather an inaccurate account of the judicial activity. It is unclear how many court hearings were scheduled and how many of them took in fact place. The applicants' assertion that six judges were appointed to hear their case has remained unanswered by the Government. 47.", "Furthermore, on 21 February 2006 the court suspended the trial due to the necessity to examine the applicants' co-defendant G.'s psychological state. According to the Government, it was impossible to proceed to determine the charges against the applicants while the psychological state of their co-defendant G. was being examined by experts. The Court, however, is not convinced by this argument. From the judgment of 31 March 2008 it follows that it concerned only the applicants. In other words, at one point the trial court separated the proceedings against the applicants from the proceedings against their co-defendant G. In these circumstances, it does not transpire that the suspension of the trial on 21 February 2006 was required in the interests of the fair administration of justice.", "48. In the light of these facts, the Court cannot but conclude that the national authorities do not appear to have acted with due diligence. (ii) The conduct of applicant Konashevskaya 49. The criminal proceedings against Ms Konashevskaya have been suspended since 5 May 2004. Though the national authorities express their willingness to proceed with the examination of the charges against the applicant, her advanced age and the serious multiple illnesses have prevented her from travelling to the courthouse in order to appear before the trial court.", "50. The Court has taken note of the Government's arguments that a bailiff attempted to obtain contact with the applicant and that her relatives had omitted to cooperate in organising a “visiting hearing” in her home. However, having regard to the circumstances of the case, in particular Ms Konashevskaya's advanced age (90), the state of her health, what has been at stake and the failure of the State officials to contact her directly, the Court cannot accept that the national authorities took all appropriate measures available to them under domestic law in order to ensure an expeditious trial in respect of this applicant. 51. Having regard to the foregoing, the Court considers that the length of the proceedings have gone beyond what may be considered reasonable in this particular case.", "52. There has accordingly been a breach of Article 6 § 1 of the Convention. (iii) The conduct of applicants Belikova and Zharkova 53. The criminal proceedings in respect of Ms Belikova and Mrs Zharkova were suspended from 29 May 2007 to 25 February 2008. The court decisions to suspend the proceedings were grounded on the serious illnesses of the applicants, which precluded their presence in the court room.", "The proceedings were resumed when the applicants informed the court that they were fit to stand trial. Nothing in the submitted materials indicates that there were other delays which could be attributed to their conduct. It follows that owing to factors pertaining to the applicants, the proceedings had been delayed for eight months and twenty-eight days which appears rather insignificant compared to their overall length. On the other hand, it has been established that the authorities did not demonstrate the requisite diligence in handling the case (see paragraphs 45-48 above). 54.", "The Court finds that much was at stake for the applicants as they suffered a feeling of uncertainty about their future, especially bearing in mind their age, frail health and that they risked a long-term imprisonment for the serious criminal offence. 55. Having regard to its case-law on the subject and all the material submitted, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 56. There has accordingly been a breach of Article 6 § 1 of the Convention.", "(iv) The conduct of applicant Gorokhova 57. The criminal case against Ms Gorokhova was opened on 12 April 2002 and was determined on 25 June 2008. During the period from 5 May 2004 to 25 February 2008, the proceedings were suspended. This delay of three years, nine months and twenty-two days is to be attributable to the applicant as the suspension was caused by her illness. 58.", "Taking into account that the criminal proceedings took approximately two years prior to the applicant's illness and four months after she recovered, the Court considers that the actual length of the proceedings can be regarded as reasonable. 59. There has accordingly been no violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE CONVENTION 60.", "The applicants complained that during the court proceedings they had been denied their right to defend themselves through legal assistance of their own choosing. They relied on Article 6 § 3 (c) 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: ... (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.” 61. The Government contested that argument.", "62. The Court observes that, from the materials submitted by the parties, it appears that during one of the last hearings, on 12 March 2008, Ms Belikova, Mrs Zharikova and Ms Gorokhova were represented by lawyers whose assistance they had accepted. 63. 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 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. Each applicant claimed 200,000 euros (EUR) in respect of non-pecuniary damage. 66.", "The Government contested the claim. 67. The Court observes that it has found a violation of Article 6 § 1 of the Convention in respect of the first, second and third applicants. 68. The Court considers that the applicants must have sustained non-pecuniary damage.", "Having regard to the circumstances of the case and ruling on an equitable basis, it finds it appropriate to award EUR 6,000 to the first applicant and EUR 2,400 to the second and third applicant each under that head. B. Costs and expenses 69. The applicants did not make any claims for costs and expenses incurred before the domestic courts and the Court. 70.", "Accordingly, the Court does not award anything under this head. C. Default interest 71. 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 about the excessive length of the proceedings concerning the four applicants admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings against the first, second and third applicants; 3. 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 fourth applicant; 4. 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, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros) to Ms Nina Vatslavna Konashevskaya, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,400 (two thousand four hundred euros) to Ms Margarita Vasilyevna Belikova, plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 2,400 (two thousand four hundred euros) to Mrs Oktyabrina Sergeyevna Zharkova, 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 3 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident 1" ]

[ "FIRST SECTION CASE OF JOSEF FISCHER v. AUSTRIA (Application no. 33382/96) JUDGMENT STRASBOURG 17 January 2002 FINAL 17/04/2002 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 Josef Fischer v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrG.", "Bonello,MrP. Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrV. Zagrebelsky,MrsE.", "Steiner, judges,and Mr E. Fribergh, Section Registrar, Having deliberated in private on 13 December 2001, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 33382/96) against the Republic of Austria 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 Austrian national, Josef Fischer (“the applicant”), on 29 May 1996. 2. The applicant was represented before the Court by Mr. A. Adam, a lawyer practising in Neulengbach (Austria).", "The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that, in criminal proceedings against him, written observations of the Procurator General on his plea of nullity to the Supreme Court had not been communicated to him. 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 6 January 2000 the Court declared the application partly inadmissible. By a decision of 20 March 2001 the Court declared the remainder of the application admissible. 7. As from 1 November 2001 the application was reallocated to the First 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. 8. Neither the applicant nor the Government filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9.", "On 12 May 1995 the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen) convicted the applicant, inter alia, under Section 164 of the Penal Code (Strafgesetzbuch), on numerous counts of handling stolen goods (Hehlerei) and sentenced him to three years’ imprisonment. The Regional Court found that the applicant, who dealt with antiques, had bought, between 1986 and 1988, antiques which had been stolen in the north of Italy. 10. On 14 September 1995 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof). 11.", "On 12 October 1995 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity: \"In the view of the Procurator General, the plea of nullity of the accused Josef Fischer can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested.\" 12. On 21 November 1995 the Supreme Court dismissed the applicant’s plea of nullity and, as regards the appeal against sentence, referred the case to the Vienna Court of Appeal (Oberlandesgericht). On 23 January 1996 the Court of Appeal dismissed the applicant’s appeal.", "II. RELEVANT DOMESTIC LAW 13. Under Section 285 (d) § 1 of the Code of Criminal Procedure (Strafprozessordnung), a plea of nullity may be rejected by the Supreme Court after deliberations in private if the Supreme Court unanimously finds that the complaint should be dismissed as manifestly ill-founded without any need for further deliberation. 14. Section 35 § 2 of the Code of Criminal Procedure, as in force at the relevant time, reads as follows: \"If the public prosecutor at an appellate court submits observations on an appeal on grounds of nullity ..., the appellate court shall communicate those observations to the accused (person concerned), advising him that he may submit comments on them within a reasonable period of time that it shall determine.", "Such communication may be dispensed with if the prosecutor confines himself to opposing the appeal without adducing any argument, if he merely supports the accused or if the accused’s appeal is upheld.\" 15. Since the 1996 Criminal Law Amendment Act (Strafrechtsänderungsgesetz) the last sentence of Section 35 § 2 reads as follows: “Such communication may be dispensed with if the prosecutor merely supports the accused or if the accused’s appeal is upheld.\" THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16.", "The applicant complains that the Supreme Court decided on his plea of nullity after having obtained the submissions of the Procurator General without informing him of these submissions or giving him an opportunity to react to them. He relies on Article 6 § 1 of the Convention which, insofar as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 17. The Government submit that the Procurator General is a party sui generis and does not have a prosecuting function. Therefore it is not, strictly speaking, an opponent of the applicant. In any event, the brief submissions of the Procurator General did not amount to comments on the facts of the case or arguments.", "Thus, there is no breach of the principle of equality of arms in the present case. 18. The Court recalls that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent (Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33). In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 359, § 47).", "19. As regards the contents of submissions filed by the prosecution, the Court recalls further that the principle of the equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality. It is a matter for the defence to assess whether a submission deserves a reaction. It is therefore unfair for the prosecution to make submissions to a court without the knowledge of the defence (Bulut v. Austria judgment, op.cit. § 49).", "20. In the present case the Procurator General filed a short comment on the applicant’s plea of nullity which was not communicated to the applicant. 21. The Court observes, that in the case of Bulut v. Austria it found a breach of the principle of equality of arms because the Procurator General had submitted to the Supreme Court comments on a plea of nullity - similar to those made in the present case - without bringing them to the attention of the accused. The Court sees no reason to come to a different conclusion in the present case and finds that the principle of equality of arms has not been respected in the proceedings before the Supreme Court.", "22. There has, therefore, been a violation of Article 6 § 1 of the Convention. II. 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, without specifying whether he claimed pecuniary or non-pecuniary damages, claimed an amount of 550,000 Austrian schillings [ATS] (39,970.93 euros [EUR]) under this head. He submitted that this sum corresponded to the amount an Austrian court would grant as compensation for unlawful detention for a period comparable to his sentence. 25. The Government disputed this claim.", "In their view, a finding of a violation of Article 6 § 1 could not lead to the conclusion that the applicant’s detention following his conviction has been unlawful. Rather, if the Court were to find a breach Article 6 § 1 in the present case, the consequence on the domestic level would be fresh proceedings before the Supreme Court. 26. Insofar the applicant may be understood to claim compensation for pecuniary damage, the Court finds that there is no causal link between the breach of which the complaint is made and the alleged damage; it is impossible to speculate as to what the outcome of the proceedings would have been if they had satisfied the requirements of Article 6 § 1 (see e.g. the Werner v. Austria judgment of 24 November 1997, Reports 1997-VII, p. 2514, § 72).", "27. Insofar the applicant may be understood to claim non-pecuniary damage, the Court considers that in the circumstances of the case the finding of a violation in itself constitutes sufficient just satisfaction. B. Costs and expenses 28. The applicant claimed 203,223 ATS (14,769.11 EUR) for costs and expenses incurred in the domestic proceedings.", "This claim is disputed by the Government. 29. The Court finds that compensation for costs incurred in the domestic proceedings may only be granted insofar as they were necessary in trying to prevent the violation found (König v. Germany judgment of 10 March 1980 (Article 50), Series A no. 36, p. 17, § 20). In the present case it does not appear from the applicant’s submissions that any specific costs were incurred in any attempt to prevent the breaches of he Convention found.", "This part of the claim must therefore be rejected. Further, the applicant claimed 45,720 ATS (3,322.67 EUR) for costs and expenses incurred in the Convention proceedings. The Government considered this claim excessive because the applicant’s lawyer had charged the full fees for the observations in reply, while, given their length, only fees for a short letter should have been charged. In the Government’s view an amount of 34,290 ATS was appropriate. On the basis of the evidence in its possession, the observations of the parties, and its case-law, the Court considers it equitable to award 40,000 ATS (2,906.98 EUR).", "C. Default interest 30. According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% 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 that the finding of a violation constitutes in itself sufficient just satisfaction for the 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, for costs and expenses, 40,000 ATS (forty thousand Austrian schillings) i.e. 2,906.98 EUR (two thousand nine hundred and six euros ninety-eight cents); (b) that simple interest at an annual rate of 4% 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 17 January 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Erik FriberghChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF SCHRAM v. SLOVAKIA (Application no. 8555/17) JUDGMENT STRASBOURG 23 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Schram v. Slovakia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Dmitry Dedov, President,Alena Poláčková,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 8555/17) 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, Mr Dávid Schram (“the applicant”), on 19 January 2017.", "2. The applicant was represented by Mr R. Bardač, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. On 7 June 2017 the application was communicated to the Government.", "4. The Government had no objection to the examination of the application by a Committee. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1985 and lives in Bratislava. 6.", "On 20 December 2014 the Bratislava IV District Court ordered the applicant’s pre-trial detention in the context of criminal proceedings in which he was prosecuted for committing the criminal offence of manslaughter. The reason for his detention was the risk of reoffending. 7. On 3 March 2015 the applicant submitted a request to the District Prosecution Office for release from pre-trial detention. In it, he asked for his detention to be replaced with supervision by a probation officer.", "The request was received by the latter on 4 March 2015 and dismissed on 5 March 2015, following which it was transferred to the District Court for a judicial determination. 8. On 26 March 2015 the District Court held a hearing and dismissed the applicant’s request for release. The written version of that decision was served on the applicant on 14 April 2015 and, after several unsuccessful attempts at delivery, was served on the applicant’s lawyer on 21 April 2015. 9.", "The applicant’s lawyer lodged a written interlocutory appeal with the District Court within the statutory three-day period, namely on 24 April 2015. The case file was transferred to the Bratislava Regional Court on 29 April 2015 and the applicant’s appeal was dismissed in chambers on 7 May 2015. The written version of that decision was served on the applicant’s lawyer on 18 May 2015. 10. On 1 June 2015 the applicant filed a constitutional complaint, relying inter alia on Article 5 § 4 of the Convention.", "He alleged that the authorities had not proceeded speedily with his request for release. He formally challenged the proceedings held before the District Curt, the decision of the Regional Court of 7 May 2015 and the proceedings preceding this decision. He also requested compensation of 2,000 euros (EUR) in addition to his legal costs and expenses. 11. On 30 March 2016 the Constitutional Court declared the part of his complaint in respect of the proceedings held before the District Court admissible and the remainder inadmissible.", "The Constitutional Court held that it had found no irregularities in the Regional Court’s decision of 7 May 2015. 12. On 21 June 2016 the Constitutional Court found a violation of the applicant’s right guaranteed under Article 5 § 4 of the Convention. It did not award him any compensation or legal costs and expenses. The Constitutional Court scrutinised only the District Court’s proceedings and concluded that they had lasted 44 days.", "The District Court had therefore failed to deal with the applicant’s request speedily and to serve the written decision on him promptly. With respect to the financial compensation, the Constitutional Court referred to “the principle of fairness”, “the particular circumstances of the case”, the duration of the delays and the intensity of the interference, and concluded that the finding of a violation of the applicant’s right constituted a sufficient redress. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 13. The applicant complained that the proceedings concerning his request for release had not complied with the requirement of “speediness” provided for in Article 5 § 4 of the Convention, which reads as follows: “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.” A. Admissibility 14.", "The Government objected that the applicant had failed to comply with the requirement of Article 35 § 1 of the Convention to exhaust domestic remedies on two grounds. Firstly, they argued that in his constitutional complaint the applicant had failed properly to identify all authorities responsible for the alleged violation of his rights, notably the prosecution and the Regional Court. Secondly, and in so far as the applicant had not been awarded any compensation by the Constitutional Court, the Government submitted that he had failed to claim damages under the State Liability for Damage Act (Law no. 514/2003 Coll., as amended - “the SLD Act”). 15.", "Furthermore, the Government maintained that by virtue of the Constitutional Court’s judgment of 21 June 2016, the applicant had lost his “victim” status within the meaning of Article 34 of the Convention. Although the Constitutional Court had granted the applicant no just satisfaction, this was, in the Government’s submission, compatible with the Court’s own approach in cases where it had found that the finding of a violation of the applicant’s Article 5 rights constituted in itself sufficient just satisfaction for any non‑pecuniary damage he had sustained. 16. The applicant disagreed with the Government’s objections. He considered the remedy under the SLD Act inefficient because an ordinary court would unlikely reach a conclusion different from that of the Constitutional Court.", "As to the victim status, he stated that he should be entitled to other form of compensation than just a statement that his rights had been breached. 17. The Court will first deal with the Government’s non-exhaustion objection concerning the proper formulation of the constitutional complaint. 18. It observes that the applicant failed to direct his constitutional complaint against the prosecution.", "It follows that, in so far as the applicant’s present complaint concerns the phase of the proceedings on the request for release before the prosecution from 3 to 5 March 2015, the applicant cannot be considered as having complied with the requirement of exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention (see Alojz v. Slovakia, no. 63800/10, § 22, 21 January 2014). The Court will accordingly proceed to examine the applicant’s complaint, in so far as it concerns the District Court and the Regional Court. 19. The Court further notes that the applicant formally directed his constitutional complaint against both, the District and the Regional Court.", "In such situation, nothing prevented the Constitutional Court to examine the overall duration of the judicial review of applicant’s detention (see Obluk v. Slovakia, no. 69484/01, § 62, 20 June 2006). This part of the Government’s non-exhaustion objection is therefore to be dismissed. 20. The Government further objected that the applicant should have claimed damages under the SLD Act.", "The Court reminds that it rejected substantially the same objection in the case of Horváth v. Slovakia (no. 5515/09, §§ 67-82, 27 November 2012) and confirmed this approach more recently in Šablij v. Slovakia (no. 78129/11, § 26, 28 April 2015). It further notes that the Government provided no evidence that the national law or jurisprudence has changed from those considered in these cases. In these circumstances, the Court finds no reasons to depart from the jurisprudence cited above in the present case.", "This part of the Government’s non‑exhaustion objection must therefore also be dismissed. 21. The Court further considers that the Government’s objection concerning the applicant’s status as a “victim” is closely linked to and should be joined to the merits of the complaint. 22. Furthermore, the Court considers that this part of 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. The parties’ arguments 23.", "The applicant contended that the determination of his request for release had fallen short of the “speediness” requirement of Article 5 § 4 of the Convention and that the Constitutional Court had failed to remedy the situation because he had not been awarded compensation in respect of non‑pecuniary damage. 24. Referring to the Constitutional Court’s judgment of 21 June 2016, the Government conceded that the lawfulness of the applicant’s detention had not been decided speedily by the District Court as required under Article 5 § 4 of the Convention. 2. The Court’s assessment 25.", "The Court reiterates that Article 5 § 4, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention, and ordering its termination if it proves unlawful. In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings were conducted at more than one level of jurisdiction. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case, including the complexity of the proceedings, the conduct of the domestic authorities, the conduct of the applicant and what was at stake for the latter (for a recapitulation of the applicable principles, see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009). 26.", "In the present case the applicant’s request for release was transferred to the District Court on 5 March 2015 and the final decision of the Regional Court was served on his lawyer on 18 May 2015. The period under consideration thus lasted two months and thirteen days, during which time his request was examined by two levels of courts (see, for example, Schvarc v. Slovakia, no. 64528/09, § 24, 14 January 2014). 27. In view of the Constitutional Court’s finding of a violation of the applicant’s right to a speedy review of the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention (see paragraph 12 above), the Government’s admission (see paragraph 24 above), and its own case‑law on the subject (see the summary in, for example, Osváthová v. Slovakia, no.", "15684/05, § 77, 21 December 2010), the Court finds that the proceedings on the applicant’s request for release were not in conformity with the speediness requirement of Article 5 § 4 of the Convention. 28. It remains to be examined whether the applicant can still claim to be a victim of the violation of the Convention provision under consideration. 29. The Court reiterates that an applicant is deprived of his or her victim status if the national authorities have acknowledged the violation of the applicant’s rights either expressly or in substance and then afforded appropriate and sufficient redress for it (see, for example, Scordino v. Italy (no.", "1) [GC], no. 36813/97, § 193, ECHR 2006-V). 30. In its judgment of 21 June 2016 the Constitutional Court acknowledged the breach of the applicant’s rights under Article 5 § 4 but made no award in respect of non-pecuniary damage and legal costs. 31.", "The Court observes that in many contexts pecuniary redress is required in order to restore an applicant’s rights. However, unlike other Convention provisions, Article 5 contains a special clause in its paragraph 5 which requires that pecuniary compensation be made for detention which was contrary to that provision (see, mutatis mutandis, Shcherbina v. Russia, no. 41970/11, § 40 26 June 2014). The Court further notes that in a number of previous cases the sole acknowledgment of the violation of Article 5 of the Convention was insufficient to deprive the applicant of his or her victim status (see Šablij, cited above, § 43; mutatis mutandis, Kováčik v. Slovakia, no. 50903/06, § 41, 29 November 2011).", "32. In these circumstances and considering its own approach on the matter (see Šablij, cited above, § 43, with further references), the Court finds that the Constitutional Court’s judgment has not provided the applicant with redress compatible with the Article 34 requirements in order to deprive him of his “victim” status, and the Government’s objection in this regard must be dismissed. There has accordingly been a violation of Article 5 § 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 5 § 5 and 13 OF THE CONVENTION 33.", "The applicant complained that he had been denied financial compensation in respect of the lack of speedy review of his request for release and that he had no effective domestic remedy to challenge this result. He relied on Articles 5 § 5 and 13 of the Convention, which read as follows: Article 5 § 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.” 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 34. The Court 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 35. The Government considered that the SLD Act provided a comprehensive framework for claims for compensation in respect of detention contrary to Article 5 §§ 1 to 4 of the Convention, which was complemented by and independent of the procedural protection under Article 127 of the Constitution, and that these ways of seeking compensation for the violation of his rights under Article 5 § 4 of the Convention were compatible with the requirements of its Article 5 § 5. 36. The applicant has made no specific submission on this point. 37.", "The Court considers that, in view of its above findings concerning the complaint under Article 5 § 4 of the Convention, it is not necessary to examine the complaints made under Articles 5 § 5 and 13 separately on merits (see Šablij, cited above, § 49; Pavletič v. Slovakia, no. 39359/98, § 101, 22 July 2004). 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 2,000 euros (EUR) in respect of non‑pecuniary damage. 40. The Government contested the claim as overstated. 41.", "The Court considers that the claim should be granted in full. It therefore awards the applicant EUR 2,000, plus any tax that may be chargeable, in respect of non-pecuniary damage. B. Costs and expenses 42. The applicant did not submit a claim under this head.", "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 part of application concerning the phase of the proceedings on the request for release before the prosecution from 3 to 5 March 2015 inadmissible and the rest of the application admissible; 2. Joins the Government’s objection under Article 34 of the Convention to the merits of the application and rejects it; 3.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there is no need to examine the merits of the complaints under Articles 5 § 5 and 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (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 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 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıDmitry DedovDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF JAMIL HAJIYEV v. AZERBAIJAN (Applications nos. 42989/13 and 43027/13) JUDGMENT STRASBOURG 16 February 2017 This judgment is final but it may be subject to editorial revision. In the case of Jamil Hajiyev v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Faris Vehabović, President,Khanlar Hajiyev,Carlo Ranzoni, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 30 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 42989/13 and 43027/13) 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 Jamil Malik oglu Hajiyev (“the applicant”), on 12 February and 22 May 2013 respectively.", "2. The applicant, who had been granted legal aid, was represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. On 19 May and 29 August 2014 respectively the complaints concerning Articles 5, 6, 10 and 11, raised in both applications, and Article 7, raised only in application no.", "42989/13, were communicated to the Government and the remainder of both applications was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1977 and lives in Baku. A.", "Administrative arrests 5. The opposition planned to hold demonstrations on 17 November 2012 and 26 January 2013 in Baku. 6. On 12 November 2012, the organisers gave notice to the relevant authority, the Baku City Executive Authority (“the BCEA”), about the demonstration of 17 November 2012. It appears that no prior notice was given to the BCEA by the organisers of the demonstration of 26 January 2013.", "Information about that assembly was disseminated through Facebook or the press. 7. The BCEA refused to authorise the holding of the demonstration of 17 November 2012, stating in general terms that that assembly was not in accordance with the Law on Freedom of Assembly. The BCEA further stated that the square where the organisers proposed to hold the assembly was a designated public leisure area and that the assembly itself was impractical. 8.", "Nevertheless, the organisers decided to hold the demonstrations in the centre of Baku. 9. According to the applicant, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The participants in the demonstration of 17 November 2012 were demanding democratic reforms in the country and protesting against impediments to freedom of assembly. The participants of the demonstration of 26 January 2013 were condemning the use of force by the police against participants of previous demonstrations.", "10. The applicant attended both demonstrations, but shortly after they had begun the police started to disperse them. In both cases the applicant was arrested during the dispersal operation and was taken to a police station, where he was questioned. According to the applicant, in the first case he was arrested by people in plain clothes. 11.", "In both cases on the day of the applicant’s arrest, an “administrative‑offence report” (inzibati xəta haqqında protokol) was issued in respect of him. In the first case the report stated that by deliberately failing to comply with a lawful order from the police, the applicant had committed an administrative offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). In the second case the applicant was charged with an administrative offence under Article 298.2 of the CAO (participation in a public assembly that had not been organised in accordance with the law). 12. According to the applicant, he was never served with copies of the administrative-offence reports or with other documents from his case files.", "In neither case was he given access to a lawyer after the arrest or while in police custody. B. Court proceedings against the applicant 13. In both cases the applicant was brought before the Sabail District Court on the day of his arrest, 17 November 2012 and 26 January 2013 respectively. 14.", "According to the applicant, the hearing before the court in both cases was very brief. Members of the public were not allowed to attend, even though the court had not taken a formal decision to close the hearing to the public. 15. According to the applicant, in neither case was he given an opportunity to hire a lawyer of his own choice. 16.", "The record of the court hearing in the first case shows that the applicant declared that he did not need legal assistance and would defend himself in person. 17. At the court hearing in the second case a State-funded lawyer was appointed to assist the applicant. According to documents submitted by the Government, the applicant refused the assistance of that lawyer and decided to defend himself in person. 18.", "At the hearing in the first case the court did not question any witnesses. In the second case the court questioned two police officers. The police officers testified that they had arrested the applicant because he had staged an unauthorised demonstration. 19. In both cases the first-instance court found that the applicant had participated in an unauthorised demonstration.", "20. In the first case, by a decision of 17 November 2012 the first‑instance court convicted the applicant under Article 310.1 of the CAO and sentenced him to five days’ “administrative” detention. In the second case, by a decision of 26 January 2013 the court convicted the applicant under Article 298.2 of the CAO and sentenced him to a fine of 500 manats (AZN). 21. On unspecified dates the applicant lodged appeals before the Baku Court of Appeal, arguing that his convictions were in violation of his rights because the demonstrations in which he had participated had been peaceful.", "He also complained that his arrests had been unlawful and that the hearings before the respective first-instance courts had not been fair. 22. In the first case the applicant was assisted before the Baku Court of Appeal by a lawyer of his own choice. In the second case he was not represented by a lawyer. 23.", "In both cases, on 23 November 2012 and 5 February 2013 respectively, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS 24. At the time of both of the applicant’s arrests, under Article 5 § IV of the Law on Freedom of Assembly of 13 November 1998 no prior written notification was required for spontaneous assemblies. 25.", "At the time of the applicant’s arrest on 17 November 2012, Articles 298 and 310 of the Code of Administrative Offences of 2000 (“the CAO”) provided as follows: Article 298Breach of the rules on the organisation and holding of assemblies, demonstrations, protests, marches and pickets “Any breach of the rules, set forth under the legislation, on the organisation and holding of assemblies, demonstrations, protests, marches and pickets shall be punishable by a reprimand or a fine of seven to thirteen manats [AZN].” Article 310Deliberate failure to comply with a lawful order of a police officeror military serviceman “310.1. Deliberate failure [by an individual] to comply with a lawful order of a police officer or military serviceman carrying out their duties to protect public order shall be punishable by a fine of twenty to twenty-five manats [AZN] or, if that sanction is inadequate in the circumstances of the case and taking into account the character of the offender, by administrative detention for a term of up to fifteen days.” 26. Law no. 462-IVQD of 2 November 2012, which entered into force on 1 January 2013, introduced new wording to Article 298 of the CAO (breach of the rules on the organisation and holding of assemblies). Under that amendment, participation in an assembly organised in breach of the rules on the organisation and holding of assemblies became explicitly punishable under Article 298.2 of the CAO.", "Furthermore, a punishment in the form of administrative detention of up to fifteen days was introduced for the first time. Another new form of punishment introduced by the amendment was community service. In addition, the fine for breaching the rules on the organisation and holding of assemblies was increased and the amounts fixed as follows: between AZN 300 and 600 for participants of an assembly; between AZN 1,500 and 3,000 for individuals who organise an assembly; between AZN 3,000 and 6,000 for persons in charge (vəzifəli şəxslər) who organise an assembly; and between AZN 15,000 and 30,000 for legal entities involved in the organisation of an assembly. 27. Law no.", "457-IVQD of 2 November 2012, which entered into force on 29 November 2012, increased the fine set out in Article 310.1 of the CAO to AZN 200. 28. According to presidential Order (sərəncam) no. 1866 of 1 December 2011, which was in force until 1 September 2013, the minimum wage in Azerbaijan was AZN 93.5. 29.", "The relevant extracts of Resolution 1917 (2013) of the Parliamentary Assembly of the Council of Europe: “The honouring of obligations and commitments by Azerbaijan” read as follows: “... 10. Regrettably, there is no political dialogue with the opposition parties outside parliament. The Assembly is concerned by the restrictive climate for the activities of the extra-parliamentary opposition, which complains about limitations imposed on freedom of expression and freedom of assembly and the lack of access to the public media. 11. The establishment of an inclusive political system and a truly competitive and unrestrictive political environment requires full implementation of basic freedoms, including freedom of expression, freedom of assembly and freedom of association.", "The situation in Azerbaijan is preoccupying and the Assembly expresses its deep concern in this regard. 12. Recently adopted amendments to the Criminal Code and the Administrative Code, which have increased penalties for the organisers of, and participants in, “unauthorised” gatherings, raise concern. Considering the authorities’ ongoing blanket ban on protests in the Baku city centre, these amendments are likely to have a further negative impact on freedom of assembly and freedom of expression. The restrictive use of certain articles of the Criminal Code, in particular Articles 221 and 233, against participants in peaceful, albeit unauthorised, demonstrations, is another matter of concern.", "...” 30. The relevant extracts of the Report (CommDH(2013)14) of 6 August 2013 by Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, following his visit to Azerbaijan from 22 to 24 May 2013, read as follows: “... 76. The Commissioner is deeply concerned by the recent amendments to the Law on Freedom of Assembly, the Criminal Code and the Code of Administrative Offences, which further erode the right to freedom of assembly. The sanctions which can now be imposed, coupled with the fact that local authorities have not authorised a single rally in Baku city centre in recent years, clearly have a chilling effect on the organisation of or participation in demonstrations. 77.", "The Commissioner is of the view that participants in peaceful assemblies should not be sanctioned for the mere fact of being present at and actively participating in the demonstration in question, provided they do not do anything illegal, violent or obscene in the course of it. The Commissioner therefore urges the authorities to ensure that no disproportionate sanction, which would undermine the fundamental right to peaceful assembly, is imposed. ...” 31. For a summary of other relevant provisions concerning administrative proceedings, the relevant provisions concerning organisation and holding of public assemblies, and the relevant extracts of international documents, see the judgment in the case of Gafgaz Mammadov v. Azerbaijan (no. 60259/11, §§ 27-42, 15 October 2015).", "THE LAW I. JOINDER OF THE APPLICATIONS 32. Given the similarity of the facts and complaints raised by the applicant in his two applications, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION 33. The applicant complained that the dispersal of the demonstrations by the police and his arrest and conviction for an administrative offence had been in breach of his freedom of assembly and freedom of expression, as provided for in Articles 10 and 11 of the Convention, which read as follows: Article 10 (freedom of expression) “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.” Article 11 (freedom of assembly and association) “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 34. 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 scope of the applicant’s complaints 35.", "In the circumstances of the present cases, Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis. It is therefore unnecessary to take the complaint under Article 10 into consideration separately (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Kasparov and Others v. Russia, no. 21613/07, §§ 82-83, 3 October 2013; and Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 85, 15 October 2015).", "36. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present cases, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37, and Kudrevičius and Others, cited above, § 86). 2. The parties’ submissions 37.", "The applicant argued that the domestic legislation regulating freedom of assembly did not comply with principles of foreseeability and precision: while the Constitution required only prior notification about a planned public assembly, the system of prior authorisation, which was applied in practice and stemmed from certain provisions of the Law on Freedom of Assembly of 13 November 1998, allowed for arbitrary interference with freedom of assembly and permitted abusive banning or dispersal of public gatherings. 38. The applicant further submitted that the authorities had not taken into consideration the fact that the organisers had given the BCEA prior notice of the demonstration of 17 November 2012 and that the demonstration of 26 January 2013 had been a spontaneous assembly for which no prior notification had been required by law. Nor had the authorities taken into consideration the fact that both demonstrations had been intended to be peaceful and had been held in a peaceful manner. 39.", "In addition, in the first case the applicant argued that his arrest and conviction under Article 310.1 of the CAO had been arbitrary. 40. The Government argued that the domestic legislation regulating freedom of assembly was precise and foreseeable, and was in line with European standards. 41. The Government also submitted that both demonstrations had been organised in breach of national legislation.", "In the second case they argued in particular that an assembly which was organised even one or two days prior to its intended date could not be regarded as spontaneous. 42. The Government further argued in general terms that the dispersal of both demonstrations had been necessary in the interests of national security, for the protection of public safety and the prevention of disorder or crime, and had been proportionate to the aims pursued. 43. The Government pointed out that in the first case, the applicant had not been punished for his participation in the demonstration as such, but for particular behaviour in the course of that assembly, namely for deliberately disobeying lawful orders from police officers.", "Commenting on the proportionality of the measures, the Government emphasised in particular that the sanction applied to the applicant had been administrative detention. 44. The Government also pointed out that in the second case the police authorities had given the organisers and the participants of the demonstration of 26 January 2013 prior warning that that unauthorised assembly would be dispersed. The applicant had also been aware of the authorities’ position on unauthorised assemblies and the administrative penalties which could be imposed on participants in such assemblies. 3.", "The Court’s assessment 45. The Court will examine, firstly, the material and the parties’ submissions in the applicant’s first case, namely, his arrest and conviction following his participation in the demonstration of 17 November 2012. The Court notes that the issues raised by the applicant are essentially the same as those examined in the Gafgaz Mammadov judgment (cited above). The facts of the present case closely resemble those of the Gafgaz Mammadov case. The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the applicant’s first case.", "In particular, the Court noted the existence of serious concerns about the foreseeability and precision of the legislation governing public assemblies, and about the possibility of public assemblies being abusively banned or dispersed (ibid., § 55); doubts about the credibility of the formal ground, namely, Article 310.1 of the CAO, invoked by the authorities for arresting and convicting the participant in an unauthorised demonstration (ibid., §§ 56 and 62); the authorities’ failure to take into consideration the fact that the demonstration had been notified (ibid., § 60); the lack of relevant and sufficient reasons justifying the dispersal of the demonstration, which had been intended to be peaceful and had been conducted in a peaceful manner (ibid., § 61); and the lack of any acknowledgment that the act of participating in an unauthorised peaceful demonstration was by itself protected by Article 11 of the Convention (ibid., §§ 63-64). Having regard to the above, in the Gafgaz Mammadov case the Court found that the applicant’s right to freedom of assembly had been violated on account of the dispersal of the demonstration and his arrest and conviction. 46. Having regard to the facts of the applicant’s first case and their clear similarity to those of the Gafgaz Mammadov case on all the relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present case the applicant’s right to freedom of assembly was breached for the same reasons as those outlined above. 47.", "The Court will examine, secondly, the material and the parties’ submissions in the applicant’s second case, namely, his arrest and conviction following his participation in the demonstration of 26 January 2013. The Court observes that the organisers did not give the BCEA prior notice of the demonstration of 26 January 2013. Examining the applicant’s argument that no such notice was required by law, the Court notes that, indeed, under Article 5 § IV of the Law on Freedom of Assembly, no prior written notification was required for “spontaneous assemblies”. Nevertheless, the applicant has failed to sufficiently substantiate his allegation that the demonstration in which he participated was a spontaneous one. In such circumstances the Court is ready to accept that the dispersal of the demonstration of 26 January 2013 was lawful (compare Ibrahimov and Others v. Azerbaijan, nos.", "69234/11, 69252/11 and 69335/11, §§ 74-75, 11 February 2016). 48. Turning to the question whether the dispersal of the demonstration of 26 January 2013 and the applicant’s conviction were necessary in a democratic society, the Court notes that the issues raised by the applicant and the facts of the present case closely resemble those of the Gafgaz Mammadov case. Therefore, for the same reasons as those outlined in the Gafgaz Mammadov judgment, the Court concludes that the authorities in the present case have not adduced relevant and sufficient reasons justifying the dispersal of the demonstration (see Gafgaz Mammadov, cited above, § 61). The authorities also failed to acknowledge that the act of participating in an unauthorised peaceful demonstration was by itself protected by Article 11 of the Convention (ibid., §§ 63-64).", "49. The dispersal of the demonstrations and the applicant’s arrests and convictions could not but have the effect of discouraging him from participating in political rallies. The Court notes in particular that in the second case the sanction applied to the applicant under Article 298 of the CAO was very harsh. He was ordered to pay AZN 500, whereas at the material time the minimum wage in the country was AZN 93.5. The measures applied in the present cases and the fear of sanctions that could potentially be applied against participants and organisers of unauthorised peaceful assemblies undoubtedly have a chilling effect on the exercise of freedom of assembly.", "This deters other opposition supporters and the public at large from attending demonstrations, and, more generally, from participating in open political debate. 50. In these circumstances, the Court finds a violation of Article 11 of the Convention in respect of both cases complained of. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 51.", "The applicant complained under Article 6 of the Convention that in both cases, he had not had a fair and public hearing in the proceedings concerning the alleged administrative offence. The relevant parts of Article 6 of the Convention read as follows: “1. 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. ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (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; ...” A. Admissibility 52.", "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 and must therefore be declared admissible. B. Merits 1. The parties’ submissions 53.", "The applicant submitted, in particular, that in both cases he had not been served, either prior to the hearing before the first-instance court or subsequently, with a copy of the administrative-offence reports issued in respect of him or with other materials in his case files. He also argued that the courts had based their findings merely on the administrative-offence reports and in the second case also on the statements of the police officers who had arrested him. The applicant further submitted that in neither case had he been assisted by a lawyer at the pre-trial stage. Nor had he been given an opportunity to hire a lawyer of his own choice to represent him before the first-instance court. Lastly, in neither case had the public been allowed to attend the hearing before the first-instance court, even though the court had not issued an official decision to examine his case in a closed hearing.", "54. The Government submitted that the administrative proceedings in both cases had been in line with national legislation. In the first case they pointed out in particular that the time-limit for lodging an appeal with the Court of Appeal against the decision of the first-instance court was ten days, so the applicant had had adequate time and facilities to prepare his defence. They also submitted in general terms that during the court proceedings the principle of equality of arms had been respected. The Government emphasised that in the second case the applicant had refused the assistance of a State-funded lawyer and had decided to defend himself in person.", "2. The Court’s assessment 55. Having regard to the material in the case files and the parties’ submissions, the Court notes that the facts of the present cases and the issues under Article 6 of the Convention raised by them closely resemble those examined in the Gafgaz Mammadov judgment (cited above). The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the present cases. In that judgment, the Court noted in particular a lack of necessary safeguards and guarantees in the administrative-offence proceedings, namely, a lack of adequate time and facilities to prepare the defence (ibid., §§ 78-81); the strong reliance by the domestic courts on the administrative-offence report prepared by the police and the statement given by a police officer (ibid., § 85); the utter disregard by the domestic courts of important factual circumstances and legal issues of the case, inter alia, the peaceful nature of the unauthorised demonstration (ibid., § 86); the absence of legal assistance at the pre-trial stage of the proceedings (ibid., §§ 90-91); and the failure to provide the applicant with an opportunity to appoint a lawyer of his own choice (ibid., § 92).", "Having regard to the above, the Court found that the administrative-offence proceedings against the applicant in the Gafgaz Mammadov judgment, considered as a whole, were not in conformity with the guarantees of a fair hearing. 56. Having regard to the facts of the present cases and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present cases the applicant’s right to fair trial was breached for the same reasons as those outlined above. 57. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention.", "58. Having already established that in both cases the applicant was not afforded legal assistance at the pre-trial stage, nor given an opportunity to appoint a lawyer of his own choice at the trial, the Court finds it unnecessary to rule on the issue whether his refusal of State-funded legal assistance at the trial constituted an unequivocal waiver of the right to a lawyer. 59. Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention (that the administrative-offence proceedings against the applicant, considered as a whole, were not in conformity with the guarantees of a fair hearing), the Court considers that there is no need to examine the applicant’s arguments concerning the alleged lack of a public hearing. IV.", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 60. The applicant complained that his arrest, custody and in the first case also administrative detention following his participation in the demonstrations had been in breach of Article 5 of the Convention. Article 5 of the Convention, 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: (a) the lawful detention of a person after conviction by a competent court; ... (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.” A. Admissibility 61. The Court 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 and must therefore be declared admissible. B. Merits 1. The parties’ submissions 62. The applicant argued that in the first case his arrest and administrative detention under Article 310.1 of the CAO (failure to comply with a lawful order of a police officer) had been arbitrary since he had not disobeyed any order from a police officer.", "The opening of administrative proceedings against participants in unauthorised demonstrations under Article 310.1 rather than Article 298 of the CAO (violation of rules on holding public assemblies) was an arbitrary administrative practice aimed at imposing a harsher form of punishment, such as administrative detention for up to fifteen days, which was not available under the latter Article. 63. The applicant further complained that in both cases he had not been promptly informed about the reasons for his arrest, and that his arrest and custody had not conformed to domestic procedural rules, in particular because he had not been given an opportunity to contact his relatives; his rights, including the right to have a lawyer, had not been properly explained to him; he had not been served with a copy of the administrative-offence report drawn up on him; and in the first case he had been arrested by people in plain clothes. 64. The Government argued that in both cases the applicant’s arrest had been in conformity with the CAO.", "In the first case, he had been arrested under Article 399.3 of the CAO, which provided that a person in respect of whom proceedings are carried out for an administrative offence punishable by administrative detention may be held in custody for up to twenty-four hours. In the second case the applicant had been escorted to a police station for the preparation of an administrative-offence report and had been released against a written undertaking to appear before the first-instance court two days later. 65. The Government also submitted that the applicant’s administrative detention in the first case had resulted from a lawful court decision by which he had been found guilty of an administrative offence under Article 310.1 of the CAO. 66.", "The Government lastly submitted that in both cases the applicant had been duly informed about the reasons for his arrest as well as his rights under the relevant provisions of the CAO. 2. The Court’s assessment 67. The Court notes from the outset that in the second case there is nothing in the material before it to suggest that on 26 January 2013 the applicant was released from police custody against a written undertaking to appear before the first-instance court two days later. Therefore the Court accepts the applicant’s assertion that after being arrested he was held in a police station and brought before a first-instance court on the same day.", "68. Having regard to the material and the parties’ submissions in the applicant’s first case, namely, his arrest and conviction following his participation in the demonstration of 17 November 2012, the Court notes that the facts of this case and the issues under Article 5 of the Convention raised by it closely resemble those examined in the Gafgaz Mammadov judgment (cited above). The Court considers that the analysis and conclusions made in the Gafgaz Mammadov judgment also apply to the applicant’s first case. In that judgment, the Court noted in particular that the measures applied by the authorities, namely, the arrest and custody followed by a prison sentence of several days had pursued aims unrelated to the formal ground relied on to justify the deprivation of liberty, and implied an element of bad faith and arbitrariness (ibid., § 108). Having regard to the above, the Court found that the deprivation of liberty of the applicant in the Gafgaz Mammadov judgment had been arbitrary.", "69. Having regard to the facts of the applicant’s first case and their clear similarity to those of the Gafgaz Mammadov case on all relevant and crucial points, the Court sees no particular circumstances that could compel it to deviate from its findings in that judgment, and finds that in the present case the applicant’s right to liberty was breached for the same reasons as those outlined above. 70. Accordingly, there has been a violation of Article 5 § 1 of the Convention. 71.", "In view of the nature and the scope of its finding above, the Court does not consider it necessary to examine the applicant’s other complaints under Article 5 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 72. Lastly, the applicant complained under Article 7 of the Convention that his arrest and administrative detention following his participation in the demonstration of 17 November 2012 had been in breach of the right not to be punished without law. Article 7 of the Convention, in so far as relevant, reads as follows: “1. 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.", "Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ...” 73. The applicant submitted that the domestic law serving as a basis for his conviction had not complied with the principle of foreseeability. In particular, he had been convicted for failing to stop participating in an unauthorised demonstration, despite the fact that the procedure for holding an assembly had not been clearly defined in domestic law. While the Constitution required only prior notification about a planned assembly, application by the authorities of certain provisions of the Law on Freedom of Assembly of 13 November 1998 resulted in a de facto system of prior authorisation.", "74. The applicant claimed that, since the organisers had given advance notice to the BCEA about the demonstration of 17 November 2012, and since that demonstration had been peaceful, participation in that assembly had been his constitutional right and not a criminal offence. 75. The Government submitted that the domestic law on freedom of assembly complied with the principle of foreseeability. The law clearly set out the procedure for organising and holding assemblies.", "They also submitted that failure to comply with a lawful order of a police officer clearly constituted an offence under domestic legislation. 76. The Court notes that the complaint of a violation of the right not to be punished without law is linked to the complaints examined above and must therefore likewise be declared admissible. 77. However, having regard to its above findings in relation to Articles 5, 6 and 11 of the Convention, the Court considers that it is not necessary to examine whether in the applicant’s first case there has been a violation of Article 7.", "VI. 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. In respect of non-pecuniary damage the applicant claimed 19,000 euros (EUR) in the first case and EUR 13,000 in the second case.", "80. In the second case the applicant also claimed EUR 500 in respect of pecuniary damage. In support of his claim he submitted that he had paid a fine of 500 manats (AZN), as ordered by the Sabail District Court on 26 January 2013. 81. The Government submitted that the applicant’s claim in respect of non-pecuniary damage was unsubstantiated and unreasonable in both cases.", "They considered that, in any event, an award of EUR 4,000 in the first case and EUR 3,000 in the second case would constitute sufficient just satisfaction. 82. The Government also submitted that they did not object to awarding just satisfaction in respect of pecuniary damage in the second case. However, they argued that, having regard to the exchange rate for Azerbaijani manats, the amount should be EUR 424. 83.", "The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 12,000 (as the total amount for both cases) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. 84. In addition, the Court accepts that in the second case the applicant suffered pecuniary damage as a result of the breach of Article 11 found above. The Court considers that the applicant is entitled to recover the amount paid as a fine and therefore awards him EUR 470, plus any tax that may be chargeable on this amount.", "B. Costs and expenses 85. The applicant claimed EUR 3,300 in the first case and EUR 2,500 in the second case, for the legal fees incurred before the domestic courts and before the Court. In support of his claim, he submitted contracts for legal and translation services. 86.", "The Government considered that the claim in both cases was excessive and could not be regarded as reasonable as to quantum. In particular, they argued that the applicant had been represented by the same lawyers who were representing a number of other applicants in similar cases and that substantial parts of the submissions in all those cases were identical or very similar. The Government also pointed out that the contracts for legal and translation services mentioned above indicated that the applicant would have to pay the lawyers 20% of the damages awarded by the Court. 87. The Government also pointed out that the contract for legal and translation services in the second case had been signed between the applicant and Mr R. Mustafazade.", "That contract contained a provision about payment to Mr R. Mustafazade of the legal fees incurred before the domestic courts. However, in fact the applicant had not been represented before the domestic courts by Mr R. Mustafazade. 88. The Government lastly submitted that, taking the above considerations into account, the amount to be paid to the applicant as reimbursement of costs and expenses should be reduced. 89.", "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 in the proceedings before it the applicant was represented by the same lawyers, Mr R. Mustafazade and Mr A. Mustafayev, in both cases and that those lawyers’ submissions in both cases were very similar. In addition, at the domestic level Mr A. Mustafayev represented the applicant before the Court of Appeal only in the first case. 90. The Court also notes that the clause indicating that the applicant must pay the lawyers 20% of the damages is irrelevant for the assessment of costs and expenses incurred by him.", "91. In view of the above considerations, the Court awards a total amount of EUR 2,000 in respect of the services rendered by Mr R. Mustafazade and Mr A. Mustafayev, minus EUR 850 which the Council of Europe has already paid in legal aid. C. Default interest 92. 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 there has been a violation of Article 11 of the Convention on account of the dispersal of the demonstrations and the applicant’s arrests and convictions; 4. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention; 5. Holds that there has been a violation of Article 5 of the Convention on account of the applicant’s arrest and conviction following his participation in the demonstration of 17 November 2012; 6.", "Holds that there is no need to examine the complaint under Article 7 of the Convention raised in application no. 42989/13; 7. 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 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 470 (four hundred and seventy euros), plus any tax that may be chargeable, in respect of pecuniary damage; (iii) EUR 1,150 (one thousand one hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the applicant’s representatives’ 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; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Milan BlaškoFaris VehabovićDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF VIJATOVIĆ v. CROATIA (Application no. 50200/13) JUDGMENT (Merits) STRASBOURG 16 February 2016 FINAL 16/05/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vijatović v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Julia Laffranque,Nebojša Vučinić,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 19 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "50200/13) 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 Vera Vijatović (“the applicant”), on 24 July 2013. 2. The applicant was represented by Mr V. Adžić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged, in particular, that the refusal of her request to purchase the flat she occupied amounted to a violation of her right to peaceful enjoyment of her possessions and that the decisions of the national courts were inconsistent. 4. On 2 June 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1927 and lives in Zagreb. 6. On 24 May 1961 the applicant’s husband was granted a specially protected tenancy in respect of a flat in Zagreb by the Yugoslav People’s Army (the “YPA”). The applicant, as his spouse, was also a holder of a specially protected tenancy of that flat. 7.", "On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo – hereinafter “the Sale to Occupier Act”), which regulated the sale of socially-owned flats previously let under a specially protected tenancy (see paragraph 19 below). However, State-owned flats were excluded. 8. On 3 October 1991 the Government adopted a decree (Uredba o preuzimanju sredstava JNA i SSNO na teritoriju Republike Hrvatske u vlasništvo Republike Hrvatske) whereby it took all the YPA’s property in Croatia into State ownership. 9.", "In 1995 the Act Amending the Sale to Occupier Act (Zakon o izmjenama i dopunama Zakona o prodaji stanova na kojima postoji stanarsko pravo – hereinafter “the APTSO”) allowed the sale of State-owned flats as well (see paragraph 22 below). The time-limit for lodging a request to purchase such a flat was set at sixty days. 10. On 29 January 1997 the Constitutional Court abrogated some of the provisions of the APTSO, including the one stipulating the time-limit for lodging a purchase request (see paragraph 23 below) 11. The applicant’s husband died on 15 April 2006.", "12. On 7 June 2006 the applicant lodged with the Ministry of Defence a request to purchase the flat she was occupying. The request was denied on the ground that it had been lodged outside the prescribed time-limit, which had expired on 31 December 1995. 13. On 19 March 2008 the applicant brought a civil action in the Zagreb Municipal Court seeking a judgment in lieu of a sale contract.", "She relied on several decisions of the Constitutional Court ruling that there was no time-limit in respect of a holder of a specially protected tenancy lodging a request to purchase the respective State-owned flat (see paragraphs 24-26 below). 14. In its judgment of 24 June 2008 the Zagreb Municipal Court held that there was no dispute between the parties that the applicant, as a former holder of a specially protected tenancy of the flat that she occupied, had the right to purchase that flat under favourable conditions. The only issue to be resolved was whether there was a time-limit that the applicant had to observe when lodging her request to purchase that flat – and if so, whether she had complied with it. The Municipal Court dismissed the applicant’s claim on the ground that the applicant had lodged her purchase request outside the accepted time-limit, which had been 31 December 1995.", "15. The applicant lodged an appeal, arguing that the time-limit under the APTSO for lodging a request to purchase a State-owned flat had been abrogated by the Constitutional Court and that no new time-limit had been fixed. The fact that there was no prescribed time-limit in place should not have been interpreted to the detriment of a plaintiff. She also relied on the opinion of the Constitutional Court that the very purpose of the Sale to Occupier Act was to enable holders of specially protected tenancies in respect of socially and State-owned flats to purchase such flats (see paragraph 22 below). 16.", "The first-instance judgment was upheld by the Zagreb County Court on 12 October 2010. The relevant part of the second-instance judgment reads: “As regards the decisions of the Constitutional Court relied on in the [plaintiff’s] action, it is to be noted that these decisions exceptionally recognised the right of certain parties to purchase flats [they occupied] in particular circumstances (such as their having had no clearly regulated status of holder of a specially protected tenancy before that date – for example in decision no. U-3551/02 of 25 May 2005) ... even though a request to purchase a flat had not been lodged before 31 December 1995. In such particular cases the Constitutional Court has adopted decisions based on particular circumstances. The Constitutional Court in all decisions recognising the right to purchase flats [they occupied] of persons who had not lodged a request in that respect before 31 December 1995 has accepted that there were objective circumstances preventing those persons from taking all relevant steps within the prescribed time-limits.", "In the case at issue the plaintiff did not even argue [that there were any] such circumstances, but insisted that she could bring an action for the purchase of the flat [that she occupies] at any time and that there were no time-limits in that respect. The view of this court is that the holders of specially protected tenancies of State-owned flats were obliged to lodge a request for purchasing these flats before 31 December 1995 (with the exception that in certain circumstances it was possible to claim that a party was prevented from lodging such a request within that time-limit on objective grounds).” 17. The applicant’s subsequent constitutional complaint was dismissed on 20 February 2013. The relevant part of that decision reads: “The Constitutional Court notes that the competent courts dismissed the applicant’s civil action on the grounds that she had not proved that any objective circumstances had prevented her from lodging a request to purchase the flat in issue within the prescribed time-limit. The Constitutional Court considers that the impugned decisions contain reasons acceptable from the standpoint of the constitutional law and that therefore they cannot be seen as arbitrary or unreasonable.” II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. The Housing Act Relevant provisions 18. The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided as follows: Section 64 “2. If a specially protected tenancy was acquired by one spouse who lives with the other, the other shall also be considered as having acquired it.", "...” B. Sale to Occupier Act 1. Relevant provisions 19. The Sale to Occupier Act (Official Gazette no. 27/1991 with subsequent amendments), which entered into force on 19 June 1991, entitled the holder of a specially protected tenancy (“the tenant”) of a socially-owned flat to purchase it from the provider of the flat under favourable conditions.", "Section 4(2) provided that a written request to purchase (the first request) had to be made within one year of the date of the Act’s entry into force (by means of subsequent amendments to the Act, this time-limit was extended until 31 December 1995), and a further request for the actual conclusion of the purchase contract within two years of the first request. 2. The case-law of the Supreme Court 20. In its decision no. Rev-944/99-2 of 13 August 2002 the Supreme Court interpreted section 4(2) of the Sale to Occupier Act as follows: “Since the plaintiff did not make a request for the purchase of the flat to the defendants in written form by 31 December 1995, as provided by law ... the lower-instance courts correctly assessed that the plaintiff had lost his right to request the conclusion of a purchase contract.” 3.", "The case-law of the Constitutional Court 21. The decision of the Constitutional Court no. U-III-344/2002 of 8 December 2005, in so far as relevant, reads as follows: “The very purpose of the Specially Protected Tenancies (Sale to Occupier) Act, as regards socially-owned flats in respect of which there were specially protected tenancies, is to clearly define those persons with an entitlement to [purchase] formerly socially-owned property and to ensure that [such persons] are, in the first place, persons who have been using such flats lawfully.” C. The APTSO 1. Relevant provisions 22. The APTSO (Official Gazette no.", "58/1995) which entered into force on 17 August 1995 extended the right of purchase to holders of specially protected tenancies of State-owned flats. Section 16 reads as follows: “(1) Holders of specially protected tenancies ... shall have the right to purchase flats in State ownership. ... (3) The following persons shall not be entitled to purchase, or transfer the right to purchase, a flat in State ownership: - those sentenced by a final judgment for crimes against humanity and international law, - those sentenced by a final judgment for crimes against the Republic of Croatia, - those against whom criminal proceedings for crimes against humanity and international law or crimes against the Republic of Croatia have been instituted, until the judgment becomes final, - those who have participated or participate in enemy activities against the Republic of Croatia, - those who have evaded conscription, - those against whom proceedings for termination of a specially protected tenancy or termination of a lease agreement in respect of a flat have been instituted, until the end of those proceedings, - those owning a dwelling house or flat in the same place [i.e. village, town or city], - those who have left the Republic of Croatia or have moved to the occupied territories and have not used the flat for more than six months.” Section 20(1) and (2) of the APTSO provides that a written request to purchase a State-owned flat had to be made within sixty days of the date of the APTSO’s entry into force (sub-section 1(1), after the expiry of which the tenant lost his or her right to purchase the flat (sub-section 2). Section 20(3) provided that the seller had to conclude the purchase contract with the buyer within one year after the expiry of the time-limit referred to in paragraph 1 (this time-limit was by subsequent amendments extended until 31 December 1998).", "Section 20(4) provided that if the seller, at the request of the buyer, failed to conclude a contract within the time-limit stipulated in paragraph 3, the buyer had the right to bring a civil action in the competent court with a view to obtaining a judgment that would entirely replace such a contract. 2. The Constitutional Court’s decision of 29 January 1997 and its ensuing case-law 23. Having received 37 requests for it to review the constitutionality of the APTSO, on 26 June 1996 the Constitutional Court instituted proceedings to that end. On 29 January 1997 it delivered decision no.", "U‑I‑697/1995 abrogating a number of the provisions of the APTSO as being unconstitutional, including sub-sections 1 and 2 of section 20. Sub-sections 1 and 2 of section 20 were abrogated because of an unwarranted distinction in respect of the time-limits for making a purchase request to be observed by the holders of, respectively, specially protected tenancies of State-owned flats and socially-owned flats. The Constitutional Court noted that holders of specially protected tenancies of State-owned flats had been obliged to make their request within only sixty days of the entry into force of the APTSO, whereas the holders of tenancies of socially-owned flats had had to do so within one year of the entry into force of the Sale to Occupier Act, the time-limit for which had been extended several times (eventually until 31 December 1995). The Constitutional Court held that new time-limits could be prescribed by the legislature and also by the Government. 24.", "In its decisions U-III-559/2004 of 16 November 2004 and U‑III‑344/2002 of 8 December 2005, the Constitutional Court held that applicants who had been prevented on objectively justified grounds from lodging a request to purchase State-owned flats that they occupied could not have been required to lodge such requests as long as these obstacles existed (in the two cases in point these were applicants whose specially protected tenancies of State-owned flats had been recognised only in 1996 and 2001, respectively). 25. In case no. U-III-551/2002 of 6 May 2005 the applicant in that case argued that she had acquired the specially protected tenancy of a State-owned flat only on 13 March 1997 and had therefore not been able to lodge a request to purchase it before that date. The Constitutional Court held, in so far as relevant, as follows: “5.", "The Constitutional Court in the reasoning of its decision no. U-I-697/1995 of 29 January 1997, in connection with abrogating section 20(1) of the Act amending the Protected Tenancies (Sale to Occupier) Act (the APTSO), which prescribed a sixty-day time-limit for lodging requests to purchase State-owned flats, held as follows: ‘The inequality of the positions of buyers of so-called State-owned flats and buyers of other flats, which is incompatible with the Constitution, exists also in respect of the time-limits for lodging requests to purchase State-owned flats. Therefore, section 20(1) and (2) and section 21 of the APTSO have been repealed because they [discriminated against] those citizens for whom the time-limit for seeking to purchase the flats [they occupied] was sixty days or thirty days from the APTSO entering into force, in comparison with those citizens who [initially] had a one-year time-limit to lodge such requests ... [such time-limit having been subsequently] extended for a further couple of years. In repealing these provisions, the [Constitutional] Court is aware that new time-limits ... could be prescribed not only by the legislature but also by the Government of the Republic of Croatia. ...’ 6.", "The Constitutional Court stresses the following: Before the APTSO had entered into force, section 50 of the Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette no. 43/92 – consolidated text) provided as follows: ‘Flats which have become the property of the Republic of Croatia on the basis of the Decree on the Taking Over of the Assets of the YPA [Yugoslav People’s Army] ... on the Territory of the Republic of Croatia (Official Gazette no. 52/91) and the Decree on the Taking Over of the Assets of the Former SFRY [the Socialist Federal Republic of Yugoslavia] into the Ownership of the Republic of Croatia (Official Gazette no. 68/91) shall not be sold before the enactment of laws establishing specific criteria for the sale of such flats’. That law reflects exactly the APTSO, which in section 20(1) and (2) fixed the time-limit (between 5 August and 4 October 1995) for lodging requests to purchase State-owned flats (such as the flat the applicant wishes to buy).", "After certain provisions of that Act were repealed (by the decision mentioned in point 5 of this decision), the competent body did not enact any new law prescribing a new time-limit. Therefore, the Constitutional Court finds that the non-existence of a time-limit for taking a certain action (particularly in view of the fact that the time-limit was repealed by a decision of the Constitutional Court) cannot be interpreted to the detriment of a party who had to take such action. The Constitutional Court has established that the lower courts wrongly applied substantive law and thus violated the applicant’s constitutional right, as guaranteed by Article 14 § 2 of the Constitution, which guarantees the equality of all before the law.” 26. In case no. U-III-1525/2010 of 27 May 2010 there is no indication that the applicant in that case was prevented from lodging before 31 December 1995 a request to purchase the flat that she occupied.", "The Constitutional Court held, insofar as relevant, as follows: “5. The APTSO set time-limits for lodging requests to purchase so-called State-owned flats (between 5 August and 4 October 1995). After some of the provisions of that Act were repealed ..., the competent body did not enact laws prescribing a new time-limit. Therefore, the Constitutional Court finds that the non-existence of a time-limit for taking a certain action (particularly in view of the fact that the time-limit was repealed by a decision of the Constitutional Court) cannot be interpreted to the detriment of a party who had to take such action. The Constitutional Court expressed the same opinion in its decision no U‑III‑559/2004 of 16 November 2004 (Official Gazette no.", "174/04).” 27. The constitutional Court expressed the same view its decision no. U‑III-4842/2013 of 13 May 2015. 3. The case-law of the Supreme Court 28.", "In its decision no. Rev-1256/02-2 of 14 July 2004 the Supreme Court interpreted the relationship between the Sale to Occupier Act (in particular its section 4) and the APTSO as follows: “The plaintiff made a request for the purchase of the flat to the defendant on 18 October 1996, that is, after the expiry of the prescribed time-limit (31 December 1995), so the courts [ruled] correctly [when they] dismissed her claim. The time-limit in question is preclusive, meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase such flat ... The fact that the proceedings for termination of the specially protected tenancy – which ended with the first-instance judgment ... of 16 April 1996, which became final on 11 July 1996 – were pending between the parties at the time when the time-limit expired (31 December 1995) is not relevant. ... [Those proceedings] did not prevent the plaintiff from making a request to purchase the flat.", "... The provisions of section 16 of the APTSO on which the plaintiff relies, and which concern so-called State-owned flats, did not extend the time-limit for making the request to purchase the flat. Under [section 16 of the APTSO] persons against whom proceedings for termination of the specially protected tenancy ... have been instituted, could not, until the end of those proceedings, buy a State-owned flat. That means, in particular, that the plaintiff cannot have concluded a sale contract in respect of the flat until 11 July 1996, when the proceedings for the termination of the specially protected tenancy ended ... On that day that impediment ceased to exist ... [H]owever, making a written request to purchase the flat before the expiry of the prescribed time-limit is a precondition for the conclusion of the contract [of sale]. Because the plaintiff did not make such a request before the time-limit expired (on 31 December 1995), she lost the right to make the request and the defendant was not obliged to sell her the flat on the basis of the request made after the expiry of the time-limit (18 October 1996).", "The proceedings for termination of the specially protected tenancy were an impediment to buying the flat (for the conclusion of a contract), but not to making a request to purchase the flat. The existence of the [pending] proceedings does not extend the time-limit for making a request to purchase the flat. The Constitutional Court’s decision U-I-697/1995 of 29 January 1997 abrogating, inter alia, section 20(1) and (2) of the APTSO is of no relevance to the outcome of these proceedings. Those abrogated provisions provided that the request ... to purchase the State-owned flat had to be made within sixty days of the entry into force of the APTSO and that after the expiry of that time-limit the applicant lost the right to buy the flat. [Those provisions] placed the holders of specially protected tenancies of State-owned flats in an unequal position compared to the holders of such tenancies of flats not owned by the State, because for them the considerably shorter preclusive time-limit for making their request to purchase the flat was prescribed (the prescribed time-limit of sixty days expired on 16 October 1995).", "By the Constitutional Court’s decision the buyers of State-owned flats were put in the same position as other buyers, but they were not given a privileged status, so the prescribed time-limit for making a request to purchase a flat (31 December 1995), valid for all other buyers, would not apply to them.” D. Decision on the Sale of Flats Managed by the Ministry of Defence 29. On 2 April 2009 the Croatian Government issued the Decision on the Sale of Flats Owned by the Republic of Croatia and Managed by the Ministry of Defence (Odluka o prodaji stanova u vlasništvu Republike Hrvatske kojima upravlja Ministarstvo obrane (Official Gazette nos. 43/209, 109/2010 and 116/2011) by which it allowed the sale of these flats for their market value, but excluded those flats which were the subject of the Sale to Occupier Act and the APTSO. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.", "1 TO THE CONVENTION 30. The applicant complained that her property rights had been violated, contrary to the guarantees stipulated under 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 31.", "The Government argued that the applicant had failed to exhaust domestic remedies because she had not lodged her request to purchase the flat in issue within the prescribed time-limits. Further to this she could have lodged such a request between 8 April and 31 December 2011 on the basis of a Decision issued by the Croatian Government granting the right to protected lessees to purchase flats managed by the Ministry of Defence (see paragraph 29 above). 32. The applicant argued that she had exhausted all available remedies. 33.", "The Court considers that the Government’s argument on non-exhaustion of domestic remedies is closely linked to the substance of the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention. The plea should, therefore, be joined to the merits. 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 1. The parties’ submissions (a) The applicant’s submissions 35.", "The applicant argued that the time-limit for lodging a request to purchase a socially-owned flat under the initial Sale to Occupier Act had been one year from the date on which the Act had entered into force – that is until 19 June 1992. This time-limit had been extended on several occasions; the final time-limit was 31 December 1995. Thus, persons holding that right under the initial Sale to Occupier Act had had over four and half years in which to make a purchase request. 36. By contrast, those holding the right to purchase State-owned flats, granted to them under the APTSO, had initially had only sixty days in which to lodge their requests to purchase the flats they occupied.", "Owing to the significant difference between the time-limits, on 26 June 1996 the Constitutional Court had abrogated the sixty-day time-limit and invited the Parliament and the Government to set a new time-limit. However, that had not happened; therefore, the applicant had not had any time-limit for lodging her request to purchase the State-owned flat that she occupied. This had been confirmed by the decisions adopted by the Constitutional Court. 37. However, the ordinary courts had ignored the Constitutional Court’s decision and views and continued to dismiss all claims concerning the sale of Sate-owned flats lodged after 31 December 1995.", "The Constitutional Court in each of such cases had found a violation of the Constitution on the ground that there had been no time-limit for lodging such a request. The only departure from such a view had been the applicant’s case. (b) The Government’s submissions 38. The Government argued that the applicant had had no reason to wait until June 2006 before lodging her request to purchase the State-owned flat that she occupied, since it had always been undisputed that she, as the spouse of the person to whom the flat had been granted, also held a specially protected tenancy of that flat and had Croatian citizenship. 39.", "The Constitutional Court decisions on which the applicant relied had concerned situations that differed from that of the applicant, since the applicants in those cases – unlike the applicant in the case at issue – had had a justified reason for lodging their requests outside the time-limit established by the Croatian courts (31 December 1995). 2. The Court’s assessment (a) Whether the applicant had a “possession” 40. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision.", "“Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets”. Where, as in the present case, a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it) – that is, when the claim is sufficiently established to be enforceable (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 48-49 and 52, ECHR 2004 IX, and Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301 B). 41.", "The Court notes that under section 16(1) of the APTSO, all holders of specially protected tenancies of State-owned flats had the right to purchase the flats they occupied, save for those defined in paragraph 3 of that section (see paragraph 22 above). 42. Turning to the present case, the Court first notes that the domestic courts recognised that the applicant, as a former holder of a specially protected tenancy of the flat in issue, had the right to purchase it under favourable conditions. This was not disputed by the Government. 43.", "Having regard to this, the relevant domestic law and the facts of the present case, the Court therefore considers that the applicant’s claim to purchase the flat in the present case had a sufficient basis in national law to qualify as an “asset” and therefore a “possession” protected by Article 1 of Protocol No. 1 to the Convention. (b) Whether there was an interference with the applicant’s possession 44. Having concluded that the applicant’s claim to purchase the flat she occupied amounted to a “possession” within the meaning of Article 1 of Protocol No. 1, the Court considers that the decisions of the domestic courts denying the applicant the right to purchase that flat amounted to an interference with her right to peaceful enjoyment of her possessions.", "45. The Court considers that the situation complained of should be examined in the light of the general rule contained in the first paragraph, first sentence, of Article 1 of Protocol No. 1. In order to be compatible with the general rule of Article 1 of Protocol No. 1, any interference must be in accordance with the law, in the public interest, and proportionate to the aim pursued (see Beyeler v. Italy [GC], no.", "33202/96, §§ 108 and 111, ECHR 2000‑I). (c) Whether the interference was “provided for by law” 46. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of someone’s possessions should be lawful (Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 II).", "Moreover, the rule of law, one of the fundamental principles of a democratic society, is a notion inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC] (merits), no. 25701/94, § 79, ECHR 2000‑XII; Broniowski v. Poland [GC], no. 31443/96, § 147, ECHR 2004‑V; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 95, 25 October 2012). 47.", "The Court considers that when speaking of “law”, Article 1 of Protocol No. 1 alludes to the same concept as that to which the Convention refers elsewhere when using that term – a concept which comprises statutory law as well as case-law. It refers to the quality of the law in question, requiring that it be accessible to the persons concerned, precise and foreseeable in its application (see Špaček, s.r.o., v. the Czech Republic, no. 26449/95, § 54, 9 November 1999; Carbonara and Ventura v. Italy, no. 24638/94, § 64, ECHR 2000 VI; Baklanov v. Russia, no.", "68443/01, §§ 40-41, 9 June 2005). In addition, the application of the legal provision in question should not be manifestly erroneous or so as to reach arbitrary conclusions (see Beyeler, cited above, § 108). 48. The Court accepts that its power to review compliance with domestic law is limited as it is in the first place for the national authorities to interpret and apply that law. When assessing the lawfulness of the interference under Article 1 of Protocol No.", "1 the Court is required to verify whether the way in which the domestic law was interpreted and applied has produced consequences that are consistent with the principles of the Convention (see Apostolidi and Others v. Turkey, no. 45628/99, § 70, 27 March 2007, and Nacaryan and Deryan v. Turkey, nos. 19558/02 and 27904/02, § 58, 8 January 2008; Lelas v. Croatia, no. 55555/08, § 76, 20 May 2010; Shchokin v. Ukraine, nos. 23759/03 and 37943/06, § 51, 14 October 2010; Antonyan v. Armenia, no.", "3946/05, § 54, 2 October 2012; Budchenko v. Ukraine, no. 38677/06, § 40, 24 April 2014; and Krasnodębska-Kazikowska and Łuniewska v. Poland, no. 26860/11, § 44, 6 October 2015). 49. As to the instant case, the Court notes that the national courts accepted that the applicant had the right to purchase under favourable conditions the flat she occupied, such right having been granted to persons in her position in 1995 by the APTSO.", "The national courts held that the only issue in dispute between the parties in the civil proceedings was whether there was a time-limit within which the applicant had to lodge a request to purchase the flat she occupied, and if so, whether she had complied with that time-limit. 50. The Court notes that the time-limit for lodging a request to purchase State-owned flats was stipulated in section 20(1) and (2) of the APTSO; that time-limit was set at within sixty days of 17 August 1995, the date on which the APTSO entered into force (see paragraph 22 above). These provisions were abrogated by the Constitutional Court’s decision no. U‑I‑697/1995 of 29 January 1997.", "In that decision the Constitutional Court noted that new time-limits could be fixed not only by the legislature but also by the Croatian Government (see paragraph 25 above). However, neither of those bodies has ever adopted any law prescribing a new time-limit. This has led to the courts reaching conflicting conclusions as to whether there was any time-limit for lodging requests to purchase State-owned flats. 51. The Supreme Court held that the final date on which a request to purchase a State-owned flat could be lodged was 31 December 1995 (see paragraph 28 above).", "52. The early development of the Constitutional Court’s case-law, after it had abrogated the time-limit fixed by section 20 of the APTSO, shows that the Constitutional Court firstly held that where there had been objectively justified grounds which had prevented a holder of a specially protected tenancy of a State-owned flat from lodging a request to purchase such a flat, such a person was excused from lodging such a request for as long as the obstacle existed (see paragraph 24 above). 53. The further development of the Constitutional Court’s case-law shows that that Court adopted the principle that the non-existence of any prescribed time-limit for lodging requests to purchase State-owned flats could not be interpreted to the detriment of a party seeking to purchase such a flat (see paragraphs 25 above), even where, as in the applicant’s case, there were no arguments put forward that there had been obstacles to lodging a purchase request at any given time (see paragraphs 26 to 28 above). 54.", "At this juncture the Court reiterates that the lack of a sufficiently precise and foreseeable statutory provision may be remedied by domestic courts giving a clear and precise interpretation (see Apostolidi and Others, cited above, § 70; and Nacaryan and Deryan, cited above, § 58). 55. However, in the present case there was no statutory provision setting the time-limit for lodging requests to purchase State-owned flats. This lacuna in the law could not be remedied by the practice of the domestic courts. 56.", "The Court also notes that following the abrogation of the time-limit set by section 20(1) and (2) of the APTSO, it was up to the Croatian Parliament (as the legislature), or the Croatian Government, to set a new time-limit, which they failed to do. The Court agrees with the view expressed by the Constitutional Court that “the non-existence of a time-limit for taking a certain action ... cannot be interpreted to the detriment of a party who had to take such action” (see paragraphs 25 and 26 above). In this connection, the Court also reiterates a principle established by its own case-law: that the risk of any mistake made by a State authority must be borne by the State and any errors must not be remedied at the expense of the individual concerned (see Gashi v. Croatia, no. 32457/05, § 40, 13 December 2007; Stolyarova v. Russia, no. 15711/13, § 49, 29 January 2015; and, mutatis mutandis, Radchikov v. Russia, no.", "65582/01, § 50, 24 May 2007). 57. Having regard to the Government’s objection (see paragraph 31), which was joined to the merits of the complaint, the Court considers, for the reasons explained above, that the applicant did not have to comply with any time-limit for lodging her request to purchase the flat she occupied. As regards the Decision of 2 April 2009 relied on in the Government’s observations (see paragraphs 29 and 31 above), this did not concern the applicant since it did not relate to those flats which were the subject of the Sale to Occupier Act and the APTSO; moreover, the Decision of 2 April 2009 was not considered by the national courts during the proceedings in issue. Also, the present case concerns the applicant’s complaint that she was not able to purchase the flat that she occupied under the Sale to Occupier Act, which provided for that right under favourable conditions, unlike the Decision of 2 April 2009.", "58. In these circumstances the Court considers that the interference with the applicant’s right to peaceful enjoyment of her possessions was not provided for by law. Accordingly, the Court finds that there has been a violation of Article 1 of Protocol No.1 to the Convention and dismisses the Government’s objection as to the exhaustion of domestic remedies. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 59.", "The applicant complained about the fact that in her case the national courts interpreted the relevant law in a manner contrary to the practice of the Constitutional Court. She relied on Article 6 § 1 of the Convention. 60. The Government contested that argument. 61.", "The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 62. Having regard to the finding relating to Article 1 of Protocol No. 1 to the Convention (see paragraph 57 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 1 of the Convention (see, among other authorities, Öneryıldız v. Turkey [GC], no. 48939/99, § 160, ECHR 2004‑XII; and Gaygusuz v. Austria, 16 September 1996, § 55, Reports of Judgments and Decisions 1996‑IV).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. 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.” 64. The applicant claimed 73,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 65.", "The applicant also claimed 8,437.50 Croatian kunas (HRK) in respect of the costs and expenses incurred before the domestic courts and HRK 15,000 for those incurred before the Court. 66. The Government deemed the claims unfounded and excessive. 67. In the circumstances of the present case the Court finds that the question of the application of Article 41 of the Convention is not ready for decision.", "Consequently, it will reserve the question in its entirety and schedule the subsequent procedure, bearing in mind the possibility of an agreement being reached between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). The Court gives the parties three months for that purpose. FOR THESE REASONS, THE COURT 1. Decides to join to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it; 2. Declares, unanimously, the application admissible; 3.", "Holds, by six votes to one, that there has been a violation of Article 1 of Protocol No 1 to the Convention; 4. Holds, unanimously, that there is no need to examine the complaint under Article 6 § 1 of the Convention; 5. Holds, by six votes to one, that the question of the application of Article 41 of the Convention is not ready for decision; and accordingly, a) reserves the said question in its entirety; b) invites the Government and the applicant to submit, within three months from the date of notification of this judgment, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be. Done in English, and notified in writing on16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kjølbro is annexed to this judgment.", "A.I.K.S.H.N. DISSENTING OPINION OF JUDGE KJØLBRO 1. I agree with the majority that the applicant had a property right that is protected by Article 1 of Protocol No. 1 (paragraphs 40-43 of the judgment) and that the dismissal of her request to purchase the State-owned flat in which she was living amounts to an interference with her right to peaceful enjoyment of her possessions (paragraphs 44-45 of the judgment). However, I am unable to follow the majority in their finding that the interference was not lawful within the meaning of Article 1 of Protocol No.", "1 (paragraphs 46‑58 of the judgment). 2. In general, it is for the domestic courts to interpret domestic legislation, and the Court will respect their interpretation of that legislation, unless it is manifestly erroneous or arbitrary (see Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000‑I, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 108, ECHR 2005‑VI).", "In my view, there is an insufficient basis for saying that the interpretation of domestic law performed by Zagreb Municipal Court in its judgment of 24 June 2008, the Zagreb County Court in its judgment of 12 October 2010, or the Constitutional Court in its judgment of 20 February 2013, was manifestly erroneous or arbitrary. 3. In accordance with the Sale to Occupier Act 1991, the holder of a specially protected tenancy may purchase his or her socially-owned flat on favourable terms. A one year time-limit for submitting requests for purchase was stipulated in section 4(2) of the Act, and after several extensions the time-limit expired on 31 December 1995. On 17 August 1995, under a new Act, the right to purchase flats was extended to holders of a specially protected tenancy living in State-owned flats.", "The applicant and her late husband fell into that category and were entitled to make use of the right to purchase their flat. Section 20 of the 1995 Act contained a 60 day time-limit for submitting a written request to purchase a State-owned flat. However, this time-limit was abrogated by the Constitutional Court in a judgment of 29 January 1997, and the legislature never adopted a new time-limit to replace the defunct 60 day time-limit, as they had been encouraged to do by the Constitutional Court. 4. Therefore, when the applicant in 2006, at the age of 79 and more than 11 years after the adoption of the 1995 Act, lodged a request to purchase her State-owned flat, the domestic authorities, first the Ministry of Defence and subsequently the domestic courts, were faced with the following legal question: what was the legal consequence of the fact that the abrogated 60 day time-limit in section 20 of the Sale to Occupier Act had not been replaced by a new time-limit by the legislature?", "Was the consequence of this inaction that no time-limit applied? Or was the consequence that the generally applicable time-limit under the 1991 Act (which had expired on 31 December 1995) applied? 5. The applicant argued for the first solution, that no time-limit applied (paragraph 36 of the judgment). The Government argued for the second solution, that the general time-limit was applicable (paragraphs 38-39 of the judgment).", "The domestic court dismissed the applicant’s claim holding that it had been lodged out of time. More specifically, the domestic courts ruled that the generally applicable time-limit in the 1991 Act, which had expired on 31 December 1995, was applicable to the applicant’s case, and that there had been no objective circumstances preventing the applicant from lodging her claim within the time-limit. The question therefore arises whether the domestic courts’ interpretation of domestic legislation was “manifestly erroneous” or “arbitrary”. In the view of the majority, that was the case. I respectfully disagree.", "6. The Supreme Court had, in a judgment of 14 July 2004, approximately four years before the applicant instituted court proceedings, ruled that the generally applicable time-limit applied to requests to purchase State-owned flats (paragraph 28 of the judgment). Subsequently, the Constitutional Court in a judgment of 6 May 2005 (paragraph 25 of the judgment) had ruled, having regard to its earlier abrogation of section 20 of the Sale to Occupier Act, that “the non-existence of a time-limit for taking a certain action ... cannot be interpreted to the detriment of a party who had to take such action”. 7. From this the majority deduce that, in the view of the Constitutional Court, no time-limit applied for requests to purchase State-owned flats.", "However, in the judgment of the Constitutional Court, the applicant in that case had argued that she had only acquired the specially protected tenancy of the State-owned flat on 13 March 1997 and that she had therefore not been able to lodge a request to purchase it before that date. In other words, the case concerned an applicant who, for objective reasons, could not comply with the generally applicable time-limit that had expired on 31 December 1995. Therefore, it does not follow clearly from the judgment that no time-limit is applicable in the view of the Constitutional Court. On the contrary, the judgment can equally be read as confirming the Constitutional Court’s earlier case-law, in a judgment of 16 November 2004 (paragraph 24 of the judgment), according to which applicants who had been prevented on objectively justified grounds from lodging a request to purchase State-owned flats that they occupied could not have been required to lodge such a request as long as those obstacles existed. Likewise, the judgments of 27 May 2010 and 13 May 2015 of the Constitutional Court (paragraph 26 and 27 of the judgment) only repeat what was stated in the Constitutional Court’s judgment of 6 May 2005, according to which “the non-existence of a time-limit for taking a certain action ... cannot be interpreted to the detriment of a party who had to take such action”.", "Furthermore, it does not follow clearly from these two judgments that no time-limit applied in the view of the Constitutional Court. 8. From this I deduce that it is possible to interpret the domestic legislation in the following way. The special time-limit for lodging requests to purchase State-owned flats was abrogated by the Constitutional Court. Therefore, the generally applicable time-limit, which expired on 31 December 1995, is applicable.", "However, this time-limit does not apply, by way of exception, where the person concerned has been prevented on objectively justified grounds from lodging a request to purchase a State-owned flat. I am not saying that this is the correct interpretation of domestic legislation. I am only saying that this is a possible interpretation. Furthermore, if this interpretation is adopted, there is no conflicting case-law as alleged by the majority. 9.", "This possible interpretation was exactly the one adopted by the Zagreb County Court in its judgment of 12 October 2010, upholding the Zagreb Municipal Court’s judgment of 24 June 2008. Furthermore, I cannot but note that the Constitutional Court dismissed the applicant’s constitutional complaint in a judgment of 20 February 2013. In doing so, the Constitutional Court noted that the domestic courts had dismissed the applicant’s claim “on the grounds that she had not proved that any objective circumstances had prevented her from lodging a request to purchase the flat in issue within the prescribed time-limit”, and according to the Constitutional Court, the decisions “contain reasons acceptable from the standpoint of the constitutional law and ... therefore they cannot be seen as arbitrary or unreasonable” (paragraph 17 of the judgment). 10. Having regard to the Constitutional Court’s judgment, I cannot but note the following.", "If, as alleged by the majority, there is conflicting case-law between the Supreme Court and the Constitutional Court (paragraph 50 of the judgment), the majority must also assume that the Constitutional Court was not aware of – or erroneously did not apply – its own case-law when it adopted its judgment of 20 February 2013. I would be very careful not to make such an assumption. 11. Therefore, having regard to the possible interpretation of domestic law and the remarks above, I cannot share the view of the majority that the domestic courts’ interpretation of domestic law in the applicant’s case, that is to say in the judgments of the Zagreb Municipal Court, the Zagreb County Court and the Constitutional Court, was “manifestly erroneous” or “arbitrary”. 12.", "For my part, I am willing to accept the domestic court’s interpretation of domestic law and find that the interference with the applicant’s property right was lawful within the meaning of the Convention. Having regard to the length of the period in question (from 17 August 1995 when the law entered into force until 31 December 1995) and the fact that there were no objective circumstances that had prevented the applicant from lodging her request within that time-limit, I do not find it disproportionate to dismiss the applicant’s request for failure to comply with the time-limit. Therefore, I voted for a finding of no violation of Article 1 of Protocol No. 1. 13.", "I would like to add a final remark. I find the consequences of the Court’s judgment very unfortunate. In the view of the Court, no time-limit applies for lodging a request to buy a State-owned flat under the Sale to Occupier Act 1991 (paragraph 57 of the judgment). In other words, holders of a specially protected tenancy, who for unknown reasons had not submitted a request to purchase their flat before the end of 1995, may now, with reference to the Court’s interpretation of domestic legislation, lodge a request to buy their State-owned flat more than 30 years after the adoption of the 1995 Act, thereby allowing individuals to speculate on the development of the market value of real estate to the detriment of the State and tax-payers. The applicant was 79 years old when she, in 2006, decided to request to buy the flat in which she had been living since 1961, and today she is 89 years old.", "Therefore, the judgment of the Court will, in practice, be first and foremost of benefit to the applicant’s heirs." ]

[ "THIRD SECTION CASE OF SARUKHANYAN v. ARMENIA (Application no. 38978/03) JUDGMENT STRASBOURG 27 May 2008 FINAL 27/08/2008 This judgment may be subject to editorial revision. In the case of Sarukhanyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura-Sandström,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 6 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 38978/03) 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 Gagik Sarukhanyan (“the applicant”), on 6 November 2003.", "2. The applicant, who was granted legal aid, was represented by Mr A. Grigoryan, 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 16 September 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 1962 and lives in Yerevan. A. Privatisation of the flat where the applicant resided 5.", "The applicant had shared a flat with his parents since 1973. It measured 64.7 sq. m. and had been provided for them by the authorities under the Soviet housing legislation. It was registered in the name of the applicant’s father (the tenant), who died in 1982. In 1988 the applicant’s wife moved in with the applicant.", "They had two children, who were born in 1989 and 1992. 6. On 10 June 1993 the then Supreme Council (ՀՀ գերագույն խորհուրդ) adopted the Law on Privatisation of the State and Public Housing Fund (Հայաստանի Հանրապետության պետական և հանրային բնակարանային ֆոնդի սեփականաշնորհման մասին ՀՀ օրենք), which outlined the procedure for privatisation of State-owned housing. 7. On 21 February 1994 the applicant’s mother filed an application with the then Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan (Երևան քաղաքի ժողովրդական պատգամավորների Շահումյանի շրջանային խորհրդի գործադիր կոմիտե) for a declaration that she was the tenant of the flat in question and an order for its privatisation.", "The relevant sections of this application were filled out in the following manner: “10. We, the adults having the right to accommodation, agree that: (a) the flat be privatised in the name of the tenant, [the applicant’s mother’s name]... 11. We, the adults having the right to accommodation, wish the flat to be privatised as (underline as necessary): (a) a joint tenancy of all family members; [or] (b) a tenancy in common of all family members. [Note: none of these two options was underlined.] 12.", "Written consent of the adults enjoying the right to the accommodation that is to be privatised: [three signatures, including those of the applicant, his mother and his wife]. 8. On 27 October 1994 the Executive Committee decided to grant the application. This decision stated: “In accordance with the Law on Privatisation of the State and Public Housing Fund of 29 June 1993 ... The Executive Committee decides: 1.", "To allow the tenancy card of [the flat in question] to be changed from [the applicant’s father’s] name to the name of his wife, [the applicant’s mother], and to privatise [the flat] ...” 9. On 18 November 1994 the authorities furnished an ownership certificate (no. 15351 – թիվ 15351 սեփականության վկայագիր), which indicated: “The entire /share/ [flat in question] is owned by [the applicant’s mother].” B. The parliamentary election of 25 May 2003 10. On 25 May 2003 a general election to the National Assembly of Armenia was to be held to elect 131 members for a term of four years.", "Of these, 75 seats were to be allocated by proportional representation (համամասնական ընտրակարգ) to candidates nominated on the party voting lists. The remaining 56 members were to be elected by a single constituency vote (մեծամասնական ընտրակարգ) from single-mandate district constituencies. C. The annulment of the registration of the applicant’s candidacy for the parliamentary election 11. On 15 March 2003 the applicant submitted the required documents, including a declaration of property (սեփականության մասին հայտարարագիր), to District Election Commission no. 12 (թիվ 12 ընտրատարածքային ընտրական հանձնաժողով) in order to be registered as a single constituency candidate for the relevant constituency.", "12. On 19 April 2003 the District Election Commission registered the applicant as a single constituency candidate for constituency no. 12. 13. On 28 April 2003 Election Commission no.", "12 addressed a letter to the State Committee of the Real Estate Registry (ՀՀ կառավարությանն առընթեր անշարժ գույքի կադաստրի պետական կոմիտե), inquiring about the property status of several candidates registered in its constituency, including the applicant. 14. On 29 April 2003 the Malatia-Sebastia District Council of Yerevan (Երևանի Մալաթիա-Սեբաստիա թաղապետարան) issued an archival extract addressed to the Shengavit District Division of the State Committee of the Real Estate Registry, informing it that six persons were registered and residing in the flat at the time it was privatised: “1. Sarukhanyan Kerob [the applicant’s father], who was born in 19...; 2. Sarukhanyan Yeghisapet [the applicant’s mother], who was born in 1938; 3.", "Sarukhanyan Gagik [the applicant], who was born in 1962; 4. Sarukhanyan Yevgenya [the applicant’s wife], who was born in 1966; 5. Sarukhanyan Yelizaveta [the applicant’s older daughter], who was born in 1989; [and] 6. Sarukhanyan Tatevik [the applicant’s younger daughter], who was born in 1992.” 15. On the same date the Real Estate Registry issued a memorandum in reply to the Election Commission’s inquiry stating that the flat was co-owned by six people, including the applicant, on a joint tenancy.", "16. On 3 May 2003 the District Election Commission held a meeting at which it decided to annul the registration of the applicant’s candidacy with reference to Article 108 § 7(2) of the Electoral Code, since there was a discrepancy between the memorandum and the applicant’s declaration of property, which contained no mention of the flat. 17. The applicant contested the decision of 3 May 2003 before the Shengavit District Court of Yerevan (Երևան քաղաքի Շենգավիթ համայնքի առաջին ատյանի դատարան). In his application, he stated that he had not falsified any documents and had not, therefore, contravened Article 108 § 7(2).", "He explained that he had been living in the flat since 1973 and that it had been privatised in his mother’s name by the decision of the Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan of 27 October 1994. According to the ownership certificate of 18 November 1994, the entire flat was owned solely by his mother. The memorandum of 29 April 2003 contradicted those two documents and did not correspond to the reality. There were not six people in his family, since his father had died in 1982. He finally submitted that he had been unaware of these discrepancies and had filled out the declaration of property in reliance upon the official documents he had in his possession.", "The District Election Commission had wrongly equated the notions of falsification and inaccuracy. 18. On 8 May 2003 the Shengavit District Court of Yerevan dismissed the applicant’s application. The judgment stated: “The court, having heard the parties and having examined the circumstances of the case and assessed the evidence, [namely] the protocol decision ... of 3 May 2003 of District Election Commission no. 12, the declaration filled in on 15 March 2003 by G. Sarukhanyan concerning the property (possessions) of the citizen nominated as a parliamentary candidate in the single constituency vote to the National Assembly and his and his family’s income in the last year, the decision ... [adopted] on 27 October 1994 by [the Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan], ownership certificate no.", "15351 of 18 November 1994, the memorandum ... [issued] on 29 April 2003 by the [Real Estate Registry], the memorandum ... [issued] on 29 April 2003 by the Malatia-Sebastia District Council of Yerevan, and the memorandum [issued] on 6 May 2003 by the Charbakh Unit of the Shengavit Police Department, finds that the applicant’s claim is unfounded and must be rejected on the ground that District Election Commission no. 12, in adopting the decision ... of 3 May 2003, was guided by the requirements of Article 108 § 7(2) of the Electoral Code, according to which the district election commission must annul the registration of a parliamentary candidate if it is disclosed following the registration that the documents submitted for registration have been falsified[. I]n particular, the applicant G. Sarukhanyan, by falsifying the declaration, concealed his right of joint tenancy in respect of [the flat in question].” 19. The judgment further stated that, in accordance with Article 155 of the Code of Civil Procedure (ՀՀ քաղաքացիական դատավարության օրենսգիրք), it was final and not subject to appeal. II.", "RELEVANT DOMESTIC LAW A. The Code of Civil Procedure of 1999 20. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: Article 28: Rights and obligations of the parties “1. The parties have the right to ... [inter alia] appeal against judicial acts.” Article 155: A court judgment [(վճիռ)] and its enforcement “1. A court judgment in which a violation of a citizen’s or party’s (union of parties) electoral rights is found shall provide grounds ... for putting an end to ... [the] violations of the right to vote and to stand for election.", "2. The court judgment shall become effective on the date of its delivery and shall not be subject to appeal.” B. The Electoral Code of 1999 21. The relevant provisions of the Electoral Code, as in force at the material time, read as follows: Article 40: Appeals against decisions, acts or omissions of election commissions “1. ...[T]he decisions, acts or omissions of an election commission ... may be appealed against to a higher election commission or to a court within two days from the [date of] delivery of the decision, performance of the act or disclosure of the violation caused by the omission...", "The decision [(որոշում)] of the first-instance court shall be final with the exception of disputes concerning the non-registration or the annulment of a registration of candidates for the [presidential and parliamentary] elections, including party electoral lists in the vote by proportional representation. In such disputes the court of appeal and the Court of Cassation shall take a decision within three and two days respectively. Court decisions concerning electoral disputes shall become effective from the moment of their delivery...” Article 106: Conditions for nominating a candidate to the National Assembly in the single constituency vote “1. The decision of ... a party and the application (decision) of an initiative group to nominate a parliamentary candidate to the National Assembly in the single constituency vote shall contain the number of the constituency and the following information about the nominated candidate: (1) surname, first name, patronym; (2) date of birth; (3) place of registration; (4) place of work and post (occupation); (5) party affiliation; (6) declaration of his property (possessions) and of his and his family’s income in the previous year; and (7) passport number...” Article 108: Registration of candidates to the National Assembly nominated in the single constituency vote “1. Candidates to the National Assembly nominated in the single constituency vote shall be registered by a decision of a district election commission.", "2. At least 45 days before the election to the National Assembly, the parties and initiative groups, shall submit the following [documents] for the purpose of registering candidates in the single constituency vote: (1) 500 signatures of voters residing in the constituency concerned, confirming with their signatures the nomination of the citizen; (2) the invoice for the election deposit in the amount of one hundred times the minimum wage; (3) a certificate of Armenian nationality for the previous five years; and (4) a certificate of permanent residence in Armenia for the previous five years... ... 7. The district election commission shall annul the registration of a parliamentary candidate, if it is disclosed following the registration that: (1) restrictions provided by this Code are applicable to the candidate; and (2) the documents submitted for registration have been falsified. The registration of a candidate shall be annulled by a decision ... of a district election commission... ... 9. The decision of the district election commission ... annulling the registration of a parliamentary candidate may be contested before a court...” C. The Civil Code of 1999 22.", "The relevant provisions of the Civil Code (ՀՀ քաղաքացիական օրենսգիրք) read as follows: Article 189: The concept of common ownership and its origin “1. A property owned by two or more persons shall belong to them through the right of common ownership. 2. A property in common ownership may be in shares divided between each of the owners (tenancy in common) or in undivided shares (joint tenancy).” D. The Housing Code of 1982 (no longer in force as of 26 November 2005) 23. The relevant provisions of the Housing Code (ՀՀ բնակարանային օրենսգիրք) read as follows: Article 4: The housing fund “Apartment buildings and accommodation in other constructions situated on the territory of Armenia shall comprise the housing fund...” Article 9: Housing rights of citizens “Armenian citizens shall be entitled to receive accommodation in State or public housing fund houses... through a prescribed procedure...” Article 49: Accommodation voucher “On the basis of the decision to allocate accommodation in a State or public housing fund property, the [relevant] executive committee shall provide the citizen with a certificate which shall serve as the sole basis for occupying the allocated accommodation...” Article 51: The accommodation tenancy agreement.", "Concluding the accommodation tenancy agreement “Accommodation tenancy agreements in respect of State and public housing fund properties shall be concluded in writing, on the basis of the accommodation certificate, between the lessor, that is the organisation responsible for the maintenance of the building ..., and the tenant, that is the citizen in whose name the certificate has been issued...” Article 53: Rights and obligations of members of the tenant’s family “Member of the tenant’s family living with him or her shall jointly enjoy all the rights and bear all the obligations arising under the accommodation tenancy agreement...” Article 54: A member of the tenant’s family “Members of the tenant’s family shall include his spouse, their children and their parents...” E. The Law on Privatisation of the State and Public Housing Fund of 1993 (later renamed the Law on Privatisation of the State, Public and Community Housing Fund) 24. The relevant provisions of the Law on Privatisation of the State and Public Housing Fund, as in force at the material time, read as follows: Section 12 “The privatisation of flats (accommodation) belonging to the State and public housing fund shall be effected on the basis of an application filed by the tenant with the executive body of deputies of the relevant city council, the governor or the mayor of Yerevan provided there is written consent from the adult family members sharing the accommodation...” Section 13 “The privatisation of housing fund flats shall, with the consent of the adult members of the tenant’s family, be registered in the name of the tenant or any adult member of the tenant’s family as a joint tenancy or as a tenancy in common of all family members. The members of the tenant’s family living with him or her shall enjoy ... all the rights arising from the privatisation of the flat.” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION A. The parties’ submissions 25.", "The Government claimed that the applicant had failed to exhaust the domestic remedies, as required by Article 35 of the Convention. While, in accordance with Article 155 of the Code of Civil Procedure (CCP), the first‑instance court’s decision concerning an alleged violation of election rights was final, Article 40 of the Electoral Code provided an exception to this rule as far as disputes related to, inter alia, the annulment of the registration of parliamentary candidates were concerned. The applicant had been informed at the court hearing, in the presence of his lawyer, of the rights guaranteed to him under Article 28 of the CCP, which included the right to appeal, but he had not availed himself of this right. 26. The applicant submitted that the first-instance court had applied the restriction imposed by Article 155 of the CCP, this being clearly stated in the court’s judgment.", "He had never been informed by the court of his right to appeal and the Government’s claim to the contrary was untrue. There was, in reality, a contradiction between the CCP and the Electoral Code. Accordingly, he had been under no obligation to try to comply with Article 40 of the Electoral Code, especially considering that he had not been informed of such a possibility. Furthermore, the above contradiction suggested that the national law did not comply with the principle of legal certainty. He could not therefore be blamed for not having lodged an appeal against the judgment of 8 May 2003.", "B. The Court’s assessment 27. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. 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 Assenov and Others v. Bulgaria no. 24760/94, § 85, ECHR 1999-VIII).", "Furthermore, the existence of remedies which are available and sufficient must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, De Jong, Baljet and Van den Brink v. the Netherlands, judgment of 22 May 1984, Series A no. 77, p. 19, § 39; and Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27). 28.", "Turning to the circumstances of the present case, the Court notes at the outset that there is no evidence in the case file, contrary to what the Government claimed, that the applicant was informed of the right to appeal against the judgment of 8 May 2003. On the contrary, the judgment explicitly stated, with reference to Article 155 of the CCP, that it was final and not subject to appeal (see paragraph 19 above). The Court further notes that the Government did not submit any evidence (such as examples of domestic practice) in support of their claim that Article 40 of the Electoral Code, which provides an exception to Article 155 of the CCP, was applicable to the applicant’s case. Nor is the applicability of this Article sufficiently clear from its wording: while it speaks about the “decisions” of a first-instance court, the judicial act adopted in the applicant’s case was a “judgment”, the finality of which is prescribed by Article 155 of the CCP. 29.", "Nevertheless, even assuming that Article 40 was applicable to the applicant’s case, this would mean that the court examining the applicant’s case erred in the application of domestic law. The Court considers that the applicant cannot be held responsible for such an omission on the part of the domestic court and was not obliged, in such circumstances, to try a remedy whose applicability and effectiveness were uncertain. 30. In the light of the above, the Court concludes that, in the circumstances of the present case, the applicant had no effective remedy to exhaust which was clearly available to him both in theory and in practice. The Government’s preliminary objection must therefore be rejected.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION 31. The applicant complained about his disqualification from standing in the parliamentary election and invoked Article 3 of Protocol No. 1, 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 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. B. Merits 1.", "The parties’ submissions (a) The applicant 33. The applicant submitted that the interference with his right to stand for election did not pursue a legitimate aim and was disproportionate. He had filled out the declaration of property in reliance on official documents at his disposal, such as the ownership certificate and the decision of the Shahumyan District Council of 27 October 1994, which – in spite of the provisions of the Law on Privatisation – named his mother as the sole owner of the flat in question. The form of this ownership certificate was introduced by the authorities and contained no information on the existence of the joint tenancy and the joint tenants. According to the applicant, the authorities had accepted some years later that the standard form was incorrect and introduced a new form which included the names of all the joint tenants when property was held under a joint tenancy.", "Thus, the misunderstanding based on the absence of any information on common ownership in the ownership certificate had wrongly been qualified by the domestic court as “falsification”. Furthermore, the judgment of the domestic court was based, inter alia, on the memorandum issued by the Real Estate Registry on 29 April 2003, which contained information contradicting the ownership certificate it had previously issued. These discrepancies could not be blamed on him and could not be considered falsification of documents, since he had had no such intention. Moreover, the memorandum itself did not correspond to the reality: his family did not have six members, since his father had died in 1982. Finally, the notion of “falsification” was an offence under the criminal law.", "The domestic court had thus confirmed the fact of “falsification” in a civil case, despite the fact that he had never been convicted of such an offence by a criminal court. 34. The applicant further submitted that the authorities had wrongly applied Article 108 § 7(2) of the Electoral Code to his case. In particular, his candidacy could not have been annulled on the ground of falsification of documents submitted for registration as envisaged by that provision, since the declaration of property belonged to the list of documents to be submitted when nominating a candidate under Article 106 of the Electoral Code, as opposed to the documents required when registering a candidate under Article 108, which were two distinct stages in the electoral process. (b) The Government 35.", "The Government submitted that the applicant jointly owned the flat in question and had been aware of that fact. According to the archival extract issued on 29 April 2003 by the Malatia-Sebastia District Council of Yerevan, six people, including the applicant, were registered at the flat at the time of privatisation. According to the decision of 27 October 1994, the flat had been privatised in the applicant’s mother’s name as a joint tenancy. This had been done with the consent of all the adult family members – including the applicant – who had signed the application for privatisation of 21 February 1994 in accordance with Sections 12 and 13 of the Law on Privatisation of the State, Public and Community Housing Fund. It was obvious that the applicant could not have given his consent and signed the application for privatisation without knowing that he was a co-owner of the flat in question.", "Furthermore, the decision of 27 October 1994 made reference to the above Law and therefore the applicant could not claim to have been unaware of its content. 36. The Government further submitted that the annulment of the registration of the applicant’s candidacy was compatible with the requirements of Article 3 of Protocol No. 1. The rights guaranteed by that Article were not absolute and there was room for implied limitations.", "Every candidate was required by law to submit certain documents, including a declaration of property, to an election commission, and was responsible for the accuracy of those documents. The requirement to submit a declaration of property could not be considered a limitation impairing the very essence of the rights guaranteed by Article 3 of Protocol No. 1. The authorities had not overstepped the margin of appreciation and were entitled to define such a requirement for all the candidates, including the applicant, and to supervise its implementation. The applicant, though aware of the requirement and of the fact that he jointly owned the flat in question, had submitted false documents.", "His arguments that he was not aware of this were groundless. Finally, the applicant’s reference to criminal law had nothing to do with the subject matter of his application. In sum, the annulment of the registration pursued the legitimate aim of protecting the electoral system and ensuring equal conditions for all the candidates, and was proportionate to the aim pursued. 2. The Court’s assessment (a) General principles regarding the right to stand for election 37.", "Article 3 of Protocol No. 1 enshrines a fundamental principle for effective political democracy, and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 22, § 47). 38. The Court reiterates that implicit in Article 3 of Protocol No.", "1 are the subjective rights to vote and to stand for election. Although these rights are important, they are not absolute and there is room for implied limitations. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 of Protocol No. 1. They have a wide margin of appreciation in this sphere, but 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 (see Sadak and Others (no. 2) v. Turkey, nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 31, ECHR 2002-IV). 39.", "More particularly, States enjoy considerable latitude to establish in their constitutional order rules governing the status of parliamentarians, including criteria for disqualification. Though originating from a common concern – to ensure the independence of members of parliament, but also the electorate’s freedom of choice – the criteria vary according to the historical and political factors peculiar to each State. The number of situations provided for in the Constitutions and electoral legislation of many member States of the Council of Europe shows the diversity of possible choice on the subject. None of these criteria should, however, be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections (see Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II; and Gitonas and Others v. Greece, judgment of 1 July 1997, Reports 1997-IV, pp.", "1233-34, § 39). 40. The Court further reiterates that 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 practical and effective as opposed to theoretical or illusory. 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 be illusory if one could be deprived of it, arbitrarily, at any moment.", "Consequently, while States have a wide margin of appreciation when establishing eligibility criteria, nevertheless, in order for rights to be effective, any candidate’s failure to meet such criteria must be determined in accordance with procedures that contain sufficient safeguards against arbitrariness (see Podkolzina, cited above, § 35; Melnychenko v. Ukraine, no. 17707/02, § 59, ECHR 2004-X; and Russian Conservative Party of Entrepreneurs and Others v. Russia, nos. 55066/00 and 55638/00, § 50, 11 January 2007). (b) Application of the above principles to the present case 41. Turning to the present case, the Court notes that the applicant applied for registration to stand as a candidate in the general election to the National Assembly.", "Having initially registered the applicant’s candidacy, District Election Commission no. 12 then decided to annul the registration on the ground that he had submitted false information about his property status. As a result, the applicant did not take part in the election. Accordingly, the Court has to examine whether the decision to disqualify the applicant from standing in the election pursued a legitimate aim and whether it was proportionate to that legitimate aim, having regard to the State’s margin of appreciation. 42.", "As regards the legitimate aim, the Court reiterates that each State has a legitimate interest in ensuring the normal functioning of its own institutional system. That applies all the more to the national parliament, which is vested with legislative power and plays a primordial role in a democratic State (see Podkolzina, cited above, § 34). The Court considers that the requirement to submit information on the candidate’s property status serves to enable voters to make an informed choice with regard to the candidate’s fortune, a factor not unimportant for forming an opinion about the candidate. The introduction of such a requirement therefore does not appear arbitrary or unreasonable (see, mutatis mutandis, Krasnov and Skuratov v. Russia, nos. 17864/04 and 21396/04, § 44, 19 July 2007).", "It is also undoubtedly legitimate to ask the candidates that the information submitted be accurate to the best of their knowledge, to avoid the electorate being misled by false representations. Accordingly, requiring candidates for election to the national parliament to submit truthful information on their property status is a legitimate aim for the purposes of Article 3 of Protocol No. 1 (ibid.). 43. As regards the proportionality of the applicant’s disqualification to the legitimate aim pursued, the Court notes that the applicant was disqualified on the ground that he had falsified his declaration of property by concealing that he jointly owned a flat with five other members of his family.", "It is not in dispute between the parties that the applicant enjoyed – by virtue of the law – the right of common ownership in respect of the flat in question. The Government argued that the applicant was aware of this fact and had intentionally concealed it. The same reason for disqualification can be inferred from the findings of the domestic authorities, which made a reference to Article 108 § 7(2) of the Electoral Code and concluded that “by falsifying the declaration, [the applicant] concealed his right of joint tenancy”. The applicant disagreed and claimed that the authorities were responsible for his omission. 44.", "In this connection, the Court notes that the right of common ownership was conferred on the applicant as a result of the reform of the Soviet housing system through the privatisation of State-owned flats by their residents. Section 13 of the Law on Privatisation of the State and Public Housing Fund passed in June 1993, which regulated the privatisation process, provided that privatised flats were to be registered in the name of either the tenant or any adult member of the tenant’s family as a joint tenancy or as a tenancy in common of all family members. The Court notes however that, notwithstanding the effect of Section 13, the ownership certificate provided by the Real Estate Registry indicated the applicant’s mother as the owner of the entire flat, with the word “share” being expressly crossed out (see paragraph 9 above). The Government did not provide any explanation for this. Furthermore, contrary to what the Government claimed, the decision of 27 October 1994 did not specify the form of ownership the privatisation would take (see paragraph 8 above).", "In such circumstances, the Court does not find it unreasonable that the applicant, relying on the official documents he had in his possession, had grounds for believing that he was not a joint owner of the flat in question. 45. The Government nevertheless argued that the applicant was aware of his property status as he had given his consent to the privatisation of the flat by signing the application for privatisation of 21 February 1994 and the decision of 27 October 1994 made a reference to the Law on Privatisation. The Court, however, is not convinced by this argument. Having regard to the application for privatisation filed by the applicant’s mother, the Court notes that the applicant and other adult members of his family, while giving their consent to the privatisation of the flat by signing the application, did not choose either of the two options listed in Section 11 of the application and simply requested that the flat be privatised in the applicant’s mother’s name (see paragraph 7 above).", "Such an alternative, however, was apparently not envisaged by Section 13 of the Law on Privatisation. This suggests that the applicant and other members of his family were either not aware of the requirements of that provision or, even if they were, had misconstrued them. It therefore cannot be said that the applicant was fully aware of the legal consequences of his written consent to the privatisation of the flat in question. 46. Furthermore, despite the fact that the alternative chosen by the applicant’s family was apparently inconsistent with the intended meaning of Section 13, at no point did the authorities bring this misapprehension to their attention.", "On the contrary, the Executive Committee examined and – by its decision of 21 February 1994 – granted the application for privatisation, without specifying the form of ownership of the flat following privatisation, while the Real Estate Registry issued an ownership certificate indicating the applicant’s mother as the sole owner of the entire flat. It therefore appears that the authorities followed the same line and accepted that the flat was being privatised as the applicant’s mother’s property. In view of such an inconsistent application of Section 13, the Court is prompted to conclude that the privatisation rules and procedures were not sufficiently clear and therefore cannot be relied upon by the Government in support of their position. 47. Finally, the Court finds it hard to imagine why a parliamentary candidate would intentionally conceal such a piece of information as a small share in a flat, thereby putting at risk his standing in the election.", "48. The Court notes, however, that the domestic court failed to make any reasoned assessment of these circumstances. Furthermore, the Court cannot overlook the fact that, in reaching their conclusions, the domestic authorities relied, inter alia, on evidence containing information which did not correspond to the reality, such as the statement that the applicant’s father – who had died long before the flat was privatised – was a co-owner of the flat (see paragraphs 14, 15 and 18 above). In such circumstances, and in view of all the above factors, the Court considers that the conclusions of the domestic authorities that the applicant had falsified his declaration of property – which, in the Court’s opinion, implies an intentional omission on his part – were not sufficiently supported by the evidence and the circumstances of the case and cannot be regarded as reasonable. 49.", "In any event, the Court reiterates that what is relevant for its assessment is the existence of a reasonable relationship of proportionality between the measures employed by the domestic authorities and the legitimate aim sought to be achieved (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 117, ECHR 2005‑XI; and Krasnov and Skuratov, cited above, § 65). As the Court has indicated above, the legitimate aim was to avoid a situation in which voters were misled by false representations by candidates and, in that respect, the Court notes that, even if unintentionally, the information submitted by the applicant was objectively inaccurate. However, it considers that the applicant cannot be regarded as having acted in bad faith since, as already mentioned above, he had good reason to believe that the information was accurate, all the more so considering that his omission was the result of misleading privatisation rules and practices and could not reasonably be blamed on him. The Court further notes that the information the applicant was found to have allegedly concealed concerned only a small share in a flat having a total surface area of 64.7 sq.", "m. and it cannot seriously be maintained that information of such minor importance was capable of carrying any real risk of misleading the electorate as far as the applicant’s property status was concerned. 50. In such circumstances, in view of the lack of compelling evidence substantiating an intention on the part of the applicant, the existence of objectively justified and sufficient reasons for his omission and the minor nature of his property rights, the Court concludes that the applicant’s disqualification was disproportionate to the legitimate aim pursued. 51. There has accordingly been a violation of Article 3 of Protocol No.", "1. III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 52. The applicant complained that he had been deprived of the right to appeal he enjoyed under Article 40 of the Electoral Code, because the District Court had misinterpreted the law by stating that its judgment was final. He invoked Articles 6 and 13 of the Convention which, in so far as relevant, provide: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... 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.” Admissibility 1.", "Article 6 § 1 of the Convention 53. The Court observes that the proceedings complained of concerned the annulment of the registration of the applicant’s candidacy for the parliamentary election. Accordingly, they related to the exercise by the applicant of election rights, namely the right to stand in the parliamentary election. Such rights, by their nature, are political rights and fall outside the concept of “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention (see Priorello v. Italy, no. 11068/84, Commission decision of 6 May 1985, Decisions and Reports (DR) 43, p. 195; Pierre-Bloch v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997‑VI, § 50; and Gorizdra v. Moldova (dec.), no.", "53180/99, 2 July 2002). As a consequence, this provision of the Convention does not apply to the proceedings in question. 54. 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. 2.", "Article 13 of the Convention 55. The Court recalls that this provision cannot be interpreted as affording a right of appeal from an inferior court to a superior court (see, among other authorities, S. and Others v. the United Kingdom, no. 13135/87, Commission decision of 4 July 1988, DR 56, p. 268; and Mkrtchyan v. Armenia (dec.), no. 6562/03, 20 October 2005). 56.", "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. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL NO. 1 57. The applicant complained that he had been discriminated against on political grounds, in that in particular: (1) in another case with identical circumstances but involving a different candidate the domestic court had granted the relevant application; and (2) District Election Commission no.", "12 had not annulled the registration of another candidate in constituency no. 12 despite the fact that this other candidate had submitted an allegedly false document. He invoked Article 14 of the Convention, which, in so far as relevant, provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such ... political or other opinion...” Admissibility 58. The Court notes that the registration of the applicant’s candidacy was annulled on the ground that he had submitted false information. There is nothing in the materials before it to suggest that this annulment was the result of any sort of discrimination.", "59. 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. V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 60. In his observations submitted on 28 March 2006, the applicant complained that he had been hindered in the effective exercise of his right to apply to the Court. He submitted that, during the period when the Government were preparing their observations, he had repeatedly received telephone calls from unknown parties who had made veiled threats such as “Haven’t you settled down yet?”.", "Several days before the expiry of the deadline for submitting his observations, namely on 21 January 2006, he had been assaulted in the street by a stranger and had sustained injuries. He had complained to the police on 23 January 2006 but no investigation had been carried out. The applicant invoked Article 34 of the Convention, which provides: “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.” Admissibility 61. The Court notes at the outset that the applicant has failed to submit a copy of the complaint he allegedly lodged with the police on 23 January 2006.", "In any event, there is no evidence in the case file to suggest that the alleged assault or telephone calls were in any way related to the applicant’s application before the Court. 62. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63.", "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 64. The applicant claimed a total of 19,800,000 Armenian drams (AMD) (approximately 42,560 euros (EUR)) in respect of pecuniary damage, including the cost of his electoral campaign amounting to AMD 5,400,000 (approximately EUR 11,607), and the salary which he was supposed to receive, if elected, amounting to a total of AMD 14,400,000 (approximately EUR 30,953) for four years. He also submitted that he had suffered distress because of his unjustified disqualification and subsequent inability to find a job, and claimed non-pecuniary damage in the amount of EUR 100,000. 65.", "The Government submitted that there was no causal link between the costs of the applicant’s electoral campaign and the violation alleged. Furthermore, the claim for loss of salary was of a speculative nature. As regards the non-pecuniary damage claimed, the Government submitted that there had been no violation of Article 3 of Protocol No. 1, and even assuming there had been, no causal link between the violation alleged and the non-pecuniary damage claimed. 66.", "The Court does not discern any causal link between the violation found and the expenses which the applicant allegedly bore in connection with his electoral campaign. Furthermore, it cannot speculate on the outcome of the election, had the applicant not been disqualified, and therefore rejects his claim for loss of future income (see Sılay v. Turkey, no. 8691/02, § 39, 5 April 2007). However, the Court accepts that the applicant must have suffered frustration and distress as a result of the domestic authorities’ decisions preventing him from standing in the election, although the amount claimed is excessive. Ruling on an equitable basis, it awards him EUR 3,000 in respect of non-pecuniary damage.", "B. Costs and expenses 67. The applicant claimed EUR 3,750 for 75 hours of work by his representative Mr A. Grigoryan at EUR 50 per hour, as stipulated under the contract signed between them. A copy of this contract was attached to his claim. He also claimed AMD 64,350 (approximately EUR 138) for postal expenses, claiming that he had sent a total of at least thirteen letters to the Court, with the cost of each letter amounting to AMD 4,950 (approximately EUR 9).", "68. The Government submitted that the applicant had failed to prove that the costs and expenses claimed had actually been incurred. Pursuant to paragraphs 6.2 and 6.3 of the contract, the relevant legal fees were to be paid upon the presentation by the lawyer, on a monthly basis, of the payment documents stating the total amount of time spent on services actually provided. However, the applicant had failed to submit any monthly detailed payment documents allegedly received from his lawyer. Thus, he had failed to present a detailed bill of costs stating the tasks carried out and the hours worked.", "As regards the postal expenses, the applicant had submitted only one postal receipt showing that he had paid AMD 4,950 to send a letter to the Court. 69. According to the Court’s case-law, an applicant is entitled to the 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 notes that the documents submitted by the applicant do not fully reflect the total amount of fees claimed. It cannot therefore allow the claim in full (see Yazar and Others v. Turkey, nos.", "22723/93, 22724/93 and 22725/93, § 79, 9 April 2002). Making its assessment on an equitable basis, the Court awards the applicant a total sum of EUR 1,850 for costs and expenses, less EUR 850 received by the applicant from the Council of Europe by way of legal aid. C. Default interest 70. 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 applicant’s disqualification under Article 3 of Protocol No. 1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,850 (one thousand eight hundred and fifty euros), less EUR 850 (eight hundred fifty euros) received by the applicant from the Council of Europe by way of legal aid, 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 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 27 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "FIRST SECTION CASE OF MAMADALIYEV v. RUSSIA (Application no. 5614/13) JUDGMENT STRASBOURG 24 July 2014 FINAL 15/12/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mamadaliyev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 1 July 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "5614/13) 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 a Kyrgyz national, Mr Umidzhan Malikzhanovich Mamadaliyev (“the applicant”), on 22 January 2013. 2. The applicant was represented by Ms M.M. Abubakarova, a lawyer practising in Grozny. 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, if extradited to Kyrgyzstan he would be subjected to treatment prohibited by Article 3 of the Convention because he belonged to the Uzbek minority. 4. On 22 January 2013 the President of the First Section, acting upon the applicant’s request of 22 January 2013, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should not be extradited to Kyrgyzstan until further notice and granting priority treatment to the application. 5.", "On 30 April 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1989 and lives in Grozny. 7.", "The applicant is an ethnic Uzbek. He was born and lived in Jalal‑Abad in the south of Kyrgyzstan. In 2004 he and his family moved to Dagestan and, three years later, to Grozny where the applicant worked at a telephone repair service. In October 2011 the applicant went to Jalal-Abad to attend his sister’s wedding. On 7 November 2011 he was carrying several passengers of Kyrgyz ethnic origin in his car.", "Afterwards one of them, a Mr M., was found dead. 8. On 10 November 2011 the applicant returned to Grozny. A. Criminal proceedings against the applicant in Kyrgyzstan 9.", "On 9 November 2011 the Jalal-Abad regional police department brought criminal proceedings against the applicant and four other individuals on suspicion of having murdered Mr M. On 12 November 2011 the applicant was charged in absentia and on 15 November 2011 the Jalal‑Abad Town Court ordered his remand in custody, allegedly in the absence of his lawyer. On 3 February 2012 the applicant was placed on the international wanted list. 10. According to the applicant and as confirmed by a lawyer of a local human rights organisation (see paragraph 22 below), several Kyrgyz law‑enforcement officers had demanded 6,000 United States dollars from his mother in return for dropping the criminal charges against him. Apparently she did not comply with their demand.", "11. On 26 June 2012 the Suzakskiy District Court of the Jalal-Abad Region convicted Mr U. of Mr M.’s murder and six more individuals of misprision and disorderly conduct. The applicant is mentioned in the judgment as the driver of the car transporting the defendants and the victim on the night of the murder. It does not follow from the judgment that the applicant had been involved in Mr M.’s murder, which had apparently been committed by Mr U. alone. 12.", "On 27 July 2012 the Jalal-Abad Regional Court of Kyrgyzstan altered the judgment of the trial court by reducing the term of Mr U.’s imprisonment from nineteen to twelve years. B. The applicant’s arrest and remand in custody in Russia 13. On 23 April 2012 the applicant was arrested in Grozny. 14.", "On 24 April 2012 the prosecutor of the Leninskiy District of Grozny issued an order for the applicant to be remanded in custody for a period of two months. 15. On 18 June 2012 the Leninskiy District Court of Grozny extended the applicant’s detention until 24 October 2012. The applicant neither objected at the hearing nor appealed against that decision. 16.", "On 19 October 2012 the District Court extended the applicant’s detention until 24 January 2013, reasoning that extradition proceedings were pending and that the applicant might abscond. 17. On 22 October 2012 the applicant appealed against that decision to the Supreme Court of the Republic of Chechnya. He argued that the court had failed to duly reason the risk of his absconding, that the period of his detention was excessive, and that the court had not considered less stringent preventive measures, in breach of paragraph 16 of Directive Decision no. 22 adopted by the Plenary Session of the Russian Supreme Court on 14 June 2012.", "18. By a final decision of 22 November 2012 the Supreme Court of the Republic of Chechnya rejected the appeal and upheld the lower court’s ruling. 19. On 24 January 2013 the District Court extended the applicant’s period of detention until 24 April 2013. On 11 March 2013 the Supreme Court of the Republic of Chechnya dismissed an appeal lodged by the applicant and upheld that decision.", "20. On 19 April 2013 the Deputy Prosecutor of the Republic of Chechnya noted the interim measure indicated by the Court and ordered the applicant’s release on condition that he did not leave his place of residence without permission and behaved properly (подписка о невыезде и надлежащем поведении). C. Extradition proceedings 21. On 21 May 2012 the Deputy Prosecutor General of Kyrgyzstan lodged an extradition request with the Deputy Prosecutor General of the Russian Federation seeking to extradite the applicant to Kyrgyzstan for prosecution on charges of murder (see paragraph 9 above). The request stated, inter alia, that the applicant would not be extradited to any other State without the Russian Prosecutor General’s consent, that he would be prosecuted only for the offence which was the subject of the extradition request and which was not of a political nature, that in the event of conviction the applicant would be free to leave the territory of Kyrgyzstan after serving his sentence, and that he would not be subjected to any form of discrimination on any ground, including his nationality.", "The request also stated that the applicant would not be subjected to torture, inhuman or degrading treatment or punishment prohibited by the United Nations Convention against Torture. 22. On an unspecified date, at the request of the applicant’s mother, a lawyer from a Kyrgyz human-rights NGO, Mr Mamatislamov, wrote a letter to the head of the extradition department of the Prosecutor General’s Office of the Russian Federation. In the letter Mr Mamatislamov argued that the applicant’s criminal prosecution was arbitrary. He confirmed that police officers had demanded money from the applicant’s mother in exchange for dropping the criminal charges against the applicant.", "He stated that the Kyrgyz authorities had been showing the applicant’s photo to victims of the events of June 2010 to make them remember him with a view to charging him with the killings of ethnic Kyrgyz after his extradition. He also gave details of several criminal cases initiated against ethnic Uzbeks who had allegedly been tortured and/or killed by the Kyrgyz police. In support of his statements Mr Mamatislamov referred to the opinion of the UN Special Rapporteur on Torture who had concluded after his visit to Kyrgyzstan that many ethnic Uzbeks had been arbitrarily convicted in Kyrgyzstan in recent years. 23. On 6 June 2012 the Prosecutor General’s Office of the Russian Federation made enquiries with the Russian Ministry of Foreign Affairs on the issue of the applicant’s extradition to Kyrgyzstan.", "On 21 June 2012 the Ministry of Foreign Affairs replied as follows: “... the Ministry of Foreign Affairs has no information which prevents the extradition of the Kyrgyz national U.M. Mamadaliyev to the law-enforcement authorities of the Kyrgyz Republic. U.M. Mamadaliyev is of Uzbek ethnic origin, he does not belong to the titular ethnic group in Kyrgyzstan, which makes it possible for the Kyrgyz authorities to hear his case in an arbitrary manner.” 24. On 20 September 2012 the Deputy Prosecutor General of the Russian Federation granted the request for the applicant’s extradition.", "25. On 11 October 2012 the applicant lodged a court appeal against the extradition decision. He pointed out that by the judgment of the Suzakskiy District Court of the Jalal-Abad Region of 26 June 2012, Mr U. had been found guilty of the murder of Mr M. with which the applicant had been charged. It followed from that judgment that nobody had been charged with complicity in that murder. The applicant further noted that the law‑enforcement officers had attempted to extort money from his mother in exchange for dropping the criminal charges against him.", "He argued that the accusation of murder against him was baseless as he had not committed that crime. Besides, as a member of the ethnic Uzbek community, which was being persecuted and discriminated against, he would, if extradited, be subjected to torture or degrading treatment. The applicant’s lawyer gave several examples of such ill‑treatment suffered by ethnic Uzbeks in Kyrgyzstan. 26. On 12 November 2012 the Supreme Court of the Republic of Chechnya rejected the applicant’s appeal.", "In its decision the Supreme Court relied, inter alia, on the following: (a) the assurances by the Kyrgyz Republic Prosecutor General’s Office, in particular that the applicant would not be subjected to torture and other forms of ill-treatment – the court stated that it had no reasons to doubt that they would be observed; (b) the Russian authorities’ rejection of the applicant’s request for refugee status; and (c) the fact that the extradition request had not been made for the purpose of prosecuting or punishing the applicant on account of his race, religion, nationality or political opinion. 27. On 17 November 2012 the applicant appealed against that decision to the Supreme Court of the Russian Federation. In addition to the arguments put forward before the Supreme Court of the Republic of Chechnya, his lawyer referred to information on the widespread practice of ill-treatment of detainees in Kyrgyzstan, as confirmed by the UN High Commissioner on Human Rights, the UN Special Rapporteur on Torture, Human Rights Watch and Amnesty International. 28.", "On 23 January 2013 by a final decision the Supreme Court of the Russian Federation rejected the applicant’s appeal against the decision of the Supreme Court of the Republic of Chechnya of 12 November 2012. It endorsed the lower court’s reasoning without commenting on the applicant’s reference to the international sources regarding the risk of ill‑treatment. D. Refugee status proceedings 29. On 25 June 2012 the applicant submitted a request for refugee status before the Federal Migration Service of the Russian Federation (“the FMS”). On 2 August 2012 his application was rejected as ill-founded.", "In its decision the Department of the FMS in the Republic of Chechnya pointed out that the applicant had submitted his request after the beginning of the extradition proceedings. They also mentioned that such requests often served the purpose of revoking decisions to extradite. 30. The applicant appealed against that decision before the Leninskiy District Court of Grozny. In his appeal he referred to information on the widespread practice of ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by the UN High Commissioner on Human Rights, the UN Special Rapporteur on Torture, Human Rights Watch and Amnesty International.", "31. On 22 November 2012 the District Court dismissed the appeal and upheld the FMS’s decision. The court did not address the applicant’s arguments concerning the risk of ill-treatment and found that the reason for the applicant’s request for refugee status was his fear of criminal prosecution. It held that there was therefore no legal basis for granting the request. 32.", "On 20 December 2012 the applicant lodged an appeal against that decision before the Supreme Court of the Republic of Chechnya. He pointed out, inter alia, that the District Court had ignored his reference to information on the practice of ill-treatment confirmed by international human-rights organisations. 33. On 5 March 2013 the Supreme Court of the Republic of Chechnya dismissed the applicant’s appeal. It did not analyse his arguments concerning the risk of ill-treatment in Kyrgyzstan.", "E. Temporary asylum proceedings 34. On an unspecified date the applicant requested the Department of the FMS in the Republic of Chechnya to grant him temporary asylum in Russia. On 15 August 2013 that request was granted and the applicant was provided with temporary asylum until 15 August 2014. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 35.", "For a summary of relevant domestic and international law, see Makhmudzhan Ergashev v. Russia (no. 49747/11, §§ 47-51, 16 October 2012). III. RELEVANT INTERNATIONAL MATERIALS CONCERNING KYRGYZSTAN 36. For a number of relevant reports and items of information, see Makhmudzhan Ergashev, cited above, §§ 30-46.", "37. The United Nations Committee on the Elimination of Racial Discrimination considered the fifth to seventh periodic reports of Kyrgyzstan and in February 2013 adopted the following concluding observations (CERD/C/KGZ/CO/5-7): “6. The Committee notes with concern that, according to the State party’s report (CERD/C/KGZ/5-7, para. 12) and other reports, Uzbeks were the main victims of the June 2010 events but were also the most prosecuted and condemned. While noting that the State party itself has recognized this situation and is considering ways to correct it, the Committee remains deeply concerned about reports of biased attitudes based on ethnicity in investigations, prosecutions, condemnations and sanctions imposed on those charged and convicted in relation to the June 2010 events, who were mostly of Uzbek origin.", "The Committee is also concerned about information provided in the State party’s report relating to evidence of coercion to confess to crimes that the persons did not commit, pressure on relatives by representatives of law enforcement agencies, denial of procedural rights ..., violations of court procedures, threats and insults to the accused and their counsel, attempts to attack the accused and his relatives which according to the State party resulted in a violation of the right to a fair trial ... [T]he Committee recommends that the State party in the context of the reform of its judicial system: (a) Initiate or set up a mechanism to review all cases of persons condemned in connection with the June 2010 events, from the point of view of respecting all necessary guarantees for a fair trial; (b) Investigate, prosecute and condemn, as appropriate, all persons responsible for human rights violations during the June 2010 events, irrespective of their ethnic origin and their status; ... 7. While noting information provided by the State party, the Committee remains concerned at reports that a great number of persons, mostly from minority groups, in particular Uzbeks, have been detained and have been subjected to torture and other forms of ill-treatment on the basis of their ethnicity following the June 2010 events. The Committee is also concerned at information that women from minority groups were victims of acts of violence, including rape, during, and in the aftermath of the June 2010 events. The Committee is particularly concerned that all such acts have not yet been investigated and those responsible have not been prosecuted and punished (arts. 5 and 6).", "In line with its general recommendation No. 31 (2005), the Committee recommends that the State party, without any distinction based on the ethnic origin of the victims, take appropriate measures to: (a) Register and document all cases of torture, ill-treatment and violence against women from minority groups, including rape; (b) Conduct prompt, thorough and impartial investigations; (c) Prosecute and punish those responsible, including police or security forces; ...” 38. The UN Committee against Torture considered Kyrgyzstan’s second periodic report and in December 2013 issued concluding observations (CAT/C/KGZ/CO/2), which read, in so far as relevant, as follows: “Impunity for, and failure to investigate, widespread acts of torture and ill‑treatment 5. The Committee is deeply concerned about the ongoing and widespread practice of torture and ill-treatment of persons deprived of their liberty, in particular while in police custody to extract confessions. These confirm the findings of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/19/61/Add.2, paras.", "37 et seq. ), and of the United Nations High Commissioner for Human Rights (A/HRC/20/12, paras. 40–41). While the Kyrgyz delegation acknowledged that torture is practised in the country, and affirmed its commitment to combat it, the Committee remains seriously concerned about the substantial gap between the legislative framework and its practical implementation, as evidenced partly by the lack of cases during the reporting period in which State officials have been prosecuted, convicted and sentenced to imprisonment for torture (arts. 2, 4, 12 and 16).", "6. The Committee is gravely concerned at the State party’s persistent pattern of failure to conduct prompt, impartial and full investigations into the many allegations of torture and ill-treatment and to prosecute alleged perpetrators, which has led to serious underreporting by victims of torture and ill-treatment, and impunity for State officials allegedly responsible (arts. 2, 11, 12, 13 and 16). In particular, the Committee is concerned about: (a) The lack of an independent and effective mechanism for receiving complaints and conducting impartial and full investigations into allegations of torture. Serious conflicts of interest appear to prevent existing mechanisms from undertaking effective, impartial investigations into complaints received; (b) Barriers at the pre-investigation stage, particularly with regard to forensic medical examinations, which in many cases are not carried out promptly following allegations of abuse, are performed by medical professionals who lack independence, and/or are conducted in the presence of other public officials, leading to the failure of the medical personnel to adequately record detainees’ injuries, and consequently to investigators’ failure to open formal investigations into allegations of torture, for lack of evidence; (c) The apparent practice by investigators of valuing the testimonies of individuals implicated in torture over those of complainants, and of dismissing complaints summarily; and (d) The failure of the judiciary to effectively investigate torture allegations raised by criminal defendants and their lawyers in court.", "Various sources report that judges commonly ignore information alleging the use of torture, including reports from independent medical examinations. ... 7. The Committee remains seriously concerned by the State party’s response to the allegations of torture in individual cases brought to the attention of the Committee, and particularly by the State party’s authorities’ refusal to carry out full investigations into many allegations of torture on the grounds that preliminary enquiries revealed no basis for opening a full investigation. The Committee is gravely concerned by the case of Azimjan Askarov, an ethnic Uzbek human rights defender prosecuted on criminal charges in connection with the death of a police officer in southern Kyrgyzstan in June 2010, which has been raised by several Special Rapporteurs, including the Special Rapporteur on the situation of human rights defenders (A/HRC/22/47/Add.4, para. 248; A/HRC/19/55/Add.2, para.", "212). Mr. Askarov has alleged that he was beaten severely by police on numerous occasions immediately following his detention and throughout the course of the criminal proceedings against him, and that he was subjected to repeated violations of procedural safeguards such as prompt access to a lawyer and to an effective, independent medical examination. The Committee notes that independent forensic medical examinations appear to have substantiated Mr. Askarov’s allegations of torture in police custody, and have confirmed resulting injuries including persistent visual loss, traumatic brain injury, and spinal injury. Information before the Committee suggests that Mr. Askarov’s complaints of torture have been raised on numerous occasions with the Prosecutor’s office, as well as with the Kyrgyz Ombudsman’s office, and with Bazar-Korgon District Court, the Appeal Court and the Supreme Court. To date, however, the State party’s authorities have declined to open a full investigation into his claims, relying on allegedly coerced statements made by Mr. Askarov while in police custody that he had no complaints.", "The Committee understands that the State party is presently considering the possibility of further investigating these claims. The Committee is concerned by the State party’s refusal to undertake full investigations into allegations of torture regarding other cases raised during the review, including those of Nargiza Turdieva and Dilmurat Khaidarov (arts. 2, 12, 13 and 16). ... 8. The Committee remains concerned at the lack of full and effective investigations into the numerous allegations that members of the law enforcement bodies committed torture and ill-treatment, arbitrary detention and excessive use of force during and following the inter-ethnic violence in southern Kyrgyzstan in June 2010.", "The Committee is concerned by reports that investigations, prosecutions, condemnations and sanctions imposed in relation to the June 2010 events were mostly directed against persons of Uzbek origin, as noted by sources including the Committee on the Elimination of Racial Discrimination, in 2013 (CERD/C/KGZ/CO/5-7, paras. 6–7). The Committee further regrets the lack of information provided by the State party on the outcome of the review of 995 criminal cases relating to the June 2010 violence (arts. 4, 12, 13 and 16). ... Coerced confessions 13.", "The Committee is seriously concerned at numerous, consistent and credible reports that the use of forced confessions as evidence in courts is widespread. While noting that the use of evidence obtained through unlawful means is prohibited by law, it is deeply concerned that in practice there is a heavy reliance on confessions within the criminal justice system. The Committee is further concerned at reports that judges have frequently declined to act on allegations made by criminal defendants in court, or to allow the introduction into evidence of independent medical reports that would tend to confirm the defendant’s claims of torture for the purpose of obtaining a confession. The Committee regrets the lack of information provided by the State party on cases in which judges or prosecutors have initiated investigations into torture claims raised by criminal defendants in court, and is alarmed that no official has been prosecuted and punished for torture even in the single case brought to its attention in which a conviction obtained by torture was excluded from evidence by a court – that of Farrukh Gapiurov, who was acquitted by the Osh Municipal Court of involvement in the June 2010 violence (arts. 2 and 15).” 39.", "The Kyrgyzstan chapter of the 2013 Annual Report by Amnesty International, in so far as relevant, reads as follows: “Torture and other ill-treatment remained pervasive throughout the country and law enforcement and judicial authorities failed to act on such allegations. The authorities continued to fail to impartially and effectively investigate the June 2010 violence and its aftermath and provide justice for the thousands of victims of serious crimes and human rights violations, including crimes against humanity. Ethnic Uzbeks continued to be targeted disproportionately for detention and prosecution in relation to the June 2010 violence. ... The Osh City Prosecutor stated in April that out of 105 cases which had gone to trial in relation to the June 2010 violence, only two resulted in acquittals.", "Only one of those cases involved an ethnic Uzbek, Farrukh Gapirov, the son of human rights defender Ravshan Gapirov. He was released after the appeal court found his conviction had been based on his confession which had been obtained under torture. However, no criminal investigation against the police officers responsible for his torture was initiated. By contrast, the first – and, to date, the only – known conviction of ethnic Kyrgyz for the murder of ethnic Uzbeks in the course of the June 2010 violence was overturned.” 40. Human Rights Watch’s “World Report 2013: Kyrgyzstan” contains the following findings concerning the situation in Kyrgyzstan in 2012: “Kyrgyzstan has failed to adequately address abuses in the south, in particular against ethnic Uzbeks, undermining long-term efforts to promote stability and reconciliation following inter-ethnic clashes in June 2010 that killed more than 400 people.", "Despite an uneasy calm in southern Kyrgyzstan, ethnic Uzbeks are still subjected to arbitrary detention, torture, and extortion, without redress. ... Local human rights non-governmental organizations reported that the overall number of reported incidents of arbitrary detention and ill-treatment in police custody continued to decrease in 2012 in the south, although they still document new cases. Groups also reported the growing problem of law enforcement extorting money, in particular from ethnic Uzbeks, threatening criminal prosecution related to the June 2010 events. Victims of extortion rarely report incidents for fear of reprisals. Investigations into the June 2010 violence have stalled.", "Trials of mostly ethnic Uzbeks connected to the violence continued to take place in violation of international fair trial standards, including the trials of Mahamad Bizurukov and Shamshidin Niyazaliev, each of whom was sentenced to life in prison in October 2012. Lawyers in southern Kyrgyzstan continued to be harassed in 2012 for defending ethnic Uzbek clients who were charged with involvement in the June 2010 violence, perpetuating a hostile and violent environment that undermined defendants’ fair trial rights. On January 20, a group of persons in Jalalabad verbally and physically attacked a lawyer defending the ethnic Uzbek owner of an Uzbek-language television station. No one has been held accountable for such violence against lawyers. ...", "In hearings related to the June 2010 violence, judges continue to dismiss, ignore, or fail to order investigations into torture allegations. In a rare exception, four police officers were charged with torture after the August 2011 death of Usmonzhon Kholmirzaev, an ethnic Uzbek, who succumbed to internal injuries after he was beaten by police in custody. Repeated delays in proceedings have meant that over a year later, the trial has yet to conclude. In June, after Abdugafur Abdurakhmanov, an ethnic Uzbek serving a life sentence in relation to the June 2010 violence, died in prison, authorities did not open an investigation, alleging he committed suicide.” 41. In its report “Kyrgyzstan: 3 Years After Violence, a Mockery of Justice” issued in June 2013, Human Rights Watch observed, among other things, the following: “Criminal investigations into the June 2010 violence have been marred by widespread arbitrary arrests and ill-treatment, including torture.", "Unchecked courtroom violence and other egregious violations of defendants’ rights have blocked the accused from presenting a meaningful defense. Human Rights Watch has documented how investigations disproportionately and unjustly targeted ethnic Uzbeks, and how this group has a heightened risk of torture in custody. ... The ethnic clashes erupted in southern Kyrgyzstan on June 10, 2010. The violence, which lasted four days, left more than 400 people dead and nearly 2,000 houses destroyed.", "Horrific crimes were committed against both ethnic Kyrgyz and ethnic Uzbeks. However, while ethnic Uzbeks suffered the majority of casualties and destroyed homes, the majority of those prosecuted for homicide have been ethnic Uzbeks. ... Human Rights Watch’s research from 2010-2013 in southern Kyrgyzstan found that prosecutorial authorities have repeatedly refused to investigate serious and credible allegations of torture. Courts have relied heavily on confessions allegedly extracted under torture to sentence defendants to long prison terms.” 42. The Kyrgyzstan chapter of the 2014 World Report published by Human Rights Watch reads, in so far as relevant, as follows: “Shortcomings in law enforcement and the judiciary contribute to the persistence of grave abuses in connection to the ethnic violence in southern Kyrgyzstan in June 2010.", "Ethnic Uzbeks and other minorities remain especially vulnerable. Courtroom attacks on lawyers and defendants, particularly in cases related to the June 2010 events, occur with impunity. Government officials and civil society representatives formed a national center for the prevention of torture in 2013. In practice, ill-treatment and torture remain pervasive in places of detention, and impunity for torture is the norm. ... Three years on, justice for crimes committed during the ethnic violence in southern Kyrgyzstan in June 2010 remains elusive.", "The flawed justice process has produced long prison sentences for mostly ethnic Uzbeks after convictions marred by torture‑tainted confessions and other due process violations. Authorities have not reviewed convictions where defendants alleged torture or other glaring violations of fair trial standards. At least nine ethnic Uzbeks continue to languish in pretrial detention, some for a third year. New convictions in August 2013 of three ethnic Uzbeks in Osh, and pending extradition orders of at least six others in Russia again point to judicial bias against ethnic Uzbeks. The authorities failed to tackle the acute problem of courtroom violence by audiences in trials across Kyrgyzstan, including at the trial of three opposition members of parliament in June, perpetuating an environment that undermines defendants’ fair trial rights.", "Lawyers were harassed or beaten in court in 2013, including for defending ethnic Uzbek clients in June 2010 cases. Mahamad Bizurukov, an ethnic Uzbek defendant, and his lawyers have been subjected to repeated threats, harassment, and physical attacks for two years, most recently in September 2013, with no accountability for perpetrators. ... Despite the adoption of a national torture prevention mechanism in 2012, and the organization of a related National Center for the Prevention of Torture in 2013, authorities often refuse to investigate allegations of torture and perpetrators go unpunished. On rare occasions when charges are filed against police, investigations, and court proceedings are unduly protracted.", "A telling example is the criminal case against four police officers following the August 2011 death of an ethnic Uzbek detained on charges related to the June 2010 ethnic violence. Usmonjon Kholmirzaev died several days after his release without charge, apparently from injuries he sustained from beatings in custody. The prosecution has been subjected to repeated delays over the last two years and no one has yet been held accountable for his death. In July 2013, Nurkamil Ismailov was found dead in a temporary detention facility in southern Kyrgyzstan after police detained him for disorderly conduct. Authorities alleged he committed suicide by hanging himself with his t-shirt.", "The Jalalabad-based human rights group Spravedlivost intervened after which authorities opened a criminal investigation on charges of negligence. In September, Ismailov’s relative and the police settled out of court for an undisclosed sum, with no admission of liability.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 43. The applicant complained that, if extradited to Kyrgyzstan, he would be subjected to torture or inhuman or degrading treatment or punishment because he belonged to the Uzbek ethnic minority. He referred to various sources, including publications by the UN Committee against Torture, Amnesty International and Human Rights Watch.", "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 1. The Government 44. The Government contested that argument. They stated that the Kyrgyz Republic had applied for the applicant’s extradition in connection with his participation in a “general” crime, which had not been connected with the inter-ethnic clashes that had taken place in 2010 in Kyrgyzstan.", "In its request for the applicant’s extradition the Prosecutor General’s Office of the Kyrgyz Republic had provided the applicant with an adequate guarantee against the risk of ill-treatment. It had issued assurances that there were no political grounds for his prosecution, which was not connected with his nationality or religion, that he would not suffer torture or other cruel or degrading treatment, and that his rights of defence would be protected. 45. The Government further referred to a letter by the Prosecutor General’s Office of the Kyrgyz Republic to the Russian Ministry of Foreign Affairs – the Government have not made the letter available to the Court – that the competent authorities of Kyrgyzstan would provide Russian diplomatic staff with access to the place of the applicant’s detention to make sure that his rights were being respected. The Government pointed out that in the course of their cooperation with the Prosecutor General’s Office of the Kyrgyz Republic in the sphere of extradition there had been no instances of violations of the guarantees provided by Kyrgyzstan.", "46. The domestic authorities had thoroughly examined the applicant’s allegations of the risk of ill-treatment before deciding on his extradition. In doing so they had relied, inter alia, on information from the Ministry of Foreign Affairs and the Federal Security Service, which had reported that there were no obstacles to extraditing the applicant to Kyrgyzstan. Citing the Court’s case-law, the Government noted that a reference to a general problem concerning human-rights observance in a particular country could not alone serve as a basis for refusing extradition. 47.", "In accordance with the Court’s decision to apply Rule 39, the applicant’s extradition had been suspended pending further notice by the Court. In view of this circumstance, as well as the fact that the applicant had been released from custody, the Government submitted that he could not be considered as a “victim” of a violation of Article 3 of the Convention, and his complaint was inadmissible ratione personae. 2. The applicant 48. The applicant maintained his complaint.", "He argued that the assurances given by the Kyrgyz Republic Prosecutor General’s Office could not be considered as providing him with an adequate guarantee against the risk of ill-treatment. 49. Firstly, the assurances contained only superficial standard phrases, rather than specific and concrete provisions relating to the applicant’s particular situation. 50. Secondly, the Government had failed to disclose the source of their information concerning the possibility that the applicant could be visited by Russian diplomatic staff.", "Likewise, they had failed to give details of the procedures for that type of visit. 51. Thirdly, those assurances were totally unreliable in the particular circumstances of the applicant’s case, namely: (a) the Kyrgyz authorities had already held that the murder with which the applicant had been charged had been committed by another person with no accomplices; (b) the Kyrgyz authorities had failed to allow the applicant’s lawyer to participate in a number of important procedural measures carried out in his criminal case; (c) in 2012 the Kyrgyz authorities had attempted to initiate another criminal prosecution of the applicant; his photo had been shown to some victims to make them remember him with a view to charging him with the killing of ethnic Kyrgyzs; (d) law-enforcement officers had attempted to extort money from the applicant’s mother in exchange for dropping the criminal charges against him; and (e) the applicant was a member of a particularly vulnerable group that faced a serious risk of ill-treatment if handed over to the Kyrgyz authorities. 52. The applicant submitted that before deciding on his extradition the authorities had failed to genuinely analyse the substance of his claim that he would be exposed to a risk of ill-treatment.", "They had failed to analyse the general human-rights situation in Kyrgyzstan as well as the applicant’s particularly vulnerable situation. Instead, they had limited the scope of their analysis to verification of some formal conditions for extradition provided in legislation. B. The Court’s assessment 1. Admissibility 53.", "The Court notes the Government’s argument that the complaint should be declared inadmissible as incompatible ratione personae (see paragraph 47 above). It reiterates that an individual may no longer claim to be a victim of a violation of the Convention where the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (see, among many authorities, Achour v. France (dec.) no. 67335/01, 11 March 2004, in which the authorities annulled the expulsion order against the applicant, and Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III). 54. As to the specific category of cases involving expulsion measures, 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, 27 August 1992, § 46, Series A no.", "241‑B; 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 the 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 Kalantari v. Germany (striking out), no. 51342/99, §§ 55-56, ECHR 2001‑X, and Mehemi v. France (no.", "2), no. 53470/99, § 54, ECHR 2003‑IV; see also Shamayev and Others v. Georgia and Russia, no. 36378/02, § 355, ECHR 2005‑III; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Benamar and Others v France (dec.), no. 42216/98, 14 November 2000; and Djemailji v. Switzerland (dec.), no.", "13531/03, 18 January 2005). 55. In the present case, the Russian authorities’ decision to extradite the applicant to Kyrgyzstan was made final on 23 January 2013 (see paragraph 28 above). Having regard to the Court’s interim measure under Rule 39 of the Rules of Court not to extradite the applicant until further notice, the authorities suspended the applicant’s extradition and released him from custody on condition that he did not leave his place of residence and behaved properly (see paragraphs 20 and 47 above). Nothing in the above actions by the domestic authorities indicates that they acknowledged that there had been or would have been a violation of Article 3 or that the applicant’s extradition order had been deprived of its legal effect (see Karimov v. Russia, no.", "54219/08, § 90, 29 July 2010). 56. In these circumstances, the Court considers that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention. 57. The Court further 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 58. For a summary of the relevant general principles emerging from the Court’s case-law see Umirov v. Russia (no. 17455/11, §§ 92‑100, 18 September 2012).", "(b) Application of the general principles to the present case 59. The Court observes that the Russian authorities ordered the applicant’s extradition to Kyrgyzstan in connection with his prosecution on charges of murder, in criminal proceedings which are pending against him in Jalal-Abad in the south of Kyrgyzstan. Jalal-Abad, which was the scene of violent inter-ethnic clashes between Kyrgyz and Uzbeks in June 2010, is apparently, in the absence of any other arrangements known to the Court, where the applicant would be extradited (see paragraph 9 above). The Court will assess whether the applicant faces a risk of treatment contrary to Article 3 in the event of his extradition to Kyrgyzstan – the material date for the assessment of that risk being that of the Court’s consideration of the case – taking into account the assessment made by the domestic courts (see, mutatis mutandis, Bakoyev v. Russia, no. 30225/11, § 113, 5 February 2013).", "60. Turning to the general human-rights climate in the requesting country, the Court observes the following. In a previous case concerning extradition to Kyrgyzstan it found that in 2012 the situation in the south of the country was characterised by torture and other ill‑treatment of ethnic Uzbeks by law-enforcement officers. This had increased in the aftermath of the events of June 2010 and remained widespread and rampant, aggravated by the impunity of law-enforcement officers. Moreover, the Court established that the issue ought to be seen in the context of the rise of ethno‑nationalism in the politics of Kyrgyzstan, particularly in the south, the growing inter-ethnic tensions between Kyrgyz and Uzbeks, the continuation of discriminatory practices faced by Uzbeks at institutional level, and under‑representation of Uzbeks in, amongst others, law-enforcement bodies and the judiciary (see Makhmudzhan Ergashev, cited above, § 72).", "As is clear from the reports by UN bodies and reputable NGOs (see paragraphs 37-42 above), the situation in the south of Kyrgyzstan did not improve in 2012-13. In particular, various reports state that a great number of persons, particularly Uzbeks, have been subjected to arbitrary arrests and detention, torture and other forms of ill-treatment on the basis of their ethnicity. Abuses in the south of Kyrgyzstan, particularly against ethnic Uzbeks, have not been adequately addressed. There is a growing problem of law‑enforcement officers extorting money, in particular from ethnic Uzbeks, by threatening criminal prosecution. Accordingly, the Court concludes that the current overall human-rights situation in Kyrgyzstan remains highly problematic.", "61. The Court will now examine whether there are any individual circumstances substantiating the applicant’s fears of ill-treatment (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005‑I). It reiterates in this respect that where an applicant alleges that he or she is a member of a group that is systematically exposed to a practice of ill-treatment, the protection of Article 3 enters into play when the applicant establishes, where necessary on the basis of information contained in recent reports by independent international human-rights protection bodies or non-governmental organisations, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned. In those circumstances, the Court will not then insist that the applicant show the existence of further special distinguishing features (see Saadi v. Italy [GC], no.", "37201/06, § 132, ECHR 2008, and NA. v. the United Kingdom, no. 25904/07, § 116, 17 July 2008). 62. The widespread use by the Kyrgyz authorities of torture and ill‑treatment of ethnic Uzbeks in the Jalal-Abad Region has been repeatedly reported by UN bodies (see paragraphs 37-38 above) and reputable NGOs (see paragraphs 39-42 above).", "Even though the majority of the reported instances of ill-treatment involve those charged with crimes related to the June 2010 violence, the Court has already observed in a previous case concerning the extradition of an ethnic Uzbek to Kyrgyzstan that the practice of torture and other ill‑treatment in the requesting country could be described as routine in cases involving ethnic Uzbek suspects detained on charges unrelated to the June 2010 violence (see Makhmudzhan Ergashev, cited above, § 73). Accordingly, the Court is satisfied that even though the applicant has been charged with a crime not related to the June 2010 events, he belongs to a particularly vulnerable group, the members of which are routinely subjected to treatment proscribed by Article 3 of the Convention in the requesting country. The Court is mindful of the fact that the applicant’s extradition request was connected with the charge of murder of an ethnic Kyrgyz. 63. The Court observes that the above circumstances were brought to the attention of the Russian authorities.", "In the domestic proceedings in which the applicant challenged the decision to extradite him, he argued that as an ethnic Uzbek he would face a serious risk of ill-treatment should extradition be ordered. On the one hand, he referred to the general situation in the south of Kyrgyzstan characterised by the continuing practice of persecution of and discrimination against the ethnic Uzbek community. On the other hand, he stressed that in his particular case there existed specific grounds to believe that his individual prosecution was arbitrary and he therefore ran a real risk of ill-treatment. He referred to the fact that the Kyrgyz authorities had already established that the murder of Mr M. had been committed by Mr U. alone, who had already been found guilty of it by the final judgment of a domestic court. Moreover, law-enforcement officers had attempted to extort money from the applicant’s mother in exchange for dropping the criminal charges against him (see paragraphs 11 and 25 above).", "The judgment of the Supreme Court of the Republic of Chechnya of 12 November 2012 had no regard to the applicant’s arguments concerning the risk of his ill-treatment in Kyrgyzstan. It relied on the assurances given by the Kyrgyz Republic Prosecutor General’s Office, stating that the court “ha[d] no reason to doubt [them]”. It also referred to the decision of the Federal Migration Service to reject the applicant’s request for refugee status and its finding that he would not be persecuted on political grounds (see paragraph 26 above). The Supreme Court of the Russian Federation essentially repeated the lower court’s reasoning. It did not address the applicant’s statements or assess the risk of his ill-treatment on the basis of reports by reputable sources.", "It thereby abstained from compensating for the lower court’s failure to make such an assessment (see paragraph 28 above). 64. Furthermore, when deciding on the applicant’s request for refugee status, the courts also failed to give an adequate reply to his arguments concerning the risk of ill-treatment (see paragraphs 31 and 33 above). 65. In such circumstances, the Court is not convinced that the issue of the risk of ill-treatment was subjected to rigorous scrutiny in the extradition or refugee-status proceedings (see Abdulkhakov v. Russia, no.", "14743/11, § 148, 2 October 2012). 66. It remains to be considered whether the risk to which the applicant would be exposed if extradited has been alleviated by the assurances provided by the Kyrgyz authorities to the Russian Federation. 67. The Court notes that assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment.", "There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148, and Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 187-89, ECHR 2012 (extracts)). 68. The Court further notes that according to the assurances given, the applicant would not be subjected to torture, cruel, inhuman or degrading treatment or punishment (see paragraph 21 above).", "The Russian authorities relied on those assurances without any scrutiny, stating that they had “no reason to doubt” that they would be observed (see paragraph 26 above). 69. Even accepting that the assurances in question were not couched in general terms, the Court observes that Kyrgyzstan is not a Contracting State to the Convention, nor have its authorities demonstrated the existence of an effective system of legal protection against torture that could act as an equivalent to the system required of the Contracting States. While those assurances appear to be formally binding on the local authorities, the Court has serious doubts, in view of the poor human-rights record of the south of the country, whether the local authorities there can be expected to abide by them in practice (see Makhmudzhan Ergashev, cited above, §§ 35-46; paragraphs 37-42 above). Furthermore, the Court notes that the Government’s reference to an additional assurance to provide Russian diplomatic staff with access to the place of the applicant’s detention has not been supported by any evidence (see paragraph 45 above).", "Moreover, it has not been demonstrated before the Court that Kyrgyzstan’s commitment to guaranteeing access to the applicant by Russian diplomatic staff would lead to effective protection against proscribed ill-treatment in practical terms, as it has not been shown that the aforementioned staff would be in possession of the expertise required for effective follow-up of the Kyrgyz authorities’ compliance with their undertakings. Nor was there any guarantee that they would be able to speak to the applicant without witnesses. In addition, their potential involvement was not supported by any practical mechanism setting out, for instance, a procedure by which the applicant could lodge complaints with them or for their unfettered access to detention facilities (see, mutatis mutandis, Nizomkhon Dzhurayev v. Russia, no. 31890/11, §§ 132-33, 3 October 2013). 70.", "In view of the above, the Court cannot accept the Government’s assertion that the assurances provided by the Kyrgyz authorities were sufficient to exclude the risk of his exposure to ill-treatment in the requesting country. 71. Considering the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the south of Kyrgyzstan in respect of members of the Uzbek community, to which the applicant belongs, the impunity of law‑enforcement officers and the absence of sufficient safeguards for the applicant in the requesting country, the Court finds it substantiated that the applicant would face a real risk of treatment proscribed by Article 3 if returned to Kyrgyzstan. 72. Accordingly, the Court finds that the applicant’s extradition to Kyrgyzstan would be in violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (f) AND 4 OF THE CONVENTION 73. The applicant complained that his detention pending extradition had been unlawful in violation of Article 5 § 1 (f) of the Convention, and that no procedure to challenge the lawfulness of the prosecutor’s detention order had been available to him, in violation of Article 5 § 4 of the Convention. 74. Having regard to all the material in its possession, and as far as it is within its competence, the Court finds that the applicant’s submissions disclose no appearance of violations 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 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. 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 76. The applicant claimed 773,200 Russian Roubles (RUB) in respect of pecuniary damage.", "This sum comprised: (a) the income that he could have earned during the twelve months in which he had been deprived of his liberty, in the amount of RUB 660,000; (b) the cost of the rent that his relatives had paid for his workshop for six months, while he had been in custody, in the amount of RUB 60,000; and (c) the cost of his professional equipment, which had been sold by his relatives to pay for the workshop rent, in the amount of RUB 53,200. 77. The Government submitted that there was no connection between the pecuniary damage claimed by the applicant and the alleged violation of Article 3 of the Convention. Rather, his claim was connected with the alleged unlawfulness of the criminal charges against him. 78.", "The Court does not discern any causal link between the potential violation found and the pecuniary damage alleged; it therefore rejects this claim. B. Non-pecuniary damage 79. The applicant claimed compensation for non-pecuniary damage and asked the Court to determine the amount of the award which “would be reasonable and appropriate to the level of suffering from taking out a year of his life, his liberty, his relationship and professional life”. 80. The Government reiterated that they did not consider the applicant to be a victim in the meaning of the Convention.", "Should the Court decide otherwise, the fact of finding a violation would in itself constitute sufficient just satisfaction. 81. The Court considers that its finding that the applicant’s extradition, if carried out, would breach Article 3 of the Convention constitutes sufficient just satisfaction. C. Costs and expenses 82. The applicant also claimed 6,800 Euros (EUR) for legal costs incurred before the domestic courts and EUR 3,200 and RUB 24,300 for costs and expenses incurred before the Court.", "83. The Government submitted that the applicant had not shown that the payments had actually been made and had been necessary and reasonable. 84. 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 – after exclusion, inter alia, of expenses related to the applicant’s detention which formed the subject of the complaints declared inadmissible by the Court – the sum of EUR 3,800 covering legal costs in the domestic proceedings; and the sum of EUR 2,500 covering legal costs and EUR 487 covering postal expenses in the proceedings before the Court.", "Thus the sum of EUR 6,787, covering costs and expenses under all heads, plus any tax that may be chargeable to the applicant on that amount, is to be paid to the representative’s bank account. D. 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. IV. RULE 39 OF THE RULES OF COURT 86.", "In accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 87. The Court considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that, if the decision to extradite the applicant to Kyrgyzstan were to be enforced, there would be a violation of Article 3 of the Convention; 3. Holds that its finding made under Article 3 of the Convention constitutes sufficient just satisfaction as regards the claim for compensation for non-pecuniary damage; 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 6,787 (six thousand seven hundred and eighty-seven euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Russian roubles at the rate applicable at the date of settlement and paid to 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 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. 6.", "Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to extradite the applicant until such time as the present judgment becomes final or until further order. Done in English, and notified in writing on 24 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIRST SECTION CASE OF RYBAKOV v. RUSSIA (Application no. 14983/04) JUDGMENT STRASBOURG 22 December 2005 FINAL 22/03/2006 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 Rybakov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrL. Loucaides, President,MrsF.", "Tulkens,MrP. Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrA. Kovler, MrD.", "Spielmann, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 1 December 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14983/04) 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 Gennadiy Nikolayevich Rybakov (“the applicant”), on 27 March 2004. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.", "3. On 13 December 2004 the Court decided to communicate the application. 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 1936 and lives in Saint Petersburg.", "1. Civil proceedings in the housing dispute 5. On 12 August 1998 the applicant lodged a civil action before the Oktyabrskiy District Court of St. Petersburg against the Governor of St. Petersburg and St. Petersburg committee for housing policy (Комитет по жилищной политике г. Санкт-Петербург), seeking to obtain a flat under a city-funded programme. A copy of the applicant’s statement of claim bears a signature of the registry indicating that the statement was received on 12 August 1998. 6.", "Of the three hearings fixed between 24 February and 21 October 1999, two hearings were adjourned due to the defendant’s failure to appear and one hearing was postponed upon the defendant’s request to join another party to the proceedings. 7. The next hearing, fixed for 16 March 2000, was adjourned to allow the applicant to amend his claims. 8. Of the four hearings listed between 5 April 2000 and 28 February 2001, three hearings were adjourned because the defendants did not attend and one hearing was adjourned because the judge was involved in other proceedings.", "9. On 15 March 2001 the Oktyabrskiy District Court of St. Petersburg held a hearing. A representative of the Governor of St. Petersburg requested to adjourn the proceedings in order to enable the Governor to amend the existing regulation which affected the applicant’s housing rights. The request was granted. 10.", "Between 22 May 2001 and 28 March 2002 the district court fixed four hearings. Three hearings were adjourned because the defendants did not attend and one hearing was adjourned to allow the applicant to amend his claims. 11. On 8 April 2002 the applicant filed the amended claims. 12.", "The hearing of 19 December 2002 was postponed until 1 April 2003 because the defendants did not attend. The Oktyabrskiy District Court of St. Petersburg sent a written warning to the defendants, informing them that they would be fined if they failed to attend the next hearing. 13. Three hearings fixed between 1 April and 17 June 2003 were adjourned because the defendants had not attended. 14.", "The hearing of 14 October 2003 was rescheduled because the presiding judge had been dismissed from her office. 15. The hearing fixed for 5 May 2004 was adjourned because the defendants did not appear. 16. The hearing of 5 July 2004 was adjourned because the applicant was ill. 17.", "On 29 September 2004 the Oktyabrskiy District Court of St. Petersburg gave the judgment. 18. On 8 December 2004 the St. Petersburg City Court upheld the judgment of 29 September 2004. 2. Applicant’s complaints about the excessive length of the proceedings 19.", "On 21 December 2002, 5 January and 9 November 2003 the applicant complained to the President of the Oktyabrskiy District Court of St. Petersburg, a deputy President of the St. Petersburg City Court and the President of the Supreme Court of the Russian Federation about delays. 20. On 30 December 2002 and 10 February 2003 a deputy President of the Oktyabrskiy District Court of St. Petersburg and on 25 March 2004 a deputy President of the St. Petersburg City Court informed the applicant that the excessive length of the proceedings in his case had been caused by a large number of pending civil cases. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21.", "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 ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 22. The Government considered that the applicant’s complaint about the length of the proceedings was inadmissible under Article 35 § 3 of the Convention. As to the period to be taken into consideration, the Government submitted that the proceedings had begun on 12 August 1998 when the applicant had filed his statement of claim and ended on 8 December 2004 with the final judgment of the St. Petersburg City Court. 23. The applicant contested the Government’s submissions.", "He insisted that he had initiated the proceedings on 10 August 1998. 24. The Court agrees with the Government that the period to be taken into consideration began on 12 August 1998 when the St. Petersburg City Court received the applicant’s statement of claims and ended on 8 December 2004. The proceedings therefore lasted six years, three months and twenty-eight days and came before courts of two levels of jurisdiction. 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 Government argued that the length of the proceedings may still be considered “reasonable” and could be explained by the circumstances of the case. The presence of several defendants in the proceedings and the need to examine the case thoroughly rendered the proceedings extremely complex. The delays were caused by the defendants’ failure to attend the hearings and the applicant’s absence on 5 July 2004. The Government indicated, nevertheless, that the domestic law provided for the right to give a default judgment. Furthermore, on several occasions the applicant amended his claims and complained to various domestic officials about the excessive length of the proceedings.", "As regards the conduct of the domestic authorities, the Government submitted that there had been no periods of inactivity attributable to them. 27. The applicant contested the Government’s submissions. He argued that the case was not complex. He had attended all hearings save for one.", "He could not be blamed for amending his claims because he had been compelled to do so by the presiding judge. His complaints to various domestic officials did not cause any delay because the proceedings were never stayed at his request. The applicant claimed that the excessive length of the proceedings had been caused by the transfer of the case from one judge to another, by the defendants’ absence and by the fact that the courts had been overburdened. 28. 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). 29. The Court agrees with the Government that the proceedings at issue were of some complexity as they required examination of voluminous housing regulations enacted in St. Petersburg and concerned a complex factual background. The applicant changed, amended and supplemented his claims on several occasions. The Court considers that the task of the courts was rendered more difficult by these factors, although it cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings.", "30. As to the applicant’s conduct, both parties agreed that the applicant had not attended one hearing on 5 July 2004. Irrespective of the reasons for his absence, the delay incurred therefrom was negligible. As to the Government’s argument that the applicant contributed to the delay in the proceedings by amending his claims and complaining to various officials, the Court reiterates that the applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interest (see, mutatis mutandis, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 66).", "The Court cannot conclude that the applicant contributed to the prolongation of the proceedings. 31. The Court observes, however, that substantial periods of inactivity, for which the Government have not submitted any satisfactory explanation, are attributable to the domestic authorities. It took the district court several months to fix hearings. For example, a period of six months lapsed between the registration of the claim on 12 August 1998 and the first hearing of 24 February 1999.", "Between 28 March and 19 December 2002 no hearings appear to have been listed or held. Another delay of approximately seven months was caused by the transfer of the case from one judge to another, between 14 October 2003 and 5 May 2004. In this respect, the Court recalls that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can meet the obligation to decide cases within a reasonable time (see, among other authorities, Löffler v. Austria, no. 30546/96, § 57, 3 October 2000). In addition, there were several shorter periods during which there was no apparent progress in the case.", "32. The Court furthermore notes that the conduct of the defendants was one of the reasons for the prolongation of the proceedings. In the Court’s opinion, the domestic authorities failed to take adequate steps in order to ensure their attendance. The defendants defaulted on at least thirteen occasions which resulted in a delay of approximately two years and three months. There is no indication that the court reacted in any way to that behaviour, save for sending warnings.", "In any case, the Court finds it peculiar that after the defendants had received the courts’ warning they did not attend three subsequent hearings and the district court did not take any measures. Accordingly, the Court considers that, the domestic courts did not avail themselves of the measures available to them under national law to discipline the participants to the proceedings and to ensure that the case be heard within a reasonable time (see, mutatis mutandis, Kuśmierek v. Poland, no. 10675/02, § 65, 21 September 2004). The Court also notes the Government’s submission that the domestic courts could have given a default judgment. 33.", "Having regard to the overall length of the proceedings, and the circumstances of the case, in particular, that the proceedings were pending for approximately six years and one month before the first-instance court, the Court concludes that the applicant’s case was not examined within a reasonable time. There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 34. The applicant, invoking Article 1 of the Convention, further complained that all his complaints about the excessive length of the proceedings had been futile.", "The Court considers that this complaint falls to be examined under 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.” 35. The Government contested the applicant’s arguments. A. Admissibility 36. 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 37. 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 the Government did not indicate any remedy that could have expedited the determination of the applicant’s case or provided him with adequate redress for delays that had already occurred (see Kormacheva v. Russia, no. 53084/99, 29 January 2004, § 64). 38. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention. III.", "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 29,912 US dollars (USD) in respect of pecuniary damage, namely for the loss of opportunity to acquire a flat at the price of 1998, and 7,000 euros (EUR) in respect of non-pecuniary damage. 41.", "The Government submitted that no casual link had been shown between the facts of the case and the damage allegedly suffered by the applicant. 42. The Court considers that the applicant has failed to demonstrate that the pecuniary damage claimed was actually caused by the violation of the Convention in his case. Consequently, there is no cause to make an award under that head. On the other hand, the Court accepts that the applicant suffered distress, anxiety and frustration because of an unreasonable length of the proceedings and the lack of an effective remedy for a breach of the requirement to hear his case within a reasonable time.", "Making its assessment on an equitable basis, it awards the applicant EUR 3,300 in respect of non-pecuniary damage, plus any tax that may be chargeable on the above amount. B. Costs and expenses 43. The applicant also claimed EUR 129 for the costs and expenses incurred before the domestic courts and the Court. 44.", "The Government agreed that the claim should be granted because it was substantiated. 45. 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 that the sum claimed should be awarded in full, plus any tax that may be chargeable on the above amount. 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 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; 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 3,300 (three thousand three hundred euros) in respect of non-pecuniary damage and EUR 129 (one hundred twenty-nine euros) in respect of costs and expenses, 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 22 December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenLoukis LoucaidesRegistrarPresident" ]

[ "THIRD SECTION CASE OF ARSENIEV v. MOLDOVA (Applications nos. 10614/06 and 10620/06) JUDGMENT STRASBOURG 20 March 2012 FINAL 20/06/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Arseniev v. Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Egbert Myjer,Ján Šikuta,Ineta Ziemele,Mihai Poalelungi,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 21 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos.", "10614/06 and 10620/06) 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, Mr Igor Arseniev (“the applicant”), on 12 January 2006 and 1 December 2005 respectively. 2. The applicant was represented by Mr Ş. Urîtu and Mr Ş. Burlaca from the Helsinki Committee for Human Rights in Moldova, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr V. Grosu. 3.", "The applicant alleged, in particular, that he had been detained in inhuman conditions of detention, as a result of which his health had been affected. He made a number of additional complaints under Articles 5, 6, 8, 9, 13, 14 and 17 of the Convention. 4. On 9 December 2008 and 28 January 2010 the applications were communicated to the Government. The parties were asked to comment on the alleged violation of Article 3 (conditions of detention) as part of application no.", "10614/06 and of Article 6 (the right of access to a court) as part of application no. 10620/06. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1959 and lives in Chişinău. He is a member of the Russian-speaking minority in Moldova. A. The applicant’s conditions of detention 6. On 9 December 2002 the applicant was arrested on suspicion of murder.", "Since the beginning of 2003 he has been detained in Prison no. 13 in Chişinău, Prison no. 3 in Leova and in Pruncul Hospital for Detainees. 7. The applicant submitted that he had been detained at the same time and in the same prison, and even in the same cell, as Mr T. Ciorap, in respect of whose prison conditions the Court had found a violation of Article 3 of the Convention in Ciorap v. Moldova (no.", "12066/02, 19 June 2007). He considered that the conditions of detention were no different from those in which Mr Ciorap had been detained. 8. He described as follows the conditions of detention in Prison no. 13.", "In one cell (no. 117), where he had been detained during his hunger strike, there had been no light bulb on the first day and no bed linen throughout his detention there. A malfunctioning tap and a blocked sink let water gather on the floor; it was always very humid in the cell. The cell was situated in the basement and was not heated; it was very cold owing to the absence of glass in the window. No attention to personal hygiene was possible in the cell.", "9. The applicant submitted that, when escorted to court hearings, all detainees had been transported in a single vehicle, regardless of whether they were ill with infectious diseases such as tuberculosis, which they could transmit to others. They then had to stay for hours in cramped conditions in court-houses waiting for their turn to go into court. 10. The applicant pointed to the low quality of the food which he had received and the fact that when he had been escorted to a court hearing, he had been away from his prison from 7-7.30 a.m. until 7-7.30 p.m.", "He thus had left the prison and had returned there outside the hours when food had been provided. No food had been given throughout the day to those escorted to court hearings. No medication had been distributed during such days either, even if it had been prescribed by doctors. The applicant claimed that he had become ill with prostatitis and rheumatism while in prison. 11.", "He also submitted that he had been detained for several years in Prison no. 13, which was used as a pre-trial detention facility with worse conditions than the prisons in which convicted persons normally served their sentences. In particular, he had been detained in overcrowded cells with no possibility of leaving them for more than an hour per day. He mentioned, for instance, being detained with five other persons in a cell (no. 55) measuring 9.5 square metres suitable for two detainees.", "He also mentioned having felt ill from the smoke in the cell. In reply to his complaint about the lack of proper ventilation, he had allegedly been informed that the prison administration was considering a ban on smoking. The applicant added that he had been unable to see a priest of the Russian Orthodox Church while in detention. 12. The applicant’s representative complained to the Chişinău Prosecutor’s Office about the inhuman conditions of detention in Prisons no.", "13 in Chişinău and no. 16 in Pruncul. In reply, on 24 March 2008 he was informed that during 2007 and 2008 the Prosecutor’s Office had on seven occasions drawn the attention of the above-mentioned institutions to the shortcomings found in their activity. These notifications concerned, in particular, the failure to secure the statutory minimum of four square metres of living space per detainee. According to the prosecutor, there were still more detainees than beds in those institutions.", "13. On 1 December 2008 the applicant asked the governor of Prison no. 13 to confirm or deny that he and five other persons were being detained in cell no. 55 of that institution, measuring 9.5 square metres. He attached a list of names of all those detained in his cell.", "In reply, the head of prison no. 13 informed the applicant that before the entry into force of the new Enforcement Code[1] cell no. 55 could host up to six persons. In reply to another request from the applicant of 20 March 2008, on 4 April 2008 the head of the Prisons Department informed him that in order to satisfy the legal requirement of four square metres of living space per detainee, cell no. 55 in Prison no.", "13 could accommodate two persons. 14. The Government submitted that since 2003 the applicant had been detained, with certain interruptions, in Prison no. 13. He was detained there in various cells, which measured between 7.9 square metres and 30.68 square metres, including in cell no.", "55, measuring 7.9 square metres, currently used for the medical supervision of detainees. They also submitted a long list of medical interventions of various types ranging from check-ups to inpatient treatment from which the applicant benefited throughout his detention. In particular, after his psychiatric problems were discovered, the applicant was regularly examined and treated for his illness. Moreover, the applicant had made 160 requests and complaints to the Prisons Department, nine of which were complaints about the conditions of detention, in addition to eight complaints about the quality and/or quantity of food served. He made another 132 complaints and requests to the administration of Prison no.", "13, eleven of which concerned conditions of detention, as well as one complaint about the quantity and quality of food served. By contrast, he made only one request to the authorities of Prison no. 9 in Pruncul and three requests to those of Prison no. 15 in Cricova. In addition, the applicant initiated seven different court actions against the Prisons Department, the administration of Prison no.", "13, the Government, and its various Ministries concerning the conditions of detention. Three of these actions were struck out and one was rejected as unfounded. Three more are pending. B. Criminal proceedings against the applicant.", "15. On 24 May 2004 the applicant was convicted of murder by the Botanica District Court and sentenced to twenty years’ imprisonment. That judgment was upheld by the Chişinău Court of Appeal on 27 September 2005. 16. On 20 October 2005 the applicant lodged an appeal in cassation with the Supreme Court of Justice.", "On 21 October 2005 the Supreme Court of Justice informed him that his appeal did not conform to legal requirements. It had to include information such as dates and references to the lower courts’ judgments, the appellant’s identity and a summary of the reasons given by the appellate court. Moreover, the appeal had to be typewritten and to be submitted in as many copies as there were parties to the proceedings. 17. The applicant claims that he had a short time for appealing and that he could not typewrite his appeal since a typewriter was not available in prison.", "He therefore submitted five copies of his handwritten appeal to the Supreme Court of Justice. 18. On 14 December 2005 the Supreme Court of Justice declared inadmissible the applicant’s appeal in cassation because it did not conform to the requirements as to form and content. The court noted that the applicant had failed to provide reasons for his appeal or to identify the general legal issue which required it to intervene, that he had failed to rely on any of the grounds exhaustively listed in the law for lodging an appeal and that his appeal had not been typed. That decision was final.", "19. On 24 February 2006 the parliament amended the law by excluding the requirement that appeals in cassation should be typewritten. On an unknown date the applicant asked the Supreme Court of Justice to reopen the proceedings in his case since in his opinion his appeal had been declared inadmissible only because of the failure to submit it in typed form. On 14 May 2008 the Supreme Court of Justice rejected his request as unsubstantiated. C. Civil proceedings initiated by the applicant.", "20. The applicant initiated a number of civil proceedings against the prison authorities, a newspaper, and other persons and institutions. He submitted copies of court decisions refusing to accept for examination his court actions because, inter alia, he had failed to pay the court fees (decisions of 12 September and 4 October 2005, 23 January, 28 February, 3, 7 and 17 March and 7 April 2006, 28 September, 15 October and 11 December 2007). In each of these decisions, the courts also found that the applicant had failed to observe other legal requirements such as submitting original documents or certified copies, submitting arguments and evidence in support of the claim, identifying specifically the defendant or submitting copies of documents for all the defendants and the court. 21.", "The applicant initiated court proceedings against the Government, the Ministry of Justice and the Ministry of Finance, claiming compensation for a violation of his right of access to court and for discrimination against him. On 1 March 2007 the Buiucani District Court left his action without examination because he had failed to pay the court fees. The applicant appealed. On 25 July 2007 the Chişinău Court of Appeal quashed that decision and ordered that the case be heard by the lower court in order to determine whether the court fees should be waived in the applicant’s case. 22.", "On 29 October 2007 the Buiucani District Court found that the type of court action which the applicant had initiated (seeking a finding that a violation of his right of access to a tribunal had taken place in other contentious procedures) was not to be examined as a separate procedure. He had the right to appeal against any refusal to examine his court actions in those civil proceedings in which his actions had been left without examination and thus exercise his right of access to a court in each particular case. It added that the complaint concerning discrimination was ill-founded since the applicant had conceded in court that he had obtained translations of all judgments into Russian whenever he had asked for them. 23. The applicant submitted copies of the decisions of the Chişinău Court of Appeal of 7 March 2006 and 11 December 2007.", "In the decision of 7 March 2006 he was informed that he had missed the time-limit for paying the court fees. Even though he had subsequently paid those fees, this was not a legal ground for annulling the decision taken before such payment. He could, however, re-submit his action before the lower court on the same issue as a new case. The applicant did not inform the Court whether he had followed the court’s advice. The Court of Appeal noted in its decision of 11 December 2007 that the applicant had failed to properly identify his claims, thus failing to observe legal requirements.", "24. According to the applicant, on 15 February 2008 he appealed to the Chişinău Court of Appeal. He submitted no evidence in support of that claim. According to the Government, no such appeal had been lodged, as confirmed by that court in a letter of 13 February 2009. II.", "RELEVANT NATIONAL AND INTERNATIONAL REPORTS AND DOMESTIC PRACTICE 25. In its report for 2010 (page 142 et seq. – “Conditions of detention” chapter), the Centre for Human Rights in Moldova (“the Centre”, which is the Moldovan Ombudsman institution) found, inter alia, that: “Non-observance of the statutory living space (4 square metres) in the living blocks of the institution[2] has become an unpleasant problem; it has transformed into a systemic deficiency of the prisons in the entire country. ... The same situation was observed during a visit to Prison no.", "13 in Chişinău on 9 September 2010. In some cells the living space was not proportionate to the number of detainees. ...” 26. The relevant parts of the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Moldova between 20 and 30 September 2004 (CPT/Inf (2006) 7) read as follows (unofficial translation): “55. The situation in the majority of prisons visited, faced with the economic situation in the country, remained difficult and the delegation encountered a number of problems already identified during the visits in 1998 and 2001 in terms of material conditions and detention regimes.", "Added to this is the problem of overcrowding, which remains serious. In fact, even if the prisons visited were not at their full capacity – as is the case of Prison no. 3 in which the number of detainees was appreciably smaller than during the last visit of the Committee – they continued to be extremely congested. In fact, the receiving capacity was still based on a very unsatisfactory 2 m2 per detainee; in practice often even less. 79.", "The follow-up visit to Prison no. 3 in Chişinău revealed an unsatisfactory situation. The progress noted was in fact minimal, limited to some running repairs. The ventilation system had been repaired primarily thanks to the financial support of civil society (especially NGOs), and the creation of space for daily recreation had been made possible only as a result of contributions by the detainees and their families. The repair, renovation and maintenance of cells are entirely the responsibility of the detainees themselves and of their families, who also pay for the necessary materials.", "They must also obtain their own sheets and blankets, the institution being able to give them only used mattresses. In sum, the living conditions in the large majority of cells in Blocks I and II and the transit cells continue to be very poor indeed. ... Finally, despite the drastic reduction of the overcrowding, there is still a very high, even intolerable, level of occupancy in the cells. 83.", "With the exception of the Lipcani prison ... the quantity and quality of detainees’ food is a source of grave concern everywhere. The delegation was inundated with complaints regarding the absence of meat and dairy products. The findings of the delegation, regarding both the quantity of food and the menus, confirm the credibility of these complaints. Its findings also confirm that in certain places (in Prison no. 3, [...]), the food served was repulsive and virtually inedible (for instance, insects and vermin were present).", "This is not surprising, given the general state of the kitchens and their modest equipment. The Moldovan authorities have always claimed financial difficulties in ensuring that detainees receive adequate food. However, the Committee reiterates that this is a fundamental requirement of life which must be ensured by the State to persons in its charge and that nothing can exonerate it from such responsibility. ...” 27. The relevant parts of the report of the CPT on its visit to Moldova between 14 and 24 September 2007 (CPT/Inf (2008) 39) read as follows (unofficial translation): “46.", "In September 2007, the Director of the Prison Department of the Ministry of Justice provided the delegation with detailed information on measures already taken or planned with a view to reforming the Moldovan prison system and implementing the CPT’s recommendations. One particularly welcome outcome of these measures is the reduction of the country’s prisoner population. At the time of the 2007 visit, the total number of prisoners stood at 8,033 (including 1,290 on remand), compared with 10,591 in 2004. This positive trend can be attributed to legislative changes in recent years, including the entry into force of a new Code of Execution of Sentences in July 2005 and the adoption of amendments to the Criminal Code and the Code of Criminal Procedure. As a result, there has been an increase in the number of conditional early releases, as well as a wider use of alternatives to imprisonment and a more selective application of remand custody by the courts.", "Further, the implementation of the “Concept for reforming the penitentiary system in the period 2004-2013” has been supported by an increase in the budgetary allocation (from 75.8 million lei in 2004, to 166.1 million lei in 2007), as well as by a growing input of foreign aid. This has enabled, inter alia, the amelioration of the food provided to prisoners, an improvement of health care, and the carrying out of refurbishment work at several penitentiary establishments (e.g. No. 1 in Taraclia, No. 7 in Rusca and No.", "17 in Rezina). Last but not least, there has been an important shift in mentality through improved staff recruitment and training procedures. The delegation was informed that the directors of many penitentiary establishments had been changed in the last year, following a competition and a probation period. Further, new training programmes for staff had been developed, placing particular emphasis on human rights issues (see also paragraph 100). 47.", "The CPT can only welcome the above-mentioned measures taken by the Moldovan authorities. Nevertheless, the information gathered by the Committee’s delegation during the 2007 visit shows that much remains to be done. In particular, overcrowding continues to be a problem; despite the fact that all establishments visited were operating well under their official capacities, there was on average only 2 m² of living space per prisoner, rather than the standard of 4 m² provided for in Moldovan legislation. The CPT is convinced that the only viable way to control overcrowding and achieve the standard of at least 4 m² of living space per prisoner is to adopt policies designed to limit or modulate the number of persons sent to prison. In this connection, the Committee must stress the need for a strategy covering both admission to and release from prison to ensure that imprisonment really is the ultimate remedy.", "This implies, in the first place, an emphasis on non-custodial measures in the period before the imposition of a sentence and, in the second place, the adoption of measures which facilitate the reintegration into society of persons who have been deprived of their liberty. The CPT trusts that the Moldovan authorities will continue their efforts to combat prison overcrowding and in so doing, will be guided by Recommendation Rec(99)22 of the Committee of Ministers of the Council of Europe concerning prison overcrowding and prison population inflation, as well as Recommendation Rec(2003)22 on conditional release (parole).” 28. The Government attached to their observations copies of domestic judgments in the cases of Drugaliov v. the Ministry of the Interior and the Ministry of Finance; Gristiuc v. the Ministry of Finance and the Prisons Department; and Ciorap v. the Ministry of Finance, the Ministry of the Interior and the Prosecutor General’s Office, all cases in which the applicants were awarded compensation for ill-treatment and/or inhuman conditions of detention. THE LAW I. JOINDER OF THE APPLICATIONS 29. The Court considers at the outset that, in the interests of the proper administration of justice, the applications registered under the numbers 10614/06 and 10620/06 should be joined in accordance with Rule 42 § 1 of the Rules of Court, as there is common ground between the facts giving rise to the two cases.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30. The applicant complained that he had been detained in inhuman conditions, contrary to the requirements 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 31. The Government argued that the applicant had failed to exhaust available domestic remedies at least in respect of part of his complaint, since he had lodged his application with the Court without awaiting the outcome of the court actions which he had initiated against the various authorities at the domestic level. 32.", "The applicant considered that he had done as much as he could under the circumstances. 33. The Court observes that it has examined and dismissed similar objections in previous cases (see, for instance, Holomiov v. Moldova, no. 30649/05, § 107, 7 November 2006; I.D. v. Moldova, no.", "47203/06, §§ 34-35, 30 November 2010; and Haritonov v. Moldova, no. 15868/07, § 20, 5 July 2011) because the Government had not shown that an effective remedy had been available in theory and in practice. In Oprea v. Moldova (no. 38055/06, § 33, 21 December 2010) it was emphasised that the case-law referred to by the Government “concern[ed] compensation awards for past violations of Article 3 similar to those relied on in Holomiov”. It is therefore clear that the remedy relied on by the Government is only of a compensatory nature and could not improve the applicants’ conditions of detention.", "34. In such circumstances and in view of the similarity between the Government’s position in this case and that in previous cases mentioned above, the Court does not consider it possible to depart from its reasoning and its findings in those cases and therefore dismisses the Government’s objection. 35. 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 36. The applicant complained that he had been detained in overcrowded cells, that he had not been given sufficient medical assistance, and that he had not received food of sufficient quantity or quality, which had undermined his immune system (see paragraphs 7 to 13 above).", "37. The Government contested his arguments, submitting evidence that he had been provided with food three times a day corresponding to the legal requirements and with adequate hygiene facilities, as well as medical treatment whenever necessary (see paragraph 14 above). Moreover, the cells had been regularly cleaned of parasites and he had had access to a shower, while his bed linen had been changed once a week. The applicant had had access to tap water at any moment in his cell and a number of repairs of various cells and other areas in Prison no. 13 had been carried out over recent years.", "2. The Court’s assessment 38. The Court reiterates that the State must 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 by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention (see Ostrovar v. Moldova, no.", "35207/03, § 80, 13 September 2005). 39. In the present case the Court notes that the parties disagreed on most issues concerning the applicant’s conditions of detention. It agrees with the Government that at least in certain aspects the applicant did not substantiate his claims, notably concerning the inadequacy of medical treatment for his various illnesses, including his mental condition (see paragraph 14 above). 40.", "However, it considers that the prevailing conditions of detention in which detainees of the same prison were held could not differ significantly during the same period of time. The Court notes that the applicant has been detained in Prison no. 13 (formerly Prison no. 3) in Chişinău since the year 2003. It also notes that it has found the conditions of detention in that particular facility to fall short of Article 3 standards in a number of cases examined so far (see, for instance, Ostrovar, cited above, §§ 80-90; Istratii and Others v. Moldova, nos.", "8721/05, 8705/05 and 8742/05, §§ 68-72, 27 March 2007; Modarca v. Moldova, no. 14437/05, §§ 63-69, 10 May 2007; Ciorap v. Moldova, no. 12066/02, §§ 65-71, 19 June 2007; and Rotaru v. Moldova, no. 51216/06, §§ 33-42, 15 February 2011). In all these cases the Court referred to the findings of the CPT, which largely corresponded to the applicants’ complaints, notably concerning overcrowding, the quantity and quality of food, and hygiene.", "41. The applicant was detained in the same prison and at the same time as the applicants’ in all the cases mentioned above. His description of the conditions of detention corresponds to that established in the above cases and in the CPT reports (see paragraphs 26 and 27 above). He submitted additional evidence, notably with respect to overcrowding, and made a number of complaints to the authorities about the conditions of detention (see paragraphs 11 to 13 above). Some of the replies from the authorities partly confirmed his submissions (see paragraph 12 above).", "The Government did not submit any evidence capable of distinguishing the applicant’s case from the above cases or to show that his conditions were somehow different from the general conditions in prison no. 13 during his detention. 42. In such circumstances, the Court finds that the applicant was detained in inhuman conditions of detention, notably severe overcrowding (six persons in a cell measuring 7.9 square metres, which is 1.3 square metres per person, far below the statutory minimum of 4 square metres per person), which he had to endure for many years, spending up to 23 hours a day in such conditions. 43.", "There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 44. The applicant complained of a violation of his right of access to a tribunal in the civil cases which he had initiated because of his inability to pay court fees. He also complained, under the same provision, that he had been unable to submit a typed appeal in cassation in the criminal proceedings against him and that the lawyer hired by him had not defended him well.", "The relevant part of Article 6 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 ...” 45. The Government submitted that the applicant had not exhausted available domestic remedies. In particular, he could have appealed against the various decisions to leave his court actions without examination, but he had failed to do so. When he did challenge such a decision (adopted by the Buiucani District Court on 1 March 2007, see paragraph 21 above), the higher court accepted the complaint and directed the first-instance court to take a new decision while replying to his claims. However, he again failed to appeal against the new decision adopted by the court on 27 October 2007 (see paragraph 24 above).", "Moreover, the applicant failed to observe legal requirements for lodging his appeal in cassation in the criminal proceedings. Furthermore, documents from prison no. 13 proved that, for 2009 alone, the applicant had received over 7,000 Moldovan lei (MDL) – largely exceeding the amounts of court fees, which in the cases referred to by the applicant amounted to MDL 90-100. Moreover, he receives a monthly State pension of approximately MDL 400. 46.", "The applicant submitted that in respect of one of his court actions he had made an appeal on 16 February 2008. However, he was not informed of any decision taken. Moreover, as a detainee he could not pay court fees, which were sometimes paid by his mother. Finally, the lawyer whom his mother had hired had not represented him properly since he had visited the applicant only once and had not assisted him in writing his appeal. A complaint to the Moldovan Bar Association did not help in that respect.", "47. The Court notes that the applicant did not submit copies of decisions taken by higher courts in respect of most of the lower courts’ refusals to examine his civil court actions. In particular, it does not see in the file proof of lodging the appeal on 16 February 2008 (as also confirmed by the Court of Appeal in its letter concerning the absence of such an appeal, referred to in paragraph 24 above). He submitted copies of decisions of the Court of Appeal of 7 March 2006, 1 March 2007 and 11 December 2007, but as is clear from those decisions (see paragraphs 21 to 23 above) the applicant had failed to follow the proper procedure. It is also apparent from the decision of 7 March 2006 that the applicant had paid the court fees, which contradicts his claim that he had not had such a possibility and that his cases had been left unexamined precisely for his failure to pay such fees.", "48. It follows that the complaint concerning access to court in various civil proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention as manifestly ill founded. 49. In respect of the criminal case, the Court considers that in principle a system requiring that appeals in cassation in criminal cases be typed, while at the same time depriving detainees of access to equipment allowing to produce such typed appeals (see the unchallenged statement by the applicant cited in paragraph 17 above) would be excessively formalistic and could raise an “access to court” issue under Article 6 of the Convention. It notes with satisfaction that the legislation has changed in that respect (see paragraph 19 above).", "In the present case, the Court notes that the applicant failed to observe several different procedural requirements (see paragraph 18 above), not only the typed form of the appeal, and did not submit that he could not have satisfied any of those other conditions, which appear reasonable. Moreover, the applicant asked for the reopening of the proceedings after the law was changed to exclude the typing requirement, claiming that his appeal in cassation had been rejected only because it had not been typed. However, the Supreme Court of Justice rejected that argument (see paragraph 19 above), thus confirming that other formal requirements had not been observed. 50. As for the alleged deficiencies in the manner in which the lawyer hired by the applicant carried out his duties, the Court reiterates that, given the independence of the legal profession from the State, the conduct of the case is essentially a matter between the defendant and his or her counsel and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention (see, for comparison and mutatis mutandis, Artico v. Italy, judgment of 13 May 1980, § 36, Series A no.", "37; Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000‑XI, and Alvarez Sanchez v. Spain (dec.), no. 50720/99). In the present case the Court is unable to find that there was any defect in the proceedings that would engage the responsibility of the respondent State. 51.", "Therefore, the complaints under Article 6 concerning the criminal proceedings are also inadmissible and must be rejected under Article 35 §§ 1 and 4 of the Convention as manifestly ill founded. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 52. The applicant complained under Articles 5, 6, 8, 9, 13, 14 and 17 of the Convention, notably that he had encountered difficulties in lodging his appeal in cassation because of the formal requirements such as typewritten form or the requirement to pay court fees. 53.", "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 these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the reminder 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 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 a total of 50,000 euros (EUR) in respect of non-pecuniary damage. 56. The Government considered that no compensation should be paid, in the absence of a violation of any Convention rights. In any event, the sum claimed was excessive and unsubstantiated. 57.", "Having regard to the violation of Article 3 of the Convention found above, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, and considering in particular the long period of time during which the applicant was detained in inhuman conditions, the Court awards the applicant EUR 15,000. B. Costs and expenses 58. The applicant did not make any claims in respect of his first application and claimed EUR 1,000 for legal costs in respect of his second application.", "He submitted a detailed description of his representatives’ work for 25 hours on that case. 59. The Government considered the hourly rate claimed reasonable, but submitted that the number of hours worked on the case was excessive, considering the lack of complexity. 60. 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 notes that it has found a violation of Article 3 of the Convention only in respect of the conditions of the applicant’s detention and declared inadmissible all the other complaints. It also notes that the applicant made no claim for costs and expenses as part of his first application, which was the only one where the parties had been asked to comment on the complaint under Article 3 (see paragraph 4 above). Accordingly, the Court makes no award for legal costs. At the same time, regard being had to the information in its possession, the Court considers it reasonable to award the applicant the sum of EUR 100 for incidental costs and expenses. 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 to join the applications; 2. Declares the complaint under Article 3 of the Convention admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 3 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 Moldovan lei at the rate applicable on the date of settlement: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 100 (one hundred 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 20 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep Casadevall Registrar President [1]1. On 1 July 2005, except for the part concerning conditions of detention, which enter into force gradually as conditions are created, but not later than 1 January 2013.", "[2]1. The institution referred to in that part of the report was prison no. 3 in Leova." ]

[ "THIRD SECTION CASE OF LYUBIMOV v. RUSSIA (Application no. 60249/13) JUDGMENT STRASBOURG 11 October 2016 This judgment is final but it may be subject to editorial revision. In the case of Lyubimov 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 20 Septebmer 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 60249/13) 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 a Russian national, Mr Vyacheslav Vladimirovich Lyubimov (“the applicant”), on 14 August 2013.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 10 June 2014 the complaint concerning the length of pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1981 and lived, prior to his arrest, in Sibay, Bashkortostan Republic. 5. On 11 December 2009 the applicant was arrested on suspicion of drug trafficking. On an unspecified date he was charged with smuggling cocaine into Russia (three counts), transport of cocaine (three counts); preparation to distribution of cocaine (three counts), all the crimes being committed by an organised group. 6.", "On 12 December 2009 the Tverskoy District Court of Moscow remanded the applicant in custody pending investigation. The judge found that (1) the applicant was suspected of serious crimes, (2) his involvement in crimes was confirmed by the evidential material in the case file, (3) he had no permanent job, source of income and did not reside at his domicile, and (4) he might abscond or interfere with investigation. The judge also took into account the applicant’s character. The applicant remained in detention pending investigation and trial. 7.", "On 20 February 2012 the Kirovskiy District Court of Saint-Petersburg convicted the applicant as charged and sentenced him to sixteen years’ imprisonment. 8. On 25 July 2012 the Saint-Petersburg City Court acquitted the applicant of the charges concerning transport of cocaine due to lack of corpus delicti, re-characterised the charges concerning cocaine smuggling into attempted smuggling, reduced the applicant’s sentence to fourteen years’ imprisonment and upheld the judgment in the remaining part. 9. On 22 May 2013 the Presidium of the Saint-Petersburg City Court quashed the judgments rendered in the applicant’s case by way of supervisory review and remitted the case for a new examination.", "The Presidium also extended his pre-trial detention stating that the applicant could abscond. The court also took into account the applicant’ character. 10. On 20 June 2013 the Kirovskiy District Court extended the applicant’s pre-trial detention on the ground that he was accused of serious crimes, could abscond, commit crimes and that he did not have any permanent job. 11.", "On 20 August 2013 the Saint-Petersburg City Court upheld this decision on appeal. 12. On 10 February 2014 the Kirovskiy District Court of Saint‑Petersburg convicted the applicant. 13. On 16 June 2014 the Saint-Petersburg City Court upheld the applicant’s conviction on appeal.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 14. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. Article 5 § 3, in so far as relevant, 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 1.", "The parties’ submissions 15. The Government stated that the applicant had failed to inform the Court of developments in his case after the date of communication, and that the Court should not take into account the period of his pre-trial detention after that date. The Government also submitted that the applicant’s pre-trial detention comprised two non-consecutive periods. The first period started on 11 December 2009 and ended on 20 February 2012 when the applicant was convicted. On 25 July 2012 the appeal court upheld this judgment.", "The second period lasted from 22 May 2013 to 17 October 2013. Hence in accordance with the six-month rule the Court shall take into account only the second period of the applicant’s pre-trial detention. 16. The applicant did not comment. 2.", "The Court’s assessment (a) Period to be taken into consideration 17. The Court observes that, as pointed out by the Government, in the present case the applicant’s pre-trial detention comprised two distinct periods: (1) from 11 December 2009, when the applicant was arrested pending criminal investigation against him, to 20 February 2012, when he was convicted by the Kirovskiy District Court, and (2) from 22 May 2013, when the Presidium of the Regional Court quashed the verdict and the appeal judgment, to his conviction on 10 February 2014 by the District Court. In between those two periods the applicant’s first conviction became final, when upheld by the appellate court on 25 July 2012, and the applicant, for more than a year, served a prison sentence. 18. The Court considers that the issue in the present case is whether the two periods of the applicant’s pre-trial detention can be assessed cumulatively.", "The Court answers this question in the negative. In the Court’s view, the fact that the applicant’s conviction became final once upheld on appeal and he started serving a prison sentence had the effect of triggering the application of the six-month rule referred to in Article 35 § 1 in respect of the first period of his pre-trial detention (see Nasakin v. Russia, no. 22735/05, §§ 81 – 85, 18 July 2013). 19. Having regard to the above, the Court finds that the six-month rule should be applied, separately, to each period of pre-trial detention.", "Accordingly, the Court cannot consider whether or not the first period was compatible with the Convention. The applicant’s complaint with regard to the detention period from 11 December 2009 to 20 February 2012 should be declared inadmissible as being lodged out of time. However, the fact that an applicant has already spent time in custody pending the same set of criminal proceedings, should, in a given case, be taken into account by the Court in its assessment of the sufficiency and relevance of the grounds justifying the subsequent period of pre-trial detention, which the Court is competent to examine (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012). 20.", "In the circumstances of the present case, the Court considers that the applicant’s complaint under Article 5 § 3 of the Convention in respect of his detention from 22 May 2013 to 10 February 2014 is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. As it is not inadmissible on any other grounds, the Court declares it admissible. (b) Failure to inform the Court of developments in the applicant’s case 21. In so far as the Government contest the scope of the applicant’s complaint, the Court observes that the present case concerns the allegedly excessive nature of the applicant’s pre-trial detention. By lodging his application with the Court, the applicant complained of a situation in which he had already been for some time, and which seemed set to last.", "In these circumstances, any subsequent developments in the criminal proceedings against him would not have affected the core of the matter underlying his complaint under the Convention, because some period of his detention had already taken place. Accordingly, the Court is unable to find that a lack of information about further extensions of the applicant’s detention and his second conviction could have had a decisive influence on its judgment, or could have prevented it from ruling on the case (see Neumeister v. Austria, 27 June 1968, p. 34, § 7, Series A no. 8; Kalinin v. Russia [Committee], no. 54749/12, § 18-21, 19 February 2015). It finds the Government’s argument without merit and of no legal consequence to the proceedings.", "B. Merits 22. The Court has already, on numerous occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts had extended an applicant’s detention whilst essentially relying on the gravity of the charges and merely using stereotypical formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; 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).", "23. Turning to the circumstances of the present case, the Court notes that there is no reason to arrive at a different conclusion in the present case. 24. The applicant was kept in pre-trial detention from 22 May 2013 to 10 February 2014, i.e. for eight months and twenty days.", "On 22 May 2013 the Presidium of the Saint-Petersburg City Court referred to the possibility of absconding as the only ground for the applicant’s pre-trial detention. The judges also stated that they took into account the applicant’s character. However they did not develop this argument. 25. On 20 June 2013 the Kirovskiy District Court extended the applicant’s pre-trial detention de facto using a stereotyped formula.", "26. The Court considers that the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”. 27. There has accordingly been a violation of Article 5 § 3 of the Convention.", "II. 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.” 29. 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 complaint concerning the excessive duration of pre-trial detention from 22 May 2013 to 10 February 2014 admissible and the complaint concerning the excessive duration of pre-trial detention from 11 December 2009 to 20 February 2012 inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention. Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko Lubarda Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF KHUDYAKOVA v. RUSSIA (Application no. 13476/04) JUDGMENT STRASBOURG 8 January 2009 FINAL 08/04/2009 This judgment may be subject to editorial revision. In the case of Khudyakova 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 4 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13476/04) 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 Ms Svetlana Nikolayevna Khudyakova (“the applicant”), on 16 March 2004.", "2. The applicant was represented by Mr A. Fleganov, a lawyer practising in Petrozavodsk. 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. On 14 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. 4. The Government objected to the 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 5. The applicant was born in 1971 in Kazakhstan and currently resides in the town of Petrozavodsk in the Republic of Karelia in Russia. According to both Russian and Kazakh authorities, the applicant is a citizen of Kazakhstan. According to the applicant, the only citizenship she obtained was that of the former Soviet Union. 6.", "In October 1997 the applicant moved from Kazakhstan to the Republic of Karelia. A. Proceedings relating to the applicant’s extradition to Kazakhstan 7. On 13 January 1998 the Kazakh police initiated criminal proceedings against the applicant on suspicion of large-scale fraud committed in 1997 in the town of Ust-Kamenogorsk. At the same time she was put on the list of fugitives from justice as her whereabouts were unknown.", "8. On 22 January 1998 the Ust-Kamenogorsk Town Prosecutor of Kazakhstan authorised the applicant’s arrest. 9. On 7 February 2003 the Prosecutor General’s Office of the Russian Federation received a request for the applicant’s extradition sent by the General Prosecutor’s Office of the Republic of Kazakhstan. 10.", "On 7 August 2003, pursuant to the arrest warrant issued by the Ust-Kamenogorsk Town Prosecutor, the applicant was arrested in Petrozavodsk with a view to her extradition to Kazakhstan. According to the applicant, the police officers failed to explain why she had been arrested and detained. According to the Government, on the same day the applicant signed the arrest warrant issued by the Ust-Kamenogorsk Town Prosecutor and was informed of the reasons for her arrest and of the charges against her. The Government provided the Court with copies of the arrest warrant signed by the applicant on 7 and 8 August 2003. 11.", "Upon the applicant’s arrest she met with her lawyer, Mr Fleganov. 12. On 13 August 2003 the Karelia Prosecutor’s Office sent the extradition file to the Prosecutor General’s Office of the Russian Federation for examination of the extradition request. 13. On 15 August 2003 the applicant’s lawyer lodged a complaint with the Petrozavodsk Town Court contesting the grounds for his client’s detention.", "14. On 2 September 2003 the Petrozavodsk Town Court on the request lodged by the Karelia Prosecutor’s Office ordered the applicant’s detention with a view to her extradition to Kazakhstan on the basis of Article 108 of the Code of Criminal Procedure. The Town Court held that the applicant was charged with a criminal offence punishable by a prison term of more than one year and that the extradition request was pending. The Town Court did not find it possible to apply a more lenient preventive measure, referring to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the 1993 Minsk Convention”) and the Russian Code of Civil Procedure. No time-limit for the applicant’s detention was set.", "This decision was upheld on appeal on 11 September 2003 by the Supreme Court of Karelia. 15. Later on 2 September 2003 the Petrozavodsk Town Court examined and dismissed the applicant’s lawyer’s complaint about the applicant’s detention lodged on 15 August 2003. Relying on Articles 61 and 62 of the 1993 Minsk Convention, the Town Court found that the applicant’s detention was lawful. The applicant appealed.", "On 9 October 2003 the Supreme Court of Karelia upheld that decision. 16. On 13 October 2003 the Deputy Prosecutor General of Karelia dismissed the applicant’s request to change the measure of restraint, noting that the Prosecutor’s Office of Karelia was not authorised to examine this issue. 17. On 20 October 2003 the Petrozavodsk Town Court again dismissed the complaint about the unlawfulness of the applicant’s detention.", "On 27 November 2003 the Supreme Court of Karelia quashed that decision due to procedural flaws and the Town Court’s failure to give reasons for its decision to dismiss the complaint. The case was remitted for fresh examination. 18. In the meantime, on 21 October 2003 the Karelia Prosecutor’s Office dismissed the applicant’s request to inform her about the results of the examination of her extradition file. 19.", "On three further occasions in October and November 2003 the applicant’s lawyer complained about the unlawfulness of the applicant’s detention to the Prosecutor’s Office. In his submissions Mr Fleganov claimed that Article 109 of the Russian Code of Criminal Procedure prescribed a maximum of two months’ detention pending trial without extension. As the detention period had not been extended following the expiry of that period on 7 October 2003, the applicant’s subsequent detention was unlawful. On 21 November and 1 and 11 December 2003 Karelia Prosecutor dismissed these complaints. The prosecutor held that the period of the applicant’s detention was not limited since the date and time for the applicant’s extradition were fixed neither by the 1993 Minsk Convention nor by the Code of Criminal Procedure.", "20. The applicant and her lawyer complained to the Petrozavodsk Town Court about the unlawfulness of the applicant’s detention and the refusal of the Karelia Prosecutor’s Office to authorise her release. They claimed, in particular, that the applicant was not a citizen of Kazakhstan, that she had moved to Russia over six years earlier and that she could thus not be extradited to Kazakhstan. 21. On 17 December 2003 the Petrozavodsk Town Court dismissed the complaint.", "That decision was upheld on appeal on 16 February 2004 by the Supreme Court of Karelia. The domestic courts found that the applicant’s detention was in conformity with the provisions of the 1993 Minsk Convention. The request for the applicant’s extradition was under examination by the Prosecutor General of Russia and no final decision was taken. The courts further held that the applicant was to be detained until the final decision on her extradition had been taken, as neither the Minsk Convention, nor the Code of Criminal Procedure set any time-limit for the examination of an extradition request. The Town and Supreme courts found accordingly that the applicant’s detention and the actions of the Prosecutor’s Office were in accordance with law.", "22. On 10 September 2004 the Petrozavodsk Town Court dismissed the applicant’s complaint about the unlawfulness of her detention, relying on the same grounds as in its decision of 17 December 2003. 23. On 14 October 2004 the Supreme Court of Karelia amended the decision of the Petrozavodsk Town Court of 10 September 2004 and ordered the applicant’s release. The Supreme Court found as follows: “According to Article 109 § 3 of the Code of Criminal Procedure detention over twelve months may be extended only in exceptional circumstances if the person is charged with a serious or particularly serious criminal offence.", "This extension is to be granted following a request filed by an investigator with the consent of the Prosecutor General of Russia or his Deputy. Taking into consideration Article 466 § 1 of the Code of Criminal Procedure the issue of subsequent extension of detention may be decided by a court only in exceptional circumstances prescribed by law and on a request lodged by a prosecutor. It appears from the material of the case-file that the prosecutor has not lodged such a request. The offence of which the applicant has been accused does not relate to particularly serious offences ...” 24. The Supreme Court concluded as follows: “The reasonable time for the applicant’s detention (fourteen months) had expired ...", "The Town Court’s referral to the fact that no time-limit was set, either by the 1993 Minsk Convention or by the Code of Criminal Procedure, for the examination of an extradition request was of no relevance to the rights and freedoms of the applicant, who had been held in detention without being charged and without any decision on her extradition for more than one year.” 25. According to the applicant, she was released on 18 October 2004. The Government did not comment on this issue. 26. On 8 September 2005 the Office of the Prosecutor General of Russia informed the Deputy Prosecutor General of Kazakhstan that it was not possible to grant the extradition request in respect of the applicant, since the time-limit for criminal prosecution for the offence (two years) had expired.", "B. Other proceedings 1. Proceedings relating to the applicant’s request for asylum and refugee status 27. On 16 December 2003 the applicant and her son, a minor, sought refugee status and interim asylum at the Migration Department of Karelia. On 20 February 2004 the Migration Department dismissed the applicant’s request as unsubstantiated.", "On 15 June 2004 the applicant’s appeal was rejected by the Head of the Migration Department. 28. On 22 October 2004 the Petrozavodsk Town Court dismissed a complaint lodged by the applicant about the refusal to grant her refugee status and interim asylum. 29. Meanwhile the applicant asked the Petrozavodsk Town Court to establish as a legal fact that she had lived on the territory of Russia since November 1997.", "On 28 October 2004 the Town Court dismissed the application, having found that establishing that fact would not have any effect on the applicant’s rights and freedoms. 2. Criminal proceedings against the applicant initiated in Russia 30. On 29 July 2003 the Petrozavodsk police initiated criminal proceedings on suspicion of burglary. 31.", "On 10 September 2003 the applicant, being detained pending extradition, confessed to the burglary and sent her self-incriminating statement to the police. She was subsequently questioned by the police in the presence of her lawyer. 32. On 29 October 2003 the case investigator terminated the proceedings against the applicant for lack of corpus delicti. The investigator found that the applicant had confessed to the crime in order to hinder her extradition to Kazakhstan.", "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. The Russian Constitution 33. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity.", "2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” B. The 1993 Minsk Convention 34. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Kazakhstan are parties, provides as follows: Article 8.", "Procedure for execution of requests for legal assistance “1. When executing a request for legal assistance, the requested authority applies the laws of its own State ...” Article 56. Obligation of extradition “1. The Contracting Parties shall ... on each other’s request extradite persons who find themselves in their territory, for criminal prosecution or to serve a sentence. 2.", "Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” Article 58. Request for extradition “1. A request for extradition (требование о выдаче) shall include the following information: (a) the title of the requesting and requested authorities; (b) a description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of birth, citizenship, place of residence, and, if possible, a description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal prosecution shall be accompanied by a certified copy of a detention order.", "...” Article 60. Arrest or detention with a view to extradition “Upon the receipt of a request for extradition the requested Contracting Party takes immediate measures aiming at detaining or arresting the person whose extradition is sought ...” Article 61. Arrest or detention before the receipt of a request for extradition “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow.", "2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In the event of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” Article 62. Release of the person arrested or detained “1.", "A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest ...” C. The European Convention on Extradition 35. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: Article 16 – Provisional arrest “1. Where there is urgency, the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.", "... 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” D. The Code of Criminal Procedure 36. Chapter 13 of the Code of Criminal Procedure (“Measures of restraint”) governs the application of measures of restraint, or preventive measures (меры пресечения), which include, in particular, placement in custody.", "A custodial measure may only be ordered by 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 “Placement in custody”). The time-limit for detention pending investigation is fixed at two months (Article 109 “Time-limits for detention”). 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).", "A judicial decision ordering or extending the application of a custodial measure may be appealed against to a higher court within three days of its issue (Articles 108 § 10 and 109 § 2). A custodial measure may be revoked or modified by a judicial decision if it is no longer considered necessary (Article 110 “Revoking or modifying the measure of restraint”). 37. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Articles 462-463 state that a decision to extradite a person upon a request from another country is taken by the Prosecutor General or his deputy.", "Article 462 states that a person’s detention finishes when either the Prosecutor General, or his deputy decides on the extradition request. Article 466 governs application of measures of restraint with a view to extradition. Paragraph 1 deals with the situation where a request for extradition is not accompanied by a detention or arrest order issued by a foreign court. In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “in accordance with the procedure provided for in the present Code”. Paragraph 2 establishes that, if a foreign judicial decision on placement in custody is available, a prosecutor may place the person in detention or under house arrest.", "In that eventuality no confirmation of the foreign judicial decision by a Russian court is required. If a foreign court has authorised the person’s arrest, the decision of the prosecutor does not need to be confirmed by a Russian court. 38. Article 464 provides that extradition cannot take place if the person whose extradition is sought is a Russian national or if he has refugee status. 39.", "Chapter 15 (“Petitions”) provides that suspects, defendants, victims, experts, civil plaintiffs, civil defendants, and their representatives may petition officials to take procedural decisions that would secure the rights and legitimate interests of the petitioner (Article 119 § 1). Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings (Article 125 § 1). The competent court is that which has jurisdiction for the place of the preliminary investigation (ibid.). E. Subsequent case-law of the Supreme Court 40. In the case of Mr A., concerning his detention with a view to extradition to Armenia, the Criminal Division of the Supreme Court held as follows (case no.", "72-005-19, 8 June 2005): “The term of detention of the person who is to be extradited to the place of commission of the offence ... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], the person arrested at the request of a foreign state, may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).” F. Subsequent case-law of the Constitutional Court 1. Decision no. 101-O of 4 April 2006 in the case of Mr Nasrulloyev 41.", "Verifying the compatibility of Article 466 § 1 of the Code of Criminal Procedure with the Russian Constitution, the Constitutional Court reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 42. In the Constitutional Court’s view, the absence of a specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for examination of extradition requests.", "43. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without respecting the procedure established in the Code of Criminal Procedure, or in excess of the time-limits fixed in the Code. 2. Decision no.", "158-O of 11 July 2006 on the Prosecutor General’s request for clarification 44. The Prosecutor General asked the Constitutional Court for an official clarification of its decision in Mr Nasrulloyev’s case (see above), for the purpose in particular of elucidating the procedure for extending a person’s detention with a view to extradition. 45. The Constitutional Court dismissed the request, finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of courts of general jurisdiction.", "3. Decision of 1 March 2007 in the case of Mr Seidenfeld (no. 333-O) 46. Mr Seidenfeld, a US citizen, was arrested in Russia on 9 December 2005 because his extradition was sought by Kazakhstan. Upon receipt of the formal extradition request, on 30 December 2005 a Russian court ordered his detention sine die, pending extradition.", "Mr Seidenfeld complained to the Constitutional Court that the provisions of the Code of Criminal Procedure which permitted his detention without a judicial decision were incompatible with the Constitution. 47. The Constitutional Court reiterated its constant case-law that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified.", "48. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours, on the basis of a request for his or her extradition, without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 49.", "The applicant complained under Article 5 § 1 of the Convention that she had been unlawfully held in custody. She alleged that neither the criminal-law provisions governing detention with a view to extradition, nor the 1993 Minsk Convention met the requirements of clarity and foreseeability. Thus, due to this confusion in domestic law, she maintained that from 7 August to 2 September 2003 she had been detained without any judicial decision and that the term of her detention had far exceeded the period provided for by the domestic law and had never been lawfully extended. The relevant parts of Article 5 § 1 read 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: ... (f) the lawful arrest or detention of ... a person against whom action is being taken with a view to ... extradition.” A. Admissibility 50. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions by the parties (a) The Government 51. The Government submitted that the applicant’s detention had been lawful and complied with Article 5 § 1 (f) of the Convention. Prior to the applicant’s arrest the Russian authorities had received a request for extradition from the Office of the Prosecutor General of Kazakhstan, an arrest warrant approved by the Ust-Kamenogorsk Town Prosecutor and a decision on the applicant’s placement on the list of fugitives from justice. 52.", "Pursuant to Article 56 § 2 of the 1993 Minsk Convention a person could be extradited if he or she faced charges punishable with at least one year’s imprisonment. Pursuant to Article 60 of the 1993 Minsk Convention the State had to arrest the person in question as soon as a request for extradition was received. The Russian authorities had acted in full compliance with these provisions. 53. The Government maintained that a term of detention with a view to extradition was not governed by any specific provision.", "By virtue of Article 462 of the Code of Criminal Procedure a person’s detention terminated after either the Prosecutor General or his deputy had decided on the extradition request. If the request had been granted, the person was to be extradited to the requesting state. If not, he or she was to be released. 54. The Government observed that the applicant should have foreseen that until such time as her applications for asylum, complaints about the alleged unlawfulness of her detention and other petitions had been decided “the issue of her extradition, and thus of her future” could not have been solved by the authorities.", "At the same time the Government maintained that the applicant could have estimated the term of her detention as the domestic courts had applied Article 109 of the Code of Criminal Procedure to regulate it. The applicant had been released from custody following the decision of 14 October 2004 due to the expiration of the maximum possible term set by paragraph 3 of Article 109 of the Code of Criminal Procedure. Thus, despite the absence of specific provisions regulating the term of the applicant’s detention pending extradition, the legislation had provided the applicant with an opportunity to estimate rather clearly the maximum period of her detention: she either had to remain in custody until the decision on her extradition had been taken by the Prosecutor General, or she had to be released when the general term of detention provided for by the Code of Criminal Procedure had expired. (b) The applicant 55. The applicant pointed to the inconsistency in the Government’s submissions.", "On the one hand, the Government claimed that detention with a view to extradition was unlimited in time and depended on the date when the Prosecutor General took the decision; on the other hand, they stated that the Code of Criminal Procedure was to be applied to extradition proceedings. Since Article 109 of the Code limited the period of detention to two months, the applicant’s detention had already been unlawful after 7 October 2003. In any event it had been unlawful after the expiry of the maximum period of detention mentioned in paragraph 3 of Article 109. That view had been endorsed in the 14 October 2004 decision of the Supreme Court of the Republic of Karelia, which had ordered the applicant’s release having regard to the expiry of the maximum detention period prescribed by paragraph 3 of Article 109. 56.", "The applicant submitted that provisions of the Russian criminal law on detention of persons with a view to extradition fell short of the requirement of legal certainty and the Convention principles. Although Chapter 13 of the Code of Criminal Procedure, and in particular its Articles 108 and 109, contained precise and detailed norms on the application of measures of restraint and set specific time-limits, the absence of an explicit reference to these provisions in Article 466 of the Code of Criminal Procedure had led to confusion. Moreover, the 1993 Minsk Convention on Legal Assistance did not set any time-limits for detention pending extradition. 2. The Court’s assessment 57.", "The Court notes that it is not contested by the parties that the applicant was detained with a view to her extradition from Russia to Kazakhstan. Article 5 § 1 (f) of the Convention is thus applicable in the instant case. This provision does not require that the detention of a person against whom action is being taken with a view to extradition be reasonably considered necessary, for example to prevent his committing an offence or absconding. In this connection, Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c): all that is required under sub-paragraph (f) is that “action is being taken with a view to deportation or extradition”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Čonka v. Belgium, no.", "51564/99, § 38, ECHR 2002‑I, and Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996-V). 58. However, it falls to the Court to examine whether the applicant’s detention was “lawful” for the purposes of Article 5 § 1 (f), with particular reference to the safeguards provided by the national system. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect the individual from arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996‑III). Since under Article 5 § 1 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 v. the United Kingdom, 10 June 1996, §§ 40 and 41, Reports 1996-III).", "59. Further, as to the length of detention pending extradition, Article 5 § 1 (f) of the Convention does not require domestic law to provide a time-limit for detention pending extradition proceedings. However, if the proceedings are not conducted with the requisite diligence, the detention may cease to be justifiable under that provision (see Bordovskiy v. Russia, no. 49491/99, § 50, 8 February 2005). 60.", "In the present case the request for the applicant’s extradition was accompanied by an arrest warrant issued by a Kazakh prosecutor rather than by a decision of a Kazakh court. In these circumstances, it was the first paragraph of Article 466 of the Russian Code of Criminal Procedure that applied. It required that a measure of restraint be imposed in accordance with the procedure established in the Code (see paragraph 37 above). 61. The Russian Constitution and the Code of Criminal Procedure set at forty-eight hours the maximum period during which an individual may be detained without a judicial decision.", "The Russian Constitutional Court has constantly laid emphasis in its case-law on the universal applicability of that guarantee against arbitrary detention to all types of deprivation of liberty, including arrest in extradition proceedings, and to any person under the jurisdiction of the Russian Federation, irrespective of his or her nationality (see paragraphs 46 to 48 above). 62. As noted above, the procedure laid down in the Russian Code of Criminal Procedure requires a judicial decision for any detention in excess of forty-eight hours (Articles 10 and 108). In the applicant’s case the detention order was issued by a court only on 2 September 2003, that is 26 days after her placement in custody. It follows that the applicant’s detention after the first forty-eight hours of custody and until 2 September 2003 was incompatible with the procedure laid down in the Code of Criminal Procedure.", "63. As for the period after the judicial decision ordering the applicant’s detention, the Court notes, first, that no time-limit was fixed by that decision and, second, that upon the expiry of the maximum initial detention period of two months, no extension was granted by the court. According to the provisions governing the general terms of detention (Article 108 of the Code of Criminal Procedure), to which the domestic courts referred when ordering the applicant’s detention, the time-limit for detention pending investigation is fixed at two months. A judge may extend that period up to six months. Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences.", "The applicant spent over fourteen months in detention pending extradition. During that period no requests for extension of detention were lodged by the Prosecutor’s Office and the court did not extend the detention of its own motion. It follows that the detention of the applicant after the expiry of the initial two-month period was not in accordance with the provisions of the Code of Criminal Procedure either. 64. The Court further notes that, contrary to the assertions of the domestic authorities, the Minsk Convention could not be construed as supplying a legal basis for the applicant’s detention.", "As pointed out by the Russian Constitutional Court, Article 8 of the Minsk Convention explicitly provided for application by the requested Contracting Party of its own law for execution of requests for legal assistance, such as a request for extradition (see paragraphs 34 and 42above). A similar provision can be found in Article 16 of the European Convention on Extradition, which establishes that provisional arrest of the person whose extradition is sought shall be decided upon by the requested Party in accordance with its law. Thus, the international instrument first required compliance with the domestic procedure which, as the Court has found above, was breached in this case. 65. Furthermore, the Court considers that Article 62 of the Minsk Convention cannot be considered as justifying detention for an initial forty-day period.", "Like paragraph 4 of Article 16 of the European Convention on Extradition, Article 62 of the Minsk Convention establishes an additional guarantee against the excessive duration of provisional arrest pending receipt of a request for extradition. It does not indicate that a person may be detained for forty days but rather requires that the person should be released at the end of the fortieth day if the request has not been received in the meantime. In other words, even though under domestic law detention could be ordered for a period exceeding forty days (for instance, Article 108 of the Russian Code of Criminal Procedure provides for an initial two-month period of detention), Article 62 of the Minsk Convention requires the domestic authorities to release anyone who has been detained for more than forty days in the absence of a request for extradition. Thus, the Minsk Convention could not have been a legal basis for the applicant’s detention either (see, by analogy, Shchebet v. Russia, no. 16074/07, § 68, 12 June 2008).", "66. The Government’s argument that the lawfulness of the applicant’s detention was reviewed upon her complaints filed in 2003-2004 and found lawful cannot be accepted as a justification of the applicant’s continued detention. The Court has previously held that review of the applicant’s detention following complaints about its unlawfulness and applications for release cannot be regarded as a sufficient legal basis for the continued detention of the applicant (see, by analogy, Melnikova v. Russia, no. 24552/02, §§ 57-62, 21 June 2007, and Fursenko v. Russia, no. 26386/02, §§ 91-96, 24 April 2008).", "67. Finally, the Government’s argument that the applicant and her lawyer had contributed to the prolongation of her detention and were directly responsible for the applicant’s continued detention is regrettable. Shifting the responsibility for detention to the applicant when she was under the full control of the authorities is neither relevant, nor reasonable. Even assuming that the applicant’s actions did protract the extradition procedure as the authorities were under obligation to examine her applications for asylum and her self-incriminating statements in respect of a crime committed in Russia, at this juncture two separate issues should be distinguished: the applicant’s detention and her extradition. The question as to when the Prosecutor General was going to decide on the applicant’s extradition is of no relevance to the Court for the purpose of examining the lawfulness and length of the applicant’s detention.", "What is at stake is the applicant’s right to liberty pending the decision on extradition. It should be noted that the domestic courts had a possibility to annul the measure of restraint or to change it to a more lenient one during the time the question of the applicant’s extradition was under consideration. The Supreme Court of Karelia availed itself of this possibility on 14 October 2004 when it ordered the applicant’s release, having found that her detention had exceeded a reasonable time. That ruling was given at a time when the decision on extradition had still not been taken. 68.", "The above examination of the compliance of the applicant’s detention with the domestic law reveals that the law does not lend itself to unequivocal interpretation. The core problem of the present case appears, consequently, to be the applicability and substance of the legal provisions governing the term of the applicant’s detention pending extradition. The Court must therefore ascertain whether domestic law 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. In laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 does not merely refer back to domestic law; like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, it also relates to the “quality of the law”, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention.", "“Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Khudoyorov v. Russia, no. 6847/02, § 125, ECHR 2005-X (extracts); Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; and Amuur, cited above). 69.", "On the other hand, the issue of the quality of the law only becomes relevant if it is shown that the poor “quality of the law” has tangibly prejudiced the applicant’s substantive Convention rights (see Bordovskiy, cited above, § 49). 70. The main controversy between the parties in the present case relates to the issue whether the judicial decision of 2 September 2003 was sufficient for the applicant to be held in custody for any period of time – no matter how long – until the decision on the extradition request had been made, or whether her detention should have been reviewed at regular intervals. The applicant maintained that all the provisions of Chapter 13 and in particular Article 109 which instituted specific time-limits for reviewing detention, should have been applicable in her situation; the Government denied that the domestic law imposed any time-limits on detention with a view to extradition. 71.", "In this context the Court notes the subsequent development of the case-law of the Russian Constitutional Court, which is the supreme judicial authority competent to give a binding interpretation of the constitutional guarantees of individual rights, such as the right to liberty and personal integrity. Deciding on a complaint similar to that of the applicant in the case of Mr Nasrulloyev (see paragraphs 41-43 above), the Constitutional Court emphasised that in extradition proceedings the right to liberty should be attended by the same guarantees as other types of criminal proceedings. It unambiguously indicated that the application of measures of restraint with a view to extradition should be governed not only by Article 466 but also by the norms of a general character contained in Chapter 13 of the Code of Criminal Procedure. Although the Constitutional Court refused to indicate specific legal provisions governing the procedure for detention with a view to extradition, it constantly referred to the legal prohibition on continuing a custodial measure beyond the established time-limits (see paragraph 43 above). Since Article 109 is the only provision in the Code of Criminal Procedure that deals with time-limits for application of a custodial measure, an argument as to its non-applicability would obviously be at odds with the constant case-law of the Russian Constitutional Court.", "72. The Court notes with concern the inconsistent legal positions of the domestic authorities on the issue of provisions applicable to detainees awaiting extradition. On the one hand, the authorities referred to the Code of Criminal Procedure as a legal basis for the applicant’s detention, and on the other, to the 1993 Minsk Convention. Moreover, the Supreme Court had expressed the view that, after the initial forty-day period provided for by the 1993 Minsk Convention, the detention of persons whose extradition from Russia had been sought was to be governed by foreign criminal law, i.e. that of the requesting party.", "At the same time, in the observations filed with the Court the Government explicitly acknowledged that no specific provisions governing the terms of the applicant’s imprisonment prior to her extradition were available (see paragraph 37 above). 73. Having regard to the inconsistent and mutually exclusive positions of the domestic authorities on the issue of legal regulation of detention with a view to extradition, the Court finds that the deprivation of liberty to which the applicant was subjected was not circumscribed by adequate safeguards against arbitrariness. The provisions of Russian law governing detention of persons with a view to extradition were neither precise nor foreseeable in their application and fell short of the “quality of law” standard required under the Convention. 74.", "Taking into account the abovementioned considerations, the Court finds that the applicant’s detention over fourteen months pending her extradition exceeded a reasonable time and was not in accordance with the law. It holds, consequently, that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness and excessive length of the applicant’s detention. II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 75. The applicant complained of a violation of her right to be informed promptly of the reasons for her arrest and of any charges against her.", "She claimed that neither at the moment of her arrest, nor at any later stage had she been informed why she had been arrested and detained. The applicant relied on Article 5 § 2 of the Convention, which reads as follows: “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.” A. Admissibility 76. 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. Submissions by the parties 77. The Government contested the applicant’s argument. To disprove the applicant’s allegation, the Government provided the Court with a copy of the arrest warrant issued on 13 January 1998 by the Kazakh police and authorised by the Ust-Kamenogorsk Town Prosecutor on 22 January 1998.", "This document had been shown to the applicant and signed by her on 7 and 8 August 2003. The Government further submitted that, according to the explanatory note of the head of the temporary detention facility of Petrozavodsk where the applicant had been taken upon her arrest, the reasons for her arrest had been immediately explained to her. 78. The applicant maintained her complaints. 2.", "The Court’s assessment 79. The Court reiterates that Article 5 § 2 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 § 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 Article 5 § 4 (see Čonka v. Belgium, cited above, § 50). 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 Heartley v. the United Kingdom, 30 August 1990, § 40, Series A no.", "182). 80. The Court also recalls that when a person is arrested on suspicion of having committed a crime, Article 5 § 2 requires neither that the necessary information be given in a particular form, nor that it consist of a complete list of the charges held against the arrested person (see X v. Germany, no. 8098/77, Commission decision of 13 December 1978, Decisions and Reports (DR) 16, p. 111). When a person is arrested with a view to extradition, the information given may be even less complete (see K. v. Belgium, no.", "10819/84, Commission decision of 5 July 1984, DR 38, p. 230, and Bordovskiy, cited above, § 56). 81. In the case at hand, the Government insisted that the applicant had signed a copy of the arrest warrant on two occasions, on 7 and 8 August 2003. The applicant does not contest that she signed the copy on 8 August 2003 but maintained that she had been unable to understand the implications of the warrant and that no further explanations had been given to her. The copy of the applicant’s arrest warrant contained brief information concerning the charges against her and referred to a specific Article of the Criminal Code of the Republic of Kazakhstan.", "The Court considers this information to be clear. Moreover, the applicant did not dispute that on 8 August 2003 she had met with her lawyer, who could have explained what the warrant implied. 82. Having regard to the case-law cited above and to the information in its possession, the Court finds that the information provided to the applicant was sufficient for the purpose of Article 5 § 2 of the Convention. 83.", "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. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 84. The applicant further complained of delays in the review of the lawfulness of her detention. She claimed, in particular, that the complaint filed by her lawyer on 15 August 2003 with the Petrozavodsk Town Court had only been examined on 2 September 2003, that is eighteen days later.", "She relied on Article 5 § 4 of the Convention which reads as follows: “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.” A. Admissibility 85. 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. Submissions by the parties 86. The Government contested that complaint. They noted that Chapter 54 of the Code of Criminal Procedure (“Extradition of a person for criminal prosecution or execution of sentence”) did not contain any provisions setting time-limits for the examination of complaints filed by detainees awaiting extradition before a decision on their extradition was pronounced by the Prosecutor General. 87.", "At the same time the Government noted that the Supreme Court of Russia had found that Article 125 § 3 of the Code of Criminal Procedure was applicable to cases concerning extradition. This provision contained a general rule on a five-day time-limit for the examination of complaints against the action (inaction) of investigating or prosecution authorities. The Government acknowledged that that provision had not been respected in the course of the examination of the applicant’s complaint filed by her lawyer on 15 August 2003. However, the delay of eighteen days could not have caused excessive damage to the applicant’s interests because the lawfulness of her detention had, in any event, been confirmed by the decision of the Petrozavodsk Town Court of 2 September 2003. 88.", "The applicant maintained her complaint. She claimed that the authorities had violated Article 5 § 4 of the Convention, as well as Article 125 § 3 of the Code of Criminal Procedure, which established a five-day time-limit for examination of a complaint bearing on the lawfulness of detention. 2. The Court’s assessment 89. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no.", "12). The remedies must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see Čonka, cited above, §§ 46 and 55). 90. Turning to the present case, the Court notes that the only complaint raised by the applicant under Article 5 § 4 concerns the length of the examination of her application for release filed on 15 August 2003.", "The applicant did not question the availability or effectiveness of a remedy for examination of the lawfulness of her detention, contrary to all the previous Russian cases concerning extradition examined by the Court (see Bordovskiy, cited above, §§ 60-68; Garabayev v. Russia, no. 38411/02, §§ 92-98, 7 June 2007, ECHR 2007‑... (extracts); Ismoilov and Others v. Russia, no. 2947/06, §§ 142-52, 24 April 2008; Nasrulloyev v. Russia, no. 656/06, §§ 79-90, 11 October 2007; Shchebet, cited above, §§ 71-79; and Ryabikin v Russia, no. 8320/04, §§ 134-41, 19 June 2008).", "In five of the six above-mentioned cases the Court found that the applicants did not have at their disposal any procedure through which they could initiate judicial review of the lawfulness of their detention, established a violation of the applicants’ corresponding rights under Article 5 § 4 of the Convention and noted that this problem appeared to be of a structural character. The present case differs from the abovementioned as the applicant’s complaints were, in fact, examined by the domestic court. Moreover, the latest complaint contesting the lawfulness of the applicant’s detention was finally granted by the Supreme Court of Karelia on 14 October 2004 and the applicant was released. 91. Accordingly, the Court considers that there is no need to examine the question of availability and effectiveness of the domestic remedy for judicial review of the lawfulness of the applicant’s detention and will turn to the core of the applicant’s complaint, its speediness.", "(a) General principles governing the requirement of “speediness” 92. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to persons detained a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful (see Baranowski v. Poland [GC], no. 28358/95, § 68, ECHR 2000). There is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001).", "The same logic may be applicable to detention pending extradition when the investigation is pending. 93. Although Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A no. 273‑B, and Toth v. Austria, 12 December 1991, § 84, Series A no. 224).", "At the same time, the standard of “speediness” is less stringent when it comes to proceedings before the court of appeal. The Court reiterates in this connection that the right of judicial review guaranteed by Article 5 § 4 is primarily intended to avoid arbitrary deprivation of liberty. However, if the detention is confirmed by a court it must be considered to be lawful and not arbitrary, even where appeal is available. Subsequent proceedings are less concerned with arbitrariness, but provide additional guarantees aimed primarily at an evaluation of the appropriateness of continuing the detention (see Tjin-a-Kwi and Van Den Heuvel v. the Netherlands, no. 17297/90, Commission decision of 31 March 1993).", "Therefore, the Court would be less concerned with the speediness of the proceedings before the court of appeal if the detention order under review was imposed by a court and on condition that the procedure followed by that court had a judicial character and gave to the detainee the appropriate procedural guarantees (see, mutatis mutandis, Vodeničarov v. Slovakia, no. 24530/94, § 33, 21 December 2000). 94. The Court observes that it has found delays of 23 days for one level of jurisdiction, and 43 days or 32 days for two levels of jurisdiction, to be incompatible with Article 5 § 4 (see, respectively, Rehbock v. Slovenia, no. 29462/95, §§ 82-88, ECHR 2000‑XII; Jablonski v. Poland, no.", "33492/96, §§ 91-94, 21 December 2000; and G.B. v. Switzerland, no. 27426/95, §§ 34-39, 30 November 2000). On the other hand, in Rokhlina v. Russia (no. 54071/00, § 79, 7 April 2005), where the total duration of the proceedings was 41 days for two levels of jurisdiction, the Court found no violation of Article 5 § 4 of the Convention.", "In that case the Court noted, in particular, that the applicant had requested leave to appear in person at the appeal court, and that because of that the court had had to adjourn the proceedings for one week. In another Russian case (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006) the Court found delays of 36, 29 and 26 days to be incompatible with Article 5 § 4, stressing that the entire duration of the appeal proceedings was attributable to the authorities. Lastly, in cases involving extradition proceedings, the Court found violations of Article 5 § 4 of the Convention where the review proceedings lasted 31 and 46 days, respectively, for two levels of jurisdiction (see Sanchez-Reisse v. Switzerland, no. 9862/82 §§ 55-61, 21 October 1986), and 17 days for one level of jurisdiction (see Kadem v. Malta, no.", "55263/00, § 44, 9 January 2003). 95. The Court reiterates that the question whether a person’s right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case (see Rehbock, cited above, § 84). (b) Application of the general principles in the present case 96. Turning to the present case, the Court observes that the applicant’s counsel and the applicant herself asked the Petrozavodsk Town Court to review the lawfulness of her detention on 15 August 2003.", "That complaint was examined and dismissed by the Town Court on 2 September 2003. On 9 October 2003 the Supreme Court of Karelia upheld that decision. The Government did not contest that the complaint had been lodged on 15 August 2003. Moreover, they acknowledged the violation of the five-day time-limit provided for in the Russian Code of Criminal Procedure, noting, however, that the delay of eighteen days could not have affected the applicant’s situation. 97.", "There are two aspects to the requirement that “the lawfulness of the detention shall be decided speedily”. First, the opportunity for legal review must be provided soon after the person is taken into detention; secondly, the review proceedings must be conducted with due diligence. 98. The applicant had the opportunity to contest the lawfulness of her detention from the outset. The first aspect of the “speedily” requirement was thus satisfied in the present case.", "99. As to the question whether the review proceedings were conducted with due diligence, the Court notes that the applicant filed her complaint on 15 August 2003. It took the Petrozavodsk Town Court eighteen days to examine it. It appears that the court protracted the examination of the complaint about the unlawfulness of the applicant’s detention, as it needed first to confirm the detention itself (see paragraphs 14 and 15 above). The examination of the applicant’s appeal took another 36 days.", "Thus, fifty-four days elapsed from the date the application was lodged until the final decision of the appeal court. The Government did not plead that complex issues had been involved in the determination of the lawfulness of the applicant’s detention, or otherwise seek to justify the delay, apart from their contradictory statement that the review of the applicant’s detention could not have affected her situation as the detention had been authorised by the court and should thus be considered lawful. 100. The Court finds that the period in question does not suggest that the proceedings were conducted with due diligence. Consequently, the Court finds that the application for release introduced by the applicant on 15 August 2003 was not examined “speedily” as required by Article 5 § 4.", "101. There has, consequently, been a violation of Article 5 § 4 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 102. Lastly, the applicant complained under Articles 3, 6 § 2, 8 and 12 of the Convention and Article 2 of Protocol No.", "4 and Article 1 of Protocol No. 7 that she had been detained in poor conditions, that she had been presumed guilty of a crime allegedly committed in Kazakhstan, that she had been unable to obtain Russian citizenship, and, finally, that she had had no private life as a result of her arrest and detention. In her observations lodged with the Court on 29 October 2006 the applicant further complained that she had been placed in a punishment cell for fifteen days in May 2004, that she had been transported by train in debasing conditions from Petrozavodsk to the Segezha detention facility on 13 May 2004 and that her release had been delayed as she had not been released until four days after the Supreme Court of Karelia had authorised her release on 18 October 2004. 103. 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 §§ 1, 3 and 4 of the Convention. V. 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.” 105. The Court points out that 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”. 106.", "On 15 September 2006 the Court invited the applicant to submit her claims for just satisfaction. The applicant did not submit any such claims within the required time-limits. 107. In such circumstances, the Court would usually make no award. In the present case, however, the Court has found a violation of the applicant’s right to liberty.", "Since this right is of fundamental importance, the Court finds it possible to award the applicant 5,000 euros by way of non-pecuniary damage, plus any tax that may be chargeable. 108. 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 lawfulness of the applicant’s detention pending extradition and the courts’ failure to examine speedily her application for release admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 5 § 1 (f) of the Convention; 3. Holds that there has been a violation of Article 5 § 4 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 5,000 (five 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 on that 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. Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF PETRINI v. ITALY (Application no. 63543/00) JUDGMENT STRASBOURG 27 November 2003 FINAL 27/02/2004 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 Petrini v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP.", "Lorenzen,MrG. Bonello,MrA. Kovler,MrV. Zagrebelsky,MrsE. Steiner,MrK.", "Hajiyev, judges, and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 6 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 63543/00) 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, Mr Fernando Petrini (“the applicant”), on 17 November 2000. 2. The applicant is represented by Mr A. Mandetta, a lawyer practising in Rome.", "The Italian Government (“the Government”) were represented by their Agent Mr U. Leanza and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. On 27 June 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1954 and lives in Rome. 5. A.S. was the owner of a flat in Rome, which he had let to G.C. and then to his wife L.C. 6.", "In a registered letter of 25 June 1991, the owner informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked her to vacate the premises by that date. 7. In a writ served on the tenant on 13 December 1991, the owner reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 8. By a decision of 10 April 1992, which was made enforceable on 23 April 1992, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 28 February 1993.", "9. On 9 December 1993, the applicant became the owner of the flat and continued the enforcement proceedings. 10. On 4 January 1994, the applicant served notice on the tenant requiring her to vacate the premises. 11.", "On 4 February 1994, he informed the tenant that the order for possession would be enforced by a bailiff on 22 March 1994. 12. Between 22 March 1994 and 16 September 1999, the bailiff made eighteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 13.", "On 13 November 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 14. On 4 October 1999, the enforcement proceedings were suspended until 17 May 2000. 15. On 3 July 2000, the applicant recovered possession of the flat.", "II. RELEVANT DOMESTIC LAW 16. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no.", "22774/93, §§ 18-35, ECHR 1999-V. Lastly, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003. A. The system of control of the rents 17.", "As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 18. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 19.", "The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 20.", "Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. B. Obligations of the tenant in the case of late restitution 21. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat.", "In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”. 22. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 23.", "In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional.", "Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 24. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 25. The applicant complained of his prolonged inability to recover possession of his flat, owing to the lack of police assistance. He alleged a violation of his right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides: “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.” 26. The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 27. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no.", "21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-48). 28. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately six years and three months after the first attempt of the bailiff before being able to repossess the flat.", "Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case. II. 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. Pecuniary damage 30.", "The applicant sought reparation for the pecuniary damage he had sustained, which he calculated as follows: - 41,000 euros (EUR), the sum being the loss of rent for the period from December 1993 (when the applicant became the owner of the flat) to July 2000 (when the applicant recovered possession of the flat); - EUR 1,823.61, for the charges of joint-owned parts of the building in which the flat in issue is located. 31. The Government contested the claims. 32. As regards the first claim, the Court observes that the applicant submitted the requested amount as the result of the difference between the market value rent and the rent imposed by law.", "For the purpose of assessing the market value rent, the applicant submitted a statement of an expert which estimates the market value rent for the year 1994. 33. The Court notes that, in November 1997, the applicant made a statutory declaration that he urgently required the flat as accommodation for himself. In such circumstances, for the period from November 1997 to July 2000, he cannot claim any entitlement to reimbursement of loss of rent but he can only claim the reimbursement of such costs and expenses incurred to rent another flat which go beyond the rent received from the tenant. However, he has not made such a claim.", "Therefore, the Court rejects the claim. 34. As regards the remaining period, the Court, in the light of the evidence before it, decides to award on an equitable basis EUR 5,000. 35. As regards the second claim, the Court notes that the applicant refers to costs that have to be sustained by the owner in any case.", "Consequently, the claim is dismissed. 36. The Court awards a total sum of EUR 5,000 for pecuniary damage. B. Non-pecuniary damage 37. The applicant claimed EUR 15,500 for the non-pecuniary damage.", "38. The Government contested the claim. 39. The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 6,000 under this head.", "C. Costs and expenses 40. The applicant also claimed reimbursement of his legal costs and expenses as follows: - ITL 5,000,000 [EUR 2,582.28] for the costs of the enforcement proceedings; - EUR 2,947.94 for the costs and expenses before the Court - EUR 180 for the costs of the statement of the expert in order to assess the market value rent of the flat. 41. The Government contested the claims. 42.", "On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,500 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the costs and expenses incurred before the Court. 43. The Court also considers that the costs incurred by the applicant to assess the market value rent for the present application must be reimbursed. Accordingly, it awards him the sum of EUR 180. 44.", "The Court awards a total sum of EUR 3,680 for legal costs and expenses. D. 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. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 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, the following amounts: (i) EUR 5,000 (five thousand euros) for pecuniary damage; (ii) EUR 6,000 (six thousand euros) for non-pecuniary damage; (iii) EUR 3,680 (three thousand six hundred eighty euros) for legal costs and expenses; (iv) 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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 November 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos Rozakis Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF S.M. v. RUSSIA (Application no. 75863/11) JUDGMENT STRASBOURG 22 October 2015 FINAL 22/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of S.M.", "v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: András Sajó, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Erik Møse,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 29 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 75863/11) 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, Ms S.M. (“the applicant”), on 26 November 2011. The Chamber decided of its own motion to grant the applicant anonymity (Rule 47 § 4 of the Rules of Court).", "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, in particular, that the Russian authorities had failed to carry out an effective investigation in response to her complaint of rape. 4.", "On 12 May 2014 the complaint concerning the alleged lack of an effective investigation into the rape was communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1992. A.", "The events of 9 – 21 July 2009 as submitted by the applicant 6. On 9 July 2009 the applicant’s father introduced the applicant ‒ who was seventeen years old at the time ‒ to Mr R., an official of the Derbent town administration. The latter promised to hire the applicant as his personal assistant. 7. On 10 July 2009 the applicant went to Mr R.’s office, assuming that she was to be employed there.", "She was assigned minor tasks such as making tea and cleaning up the office. On several occasions between 10 and 17 July 2012 the applicant was forced to have sexual intercourse with Mr R. in his office. Mr R. employed physical violence and put psychological pressure on the applicant as he threatened to use his influence and connections in the town administration to harm her family. 8. On 17 July 2009 Mr R. and Mr A. locked the door to Mr R.’s office at the end of the working day and raped the applicant.", "Afterwards both men cleaned their genitalia with a piece of pink cloth. Mr R. also used a green baby shirt for this purpose. Later Mr R. took the applicant outside, put her in a car and drove out of town. At some point he stopped the car and forcibly had intercourse with the applicant. Mr R. then drove the applicant to her family home and told her to remain silent about the events, threatening to kill her or her family should she complain to anyone.", "9. After that day, the applicant stopped going to Mr R.’s office. 10. It later transpired that Mr R. had never had any intention of employing the applicant and that she had not been formally hired as his personal assistant. 11.", "On 21 July 2009 the applicant told her father that she had been forced to have sexual intercourse with Mr R. and Mr A. He contacted a local unit of the Investigative Committee of the Russian Prosecutor’s Office (“the investigative committee”), asking that an investigation into the rape be opened. B. Attempts to institute a criminal investigation into the allegations of rape 12. On 24 July 2009 the applicant made a statement to an investigator from the Derbent investigative committee, Mr M.K., describing the events of 10‑17 July 2009 in detail.", "13. On the same date Mr M.K. and other officials from the Derbent investigative committee inspected Mr R.’s office. They found the pieces of green and pink cloth which, according to the applicant, had been used by Mr R. and Mr A. on 17 July 2009 after the intercourse had taken place, and collected them as evidence. 14.", "Between 24 July and 6 August 2009 a forensic expert, a gynaecologist and a proctologist examined the applicant. The forensic report drawn up afterwards stated that the applicant’s hymen was intact and that there were no signs of anal intercourse. 15. On 2 August 2009 Mr M.K. rejected the request to open an investigation into the rape.", "He noted, among other things, that Mr R. and Mr A., when questioned, had stated that they had not had sexual intercourse with the applicant. Mr R. had also claimed that the applicant had stolen 1,000 Russian roubles (RUB) from his desk and had therefore had an interest in slandering him. The investigator also mentioned the medical examinations of the applicant, Mr R. and Mr A. carried out on 23 and 24 June 2009, which had recorded no visible signs of blood or sperm on either Mr R.’s or Mr A.’s genitalia and had shown the applicant’s hymen to be intact. The investigator further pointed out that the pieces of cloth found in Mr R.’s office had not been examined by any experts and that in the absence of an expert examination report it was impossible to open a criminal investigation; however, the time-limit for the pre‑investigation inquiry was about to expire. 16.", "On 10 August 2009 the head of the Derbent investigative committee, Mr D.A., quashed the decision of his subordinate, Mr M.K., of 2 August 2009 on the grounds that no results of forensic tests on the pieces of cloth were as yet available and issued an instruction ordering a medical examination of the applicant to be carried out by another forensic bureau. 17. On an unspecified date a forensic expert tested the pieces of cloth and found no spermatozoa or traces of blood in the stains found on them. 18. On 10 and 11 August 2009 forensic experts examined the applicant and Mr R. They found that the applicant’s hymen was intact and concluded, considering the size of Mr R.’s penis, that vaginal intercourse between the applicant and Mr R. could not have taken place.", "19. By a decision dated 10 August 2009 Mr M.K. again refused to institute an investigation into the rape. The text mostly reproduced verbatim the text of 2 August 2009. Furthermore, the decision of 10 August referred to the forensic medical examinations of the applicant and Mr R. of 11 August 2009 and the report on the forensic biological testing of the pieces of cloth carried out on 20 August 2009.", "20. On 1 September 2009 the applicant was examined by a gynaecologist who concluded that her hymen had been broken. 21. On 14 November 2009 Mr D.A. quashed the decision by Mr M.K.", "dated 10 August 2009 not to open an investigation into the rape. 22. On 16 November 2009 Mr M.K. again issued a decision not to open a criminal investigation into the rape. 23.", "On 29 April 2010 the Derbent town court (“the town court”) examined the applicant’s complaint concerning the decision of 10 August 2009 but terminated the proceedings on the grounds that Mr D.A. had quashed it on 14 November 2009 without notifying the applicant accordingly. 24. On 11 May 2010 the applicant’s lawyer challenged the decision of 16 November 2009 before a court. 25.", "On 2 June 2010 the town court declared unlawful the decision of 16 November 2009 by Mr M.K. not to open an investigation into the rape and ordered Mr D.A. to ensure that the errors be rectified. The town court’s reasoning included the following observations: “... Mr D.A. admitted that he had been powerless and unable to change the bad practices that had evolved in his unit over the years because investigators under his command did not listen to his instructions and orders or simply ignored them ... ... this court discovered from the content of the lawyer’s complaint that on 16 November 2009 another decision not to open an investigation against Mr R. and Mr A. identical to the previous one had been taken ... For unknown reasons, in the course of the court hearing of 29 April 2009 the head of the investigative body, Mr D.A., had hidden from the court the fact that, in addition to his own “secret” decision to quash the unlawful procedural act, another decision had been adopted two days later by the investigator Mr M.K., again refusing to open an investigation for identical reasons.", "It has been established that between 14 and 16 November 2009 no investigative steps were in fact taken, even though the head of the investigative body had ordered an additional check to be carried out ... ... It is clear that in his decision of 10 August 2009 the investigator unlawfully cited as justification for his actions various medical reports, biological tests and other results obtained only later ‑ between 11 and 20 August 2010. This is in itself absurd ‒ being objectively impossible ‒ and demonstrates that the decision was falsified ... The court also notes that the investigative body at the same time deemed the actions of the victim, Ms S.M., to be tantamount to bringing false charges against Mr R. and Mr A. even though the suspects’ actions had not yet been given a legal classification ... Therefore, given the circumstances of the case, the court has concluded that unprofessional and clearly unlawful actions on the part of the investigative body, including the decision currently under scrutiny, have undoubtedly caused significant damage to Ms S.M.’s constitutional rights and freedoms and have gravely impaired her access to justice ...” 26.", "On the same day the town court delivered a special decision (частное определение) in respect of the investigators’ actions concerning the applicant’s rape allegations. It decided to inform the head of the Dagestan investigative committee of a number of “grave breaches of criminal procedural law” committed by the Derbent investigative committee and to order him to report back on measures taken with a view to ameliorating the situation within a period of thirty days. 27. On 23 August 2010 the town court declared unlawful the refusal of 16 November 2009 to open an investigation into the rape, indicating a range of shortcomings in the inquiry that preceded it. The decision became final on 3 September 2010.", "28. On 12 May 2011 the town court rejected the applicant’s request that the Derbent investigative committee be ordered to open an investigation into the rape for lack of subject-matter jurisdiction. 29. The refusal to investigate the rape of 16 November 2009 was quashed on 7 October 2011 by Mr A.O., an official of the Derbent investigative committee, on the grounds that the town court had declared it unlawful on 23 August 2010. Mr A.O.", "also issued an instruction ordering an additional inquiry to be carried out. 30. On 8 October 2011 Mr M.I. of the Derbent investigative committee also refused to investigate the rape. The applicant challenged the refusal before a court.", "31. On 10 January 2012 the town court declared Mr M.I.’s decision of 8 October 2011 unlawful on the grounds that the investigators had not properly evaluated the medical reports confirming that the applicant’s hymen had been broken. 32. On 24 August 2012 the deputy head of the Derbent investigative committee quashed the decision of 8 October 2011. 33.", "On 3 September 2012 Mr M.G. of the Derbent investigative committee refused to open a criminal case. The refusal decision was quashed by his immediate superior on 19 September 2012. On 6 October 2012 Mr M.G. delivered a new refusal to investigate.", "It was quashed by the deputy head of the Derbent investigative committee on 30 November 2012. 34. On 10 December 2012 Mr M.G. of the Derbent investigative committee again refused to institute a criminal investigation. 35.", "On 17 June 2014 the deputy head of the Dagestan investigative committee quashed the decision of 10 December 2012. 36. It appears that a criminal investigation into the alleged rape has not been instituted to date. C. Criminal proceedings against the applicant 37. On 30 July 2009 Mr R. lodged a complaint with the investigative committee asking them to initiate criminal proceedings against the applicant on account of her having brought false charges against him.", "38. On 16 November 2009 Mr M.K. filed with Mr D.A., his superior, a report regarding evidence of the commission of a crime, stating that the applicant’s complaint concerning the rape amounted to a criminal offence under Article 306 § 2 of the Russian Criminal Code (“bringing false charges”). On the same date Mr M.K. ‒ as acting head of the Derbent investigative committee ‒ decided to open an investigation against the applicant and took charge of the case.", "39. On 5 April 2010 the applicant signed an undertaking not to leave her place of residence pending the investigation against her. 40. On 7 April 2010 the applicant was formally charged with the crime of bringing false charges. 41.", "On 17 May 2010 the town court dismissed a complaint from the applicant’s lawyer challenging the decision of 16 November 2009 to open a criminal case against the applicant. 42. It appears that on 20 August 2010 the proceedings relating to the bringing of false charges were suspended by an official of the investigative committee. 43. On 18 July 2011 Mr M.M., an official from the Derbent investigative committee, quashed the decision of 20 August 2010 staying the proceedings.", "On 7 October 2011 the proceedings against the applicant were resumed. 44. On 18 November 2011 the town court granted the applicant’s request to restore the time-limit for appealing against the decision of 17 May 2010. 45. On 23 December 2011 Mr N.R., an investigator from the Derbent investigative committee, terminated the criminal proceedings against the applicant for lack of evidence of the commission of a crime, reasoning, in so far as relevant: “According to the statement by a proctologist Dr S., minor cuts and bruises typical for anal intercourse could heal in two or three days without a trace.", "Thus, considering the time that elapsed between the date of the intercourse with Ms S.M. and the date of [medical] examination (28 July 2009), it cannot be ruled out that those wounds had healed. From the beginning of the proceedings Ms S.M. made detailed statements concerning the forcible sexual acts committed against her, reiterated them in her depositions and confirmed them during the face to face confrontation ...” 46. On 27 December 2011 the Supreme Court of Dagestan examined the appeal against the decision of 17 May 2010, upholding the decision of 16 November 2009 instituting proceedings against the applicant, quashed it and remitted the evidential material for fresh examination.", "47. On 24 January 2012 the town court terminated the proceedings concerning the applicant’s complaint, challenging the decision of 16 November 2009 to open proceedings against her on the grounds that Mr N.R. had terminated the criminal proceedings against the applicant. 48. On 10 February 2012 Mr M.D., the deputy head of the Derbent investigative committee, quashed the decision of 23 December 2012 to terminate the criminal proceedings against the applicant.", "49. On 2 March 2012 Mr N.R. severed the proceedings relating to the theft of RUB 1,000 from Mr R.’s desk from the investigation into the bringing of false charges. 50. On 5 March 2012 the town court quashed the decision of 10 February 2012.", "The prosecutor’s office appealed. 51. On 13 March 2013 the police issued a refusal to open an investigation into the theft of RUB 1,000. 52. On 17 March 2012 Mr N.R.", "of the Derbent investigative committee terminated the proceedings against the applicant concerning the bringing of false charges, noting that the criminal investigation into the rape had not disproved her account of events. 53. On 17 April 2012 the Supreme Court of Dagestan terminated the appeal proceedings in relation to the decision of 5 March 2012 on the grounds that the criminal proceedings against the applicant had already been terminated by the Derbent investigative committee. 54. On 28 April 2012 the town court awarded the applicant RUB 100,000 in compensation for non‑pecuniary damage for unlawful prosecution and RUB 20,000 in compensation for costs and expenses.", "The judgment became final and was enforced. The applicant submitted that the money was later embezzled by the lawyer whom she had retained. II. RELEVANT DOMESTIC LAW A. Investigation of the crimes and victim status as set forth in the Code of the Criminal Procedure of the Russian Federation 55.", "In response to a complaint of a criminal offence an investigator is under an obligation to look into the complainant’s allegations (Article 144). 56. Should there be sufficient grounds to believe that a crime has been committed, the investigator initiates a criminal investigation (Article 145). 57. The criminal investigation should not normally exceed two months.", "This time-limit can be extended for up to three months. If the matter is of extreme complexity, the investigation can be extended for up to twelve months (Article 162). 58. The criminal investigation can be suspended if the alleged perpetrator has not been identified (Article 208 § 1). 59.", "A person who has suffered damage as a result of a crime is granted victim status and may take part in the criminal proceedings. During the criminal investigation, the victim may submit evidence and lodge applications. Once the investigation is completed, the victim has full access to the case file (Article 42). B. Statute of limitation in respect of the rape as set forth in the Criminal Code of the Russian Federation 60.", "Prosecution on the charges of rape or coercive sexual act in respect of the victim under the age of 18 has a statute of limitations of fifteen years (Article 78 § 1 (g)). THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 61. The applicant complained, relying on Articles 6, 7, 13, 14 and 17 of the Convention, about the lack of an effective investigation by the domestic authorities into the reported rape. The complaint was communicated to the Government with questions under Articles 3 and 8 of the Convention.", "62. The Government invited the Court to limit the scope of the present case to the issue of compliance with Article 3 of the Convention. 63. The Court notes that the thrust of the applicant’s complaint focuses on the effectiveness of the investigation into the rape (see, by contrast, M.C. v. Bulgaria, no.", "39272/98, §§ 148-68, ECHR 2003‑XII) and that Article 3 provides sufficient legal basis for the State’s duty to conduct an investigation into serious offences against an individual’s physical integrity (see P.M. v. Bulgaria, no. 49669/07, § 58, 24 January 2012; N.D. v. Slovenia, no. 16605/09, § 38, 15 January 2015; and M.A. v. Slovenia, no. 3400/07, § 36, 15 January 2015).", "Being the master of the characterisation to be given in law to the facts of the case (see Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014), the Court considers accordingly that the applicant’s grievances fall to be examined solely under Article 3 of the Convention (see Y. v. Slovenia, no. 41107/10, § 74, 28 May 2015), which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 64. The Court finds that the applicant’s 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 1. The parties’ submissions 65. The Government acknowledged a violation of Article 3 of the Convention on account of the absence of an effective investigation into the applicant’s allegations of rape. They observed that the courts of the Dagestan Republic had repeatedly criticised the ineffectiveness of the inquiry carried out by the investigative authorities and held that the latter’s acts and omissions were in breach of domestic law.", "66. The applicant maintained her complaint in essence. 2. The Court’s assessment 67. The relevant principles concerning the State’s obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular sexual abuse, committed by private individuals, are set out in the case of M.C.", "(cited above, §§ 149, 151 and 153). 68. In order to comply with the Convention requirements relating to the effectiveness of an investigation, any such investigation 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 of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context.", "Matters such as the promptness of the authorities’ reaction to the complaints, the opening of investigations, delays in identifying witnesses or taking statements, the length of time taken for the initial investigation, and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations are important factors (see, with further references, P.M., cited above, § 64). 69. Turning to the circumstances of the present case, the Court observes that the pre-investigation inquiry into the applicant’s allegations of rape was pending from at least July 2009 until June 2014 and did not result in the opening of a criminal case. 70. The Court further notes that the Government have acknowledged that the domestic investigation into the applicant’s complaint of rape did not meet the requirements of Article 3 of the Convention, which amounted to a violation of this provision in its procedural limb, without, however, offering to pay a reasonable compensation to the applicant.", "71. Having regard to the material before it, the Court has no reason to hold otherwise. It observes that the applicant reported that she had been a victim of rape to the Derbent investigative committee in July 2009, presenting a very detailed description of the alleged abuse, and that her account of events remained coherent throughout the proceedings. Nonetheless, the investigators in charge of the case carried out a pre‑investigation inquiry which, in the Court’s view, could at best be described as perfunctory, and refused to open criminal proceedings on the basis of the applicant’s allegations. On numerous occasions over the course of the following five years the pre‑investigation inquiry was found lacking by both domestic courts and the investigators’ hierarchical superiors, and yet nothing meaningful resulted from these findings.", "72. The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to discharge their duty to carry out an effective investigation into the allegations of rape (see also Lyapin v. Russia, no. 46956/09, §§ 133-36, 24 July 2014). 73. Accordingly, there has been a violation of the respondent State’s procedural obligations under Article 3 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 74. 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. This part of the application must therefore 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 75. 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 76. The applicant claimed by way of compensation for pecuniary damage the 380,000 Russian roubles (RUB) (9,500 euros (EUR)) allegedly embezzled by her lawyer.", "She also claimed EUR 500,000 in compensation for non-pecuniary damage. 77. The Government stated that there was no causal connection between the pecuniary damage claimed and the alleged breach of the Convention provision. They further stated that, given the sensitive nature of the present case, they would leave to the Court’s discretion the issue of determining the amount to be awarded under the head of compensation for non-pecuniary damage. 78.", "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 observes that the applicant must have sustained non‑pecuniary damage as a result of the breach of her Convention right found in the present case. Taking into account all the circumstances of the case, and deciding on an equitable basis, the Court awards her EUR 12,500 in compensation for non‑pecuniary damage. B. Costs and expenses 79.", "The applicant also stated that she had incurred postal and other non‑itemised expenses and asked the Court to determine the amount to be awarded under the head of costs and expenses. 80. The Government argued that the applicant’s claims were not supported by evidence. 81. 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 lack of relevant documents and the above criteria, the Court rejects the applicant’s claim for costs and expenses. C. Default interest 82. 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 the Convention concerning the alleged ineffective investigation into the applicant’s allegations of rape admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 3 of the Convention in its procedural limb; 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 amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 12,500 (twelve thousand five hundred 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 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 22 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenAndrás SajóRegistrarPresident" ]

[ "FOURTH SECTION CASE OF MAZEPA v. MOLDOVA (Application no. 1115/02) JUDGMENT STRASBOURG 10 May 2007 FINAL 10/08/2007 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 Mazepa v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrJ. Šikuta,MrsP. Hirvelä, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 12 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1115/02) 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 Mrs Nina Mazepa (“the applicant”), on 2 August 2001. 2. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog.", "3. The applicant alleged, in particular, that the non-enforcement of the judgment of 27 May 1999 in her favour had violated her rights guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, and that the proceedings had been unreasonably long. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).", "On 1 December 2005 a Chamber of that Section decided to communicate 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 1953 and lives in Chişinău.", "She is a second degree invalid. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 1. The original proceedings 7.", "The applicant owns part of a house in which her neighbour (V.) owns another part. V. re-constructed her part of the house without the prior agreement of the applicant and the applicant's part of the house was seriously damaged as a result. 8. On 11 February 1998 the applicant initiated court proceedings claiming damages from V. Relying on an expert's assessment of the damage caused to the applicant's house, on 27 May 1999 the Buiucani District Court awarded her 12,635 Moldovan lei (MDL) (the equivalent of 1,054 euros (EUR) at the time). No appeal was made and the judgment became final and enforceable 15 days later.", "9. According to the applicant, she wrote to various State authorities requesting the enforcement of the award but it was not enforced. On 10 July 2000 she informed the Buiucani District Court that the judgment of 27 May 1999 had not been enforced and asked it to change the manner of enforcing the judgment by transferring V.'s part of the house to the applicant. She emphasised that her own part of the house had been severely damaged and that the damage had been aggravated with the passage of time, causing a real threat to her life. The applicant relied, inter alia, on Article 359 of the Code of Civil Procedure (see paragraph 24 below).", "10. On 13 April 2001 the Buiucani District Court accepted the claim. The new enforcement warrant was submitted to the court on 4 July 2001, following which the bailiff requested V. to comply with the judgment. 11. The applicant also requested the Supreme Court of Justice to transfer the examination of her cases against V., including the enforcement of the judgment of 27 May 1999, to another court in view of the inactivity of the Buiucani District Court.", "On 7 February 2001 the Supreme Court of Justice rejected that request as unfounded. 12. On 7 May 2001 the Buiucani District Court adopted an additional judgment, awarding the applicant damages (MDL 6,558) against V. for the late enforcement of the judgment of 27 May 1999. V. appealed. On 12 September 2001 the Chişinău Regional Court quashed that judgment and ordered a full re-hearing.", "13. On 11 January 2002 the bailiff organised an auction for the sale of the part of the house belonging to V. but nobody offered the minimum asking price set. He then proposed that the court accept the applicant's request to be given title to that part of the house on account of V.'s debt to her. 14. On 29 January 2002 the District Court accepted that request.", "15. In parallel to all the proceedings mentioned above, the applicant initiated administrative proceedings for the annulment of a municipality's decision adopted in 1996 confirming the lawfulness of V.'s re-construction of the house. On 17 November 1999 the Buiucani District Court accepted that request and on 5 July 2000 the Chişinău Regional Court upheld that judgment. On 28 September 2000 the Court of Appeal quashed the two judgments and adopted a new one, rejecting the applicant's claims. 2.", "The re-opened proceedings 16. V. lodged a request for the revision of judgments of 27 May 1999 and 29 January 2002 because the expert report on the damage had been signed by an expert lacking the required training and the District Court had based its judgment of 27 May 1999 on that report. The report stated the level of training of its author, who was registered by the Chamber of Commerce as that of a 1st (highest) degree expert with 23 years' work experience. On 25 April 2001 the Buiucani District Court rejected V.'s request. 17.", "On 25 April 2002 the Chişinău Regional Court accepted V.'s request and quashed the judgment of 27 May 1999 and the decision of 13 April 2001 (see paragraphs 8 and 10 above), ordering a full re-examination of the case in view of the expert's lack of adequate training. The court accepted V.'s claim that she had only found out about the expert's lack of training in December 2000 and had thus not exceeded the three-month time-limit for lodging the revision request. The applicant informed the Court about the quashing in a letter of 3 March 2003. 18. On 12 November 2002 the Buiucani District Court ordered an expert report to be made.", "On an unspecified date in 2003 the Republican Centre for Research and Regulation of Constructions (“CERCON”, a State institution) submitted its report to the court. It confirmed that, following the reconstruction of V.'s part of the house in serious violation of building regulations, the applicant's part of the house had suffered a major deterioration and had become uninhabitable. New cracks appeared in the wall after a repair, which meant that the process had not yet stabilised. A part of V.'s house created a particular danger during earthquakes and the applicant's house had lost all of its resistance to earthquakes. CERCON assessed the damage caused to the applicant's house at MDL 109,920 (EUR 7,266).", "19. According to a statement by the judge in charge of the applicant's case regarding the proceedings after the revision of 25 April 2002, the hearings had to be adjourned (by one month on each occasion) due mainly to the applicant's representative's absence on the following dates: 1 September 2003 (the first hearing in the re-opened proceedings), 7 November 2003, 8 December 2003, 17 February 2005, 17 March 2005, 9 June 2005 and 25 August 2005. 20. Three more one-month adjournments had to be ordered at V.'s request: on 6 October 2003, 9 December 2004 and 30 January 2006. 21.", "On 5 February 2004 the applicant requested a new expert report to be drawn up in respect of the damage caused to her part of the house. V. supported this request. On 9 February 2004 the questions for the experts were formulated and on 20 February 2004 the court ordered the parties to bear equally the experts' costs. The expert report was sent to the court by the Republican Institute for Judicial Expertise and Criminalistics (“IREJC”, a State institution) on 8 November 2004, following a visit to the applicant's part of the house on 26 October 2004. The report largely confirmed the findings of the two previous expert reports and assessed the damage caused to the applicant's house at MDL 125,174 (EUR 7,784).", "It also found that the process of the deformation of the house had not yet stopped and new cracks had appeared after minor repairs had been undertaken. On 15 April 2005 the court accepted V.'s objections to the expert report and ordered a new report to be drawn up by IREJC. On 13 May 2005 IREJC sent the case file back to the court without drawing up the report. On 19 May 2005 the experts charged with drawing up the report were summoned, but they failed to appear on 5 July 2005. On 29 November 2005 V. requested another expert report.", "On 6 December 2005 the court sent IREJC a request for a new expert report, but on 19 December 2005 the IREJC returned the case file since V. had failed to pay IREJC its costs, as ordered by the court. The applicant stated that she did not want another report since the previous one had confirmed her position. On 30 January 2006 the court ordered the parties to each bear IREJC's costs and ordered a new report to be drawn up. In their observations of September 2006 the Government informed the Court that IREJC had not yet drawn up its report and asked for permission to submit it to the Court when it was ready. No such report has been submitted to date.", "22. The proceedings are still pending before the Buiucani District Court. II. RELEVANT DOMESTIC LAW 23. The relevant domestic law has been set out in Prodan v. Moldova (no.", "49806/99, ECHR 2004‑III (extracts)). 24. In addition, the relevant provisions of the Code of Civil Procedure, applicable at the relevant time, read as follows: “Article 5. Examination of civil actions by the court. The court shall begin the examination of a civil case: ... 3) at the request of the natural or legal person who asks for the protection of his or its rights or interests protected by law; ...", "TITLE FIVE EXECUTION OF COURT JUDGMENTS Article 336. Court judgments and decisions of other authorities, which shall be executed. The following shall be executed in accordance with the rules in the present Title of this Code: 1) judgments ... adopted by courts in civil cases: ... Article 337. Documents of forced execution.", "The following are considered documents of forced execution: 1) execution warrants ... adopted by courts...; Article 338. Issuance of an execution warrant. Execution warrants shall be issued by the court to the creditor after the decision becomes final... Execution warrants shall be issued directly to the creditor or, at his or her request, shall be sent for enforcement directly by the court to the territorial subdivision of the Decisions' Enforcement Department within the Ministry of Justice. Article 343.", "Submission of the document of forced execution. The bailiff shall begin the enforcement of court judgments at the request of the persons mentioned in Article 5 of the present Code ... Article 349. Verification of the execution of the judgment. The judge shall verify the correct and timely execution of the judgment.", "Article 359. Measures of forced execution. The following shall be the measures of forced execution: 1) execution against the debtor's assets through their freezing and sale; ...” THE LAW 25. The applicant complained that the non-enforcement of the final court judgment in her favour had violated her rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.", "She further complained about the excessive length of the proceedings. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “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 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.” 26. She also complained about the lack of effective remedies in respect of her complaints, 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.” 27. She further complained under Articles 14 and 17 of the Convention, without giving details. 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.” 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 OF THE COMPLAINTS 28. The Court considers that the applicant's complaints under Articles 14 and 17 are unfounded.", "She has not provided any details to substantiate them and there is nothing in the case file which assists in this connection. Accordingly, these complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4. 29. The Court considers that the applicants' complaints under Articles 6 and 13 of the Convention, as well as under Article 1 of Protocol No. 1, raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits.", "No grounds for declaring them inadmissible have been established. The Court therefore declares these complaints 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 these complaints. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO.", "1 IN RESPECT OF THE NON-ENFORCEMENT OF THE FINAL JUDGMENT OF 27 MAY 1999 30. The applicant complained about a violation of her rights guaranteed under the above Articles as a result of the failure to enforce the final court judgment in her favour. 31. The Government submitted that the judgment of 27 May 1999 in the applicant's favour had been quashed and the authorities had taken all reasonable steps to enforce the judgment from the moment of its adoption. Moreover, no other judgment in the applicant's favour had become final.", "32. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see Prodan v. Moldova, cited above, § 59). The applicant had a final judgment in her favour and thus had a “possession”. It also recalls that the re-opening of proceedings and the quashing of a final judgment “does not call into question the final nature of [that judgment]” and does not, accordingly, relieve the authorities from their responsibility for failing to enforce during the period when it was still in force (Popov v. Moldova (no.", "1), no. 74153/01, § 55, 18 January 2005). Since no complaint was made in respect of the re-opening of the proceedings, this issue is not before the Court. 33. In the present case, the judgment of 27 May 1999 remained unenforced for almost three years until 25 April 2002, when it was quashed.", "The Court notes the Government's affirmation that the authorities had attempted to enforce the judgment from the very moment of its adoption (see paragraph 31 above). Accordingly, the applicant properly requested the authorities to enforce the judgment. In addition, on 10 July 2000 the applicant informed the domestic court of the failure to enforce the judgment and asked for a change in the method of enforcement (see paragraph 9 above). For an unknown reason, the domestic court only responded to that request more than nine months later, on 13 April 2001. 34.", "It follows that the court, which at the relevant time had the function of supervising the enforcement of its own judgments (see paragraph 24 above), was aware of the failure to enforce the judgment in the applicant's favour and was obliged to ensure its enforcement. However, it did not take any action until April 2001, when it ordered a change in the method of enforcement. A complaint specifically about the delay in the enforcement lodged with the Supreme Court of Justice was rejected in February 2001 and did not lead to any immediate re-activation of the proceedings (see paragraph 14 above). 35. Moreover, despite the change in the means of enforcement and the submission of a new warrant for enforcement on 4 July 2001, it took the authorities another half a year to make the first serious attempt at enforcing the judgment by organising the auction of V.'s part of the house in January 2002.", "36. The Court considers that the authorities had not taken all reasonable steps to ensure enforcement, given that the first serious attempt to do so was made almost two years after the judgment had become final. The Government have not explained that delay. 37. In respect of the applicant's complaint under Article 1 of Protocol No.", "1 to the Convention, the Court recalls that under its practice “a failure to recover a debt because of the debtor's indigence cannot be held against the respondent State unless and to the extent that it is imputable to the domestic authorities” (see, among other authorities, Poláčik v. Slovakia, no. 58707/00, § 64, 15 November 2005). However, in the present case the debtor's indigence was not an issue, since V. had real estate which could have been used to enforce the judgment. Indeed, when the bailiff decided to take specific action aimed at enforcing the judgment he was able to do so (see paragraphs 13 and 14 above). The Government have not explained the authorities' failure to take such action at an earlier stage.", "By failing to take the necessary steps to have the judgment of 27 May 1999 enforced the national authorities prevented the applicant from enjoying the successful result of her litigation. 38. There has accordingly been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 59 and 74, ECHR 1999‑V; Popov (1), cited above, §§ 58 and 64 and Istrate v. Moldova, no.", "53773/00, §§ 55 and 61, 13 June 2006). III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDUNGS FOLLOWING THEIR RE-OPENING 39. The applicant also complained under Article 6 of the Convention about the excessive overall length of the proceedings. 40.", "The Government considered that the authorities had acted with sufficient diligence and that most of the delays in the present case were the result of the parties' conduct. They referred to the adjournment of hearings on seven different occasions at the applicant's request (see paragraph 19 above). In addition, a number of expert reports had had to be drawn up, which also increased the total length of the proceedings. 41. The Court notes that the proceedings in the present case ended in May 1999 but that the final judgment was not enforced until it was quashed in April 2002.", "Since the period of non-enforcement has already been taken into account when examining the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 above, the Court will examine the period that followed the quashing on 25 April 2002 until present, it being noted that the proceedings are still pending before the first-instance court. Accordingly, the period to be taken into consideration is almost five years. 42. 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 and Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60). 43. The Court considers that the case was not particularly difficult to determine and that a final court judgment had already been adopted on 27 May 1999. The only factor complicating the proceedings, which was the sole reason for ordering their re-opening in 2002, was the need to obtain new expert evidence regarding the damage to the applicant's house.", "This factor will be taken into account when examining the parties' conduct. 44. As regards the applicant's conduct, the Court only partly shares the Government's view that she had contributed to the length of the trial. The applicant had requested adjournments of the proceedings seven times and the total period of adjournments resulting from her requests amounted to approximately seven months. Accordingly, the Court will not take into account this seven months period of delay, nor the three additional months period of delay due to V.'s requests for adjournment (see paragraph 19 above).", "45. As regards the conduct of the authorities, the Court notes that five years following the re-opening of the proceedings the case is still pending before the first-instance court and that a judgment has yet to be adopted. It also notes that most of the delay resulted from the obtaining of three expert reports (see paragraphs 18 and 21 above), in addition to the one already drawn up during the initial proceedings. 46. It is true that obtaining expert reports which a domestic court reasonably considers necessary to reach a decision is a factor explaining in part the length of proceedings.", "Moreover, the parties asked for the additional reports to be drawn up. However, the Court considers that the courts, which have the discretion to reject the parties' requests for additional reports if these are not considered necessary, should not allow unreasonably long delays in the proceedings. The Court recalls that “the principal responsibility for the delay due to expert opinions rests ultimately with the State” (see Capuano v. Italy, judgment of 25 June 1987, Series A no. 119, p. 14, § 32 and Ciborek v. Poland, no. 52037/99, § 55, 4 November 2003).", "In this respect, it is also relevant that both the 2003 and the 2004 reports were drawn up by State institutions and that the court appears not to have taken any measure to ensure the timely submission of the reports. 47. In particular, the Court notes that there have been unexplained delays in the proceedings. After the quashing of 25 April 2002 for the sole reason that it was considered necessary to obtain a more qualified expert report, the domestic court asked for such a report only on 12 November 2002. No explanation was given for that delay.", "More unexplained delays occurred during the process of obtaining the expert reports, such as the period between 20 February 2004 when the court's request was sent to the experts, and 26 October 2004, when the experts visited the house at issue (see paragraph 21 above). The last expert report was ordered on 30 January 2006 and it appears not to have been drawn up yet. In addition, experts failed to appear at a court hearing without any explanation. A lack of diligence in the experts' conduct is apparent, as is the failure of the court to take any action in this respect. It is also somewhat surprising that the court found it necessary to order another expert report after three previous reports had all concluded in the applicant's favour.", "Even though some of the reports may have been invalidated by procedural mistakes, the Court considers that the repetition of such mistakes in the course of the same proceedings discloses a serious deficiency in the system set up by the State for obtaining expert reports (see, mutatis mutandis, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003 and Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6 September 2005). 48. The Court is, moreover, of the opinion that where proceedings are re-opened the courts must show particular diligence so as to ensure that such proceedings are concluded as soon as possible.", "No such diligence is apparent in the present case, where the only reason for the re-opening was the alleged deficiency of an expert report and where, almost five years later, that specific issue has still not been remedied notwithstanding the preparation of two new reports. 49. Finally, the Court considers that what was at stake for the applicant in the proceedings in question was of crucial importance to her, taking into consideration that she was living in a house found to be uninhabitable since 1999. 50. Consequently, the Court holds that the applicant's case was not heard within a reasonable time.", "There has accordingly been a violation of Article 6 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION 51. The applicant complained under the Article 13 about the lack of an effective remedy in respect of her complaint under Article 6 of the Convention. 52.", "The Government considered that the authorities could not be held responsible for not enforcing a judgment which had not yet been adopted, given that the proceedings were still pending before the first-instance court. The parties were given the possibility of appealing all procedural decisions they considered necessary. 53. 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 recalls that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both 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 comply with their obligations under this provision (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, pp. 1869-70, § 145). The remedy required by Article 13 must be “effective”, both in practice and in law. However, such a remedy is required only for complaints that can be regarded as “arguable” under the Convention (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 137, ECHR 2001‑XII).", "54. In the present case, the Court has found a violation of Article 6 § 1 in respect of the non-enforcement of the judgment o 27 May 1999 and the length of proceedings following their re-opening on 25 April 2002. 55. The Court notes that the applicant's complaints regarding both the non-enforcement of a final judgment and the excessive length of the proceedings were clearly “arguable” (see paragraphs 38 and 50 above). The Government have not relied on any provision of domestic law allowing the applicant to take action with a view to accelerating both the enforcement of the 1999 judgment and the examination of the proceedings following their re-opening and to obtain compensation for the delays.", "Moreover, the applicant asked the Supreme Court of Justice to have the case transferred to another court in view of the alleged protraction of the proceedings by the Buiucani District Court, but to no avail (see paragraph 11 above). 56. Accordingly, there has been a violation of Article 13 on account of the lack of a remedy under domestic law in respect of the right to a hearing of the case within a reasonable time, guaranteed by Article 6 § 1, as well as in respect of the timely enforcement of a final court judgment. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. 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 58. The applicant claimed EUR 10,000 for pecuniary damage resulting form the effects of inflation on the award of 27 May 1999. She also claimed EUR 170,000 for non-pecuniary damage and costs and expenses. She relied on the expert reports and the National Bank of Moldova's statement regarding the inflation rates during the relevant periods of time. 59.", "The Government disagreed, arguing that in the absence of a final court judgment no enforcement could take place. Accordingly, no damage could be caused as a result of non-enforcement. In any event, the applicant had not submitted any evidence to support her claims and any damage suffered by her was the result of her own actions. 60. The Court considers that the applicant must have been caused damage and suffering as a result of the non-execution of the final judgment of 27 May 1999 for almost three years.", "In addition she had to live in an uninhabitable and dangerous house for many years and suffered from the uncertainty of prolonged court proceedings. In view of the circumstances of the present case and deciding on an equitable basis the Court awards the applicant the total sum of EUR 2,900 for pecuniary and non-pecuniary damage. B. Costs and expenses 61. The applicant also claimed reimbursement of the costs and expenses incurred before the domestic courts and the Court.", "She did not substantiate her claims. 62. The Government contested these claims. 63. 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 Zimmermann and Steiner v. Switzerland, judgment of 13 July 1983, Series A no.", "66, § 36). 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, who was not represented by a lawyer, the sum of EUR 100 under this head. C. Default interest 64. 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 inadmissible the applicant's complaints under Articles 14 and 17 of the Convention and the remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as a result of the failure to enforce the final judgment of 27 May 1999; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention as a result of the failure to enforce the final judgment of 27 May 1999; 4. Holds that there has been a violation of Article 6 § 1 of the Convention as a result of the excessive length of the proceedings following the re-opening of the case; 5.", "Holds that there has been a violation of Article 13 of the Convention because of the lack of an effective remedy in respect of the applicant's complaints regarding the non-enforcement of the final judgment and the length of proceedings; 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 2,900 (two thousand nine hundred euros) in respect of pecuniary and non-pecuniary damage and EUR 100 (one hundred 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, 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; 7. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 10 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. EarlyNicolas BratzaRegistrarPresident" ]

[ "FIFTH SECTION CASE OF ILYADI v. RUSSIA (Application no. 6642/05) JUDGMENT STRASBOURG 5 May 2011 FINAL 05/08/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ilyadi v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Karel Jungwiert,Anatoly Kovler,Mark Villiger,Ganna Yudkivska,Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 5 April 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "6642/05) 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, Mr Yuriy Daniilovich Ilyadi (“the applicant”), on 17 January 2005. 2. The applicant, who had been granted legal aid, was represented by Mr E. Selyukov, a lawyer practising in Krasnodar. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 9 March 2007 the President of the First Section decided to give notice of the application to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1951 and lives in Krasnodar. A.", "Criminal proceedings against the applicant 5. On 24 July 2003 the applicant was arrested in Moscow on suspicion of facilitating the sale of a forged promissory note, an offence under Article 186 § 2 of the Criminal Code. 6. On 26 July 2003 the Gagarinskiy District Court of Moscow remanded the applicant in custody. On 25 September, 17 October and 19 December 2003 the applicant’s detention was extended.", "On 30 January 2004 the District Court fixed the opening of the trial for 16 February 2004 and extended the applicant’s detention. It appears that the applicant did not lodge an appeal against any of the extension orders. 7. During the investigation, on 25 July and 17 December 2003 the investigator interviewed, among other witnesses, Captain P., whose position was described as “senior operational officer of the 4th Interior Department of the 1st Operative Field Division of the Economic Crime Directorate of Moscow”. According to the interview record, his identity was certified by a police badge issued by the Main Police Directorate of Moscow.", "It follows from the record that Captain P. testified, in particular, that he had been asked to pose as the purchaser of the forged promissory note which the applicant’s co-defendant, Mr K., had undertaken to procure for him. He also stated that he had seen Mr K. take the envelope containing the forged note from the applicant. 8. Although Captain P. was listed as a witness for the prosecution, he did not appear at the trial hearings on 23 March, 8 April, 21 April, 18 May and 1 June 2004. The applicant’s defence did not object to the closing of the judicial inquiry in Captain P.’s absence or to his written statement made during the pre-trial investigation being read out.", "However, since the prosecutor insisted on the attendance and examination of Captain P. in court, the final hearing was adjourned until 3 June 2004. 9. At the hearing on 3 June 2004 the prosecutor orally informed the court that, according to information from Captain P.’s superior, Captain P. had been sent on a long-term mission to another town. The prosecutor asked to read out his written deposition and the defence had no objections. That was the last trial hearing.", "10. In the meantime, counsel for the applicant launched his own inquiries about the whereabouts of Captain P. First he unsuccessfully attempted to reach him at the phone number which was listed in the interview record, and subsequently, on 28 May and 16 June 2004, he asked the head of the Economic Crime Directorate of the Moscow Police to confirm in writing that Captain P. was or had been one of their employees. By letters of 2 and 25 June 2004, the head of the Economic Crime Directorate replied as follows: “In response to your inquiry, I inform you that all the available information concerning Mr P[.] is present in the materials of criminal case no. 193476.", "Detailed information may be provided upon request of the trial judge.” 11. On 8 June 2004 the Gagarinskiy District Court delivered judgment. It found the applicant and Mr K. guilty of selling a forged promissory note and sentenced the applicant to five years and nine months’ imprisonment in a high-security correctional colony. In finding the applicant guilty, the District Court referred to the following testimonies by witnesses: “The witness [Major] Kr. of the Organised Crime Unit of the South-Western Department of the Moscow Police testified in court that on 24 July 2003 he and Officer B. had taken part in the apprehension of individuals who had been suspected of being involved in the sale of forged securities.", "At about 6 p.m. Kr. and B. sat in Room 1007 in the Sputnik hotel ... After they received information that the seller of the forged note had been detained, they went to Room 1008 where they saw K. whom they had not met previously. Kr. had put questions to K., and it followed from K.’s replies, which were given without any pressure, that K. had sold a forged promissory note ... for one million roubles and that the note itself and the money had stayed on the table ... Kr. explained that he had examined the crime scene and seized the note and the money ...", "The witness [Lieutenant-Colonel] B. of the Organised Crime Unit of the South-Western Department of the Moscow Police testified in court that on 24 July 2003 he had taken part in the arrangements for apprehending the individuals suspected of selling forged securities. In particular, he had booked Rooms 1007 and 1008 in the Sputnik hotel, and he sat in the first room, together with Kr., waiting for the signal. Neither he, nor Kr. had taken part in the arrest of the suspects but, upon receiving information about the arrest, they came to Room 1008. K. was in the room, [the applicant] Mr Ilyadi was brought there later ...", "It follows from the pre-trial statement by [Captain] P. of the Economic Crime Directorate of the Moscow Police, given on 25 July 2003 and read out in court with the parties’ consent, that in mid-July 2003 the Economic Crime Directorate of the Moscow Police received operative information about a person who was looking for a way to sell forged promissory notes. It was established that this person was Mr K... It was decided to carry out a ‘controlled purchase’, in which P. was to pose as the ‘purchaser’... K. was asked to procure a promissory note having the nominal value of ten million roubles for 10% of its nominal value, that is one million roubles. The money was examined, numbers on the banknotes were recorded, and one million roubles was entrusted to the witness P. Two rooms, 1007 and 1008, were booked in the Sputnik hotel located at ... The sale was to take place at 7.30 p.m. on 24 July 2003.", "According to the approved legend, P ... was in the car parked at the hotel. He then came up to the room where A. and K. were waiting; the note sat on the table. P. put the money onto the table; without counting the money, K. threw it into a bag and put it onto the table next to him. At this moment police officers entered the room and arrested K. A report on the examination of the crime scene was compiled which P. countersigned.” 12. The District Court further referred to written evidence which included K.’s arrest record, the decision to carry out a “controlled purchase”, the report on the “controlled purchase”, the reports on examination of the money, the note and inspection of the crime scene, and the forensic expert’s report indicating that the note had been a forgery.", "13. The District Court also examined the transcripts of audio- and video-recordings and noted as follows: “The report on examination of the Sony Protocol No. 5-60 videocassette, dated 2 September 2003, and the transcript of the conversation confirm the textual identity of the conversation which K. and A. had in the hotel room on 24 July 2003, with the previous transcript of 25 July 2003 (pp. 105-111 vol. 3).", "The report of 4 September 2003 concerns the examination of the EMTEC E120 videocassette which was lawfully made available to the investigation; it confirms the factual contents of the audio- and video-recordings, from which it follows that it was the defendant Mr Ilyadi who had given the envelope to K. in the driver’s seat of the Honda car. The court has verified this circumstance and, contrary to the position of the defence, the court considers that the videocassette clearly shows that the envelope had been given to K. by Mr Ilyadi (pp. 123-125 vol. 5).” 14. The District Court finally gave an overall assessment of evidence and established the defendants’ guilt in the following manner: “Assessing the testimonies by the witnesses Kr.", "and B., the court sees no reason to distrust them because they are concordant with the body of evidence presented by the prosecution and because they are mutually complementary and consistent. The court has not established any indication that those witnesses may have slandered the defendant [sic, in singular]. For the same reasons the court relied upon the statement by the witness P. which was read out in court. The court does not find any gross breaches by the investigation of the requirements of the Code of Criminal Procedure during the pre-trial inquiry which may have led to declaring the above evidence inadmissible. Contrary to the arguments by the defence, the court considers that the above body of evidence proves that both the defendant K. and the defendant Mr Ilyadi have been involved into the crime.", "On the basis of the conversation that took place during the meeting between K. and the ‘purchaser’, the pre-trial statement by the witness P., the video-recording which was transcribed and examined in court and which showed that it had been Mr Ilyadi who had handed over the envelope to K., the court is firmly convinced, rather than merely supposes, that Mr Ilyadi’s envelope had contained a forged promissory note which had been given on 24 July 2003 to K. near the Sputnik hotel. [The court also takes into account] the body of evidence in its entirety, including in particular, the conduct by the defendants which unambiguously showed that they feared arrest, and the fact that both K. and Mr Ilyadi were aware that the note was a forgery.” 15. On 10 June 2004 the applicant submitted a short statement of appeal to the registry of the Gagarinskiy District Court which indicated his intention to submit a detailed statement of appeal upon receipt of the judgment. According to the established Russian practice, statements of appeal must be filed with the registry of the first-instance court that gave judgment, which then would forward it to the appeal court. 16.", "On 2 August 2004 counsel for the applicant asked the head of the Personnel Department of the Moscow Police to confirm whether Captain P. was currently or in the past listed in the staff records. By a letter of 11 August 2004, the head of the Personnel Department replied that “Captain P. [was] not listed in the records of the Moscow Police Directorate”. 17. On 26 August 2004 the applicant sent a detailed statement of appeal through the correspondence department of the remand centre to the registry of the Gagarinskiy District Court. He complained, in particular, that there were deficiencies in the evidentiary base: “The investigation listed five witnesses for the prosecution.", "Two of them were the attesting witnesses who had been present during Mr K.’s arrest ... Three others were the police officers who had taken part in the controlled purchase of the forged promissory notes. Lieutenant-Colonel B. and Major Kr. appeared in court and testified that I had not been the target of the operational measures and that they had not previously known me or heard about me ... Only the statement made by the third police officer, Captain P., indicates my indirect connection with the crime. Captain P. did not appear in court during the trial. This delayed the proceedings, because the prosecution insisted on having P. examined in court.", "A suspicion arose that Captain P. may never have existed, and it was confirmed by the research carried out by my advocate ... He dialled the phone number listed in the statement and made sure that he reached the correct office. However, he heard that there was no employee by the name of P. and never had been. We prepared two written inquiries for the director of the Economic Crimes Directorate, to which he gave evasive replies ... Only after we asked the head of the Personnel Department for clarification did we receive a direct and truthful reply: police officer P. does not actually exist ...” The applicant asked the appeal court that his conviction be declared unlawful and quashed. He enclosed the replies his counsel had received from the Personnel Department of the Moscow Police.", "18. By letter of 14 September 2004, the President of the Gagarinskiy District Court asked the applicant to resubmit his statement of appeal as the original one had been lost. The applicant did as requested. 19. On 25 October 2004 the Moscow City Court heard the appeal.", "The applicant was present before the appeal court and made oral submissions. According to him, of his written submissions, only the resubmitted short statement of appeal, but not the detailed one, was examined. 20. The City Court rejected the appeal in a summary fashion, finding that there was no reason to place the authenticity of the evidence in doubt and that there were no breaches of procedural norms. With regard to the witnesses, the City Court held as follows: “The [District] court had no reason not to rely on the statements of the witnesses who were police officers, including witness P.; their statements were assessed in court and found to be consistent, mutually complementary and compatible with other materials in the file.", "There is no indication that anyone has a vested interest in the criminal prosecution of the persons convicted.” B. Conditions of the applicant’s detention 21. From 31 July 2003 to 3 December 2004 the applicant was held in remand centre no. IZ-77/2 in Moscow, popularly known as “Butyrka”. 22.", "After 18 August 2003 he was accommodated in cell no. 100. It measured 54.7 square metres and was equipped with twenty-two bunk beds. According to the Government, that cell housed, on average, twenty-one detainees. According to the applicant, the actual cell population was as high as thirty-five persons.", "23. The Government produced the cover page of the register for verification of the number of detainees in remand centre no. 2 (книга количественной проверки лиц, содержащихся в СИЗО-2) and an extract from the register listing the applicant’s personal details, as well as a number of certificates signed by the director of the remand centre in 2007. II. RELEVANT DOMESTIC LAW 24.", "The Code of Criminal Procedure provides that an appeal court may quash or amend a conviction, in particular if it determines that the findings of the trial court are incompatible with the factual circumstances of the case (Articles 379 (1) and 380). 25. The judgment of the appeal court must contain, in particular, a short summary of the arguments contained in the statement of appeal and the reasons for the appeal court decision (Article 388). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 26.", "The applicant complained that the conditions of his detention in remand centre no. IZ-77/2 from August 2003 to December 2004 had been in breach 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 27. Referring to the Court’s findings in the case of Shilbergs v. Russia (no. 20075/03, 17 December 2009), the Government claimed that the applicant had not exhausted domestic remedies because he had not sought compensation for the inappropriate conditions of his detention in civil proceedings. 28.", "As regards the Government’s reliance on the Shilbergs case, the Court reiterates that the Russian courts in that case did not acknowledge a violation of Article 3 of the Convention, but rather found that some aspects of Mr Shilbergs’ detention had fallen short of domestic legal requirements and that the amount of the award had been substantially reduced on account of the State’s financial difficulties, to a level at which it became, in the Court’s assessment, insufficient and manifestly unreasonable in the light of its case-law (see Shilbergs, §§ 69-79, cited above). The Government did not point to any other case-law which would have been capable of demonstrating that a civil claim was an effective domestic remedy for a complaint of inhuman or degrading conditions of detention. Accordingly, the Court dismisses the Government’s objection as to non-exhaustion of domestic remedies. 29. 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 30. The parties disagreed as to certain aspects of the applicant’s conditions of detention in the remand centre.", "However, there is no need for the Court to establish the truthfulness of each and every allegation, since it finds a violation of Article 3 on the basis of the evidence that have been presented or is undisputed by the Government, for the following reasons. 31. The Government conceded that from 7 August 2003 to 3 December 2004 the floor space available to each detainee in the applicant’s cell had been below the sanitary requirement of four square metres and that that situation had been in breach of Article 3 of the Convention. The Court observes that the Government only cited the average number of detainees in the cell, which implies that at times the actual number of detainees had been higher. This coincides with the applicant’s submission that he had been obliged to share the cell with up to thirty-five individuals.", "As the Government only produced the cover page of the register and the page concerning the applicant alone, it is impossible to establish the exact number of detainees during the relevant period. Nevertheless, it is obvious that the cell was severely overcrowded and that detainees were afforded less than three square metres of floor space per person. 32. In this connection the Court reiterates that in many cases in which detained applicants had at their disposal less than three square metres of personal space, it has already found that the lack of personal space afforded to them was so extreme as to justify in itself a finding of a violation of Article 3 of the Convention (see, among many others, Pitalev v. Russia, no. 34393/03, § 47, 30 July 2009; Denisenko and Bogdanchikov v. Russia, no.", "3811/02, § 98, 12 February 2009; Vlasov v. Russia, no. 78146/01, § 81, 12 June 2008; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005; and Mayzit v. Russia, no.", "63378/00, § 40, 20 January 2005). The Court is also mindful of the fact that the cells in which the applicant was detained contained some furniture and fittings, such as bunk beds and the lavatory, which must have further reduced the floor area available to him. The Court finds that the applicant was detained in those cramped conditions for one year and almost five months. 33. Having regard to its case-law on the subject, the material submitted by the parties and the findings above, 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.", "Even though there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that he was obliged to live, sleep and use the toilet in the same cell as so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of anguish and inferiority capable of humiliating and debasing him. 34. The Court finds accordingly that there has been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention in remand centre IZ-77/2 in Moscow from August 2003 to December 2004, which it considers to have been inhuman and degrading within the meaning of this provision. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 35.", "The applicant complained under Article 6 § 2 of the Convention that the trial court had founded his conviction on a written statement by Captain P., who had never existed, and that it had also failed to forward his detailed statement of appeal for examination by the City Court. The Court considers that this complaint falls to be examined from the standpoint of the general fairness requirement guaranteed by Article 6 § 1. The relevant part of Article 6 reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 36. 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 ground. It must therefore be declared admissible. B. Merits 37. The Government submitted that the applicant and his counsel had not objected to the trial continuing in the absence of Captain P., or to his pre-trial deposition being read out.", "The pre-trial statement had specified Captain P.’s personal details, his rank and place of employment, and passport information. The claim that Captain P. did not actually exist had been effectively disproved by the testimony of Major Kr., who had stated that Captain P. had taken part in the operative inquiry, that of Lieutenant-Colonel B., who had confirmed Captain P.’s employment in the police, and the mention of Captain P. in the search record and in the statements by the attesting witnesses. The letter from the head of the Personnel Department, dated 11 August 2004, did not describe the nature of the inquiry or specify whether Captain P. was or was not listed in the records on the date of the letter or at the time of the applicant’s arrest and trial. The Government finally submitted that the contents of the appeal judgment “convincingly demonstrated” that the applicant’s detailed statement of appeal had been received and examined by the City Court. 38.", "The applicant maintained that his detailed statement of appeal had not been examined, because the appeal judgment had not addressed his specific submissions or given reasoned replies to the arguments raised in the appeal. He further submitted that he had entertained no doubts as to the existence of Captain P. until the last hearing on 3 July 2004. On that day his counsel had unsuccessfully attempted to reach Captain P. on the phone and then started written inquiries. 39. The Court reiterates that for the proceedings to be fair, as required by Article 6 § 1 of the Convention, the “tribunal” must conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see Van Kück v. Germany, no.", "35968/97, §§ 47-48, ECHR 2003‑VII, and Kraska v. Switzerland, judgment of 19 April 1993, Series A no. 254‑B, § 30). Article 6 § 1 obliges courts to give reasons for their judgments, but this obligation cannot be understood as requiring a detailed answer to every argument. The question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, judgment of 9 December 1994, Series A no. 303-A, § 29).", "40. In the instant case the applicant stood trial on the charge of selling a forged promissory note to a certain Mr P., who subsequently turned out to be a police captain posing as a prospective purchaser. It follows from Captain P.’s pre-trial statement, as it was reproduced in the District Court’s judgment, that he had taken part in making the decision on carrying out the controlled purchase of a forged promissory note and also mounted the police operation and played a major part in it. 41. It appears that the applicant did not have an opportunity to examine or to have examined Captain P. at any stage of the proceedings.", "During the investigation, the investigator took down Captain P.’s statement but did not arrange for a confrontation between him and the applicant. At the trial, Captain P. had been listed as a witness for the prosecution but never appeared in court. At the final hearing the prosecutor told the trial court that, according to the information from Captain P.’s superior, the witness had been sent away on a mission, which was accepted by the court as a valid reason for his absence. 42. Throughout a major part of the trial the applicant and his counsel had not entertained any doubts as to the identity of Captain P. and, accordingly, his credibility as a witness.", "The defence did not object to the case being heard in the absence of that witness. The prosecutor’s insistence on obtaining Captain P.’s attendance prompted the applicant’s counsel to place a call to his office phone number as it was listed in the written statement. Upon finding that the number was incorrect, in early June 2004 the attorney launched written inquiries. By the time of delivery of the District Court’s judgment on 8 June 2004, the defence had not yet obtained any documents confirming or disproving the identity and police employment of Captain P. It was not until 11 August 2004 that the Moscow police human resources department replied that Captain P. was not their employee. 43.", "As by that time the first-instance conviction had already been issued, the only avenue remaining open to the applicant was to raise the issue of the credibility of the witness before the appeal court, which he did. In his extended statement of appeal the applicant submitted, among other matters, that the evidentiary basis was deficient because the only witness who could confirm his involvement in the transaction, Captain P., had not appeared at the trial and that his credibility was open to doubt, as counsel had not been able to check his identity or whether he was employed by Moscow police. 44. The applicant’s submission relating to the credibility of this prosecution witness was made in writing and formulated in a sufficiently clear and precise manner. Furthermore, evidence in the form of letters from the human resources department was adduced to support it.", "The Moscow City Court, acting as the court of appeal, was bound, under the applicable procedural law (see paragraph 25 above), to review all the arguments contained in the statement of appeal and give a reasoned decision on them. However, with regard to that important issue, the City Court’s judgment only contains a laconic paragraph formulated in general terms. Although witness P. is mentioned therein by name, the applicant’s arguments and evidence relating to the credibility of that witness are not referred to or examined in any detail. 45. The applicant suggested that his extended statement of appeal may not have been examined at all by the City Court because the District Court had omitted to forward it; the Government disputed that claim.", "The Court considers that this issue can be left open as it appears that the applicant’s submission relating to the credibility of witness P. was indeed brought to the attention of the appeal court and called for a specific and explicit reply. 46. Owing to the absence of the hearing record and the brevity of the appeal judgment, it is impossible to ascertain whether the City Court neglected to deal with a part of the applicant’s arguments contained in his statement of appeal or whether the City Court had actually reviewed the applicant’s arguments and evidence in their entirety but had merely failed to mention it and state specific reasons for dismissing it (compare Ruiz Torija, cited above, § 30). 47. In the light of the above, the Court finds that the applicant’s specific and relevant submission and evidence relating to credibility of the prosecution witness did not elicit a sufficiently specific and explicit reply in the domestic proceedings.", "That failing restricted the rights of the defence to an extent that was incompatible with the fair trial guarantee and there has, accordingly, been a violation of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 48. The applicant also complained under Article 5 of the Convention that the decision to remand him in custody had not been justified. The Court notes that the detention order was issued on 26 July 2003, whereas the applicant lodged his application on 17 January 2005, that is more than six months later.", "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. 49. Lastly, the applicant complained under Article 6 that he had not been given sufficient time to read the case file before the trial, that his counsel had not been informed of one hearing and had not attended it, and that the trial court had refused to examine the investigator. 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. IV.", "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.” 51. 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 complaints concerning the applicant’s conditions of detention and the non-attendance of the witness for the prosecution admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention in remand centre IZ‑77/2 in Moscow from August 2003 to December 2004; 3. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 5 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean SpielmannRegistrarPresident" ]

[ "GRAND CHAMBER CASE OF SABRİ GÜNEŞ v. TURKEY (Application no. 27396/06) JUDGMENT STRASBOURG 29 June 2012 This judgment is final but it may be subject to editorial revision. In the case of Sabri Güneş v. Turkey, The European Court of Human Rights (Grand Chamber), sitting as a Grand Chamber composed of: Nicolas Bratza, President,Josep Casadevall,Nina Vajić,Dean Spielmann,Lech Garlicki,Peer Lorenzen,Boštjan M. Zupančič,Elisabeth Steiner,Khanlar Hajiyev,Ján Šikuta,Mark Villiger,Luis López Guerra,Mirjana Lazarova Trajkovska,Işıl Karakaş,Vincent A. de Gaetano,Erik Møse,Helen Keller, judges,and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 8 February and 30 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27396/06) 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 Sabri Güneş (“the applicant”), on 29 May 2006.", "2. The applicant was represented by Mr A.E. Binici, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3.", "Relying on Article 6 of the Convention, Mr Sabri Güneş alleged, in particular, that he had been denied a fair hearing and that his right of access to a court had been infringed. He also complained of a violation of Article 2 of the Convention taken together with Article 13 (right to an effective remedy). 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 24 May 2011 a Chamber of that Section composed of the following judges: Françoise Tulkens, Danutė Jočienė, Ireneu Cabral Barreto, Dragoljub Popović, András Sajó and Işıl Karakaş, and also of Françoise Elens-Passos, Deputy Section Registrar, delivered judgment.", "The Chamber, by a majority, declared the application admissible as to the complaints under Articles 2, 6 § 1 (fairness of the proceedings and access to court) and 13. The Chamber also held, by five votes to two, that there had been a violation of Article 6 § 1 of the Convention. Lastly, by five votes to two, the Chamber found that it was not necessary to examine the complaint under Articles 2 and 13 of the Convention. 5. On 15 September 2011, following a request by the Government of 23 August 2011, the panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention.", "6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 7. The applicant and the Government each filed written observations on the preliminary objections and on the merits (Rule 59 § 1). The Grand Chamber having decided that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant, Mr Sabri Güneş, is a Turkish national who was born in 1981 and lives in İzmir. 9. He suffered a personal injury while doing his military service.", "He was hospitalised on 30 October 2001 and subsequently underwent several operations on his right knee. He is now permanently disabled. 10. On 7 April 2003 the applicant submitted a claim to the Ministry of Defence for compensation in respect of his permanent disability. 11.", "Following tacit dismissal of the claim by the administrative authorities, the applicant brought an action for damages in the Supreme Military Administrative Court on 12 August 2003 in respect of the disability suffered during his military service. He claimed 15,000 Turkish liras (TRY – approximately 9,400 euros (EUR)[1]) in respect of pecuniary damage and the same sum in respect of non-pecuniary damage. 12. Two expert reports ordered by the Supreme Military Administrative Court were added to the case file. The first, dated 12 March 2004, established a 5% disability.", "The second, dated 30 April 2004 and communicated to the applicant on 11 May 2004, assessed the applicant’s pecuniary damage at more than TRY 27,438 (approximately EUR 17,150). 13. Having held a public hearing on 7 July 2004, the Supreme Military Administrative Court delivered its judgment on the same day. It ruled in favour of the applicant and awarded him the full amount of his claim in respect of pecuniary damage, namely, TRY 15,000. It awarded him a further TRY 2,000 in respect of non-pecuniary damage.", "The court considered in particular that the conclusions of the expert report of 30 April 2004 were relevant and satisfied the criteria established by its case-law. 14. On 21 November 2004 the applicant applied to the Ministry of Defence for additional compensation in respect of his permanent disability. He claimed that he had only become aware of the extent of his pecuniary damage for the first time on 11 May 2004, when he received the report of 30 April 2004 assessing his pecuniary damage at TRY 27,438. 15.", "On 29 March 2005, following tacit dismissal of the claim by the administrative authorities, the applicant lodged a fresh claim with the Supreme Military Administrative Court for additional compensation, namely, TRY 12,438 (approximately EUR 5,600), on the basis of the expert report of 30 April 2004. He argued that he had received the expert report of 30 April 2004 on 11 May 2004, whereupon he had become aware of the true extent of the damage he had suffered. 16. By a judgment of 22 June 2005 the Supreme Military Administrative Court considered the applicant’s fresh claim to be an application to have the initial amount amended (ıslah) and dismissed it for being out of time. The court stated in particular: “The claimant has clearly sought an amendment of the initial amount.", "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 14 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 and sixty days from the date of referral to 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, this claim must be rejected for being out of time ...” One judge (out of five) expressed a dissenting opinion.", "He stated in particular: “The amount of damage in personal injury cases is established only upon production of an expert report. Moreover, the date on which such reports are confirmed is taken into account when calculating the time-limits for referral to the administrative authorities and for bringing an action ... The claim for additional compensation based on the expert report was lodged within the relevant time-limit because the applicant did not become aware of the extent of the damage until after that report had been issued ....” 17. On 9 September 2005 the applicant lodged an application for rectification of the judgment. 18.", "By a judgment of 16 November 2005, served on the applicant on 28 November 2005, the Supreme Military Administrative Court rejected that application. II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL TEXTS A. Domestic provisions concerning the calculation of time-limits 19. Section 8(2) of the Administrative Procedure Act (Law no.", "2577) and Article 162 of the Code of Civil Procedure provide that if the dies ad quem of a time-limit is a public holiday, that time-limit will be extended to the following working day. B. Relevant international texts 1. The 1969 Vienna Convention on the Law of Treaties 20. Article 31 § 1 of the Vienna Convention, entitled “General Rule of Interpretation”, states that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” 2.", "European Convention on the Calculation of Time-Limits 21. The European Convention on the Calculation of Time-Limits, opened for signature on 16 May 1972 in Basle, came into force on 28 April 1983. It was drawn up with a view to establishing uniform European rules for calculating time-limits on the basis of responses obtained from governments. It applies both domestically and internationally, as clearly stated in the preamble thereto which affirms that “the unification of rules relating to the calculation of time-limits, both for domestic and international purposes”, will contribute to the attainment of greater unity between Council of Europe member States (see the explanatory report). Currently, only four of the ten signatory States have ratified that Convention.", "Turkey has neither signed it nor acceded to it. 22. Article 5 of that Convention provides as follows: “Saturdays, Sundays and official holidays shall count when calculating a time‑limit. However, where the dies ad quem of a time‑limit before the expiry of which an act shall be performed is a Saturday, a Sunday, an official holiday or a day which shall be considered as an official holiday, the time‑limit shall be extended to include the first working day thereafter.” 3. European Union Law 23.", "Article 3 § 4 of Council Regulation (EEC, Euratom) no. 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (Official Journal no. L 124 of 08/06/1971) provides as follows: “Where the last day of a period expressed other than in hours is a public holiday, Sunday or Saturday, the period shall end with the expiry of the last hour of the following working day.” THE LAW 24. Mr Sabri Güneş claimed that the judgment of the Supreme Military Administrative Court dismissing 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. He also complained of a violation of Article 2 of the Convention taken together with Article 13.", "THE GOVERNMENT’S PRELIMINARY OBJECTION 25. In their request for referral to the Grand Chamber, and subsequently in their observations, the Government submitted that the applicant had failed to comply with the six-month time-limit referred to in Article 35 § 1 of the Convention. In particular, they argued that the Chamber’s finding that the time-limit had been complied with was inconsistent with the Court’s well-established case-law. 26. The Court points out that the respondent Government did not raise its objection that the application was out of time at the admissibility stage.", "However, in its final admissibility decision, the Chamber decided to consider the issue of its own motion. The Government raised the six-month rule for the first time in their submissions to the Grand Chamber. The applicant did not rely on Rule 55, which provides that “any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application”. 27. In the light of the foregoing, the Grand Chamber considers that it should first rule on the application of the six-month rule to the instant case.", "In doing so, it must first ascertain whether it has jurisdiction to examine the issue of the applicant’s compliance with the six-month rule, and whether or not the Government are estopped from raising that issue at this stage of the proceedings. A. Whether or not the Court has jurisdiction to examine the issue of the applicant’s compliance with the six-month rule and whether or not the Government are estopped from raising that issue 28. The Court points out that, in accordance with Article 35 § 4 of the Convention, it may “at any stage of the proceedings” reject an application which it considers inadmissible. Thus, even at the merits stage, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, among other authorities, Azinas v. Cyprus [GC], no.", "56679/00, § 32, ECHR 2004‑III, and Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003‑III). 29. The Court has already considered that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply of its own motion (see Assanidze v. Georgia [GC], no. 71503/01, § 160, ECHR 2004‑II), even if the Government have not raised that objection (see Walker v. the United Kingdom (dec.), no.", "34979/97, ECHR 2000‑I). Furthermore, in each case brought before it, the Court must ensure that the application has been lodged in compliance with the six-month time-limit, which the Chamber did in the instant case. That was also the position taken by the Commission, which considered that the Contracting States could not, of their own motion, put aside the rule of compliance with the six-month time-limit (see X v. France, no. 9587/81, Commission decision of 13 December 1982, Decisions and Reports (DR) 29, p. 228, and K. v. Ireland, no. 10416/83, Commission decision of 17 May 1984, DR 38, p. 162, § 6).", "30. Consequently, the Court considers that, notwithstanding the requirements of Rule 55, which must in any case be interpreted in a manner compatible with the Convention, and in particular with Article 32 thereof, the Government are not estopped from raising the issue of the six-month rule before the Grand Chamber (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, §§ 66-69, ECHR 2006‑III). 31. Accordingly, the Grand Chamber has jurisdiction to examine the issue of compliance with the six-month rule.", "B. Compliance with the six-month rule 1. The Chamber judgment 32. The Chamber examined the issue of compliance with the six-month rule of its own motion and concluded that the time-limit provided for by Article 35 § 1 of the Convention had been complied with. In so doing, it first of all pointed out that as regards the determination of the dies a quo – the day on which the six-month time-limit starts to run – the Court had always taken account of domestic law and practice.", "It then decided to apply the principles governing the determination of the dies a quo to the determination of the dies ad quem. In support of its conclusion, it referred to the decision in the case of Fondation Croix-Etoile, Baudin and Delajoux v. Switzerland (no. 24856/94, 11 April 1996), in which the Commission had considered that given that the dies ad quem was an official holiday in domestic law, the time-limit should be extended to the first working day thereafter (see Chamber judgment, § 40). 33. The Chamber further considered that the requirements of legal certainty and protection, which were vital in that area where there was no doubt that the litigants intended in good faith to observe the procedural rules of their domestic law, were best satisfied by taking account of domestic law and practice when calculating the six-month time-limit.", "It considered that such an interpretation implemented the principle of subsidiarity which underpins the Convention system (see Chamber judgment, § 44). 34. Thus, the Chamber observed that the decision of the Supreme Military Administrative Court of 16 November 2005, which constituted the final domestic decision, had been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 § 1 of the Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006. However, as that day was a Sunday, it considered that “... the applicant cannot be criticised for having submitted his application on the first working day following that Sunday, in accordance with domestic custom and practice. Consequently, as far as the Court is concerned, it is more consistent with the purpose and aim of Article 35 to conclude that the six-month time-limit should be extended to the first following working day.", "Accordingly, since the applicant submitted his application on 29 May 2006, the time-limit laid down in Article 35 of the Convention was complied with.” 2. The parties’ submissions to the Grand Chamber 35. As far as the Government were concerned, the application was out of time and should be rejected, in accordance with Article 35 § 1 of the Convention. They argued that the position of the Court as regards calculation of the six-month time-limit had been firmly established in its case-law (see Kadikis (no. 2) v. Latvia, 25 September 2003; Otto v. Germany, 10 November 2009; Benet Czech, spol.", "s.r.o. v. the Czech Republic, 18 May 2010; and Büyükdere and Others v. Turkey, 8 June 2010). The Chamber judgment had not followed that case-law even though the Court should not depart from its precedents without good reason. 36. The Government further challenged the connection made by the Chamber between the interpretation of the six-month rule and the principle of subsidiarity.", "They argued that taking account of domestic custom and practice when calculating that time-limit did not satisfy the requirements of legal certainty and protection which were vital in that area. Any such practice would oblige the Court to draw up a full schedule of official holidays in the forty-seven States Parties to the Convention, which clearly differed from one State to the next and which could also change over time within the same State. 37. The Government challenged the relevance of the instruments cited by the Chamber in its judgment. They argued that those instruments had been ratified by very few countries, were very old and out of touch with the current situation and failed to take into account the development and expansion of the Council of Europe and the European Union.", "Lastly, they argued that the six-month time-limit was sufficient to afford the prospective applicant time to consider whether to lodge a complaint and to decide on the complaints and arguments to be raised. 38. The applicant, for his part, referred to domestic procedural legislation under which time-limits were automatically extended where the last day thereof coincided with a non-working day. Pointing out that the six‑month time-limit available to him in which to lodge an application with the Court had started to run on 28 November 2005 (see paragraph 18 above) and therefore ended on 28 May 2006, he argued that because that second date fell on a Sunday, he had been unable to lodge his application until the first working day thereafter, namely, 29 May, which in his view had been entirely legitimate. 3.", "The Grand Chamber’s assessment a. Relevant general principles 39. The six-month time-limit provided for by Article 35 § 1 has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004).", "It also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see O’Loughlin and Others v. the United Kingdom (dec.), no. 23274/04, 25 August 2005) and facilitates the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Nee v. Ireland (dec.), no. 52787/99, 30 January 2003). 40. That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom (dec.), no.", "34979/97, ECHR 2000‑I). The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see De Becker v. Belgium (dec.), no. 214/56, 9 June 1958). 41. Article 35 § 1 contains an autonomous rule which has to be interpreted and applied in such a manner as to ensure to any applicant claiming to be the victim of a violation by one of the Contracting Parties of one of the rights set forth in the Convention and its Protocols the effective exercise of the right of individual petition pursuant to Article 35 § 1 of the Convention (see Worm v. Austria (dec.), no.", "22714/93, 27 November 1995). 42. The Court reiterates that with regard to procedure and time-limits, legal certainty constitutes a binding requirement which ensures the equality of litigants before the law. That principle is implicit in all the Convention’s Articles and constitutes one of the fundamental elements of the rule of law (see, among other authorities, Beian v. Romania (no. 1), no.", "30658/05, § 39, ECHR 2007‑V (extracts)). b. Determination of the dies ad quem 43. The issue is whether or not, when the dies ad quem of a time-limit set by Article 35 § 1 of the Convention is a Saturday, a Sunday, an official holiday or a day considered to be an official holiday, the time‑limit will be extended to include the first working day thereafter. 44.", "In that connection, it is important to note the relevant established case-law of the European Commission of Human Rights, as it results from the decision in the case of K.C.M. v. the Netherlands (no. 21034/92, Commission decision of 9 January 1995, DR 80‑A, pp. 87-88). Referring to the method of calculating the time-limit used by the Court in its interpretation of the former Article 32 of the Convention which governed the time-limit for lodging an application (see Istituto di Vigilanza v. Italy, 22 September 1993, § 14, Series A no.", "265‑C; Figus Milone v. Italy, 22 September 1993, § 14, Series A no. 265‑D; and Goisis v. Italy, 22 September 1993, § 9, Series A no. 265‑E), the Commission held, in particular, that the six-month time-limit started to run on the day following delivery of the final domestic decision and that it expired six calendar months later, irrespective of the actual length of those months. For example, a final domestic decision delivered on 4 February 1994 entailed a six-month period starting on 5 February of the same year and expiring at midnight on 4 August 1994 (see Hokkanen v. Finland, no. 25159/94, Commission decision of 15 May 1996); a final domestic decision delivered and pronounced on 25 January 1995 entailed a time-limit starting on 26 January of the same year and ending at midnight on 25 July 1995 (see Pollard v. the United Kingdom, dec. no.", "28189/95, Commission decision of 12 April 1996). 45. The method in question was later used in several cases examined by the Commission (see, among many others, Legendre v. France, no. 25924/94, Commission decision of 15 January 1997). The Court specifically followed that approach subsequently (see, among many others, Loveridge v. the United Kingdom (dec.), no.", "39641/98, 23 October 2001; Ataman v. Turkey (dec.), no. 46252/99, 11 September 2001; Zarakolu v. Turkey (dec.), no. 32455/96, 5 November 2002; and Nelson v. the United Kingdom, no. 74961/01, §§ 12-13, 1 April 2008). 46.", "In that context, the question has arisen of which approach to adopt when the last day of the six-month time-limit is a non-working day, namely, a Saturday, a Sunday or an official holiday. 47. In its decision in the case of Fondation Croix-Etoile, Baudin and Delajoux v. Switzerland (cited above), the Commission considered that where the dies ad quem was an official holiday, the time-limit should be extended to the first working day thereafter. 48. However, the Court has not taken account of non-working days in determining the dies ad quem.", "For example, in the case of Kadikis v. Latvia (dec. no. 62393/00, 25 September 2003), the last day of the six-month period was a Saturday. The applicant lodged his application two days later, namely, on the following Monday, claiming that in such circumstances, domestic law provided for an automatic extension of time-limits to the first working day thereafter. The Court rejected that argument, considering that “the six-month time-limit is calculated in accordance with the Convention criteria and not on the basis of the conditions laid down by the domestic law of each respondent State”. 49.", "The Court has confirmed on numerous subsequent occasions the principle that compliance with the six-month time-limit must satisfy the Convention criteria and not the arrangements laid down by the domestic law of each respondent State (see, among many other authorities, Otto, cited above; Benet Czech, spol. s.r.o., cited above; and Büyükdere and Others, cited above). 50. While it is not formally bound to follow any of its previous decisions or judgments, the Court considers that it is in the interest of legal certainty, foreseeability and equality before the law that it should not depart from its own precedents without compelling reason (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I).", "The same is true, a fortiori, with regard to procedural rules, where legal certainty is of particular importance and the Court’s precedents should be followed even more strictly so as to ensure that the requirements of foreseeability and consistency, which serve the interests of all the parties to the proceedings, are met. It is therefore necessary to ascertain whether there are good reasons to justify a departure by the Court from its established case-law and practice as described above. 51. In its judgment, the Chamber pointed out that as regards the determination of the dies a quo, the Court had always taken account of domestic law and practice and it decided to use the same approach in order to determine the dies ad quem (see Chamber judgment, § 40). 52.", "However, in the Grand Chamber’s view, an analysis of the case-law of the Convention institutions reveals that while taking account of domestic law and practice is, admittedly, an important aspect, it is not decisive in determining the starting point of the six-month period. That analysis in fact makes it possible to distinguish two kinds of situations in which the Convention institutions have not taken the same approach. 53. The first situation covers cases concerning the determination of the date on which a final domestic decision, delivered in the context of exhaustion of domestic remedies, has been brought to the attention of the applicant. In the case of Worm (decision cited above), the Government had claimed that the six-month time-limit had not been complied with, arguing that the time-limit should have started running on the date on which the court of appeal read out the final decision.", "However, under Austrian law, the final decision had to be served in writing on the applicant or, as the case may be, the applicant’s representative. In its decision, the Commission, while acknowledging that that case had led it to review the approach it had followed previously, concluded that where under domestic law, the final decision had to be served in writing, the six-month time-limit had to be calculated from the date of service, whether or not the court had read out the relevant decision either in full or in part. The Court subsequently confirmed that approach and held that it was more in line with the object and purpose of Article 35 § 1 for the six-month time-limit to start running on the date of service of a copy of the judgment (see Worm, cited above, § 33). In its subsequent judgments and decisions, it has followed that case-law and has not hesitated to set the starting point for the six-month time-limit taking account of a practice or rule under domestic law in order to give full effect to the need to ensure effective exercise of the right of individual petition (see, among many other authorities, Papachelas v. Greece, no. 31423/96, § 29, ECHR 1999-II concerning the date of finalisation of a decision, and Seher Karataş v. Turkey, no.", "33179/96, § 28, 9 July 2002 concerning notice of a fine). 54. The second type of situation concerns in particular the determination of the starting point in cases in which the alleged violation consists of a “continuing situation” and/or in which there is no effective remedy in domestic law. According to the Court’s settled case-law, in cases of a continuing situation, the period starts to run afresh each day and it is only when that situation ends that the six-month period actually starts to run (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, § 159, ECHR‑2009).", "Likewise, where it is clear from the outset that no effective remedy is available to the applicant, the six-month period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (ibid, § 157). It is therefore a matter for the Court to determine, given what is at stake, when an applicant intending to lodge a complaint before it should lodge that complaint (ibid, § 169). 55. The reason for the variable approach described above lies in the principle that the six-month rule is autonomous and must be construed and applied according to the facts of each individual case, so as to ensure the effective exercise of the right to individual petition (see, among many other authorities, Büyükdağ v. Turkey (dec.), no. 28340/95, 6 April 2000; Fernández-Molina González and 369 Others v. Spain (dec.), no.", "64359/01, 8 October 2002; and Zakrzewska v. Poland, no. 49927/06, § 55, 16 December 2008). 56. Moreover, application by the Court of its own criteria in calculating time-limits, independently of domestic rules, tends to ensure legal certainty, proper administration of justice and thus, the practical and effective functioning of the Convention mechanism. In fact, if in determining the dies ad quem, the Court were bound to take account of domestic law and practice, it would have to draw up a full schedule of official holidays in the forty-seven States Parties to the Convention, which vary from one State to another and even within the same State (see, for example, the case of Stone Court Shipping Company, S.A. v. Spain, no.", "55524/00, § 39, 28 October 2003, where the two autonomous communities involved in the case did not have the same list of official holidays) and may also change over time. 57. Furthermore, having regard to the numerous means of communication now available to potential applicants (post, fax, electronic communication, internet etc. ), the Court considers that the six-month time-limit is, now more than ever, sufficient to enable them to consider whether to lodge an application and, if so, to decide on the content thereof, in accordance with Rule 47 of the Rules of Court. The Court observes that while it is essential for the efficacy of the system that Contracting States comply with their obligation not to hinder the exercise of the right of individual petition, applicants must nonetheless be alert as regards compliance with the relevant procedural rules (see, mutatis mutandis, Varnava and Others, cited above, § 160).", "58. Moreover, the Court notes Council Regulation (EEC, Euratom) of 3 June 1971 determining the rules applicable to periods, dates and time limits (Article 3 § 4) and the European Convention on the Calculation of Time-Limits of 16 May 1972 (Article 5), which to date has been ratified by only four of the ten signatory States (see paragraphs 20-23 above). However, given the requirements of legal certainty as regards procedure and time-limits, and in so far as it would be difficult to conclude that there is a general consensus between Council of Europe Member States as regards the calculation of time-limits, the Court considers that it should follow its established approach. 59. In the light of the foregoing, the Court sees no reason to justify departing from the precedents described above (see paragraph 49).", "c. Conclusion 60. It is sufficient to observe that, in the instant case, the final decision of the Supreme Military Administrative Court of 16 November 2005 was served on the applicant on 28 November 2005. The time-limit laid down by Article 35 § 1 of the Convention therefore started to run on the following day, 29 November, and expired at midnight on Sunday 28 May 2006. The application was lodged on 29 May 2006, that is, after the expiry of the above-mentioned time-limit. 61.", "As far as the Court is concerned, the fact that the last day of the six‑month time-limit, that is, 28 May 2006, fell on a Sunday and that in such circumstances, under domestic law, time-limits are extended to the following working day, does not affect the determination of the dies ad quem. The Court reiterates that compliance with the six-month time-limit is determined using criteria specific to the Convention. Furthermore, considering the time-limit provided for in Article 35 § 1 of the Convention, there is no indication in this case that the applicant, who was represented by a lawyer who should have been aware of the Court’s case-law in this regard, could not have foreseen that the dies ad quem would fall on a non-working day and acted accordingly (see Otto, cited above, and Büyükdere and Others, cited above, § 10). 62. Consequently, because this application was lodged more than six months after service of the final domestic decision within the meaning of Article 35 § 1 of the Convention, the Court is unable to examine the merits of the case.", "FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that it is unable to examine the merits of the case. Done in English and in French, and notified in writing on 29 June 2012. Johan CallewaertNicolas BratzaDeputy to the RegistrarPresident [1]1. All conversions into euros in this judgment have been made on the basis of the rate of exchange in force at the material time." ]

[ "FOURTH SECTION CASE OF SELISTÖ v. FINLAND (Application no. 56767/00) JUDGMENT STRASBOURG 16 November 2004 FINAL 16/02/2005 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 Selistö v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrM. Pellonpää,MrJ.", "Casadevall,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrsE. Fura-Sandström, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 10 February 2004, 1 June 2004 and on 26 October 2004, Delivers the following judgment, which was adopted on the last mentioned date: PROCEDURE 1.", "The case originated in an application (no. 56767/00) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Ms Seija Selistö, on 9 April 2000. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen, Director, Ministry for Foreign Affairs. 3.", "The applicant alleged, in particular, that her conviction of defamation violated Article 10 of the Convention. 4. 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. 5.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 10 February 2004 (Rule 59 § 3). 6. By a decision of 10 February 2004, following the hearing on admissibility and the merits (Rule 54 § 3), the Court declared the application partly admissible. There appeared before the Court: (a) for the GovernmentMrA. Kosonen, Director, Ministry for Foreign AffairsAgent,MrI.", "Hannula, Counsellor of Legislation,Adviser,MrsL. Leikas, Legal Officer,Adviser (b) for the applicantMrM. Wuori, advocate,Counsel,MrR. Ryti, advocate,Adviser THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The applicant was born in 1941 and lives in Vaasa, Finland. 8. The applicant is a journalist at the regional daily Pohjalainen which is published in Vaasa. In two articles published in January and February 1996 she described the allegedly unprofessional behaviour of an unnamed surgeon, “X”, which allegedly had caused the death of a patient in the Seinäjoki Central Hospital on 7 December 1992. The patient's top rib had been pressing on her artery, thereby hampering the blood flow in her left arm which would occasionally go numb.", "The surgery had consisted of shortening the top rib by 5-8 centimetres. Complications had arisen after the rib had been shortened and the patient was established to have died from the bursting of her subclavian vein and the blood flow into her pleural cavity. 9. The patient's widower, Mr Haapalainen, had filed a criminal complaint against X and another surgeon who had assisted during the operation. The National Medico-Legal Board (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården) had not found it possible to establish at what stage of her operation Mrs Haapalainen had suffered the injury leading to her death.", "Consequently, no causal link could be established between the injury and the conduct of either of the two surgeons. 10. The Central Criminal Police had conducted a pre-trial investigation into the death. In April 1994 the Vaasa County Prosecutor had decided not to press charges against X, as there was no evidence that he was guilty either of an offence in office caused by negligence or of involuntary manslaughter. The prosecutor had reasoned, inter alia, as follows: “... From the point of view of criminal law it must be examined whether the subclavian vein burst as a result of conduct of which someone may be held guilty and whether errors were committed during the after-care.", "... The [expert] opinions have not found that the subclavian vein burst as a result of maltreatment or negligence attributable to [X] or the other operating surgeon. ... [The pre-trial record contains] a number of statements concerning [X's] possible alcohol consumption. ... In respect of the day of the operation the information is contradictory.", "... Therefore there is insufficient evidence to find that [X] was under the influence of alcohol while operating on Mrs Haapalainen and that such influence affected his ability to carry out his duties. ... Nor has it been possible to determine whether [X's] shaking hands impacted in any significant way on the conduct of his surgery. ...” 11.", "The applicant's first article of 4 January 1996 bore the title “If only I could get a good grip on life again” (Kun saisi vielä joskus elämästä kunnolla kiinni). It contained an interview with Mr Haapalainen. The text accompanying his picture read as follows: “How is it possible that a surgeon is allowed to conduct surgery with alcohol in his blood – is it not a fact that pilots only get to manoeuvre a plane when they are absolutely sober, wonders Jorma Haapalainen, who lost his wife.” The introductory text on the front page bore the title: “How to survive all of this? (Miten tästä kaikesta selviää?). It read as follows: “Jorma Haapalainen, a father of two in Old Vaasa is trying to get a grip on his life again.", "Three years ago the wet Independence Day of a Seinäjoki surgeon cost the life of [Mr Haapalainen's] wife. – Whose is the responsibility, asks Jorma.” The front page also carried a picture of the couple. 12. On 9 January 1996 Pohjalainen published a second article by the applicant entitled: “A position of responsibility never goes with alcohol” (Vastuullinen työ ja alkoholi eivät koskaan sovi yhteen). It contained interviews with the Chief Physician of the Helsinki University Hospital and a Chief Controller of Finnair and discussed the need for surgeons and pilots to be sober and also otherwise in an appropriate condition in order to perform their tasks.", "The article made no reference to the previous article, nor did it mention Mr or Mrs Haapalainen or X 13. A third article by the applicant – published on 27 February 1996 – was entitled “The case of Eeva did teach us something” (Jotakin Eevan tapaus sentään opetti) and made reference to her article of 4 January 1996. It read, inter alia, as follows: “[The article of 4 January] raised the question of patient safety: how was it possible that a relatively young woman in good shape died from routine surgery. The pre-trial records speak, among other things, of the wrong form of collegiality. ...” Under the subheadings “We were concerned for our patients” and “Complications arose after the surgeries” the article cited four extracts from statements by hospital staff heard during the pre-trial investigation.", "The extracts read, inter alia as follows: “'Surgeon X has been the specialist doctor on the ward for two years and a half. Soon after he came to work here alcohol-related problems occurred. Often he had a visible hangover, which showed in his not being neatly dressed, in his reddish and swollen face, in his shaking hands and in his breath which smelled freshly of alcohol.' 'We were concerned for the patients on whom surgeon X was operating. The Monday mornings were the worst, when [his] hands were also shaking the most.", "We would inform the other doctors on the ward of our observations, mainly Dr Y and Dr Z. In particular before a more important surgery we would ask another doctor to attend it. On many occasions Dr Y and Dr Z would attend because we had so requested.' 'The patients operated on by surgeon X have suffered from more post-operative complications. The patients have had bleeding.", "...' 'Apparently patients have also made their own observations: I remember the case of a patient – due to arrive for an operation – who enquired who was going to operate on him. Since no surgeon had yet been designated, the patient informed us he would not come at all, unless Dr Z would perform the surgery. After the incident on 7 December 1992 we have been receiving many telephone calls like this one ...' These unpolished statements can be found in the pre-trial record drawn up by the Vaasa branch of the Central Criminal Police. [The record] is a public document and may therefore be cited in this newspaper. ...” Under a subheading entitled “Dubious appointment” (Valinta hiersi) the article described certain hesitations which had preceded X's appointment in 1990.", "Under a subheading entitled “The best interests of the patient seem to have been forgotten” (Potilaan paras taisi unohtua) the article continued as follows: “The pre-trial records clearly reflect the collegiality within the medical team, as shown in a wish to cover up a colleague's clear problem. ... A nurse who attended the round [preceding Mrs Haapalainen's operation] attempted to remedy the situation: 'During the round surgeon X came over to my left side. Then I noticed that he was clearly drunk. ... I tried to establish eye contact with the other doctors in order to indicate [my concern] to them.", "I got no such opportunity. I even tried to have one of the two other doctors stay behind after the round but they had already gone off to the coffee room.' ... The pre-trial record gives the impression that the memory of either of the two [surgeons] is failing. Even the Board for Patient Injuries arrive[d] at the conclusion that no one [could] be considered guilty, though, sadly, the patient died.", "Judging from [an X-ray] picture, the piece of bone [osteophyte] which remained inside [Mrs Haapalainen] after the operation was at any rate so sharp that it could have been fatal in itself even at a later stage. ...” The article of 27 February 1996 then continued with statements by chief physicians and chief surgeons of four central university hospitals, essentially reassuring the reader that a surgeon who was drunk, ill or just tired would not be allowed to operate. Finally, the article contained a statement by the Chief Physician of the Seinäjoki Hospital “who at the time took a rather humane, even though strict approach”: “When more serious problems started occurring in surgeon X's work, we established another parallel position for a surgeon specialised in the same field, and things started working well. After [Mrs Haapalainen's] death, surgeon X was prohibited from operating for two years. In the beginning when he came to work he had to perform a breathalyser test.", "– Now surgeon X is the physician responsible for one of the wards and occasionally assists during surgery. Everything has been going well: even his hands are no longer shaking.” The article was illustrated with a drawing depicting a seemingly intoxicated surgeon using a pen to mark where to cut open the patient's stomach. 14. The public prosecutor, joined by X, charged the applicant before the Vaasa District Court (käräjäoikeus, tingsrätt) on two counts of intentional defamation. In the article of 4 January 1996 she had defamed X “without better knowledge” (ei vastoin parempaa tietoa, icke emot bättre vetande).", "In the article of 27 February 1996 she had defamed X “despite better knowledge” (vastoin parempaa tietoa, emot bättre vetande), that is to say by imputing an offence to him whilst knowing that he had not committed one. 15. The editor-in-chief of Pohjalainen, Mr Elenius, was charged with negligent abuse of the freedom of the press (painovapauden tuottamuksellinen väärinkäyttö, vållande till missbruk av yttrandefriheten) within the meaning of section 32 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslag 1/1919). The prosecution argued that, regardless of the fact that he had become aware of the possibility that the applicant's article of 4 January 1996 might have defamed X and of the fact that the applicant was intending to write a further article, he had failed to supervise the publication of the applicant's article of 27 February 1996 by demanding that the article be approved by him. 16.", "The applicant denied both charges, arguing that X could not have been identified on the basis of her articles and that she had not even been aware of his identity when writing her first article. That article had concentrated on describing Mr Haapalainen's feelings as the surviving widower, whereas the article of 27 February 1996 had discussed patient safety. She had quoted from official documents and her articles had not forced X to close his private practice, as alleged by him. Mr Elenius also denied the charges against him, stating inter alia that after the first article had been published he had offered to publish a response by X. No such response had been forthcoming.", "The articles had been based on various sources and official documents accessible to the public. Moreover, the press was entitled to deal with the activities of a public hospital and patient security within such institutions. 17. On 14 September 1998 the District Court, relying on chapter 27, section 1, of the Penal Code (rikoslaki, strafflag) as in force at the relevant time, convicted the applicant of defamation committed “despite better knowledge” and by using a printed matter (painotuotteen kautta vastoin parempaa tietoa tehty herjaus, smädelse genom tryckalster emot bättre vetande). The conviction was grounded only on her article of 27 February 1996, whereas she was acquitted of defamation committed “without better knowledge” by means of her article of 4 January 1996.", "She was sentenced to 25 daily income-based fines at the rate of 166 Finnish Marks (FIM) (corresponding to 27.90 euros (EUR)), totalling FIM 4.150 (EUR 698). 18. Mr Elenius was convicted as charged and sentenced to 12 daily fines at the rate of FIM 333 (EUR 56), totalling FIM 3,996 (EUR 672). 19. The defendants were ordered to reimburse jointly a witness fee in the amount of FIM 685.90 (EUR 115.36) as well as the complainant's legal costs in the amount of FIM 20,276 (EUR 3,410.20).", "20. In examining the charges against the applicant as based on her article of 4 January 1996, the District Court took note of the banner headline and picture texts as well as of a third statement appearing in the text and which found it strange that nobody had intervened to prevent the surgeon from conducting the operation, even though everyone must have seen in what condition he was. The last-mentioned statement and the picture text had to be understood as having been expressed by Mr Haapalainen. The article had contained an allegation that the surgeon had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen and that this had led to her death, without specifying in any detail why. The District Court further found that as the article of 4 January 1996 had contained a statement to the effect that the surgeon had been prohibited from conducting further operations, it had given the reader the impression that he or she had been punished for some sort of breach of official duties.", "21. Turning to the article of 27 February 1996, the District Court noted that it had contained a reference to the first one and had asked how it was possible that a relatively young woman in good physical condition could die as a result of a routine surgery. The article had then cited statements from the pre-trial record which had discussed the surgeon's alcohol problem and the attitude of hospitals to that problem generally. Moreover, although the National Medico-Legal Board[1] had been of the opinion that no one could be considered guilty of Mrs Haapalainen's death, the osteophyte which had remained in her body after the operation could have been fatal at any later stage. The article of 27 February 1996 had given the reader the impression that the surgeon had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen.", "The final statement in that article – to the effect that “surgeon X was now doing fine” – strengthened the impression that his or her alcohol problem had been acute at the time of the operation in question. Even though the article's reference to a sharp osteophyte had been somewhat misleading in light of the National Medico-Legal Board's opinion, this article had not taken any position as to the cause of Mrs Haapalainen's death. The District Court further found that even though X could not have been identified on the basis of the first article, the article of 27 February 1996 did render him identifiable to his potential clients in the Seinäjoki area. 22. Considering the fact that the articles had been published in a daily with an interval of some six weeks between them, the applicant's possible guilt had to be determined in respect of each of the articles.", "Her first article had been based solely on information provided by Mr Haapalainen, although already then she had been aware both that a police investigation had been conducted into the suspected maltreatment and that the public prosecutor had decided not to bring charges against the operating surgeon. Subsequently, but before writing her article of 27 February 1996, she had obtained from the office of the Central Criminal Police the complete pre-trial investigation record, the opinion of the National Medico-Legal Board and the County Prosecutor's decision. 23. In elaborating on the applicant's possible guilt the court reasoned as follows: “The court acknowledges the freedom of the press to report critically on hospitals and, among other issues, on any alcohol abuse that might have been established in such an institution. A critical reviewer must nevertheless bear in mind that his or her statements may amount to criminal defamation.", "The readership has the right to expect that the facts forming the basis of an article have been verified and that any erroneous piece of information has been corrected. The persons dealt with in the articles are entitled to demand that they be based on correct facts and a person who has been criticised must be given the right to respond. These principles are also to be found in the ethical guidelines adopted within the [journalistic] profession. Ms Selistö's conduct does not meet the aforementioned criteria. The surgery performed by [X] has been carefully scrutinised without any error [on his part] having been established.", "Regardless of this, Ms Selistö's article [of 27 February 1996] contains a groundless allegation that the surgeon conducted an operation in a drunken state or while suffering from a hangover. When writing her article [of 27 February 1996] Ms Selistö had become aware that it was capable of subjecting the surgeon who had operated Mrs Haapalainen to contempt and of damaging his livelihood. The article [of 27 February 1996] contains many direct quotations from the pre-trial record ... which had been made public – in particular from the statements of a nurse. The court does not find that this renders Ms Selistö's conduct less reprehensible. The large pre-trial investigation material contains elements pro and contra and in the overall assessment, for example in the County Prosecutor's reasons, the statements of the nurse in question have not been given any weight.", "Ms Selistö selected only those elements that supported her [own] opinion without clearly stating that the National Medico-Legal Board had provided a reasoned opinion and that the County Prosecutor had made a reasoned decision not to bring charges. In the District Court's view the statements of the nurse arguably could have been used in an article discussing, at a general level, the alcohol problems existing in hospitals. In the article now in question the nurse's statements have been reported together with the death of Mrs Haapalainen. In the Supreme Court's precedent no. 1971 II 77 the defendants were convicted of defamation for not having checked the veracity of information contained in a circular before dispatching it.", "The District Court finds that Ms Selistö had no reasonable cause to believe that the allegations contained in the article [of 27 February 1996] were true. [She] could and should have verified the facts of the story. [Her] negligence in this respect is attributable to her as an intentional offence. ...” 24. On 26 May 1999 the Vaasa Court of Appeal (hovioikeus, hovrätt), after a re-hearing, found the applicant guilty of continued defamation “despite better knowledge” and by using a printed matter.", "Her sentence was increased to 50 daily fines, totalling FIM 8,300 (EUR 1,396). Mr Elenius was likewise found guilty of negligent abuse of the freedom of the press and his sentence was increased to 25 daily fines, totalling FIM 8,325 (EUR 1,400). 25. The appellate court considered that the allegation against X which had appeared in the articles had been particularly serious, had defamed his honour fundamentally and had diminished his social status and professional prospects. The articles had been visibly published in a mass medium, where they had been given much print space.", "In light of the general sentencing practice, the defendants' conduct as well as the nature and seriousness of the defaming statement, the sentences inflicted by the District Court had been too lenient. 26. The appellate court considered that the applicant's articles had been so linked together, both by their substance and by the local circumstances they had dealt with, that the two alleged forms of defamation had to be considered as one single act. The court reasoned, inter alia, as follows: “Ms Selistö and Mr Elenius have argued that the subject of patient safety which had been discussed, in particular, in the article of 27 February 1996 is such an important issue in society that the press must be entitled to express even strong criticism without being prevented from doing so by the criminal law provisions on defamation. [They] have further argued that they had strong and plausible grounds for believing that the information published in the articles had been truthful.", "Public health care is a societal issue of such magnitude as to entitle the press to express criticism. Given his position as a practising surgeon in a public hospital, [X's] activities were of such public-office nature that he had to accept even strong criticism of his behaviour. That criticism nevertheless had to be appropriate and based on facts. A mass medium may not always be able to obtain a confirmation of the absolute veracity of information to be published. The information to be published must at any rate be sufficiently grounded and all negative allegations or allegations directed against a specific person which may be defamatory when published, must be examined critically.", "Confirmation of the veracity of the allegations should as far as possible be sought from more than one source. The more serious and hurtful the criticism, the stronger the duty to have the truthfulness of information confirmed. ... The information gleaned from the interview with Mr Haapalainen and the elements selected from the pre-trial investigation record, all of which supported the view that [X's] conduct had been reprehensible, was not such reliable information as to provide Ms Selistö with sufficient grounds for the allegations contained in her article of 27 February 1996 and for the tone thereof. In addition, Ms Selistö has conceded that at the time of writing that article she had been aware of the conclusion reached by the National Medico-Legal Board in its opinion as well as of the fact that [X] had not been charged.", "Ms Selistö nonetheless failed to verify in detail the terms of [the Board's] opinion as well as of the outcome of the pre-trial investigation, even though that could easily have been done. In these circumstances Ms Selistö must be found to have accused, in the articles of 4 January and 27 February 1996, a person identifiable as [X] of an offence as well as of reprehensible conduct, without having verified the allegations and without having had any objectively weighty grounds or likely reasons for considering the defamatory allegations truthful. [X] was not given the possibility of presenting his views in respect of either article. ... ... Even though [X] was not named in the articles, the information stated therein was so detailed that [he] could nevertheless be recognised as the surgeon whom the articles had concerned.", "...” 27. On 18 October 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused Ms Selistö and Mr Elenius leave to appeal. 28. On 22 March 2001 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) responded to a petition by Mr Haapalainen. She noted, inter alia, that the National Medico-Legal Board had initiated an inquiry into X's professional conduct in the beginning of 1994.", "He had been prohibited from conducting surgeries until September 1995, when he had been found capable of resuming his work as a surgeon. As for the County Prosecutor's decision not to press charges against X the Deputy Ombudsman found that a conclusion to the contrary would have been more justified as suspicions concerning gross maltreatment should preferably be examined by a court of law. She stated that this was not tantamount to a finding that the County Prosecutor had overstepped his margin of discretion in breach of the law or his duties. In any case the legal successors of Mrs Haapalainen had enjoyed an independent right to bring private prosecution proceedings. The case had been investigated as suspected manslaughter, for which any criminal proceedings had been time-barred already by the time of the petition.", "While the Deputy Ombudsman still had the right to bring charges for aggravated manslaughter, she concluded that this was no longer appropriate. II. RELEVANT DOMESTIC LAW 29. Article 8, subsection 1 (969/1995) of the 1919 Constitution (Suomen hallitusmuoto, regeringsformen för Finland), as in force at the relevant time, stipulated that the private life, honour and home of every person was to be secured. This provision corresponds to Article 10 of the Constitution of 2000 (perustuslaki, grundlagen; Act 731/1999 which entered into force on 1 March 2000).", "30. Article 10 of the Constitution stipulated the following: “Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.", "Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.” The same provision appears in the current Constitution of 2000 (section 12). 31. According to chapter 27, section 1, of the Penal Code, as in force at the relevant time, a person alleging, contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation. If the defamation took place in public or, for example, by means of a printed matter, the sentence could be increased.", "Under chapter 27, section 2 of the Penal Code, as in force at the relevant time, a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation. 32. The current chapter 24, section 9, subsection 2 of the Penal Code, as amended by Act no. 531/2000, provides that where criticism is aimed at the conduct of another person in his or her political or business activity, public office or function, scientific, artistic or other comparable public activity, and where this criticism clearly does not exceed the limits of acceptable conduct, it shall not be considered defamation within the meaning of subsection 1. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicant complained that her conviction for defamation of X. violated Article 10 of the Convention which 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.” 34. The Court notes that it was common ground between the parties that the applicant's conviction constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Furthermore, there was no dispute that the interference was prescribed by law and pursued a legitimate aim, namely the protection of the reputation or rights of others, within the meaning of Article 10 § 2. The Court endorses this assessment. 35.", "The dispute in the case relates to the question whether the interference was “necessary in a democratic society.” A. The parties' submissions 1. The applicant 36. The applicant maintained that the impugned measures were based on factual statements, not on value judgments. She argued that the thrust of her articles concerned the alarming circumstances surrounding the death of a patient, possibly resulting from gross negligence on the part of medical staff.", "This was a matter of considerable public interest. The quality of her journalism had been impeccable and she had acted in good faith. No names of medical staff had been disclosed. The sanction inflicted on her was disproportionate to the legitimate aim invoked by the Government and was likely to discourage critical journalism or to curtail it in a manner which was not necessary in a democratic society. 37.", "The applicant submitted that she succeeded in obscuring the identity of the surgeon in question, as was demonstrated by the fact that three of X's colleagues at the same hospital immediately reacted to the reportage in question as they had inferred that they had been singled out and targeted, thus also illustrating the applicant's point that the case described in the reportage was neither unique nor exceptional, but a symptom of a more wide-spread and serious problem. 38. The purpose of the articles was to present a cautionary example with a view to preventing such gross negligence from happening in the future, without any intent to identify or focus on the person of X. Thus, an interview with X was out of the question even though it was good journalistic practice not to publish anonymous interviews or commentary by persons directly involved in a topical issue. It would have been illogical to avoid, on the one hand, disclosure of the identity of surgeon X while distributing the statements by him on the specifics of a given operation, on the other.", "X was in any case unwilling from the very beginning to co-operate in establishing the facts of the case. The applicant maintained that both she and the editor of Pohjalainen offered X an opportunity to comment on the article(s). They were also prepared to publish any comment or rejoinder that X might have wished to make, but with the proviso that that specific observations on the details of a concrete case could not be published anonymously, as this would have been contrary to the most elementary rules of good journalistic practice. After the publication of the first article there was contact from X simply asking for pecuniary compensation, without any request for specific corrections to the information as such. Further, shortly before the editor's, Mr Elenius's, last working day as editor-in-chief (i.e.", "24 April 1996), and before the District Court proceedings, the applicant and Mr Elenius each in turn proposed that X draft a rejoinder to be published in the paper. Both proposals were rejected, on the grounds that if X drafted a rejoinder to the articles, his identity could become known, while X's claim was based on the fact that X had already been identified. The applicant concluded that she and Mr Elenius had demonstrated sufficient willingness to accommodate any factual or other views on the concrete substance of the articles that X may have wanted to articulate. 2. The Government 39.", "The Government submitted that the paramount issue was whether the national authorities correctly exercised their discretion when they convicted the applicant for being in breach of her obligation to provide the public with bona fide information. Though her articles did raise the general problem of ensuring that surgeons did not operate on patients when in an intoxicated condition, her articles did not discuss problems of health care as such but focused on a particular person and a particular case. They maintained that only a very minor part of the articles concerned the general problem of ensuring that operating surgeons were not in an intoxicated condition. Even assuming that the articles in question concerned a matter of general interest, the very severe allegations targeted at X, who was never convicted or even officially accused of any wrong-doing, could not be seen as contributing to public discussion. 40.", "The Government also submitted that the articles intentionally quoted only certain parts of the pre-trial investigation records, leaving the overall impression that, as was noted by the Court of Appeal, Mrs Haapalainen's death was attributable to X due to the latter's intoxicated state and negligence. As was further noted by the Court of Appeal, the applicant used the information concerning X's alcohol consumption in a selective manner, failing to mention the public prosecutor's decision not to press charges. By nevertheless publicly alleging that the patient's death had been attributable to X the applicant failed in her obligation to verify the truth of the factual allegation in question. 41. The Government further pointed out that, while she did have access to this information and was not under pressure of time, the applicant omitted to mention the National Medico-Legal Board's conclusions of 30 August 1993, according to which no negligence or mistake had been found in the treatment of Mrs Haapalainen.", "42. Moreover, the Court of Appeal noted that while the articles did not mention X by name, they did provide such detailed information as to render it possible for others to identify him. In the Government's opinion X was not only identifiable in his working place, the hospital where over 2,000 persons work, but also in his town of residence and in his home town. 43. The Government emphasised that the applicant admitted in the Court of Appeal that she did not try to verify the facts given to her by the widower of Mrs Haapalainen as regards the first article (of 4 January 1996).", "They maintained that after the publication of this article another person, subsequently heard as a witness in the trials, contacted the applicant naming surgeon X and requesting her to interview X on the issue and issue a rectification of the facts. According to the Government the applicant refused to contact X, stating that the Letters to the Editor-section (yleisönosasto, insändarspalt) was available for commentary. In the Government's view, writing a letter to be published would have revealed X's identity and had he commented on a specific case, he would have violated his obligation of professional secrecy and the right to privacy of the patient in question, e.g., mentioning the patient's repeated refusal of blood transfusion on the grounds of religious conviction. Moreover, the Court of Appeal's judgment confirmed that an opportunity to comment on an article afterwards did not alter liability for an offence that had already been committed. 44.", "As regards the article of 27 February 1996, the applicant did not, in the Government's opinion, offer the draft to X for verification of the facts in advance. After the publication of the second article the editor of the newspaper was approached by phone by the same person that had approached the applicant previously. Also X's lawyer contacted the editor in writing in order to discuss the procedures to avoid legal action. The editor refused to comply with the request to apologise and to publish a correction and pay compensation to X. 45.", "The Government concluded that the Court of Appeal, when finding the interest in protecting X's reputation outweighing the applicant's freedom of expression, relied on reasons which could reasonably be regarded as “relevant and sufficient” for the purposes of Article 10. B. The Court's assessment 1. General principles 46. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and 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” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49 and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37). This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be construed strictly.", "The need for any restrictions must be established convincingly. 47. 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) judgment of 26 April 1979, Series A no. 30, p. 38, § 62).", "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, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII). 48.", "The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, 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 the Jersild v. Denmark, cited above pp. 23-24, § 31, the De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997‑I, pp. 233-34, § 37, and the Bladet Tromsø and Stensaas judgment cited above, § 59). Not only does it have the task of imparting such information and ideas: the public also has a right to receive them (see Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no.", "239, p. 27, § 63). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see the Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38, and the Bladet Tromsø and Stensaas judgment cited above, § 59). In cases such as the present one, the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “public watchdog” by imparting information of serious public concern. 49.", "The Court's 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 Bergens Tidende and Others v. Norway, no. 26132/95, § 50, ECHR 2000‑IV). 2. Application in the present case 50. As noted above (see paragraph 35) the principal issue in the present case is whether the interference with the applicant's freedom of expression was “necessary in a democratic society”.", "In particular the Court must determine whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). 51. The Court observes at the outset that the impugned articles, which recounted the personal experiences of the surviving widower as well as matters of patient safety, concerned an important aspect of health care and as such raised serious issues affecting the public interest (see Bergens Tidende and Others v. Norway, cited above, § 51).", "The Court is unable to accept the Government's submission that only a very minor part of the articles concerned the general problem of ensuring that operating surgeons were not in an intoxicated condition. 52. The Court notes that the articles of 9 January and 27 February 1996 were closely connected in that the latter article contained a reference to the first article. The article of 9 January 1996 discussed the necessity to be sober in the working place and existing safeguards in the contexts of hospital environment and air traffic. The purpose of the three articles was to discuss the general problem of alcohol consumption while working, a matter which is obviously of great public concern.", "The fact that the first and the third article dealt with a particular case, namely the operation on Mrs Haapalainen and its surrounding circumstances, does not alter this conclusion. It is natural in journalism that an individual case is chosen to illustrate a wider issue. 53. Where, as in the present case, measures taken by the national authorities are capable of discouraging the press from disseminating information on matters of legitimate public concern, careful scrutiny of the proportionality of the measures on the part of the Court is called for. 54.", "The Court reiterates that Article 10 of the Convention does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article, the exercise of this freedom carries with it “duties and responsibilities” which also apply to the press. These “duties and responsibilities” assume significance when, as in the present case, there is a question of attacking the reputation of private individuals and undermining the “rights of others” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999‑III). By reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, 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 in order to provide accurate and reliable information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no.", "29183/95, § 54, ECHR 1999‑I). 55. The Court endorses the parties' consensus that the articles concerned factual statements and not value judgments. A distinction is necessary, as the existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, § 46).", "As the issues in the present case concerned factual statements it is of great importance that the duties and responsibilities mentioned above were respected. 56. In order to assess whether the “necessity” of the restriction of the exercise of the freedom of expression has been established convincingly, the Court must examine the issue essentially from the standpoint of the reasoning adopted by the domestic courts. It must thus be assessed whether the applicant's conviction struck a fair balance between the public interests involved and the interests of X. 57.", "The Court first notes that to a large degree the national courts did not find that the facts presented in the articles had been erroneous as such. The applicant's conviction was based more on what was not mentioned (i.e. the public prosecutor's decision not to press charges and the statement of the National Medico-Legal Board) and on some assertions included in the texts, and the overall impression thus conveyed to the reader. The District Court found that the article of 4 January 1996 contained an allegation that X was drunk or suffering from a hangover during the surgical operation and that this led to Mrs Haapalainen's death. Reference to the ban on X performing operations in the future gave the reader the impression that X had been subjected to some sort of a punishment for his mistake.", "As regards the article of 27 February 1996 the District Court found that although it contained discussion about the general subject of hospitals' attitude towards drinking problems, it strengthened the impression that X had had an alcohol problem at the time of the operation, and was drunk or suffering from a hangover while operating. It further found that X could be identified based on the information contained in the articles. It noted, inter alia, that before writing the article of 27 February 1996 the applicant was familiar with the decision not to press charges and with the National Medico-Legal Board's statement, according to which no neglect or erroneous measures had been substantiated. Against this background the District Court found that the allegation in the article of 27 February 1996 about X's drunkenness or hangover was groundless and that the applicant had neglected to verify the facts appropriately. The Court of Appeal found that the quotations from the pre-trial records were selective and that the overall attitude and tone of the article of 27 February 1996 was disapproving and condemnatory.", "It considered that the National Medico-Legal Board's conclusion was mentioned sarcastically and that the article failed to include the decision not to press charges against X. The notice in the article about the fact that nobody could be held responsible for Mrs Haapalainen's death did not, in the Court of Appeal's opinion, eliminate the libellous character of the article. It also found that the details provided in the articles were so precise that X could be identified at least in his working environment and also by members of the general public. While acknowledging that X had to endure even severe criticism as a civil servant the Court of Appeal found that the applicant had failed to verify the facts appropriately. It also pointed out that X had not been given an opportunity to present his observations on the contested articles.", "58. The Court does not find it necessary to resolve the question as to how the newspaper articles would be interpreted by the ordinary reader. Its function is rather to determine whether, considering the impugned articles in the wider context of the Pohjalainen's coverage as a whole, the measures applied by the Court of Appeal, including the award of damages, were proportionate to the legitimate aim pursued. 59. The Court observes that the first article was based on the interview of the widower, Mr Haapalainen.", "It recalls that news reporting based on interviews constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog”. The methods of objective and balanced reporting may vary considerably, depending among other things on the medium in question; 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 by journalists (see the Jersild judgment cited above, pp. 23-25, §§ 31 and 34). The Court notes that the text accompanying the picture of Mr Haapalainen (see paragraph 11 above), questioning “how is it possible that a surgeon is allowed to conduct surgery with alcohol in his blood ...” is an expression used by Mr Haapalainen, reflecting his own understandable perception of the matter. Reading the articles as a whole, the Court cannot find that this statement was excessive or misleading.", "60. The Court attaches considerable weight to the fact that it has not been claimed that the actual facts in the contested articles were erroneous as such. It is also of importance that the depicted events and quotations in the article of 27 February 1996 were derived from the police's pre-trial record, which was a public document. In the Court's opinion no general duty to verify the veracity of statements contained in such documents can be imposed on reporters and other members of the media, who must be free to report on events based on information gathered from official sources. If this were not the case the efficacy of Article 10 of the Convention would to a large degree be lost.", "61. The Court also notes that an important argument supporting the applicant's conviction was the assessment that the factual statements in the article of 27 February 1996 were selective. It observes that in the article it was maintained that the pre-trial records clearly reflected the collegiality within the medical team and criticised that this was failing to address the danger to patient safety. In the Court's opinion the fact that the quotations in the article only comprised some of the pre-trial statements of a nurse, present at the operation in question, and that there were no quotations from the other persons present during that operation, who had not perceived signs of the alleged drunkenness or hangover, gives rise to the impression that the reporting was somewhat one-sided. The fact however remains that the reporting was based on information included in the public pre-trial records.", "It further attaches weight to the fact that the article did mention that “even the Board for Patient Injuries arrive[d] at the conclusion that no one [could] be considered guilty, though, sadly, the patient died.” Unlike the Court of Appeal, the Court cannot regard this statement in its context as purely sarcastic. Despite the fact that it contained an apparently unintended error in that the National Medico-Legal Board was referred to as the Board of Patient Injuries, it nevertheless acknowledged the fact that no breaches of official duties had been substantiated as regards X. 62. The fact that the decision not to press charges against X was not mentioned in the article is nevertheless problematical. As mentioned above, the article of 27 February 1996 did mention that “no one [could] be considered guilty”, but this assertion was made in connection with the National Medico-Legal Board's conclusions.", "In any case there was no express mention of the waiver of charges although it is common ground between the parties that the applicant was aware of that decision before writing the article. It is observed however that in the Court of Appeal the applicant testified that although aware of the decision, she obtained a copy of the decision only after the publication of 27 February 1996. In evaluating the importance of this fact the Court has taken into account the Deputy Parliamentary Ombudsman's decision of 22 March 2001. Although the Deputy Parliamentary Ombudsman did not expressly state her opinion concerning the lawfulness of X's actions and she refrained from bringing an action herself, her decision nevertheless supports the view that based on the pre-trial records a court ruling would have been preferable and, thus, that there were relevant reasons to press charges against X. This finding lends support to the approach to the facts taken by the applicant in the contested articles, or, at the very least, suggests that the content of the articles had not been erroneous or that the applicant had not failed to verify the facts appropriately.", "63. The information contained in the articles gives in any case an alarming picture about issues of patient safety. In the light of the above findings the Court concludes that the reporting was based on accurate and reliable facts. The certain selectiveness of quotation in the article of 27 February 1996 cannot be regarded as both a sufficient and relevant reason to justify the applicant's conviction. Generally, journalists cannot be expected to act with total objectivity and must be allowed some degree of exaggeration or even provocation (see the Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no.", "313, § 38). From the point of view of the general public's right to receive information about matters of public interest and, thus, from the stand point of the press there were justified grounds supporting the need to conduct public discussion about the matter. 64. The Court further attaches considerable weight to the fact that at no point was X's name, age or gender mentioned in the contested articles. The Court observes that the District Court held that X became identifiable in his home town after the publication of the article of 27 February 1996 (i.e.", "not based on the article of 4 January 1996). The Court of Appeal did not distinguish between the two articles and found that based on the information contained in the two articles as a whole, X was identifiable at least in his working place and, based on two witness statements, also beyond X's immediate circle and acquaintances. Based on these findings by the domestic courts the Court accepts that the information contained in the two contested articles could have led to X's identity being disclosed at least to some persons. It is however to be emphasised in the present context that X's identity was never expressly communicated to the general public. 65.", "As there were certain risks of identification it is understandable that X was reluctant to have his rejoinder published in the Pohjalainen. The question of whether and how X was provided with an opportunity to present his views concerning the articles is, however, disputed. According to the applicant both she and the editor of Pohjalainen offered X an opportunity to comment on the article(s). They were also prepared to publish any comment or rejoinder that X might have wished to make. Further, the applicant claims that she and the editor each in turn proposed that X draft a rejoinder to be published in the paper.", "According to the Government the applicant, however, refused to contact X and stated that the Letters to the Editor-section was available for commentary. In the Government's view, writing a letter to be published would have revealed X's identity and had he commented on a specific case, he would furthermore have violated his obligation to professional secrecy and the right to privacy of the patient in question. As regards the article of 27 February 1996, the applicant did not in the Government's opinion offer the draft to X for verification of the facts in advance. 66. Based on the submitted material the Court cannot draw any conclusive inferences as regards X's possibility to comment on the articles.", "It however notes that the applicant's observations are inconclusive in that although it is maintained that X was given an opportunity to comment “on the article(s)”, it is left open whether this opportunity concerned both articles and if not, which one of them, and, regarding both articles, whether such an opportunity was proposed before the publication or only afterwards. The Court is satisfied that he was provided with an opportunity to present his comments after the publication of each article. There is no indication that he was offered a possibility to comment on the articles in advance. 67. The Court is of the opinion that although due weight must be given to the fact that X's identity might have been disclosed had he published his rejoinder, this circumstance in itself, nevertheless, cannot prevent the publication of matters of public interest, subject to the proviso that in the reporting of issues of general interest journalists act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.", "In the present case X was given an opportunity to have his comments published following the publication of the articles. In this respect it is to be noted that there is no indication that X had tried to obtain permission from Mr Haapalainen to lift X's duty of professional secrecy or to reveal matters concerning the privacy of the late Mrs Haapalainen in his rejoinder. Although the opportunities given to X to put forward his arguments may be regarded as somewhat limited, the Court is nevertheless unable to find that X was not given a chance to defend himself or that the ethics of good journalism had been violated. 68. In conclusion the Court notes that the purpose of the applicant's articles was to discuss matters of patient safety.", "The operation on Mrs Haapalainen was selected as an example illustrating the problems involved. It is often the case that discussion of individual cases is used to highlight a more general problem. It cannot find that the factual statements contained in the articles were either excessive or misleading. Nor is there any indication that the applicant had acted mala fide. 69.", "The Court does not accept that the limited nature of the fine is decisive as regards the issue of necessity; what is of greater importance is that the journalist was convicted. 70. In light of the above, the Court does not find that the undoubted interests of X in protecting his professional reputation was sufficient to outweigh important matters of legitimate public concern. In short, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was “necessary in a democratic” society. Accordingly, there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. 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 72. The applicant sought compensation for pecuniary damage incurred through the fine imposed by the Court of Appeal in the amount of FIM 8,300; the legal costs and expenses she was obliged to pay X by the District Court, amounting to FIM 20,276 with an annual interest currently of 11 per cent as from 20 October 1998, and by the Court of Appeal, amounting to FIM 12,754.80, with an annual interest of 11 per cent as from 26 June 1999; as well as remuneration to the State for costs of evidence amounting to FIM 685.90 at the District Court and to FIM 1,083 at the Court of Appeal, thus totalling FIM 43,099.77 (corresponding to EUR 7,248.85).", "The applicant also claimed the sum of EUR 50,000 in compensation for non-pecuniary damage for suffering and distress caused by the violation of her rights, including the loss of her professional esteem and reputation as journalist. 73. As far as pecuniary damages were concerned and in case the Court was to find a violation, the Government conceded that the applicant was entitled to compensation. They noted that the applicant's claims for pecuniary damages were not specified except for the fine paid by her. For the rest, the applicant was jointly and separately liable for the costs with her editor and could not in the Government's opinion claim the amounts in full as her own liability.", "They calculated that that the applicant had been ordered to pay in total EUR 4,413.50. More specifically, the applicant had been ordered to pay: the fine (EUR 1.396); half of the legal costs of X before the District Court (EUR 1,705.10) and before the Court of Appeal (EUR 1,072.60) as well as the costs of evidence before the District Court (EUR 57.70); and remuneration of the costs of evidence before the Court of Appeal (EUR 182.10). As to the claims for interest they noted that the Court should use its normal grounds of assessment in the Finnish cases. The Government stated that the finding of a violation should constitute in itself a sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. At any rate, the applicant's claims for non-pecuniary damages were in their opinion far too excessive as to quantum, and that the applicant should be awarded as compensation for non-pecuniary damages EUR 2,000 at the most.", "74. The Court finds that there is a causal link between the violation found and the alleged pecuniary damage. Consequently, there is justification for making an award to the applicant under that head. Taking into account all the circumstances, it awards the applicant EUR 3,500 for compensation for pecuniary damage. 75.", "The Court accepts that the applicant has also suffered non-pecuniary damage – such as distress and frustration resulting from the conviction and sentence – which is not sufficiently compensated by the findings of violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 under this head. B. Costs and expenses 76. The applicant requested the reimbursement of her legal costs and expenses before the domestic courts of FIM 51,325.73 (EUR 8,632.37), including the fee of FIM 250 levied by the Supreme Court.", "The applicant also claimed the reimbursement of her legal costs and expenses incurred through the proceedings before the Court, amounting to EUR 15,782.44 (including VAT). 77. The Government noted that the applicant's total claim for reimbursement of legal costs and expenses was EUR 24,414.44. They further stated that there was no documentation regarding the costs before national courts except the reference to the amount in the decision of the Court of Appeal, and that it was unknown whether that amount included VAT or not. The Government also submitted that the reimbursement of costs and expenses should be reduced because on 1 June 2004 the Court declared inadmissible the applicant's complaint under Article 6 § 2 of the Convention.", "They also maintained that there were two cases before the Court's oral hearing of 10 February 2004, which fact should be taken into consideration when deciding the amounts of costs to be awarded. 78. The Government left it to the Court's discretion to decide whether the applicant had substantiated her claims for costs and expenses adequately. However, in their view the total amount of compensation for costs and expenses for the applicants should not exceed EUR 13,000 (including VAT) in the present case. 79.", "As regards the domestic proceedings the Court observes that in the Court of Appeal's judgment of 26 May 1999 it was mentioned that the applicant requested reimbursement of her own legal expenses before the Court of Appeal for FIM 51,015.73 (EUR 8,590.32). There is no other indication concerning the applicant's legal expenses incurred before the domestic courts. Having regard to all the circumstances, the Court awards the applicants EUR 8,000 under this head. 80. As for the proceedings before this Court the applicants' bill of costs and expenses of 10 September 2004 totalled EUR 15,782.44 (including VAT).", "Having regard to all the circumstances, the Court awards the applicant EUR 15,000 under this head. C. Default interest 81. 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. Holds by six votes to one that there has been a violation of Article 10 of the Convention; 2.", "Holds unanimously (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) EUR 3,500 (three thousand five hundred euros) in respect of pecuniary damage; (ii) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage; and (iii) EUR 23,000 (twenty three thousand euros) 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; 3. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 November 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleNicolas BratzaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Sir Nicolas Bratza is annexed to this judgment. N.B.M.O.B.", "DISSENTING OPINION OF SIR NICOLAS BRATZA I regret that I am unable to share the view of the majority of the Chamber that there has been a violation of the applicant's rights under Article 10 of the Convention. I am in full agreement with the analysis in the judgment of the general principles which should govern the Court's approach to the issues raised in a case such as the present. Two of those principles are to my mind of particular relevance. (i) Press freedom is of cardinal importance in a democratic society, the press having both a right and a duty to impart, in a manner consistent with its obligations and responsibilities, information and ideas on all matters of public interest and concern. Accordingly, careful scrutiny is called for on the part of the Court of the proportionality of measures taken by national authorities which are capable of discouraging the press from performing its vital role as “public watchdog”.", "However, the exercise of the freedoms guaranteed by Article 10 carries with it “duties and responsibilities” which not only apply to the press but assume special significance when, as in the present case, the statements made may affect the reputation and rights of other private individuals. As the Court has consistently held, these duties and responsibilities are such that the guarantees afforded to journalists by Article 10, in reporting on issues of general interest, are subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. 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 source as reliable with respect to the allegations (see, among other authorities, McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR 2002–III and Bladet Tromsø and Stensaas v. Norway [GC], no.", "21980/93, § 66, ECHR 1999-III). (ii) The Court's 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. In carrying out this task, the Court must assess whether the reasons given by the national authorities are both relevant and sufficient to show that the interference was “necessary in a democratic society” and proportionate to the legitimate aim served. I share the view of the majority of the Chamber that the reasons relied on by the national courts and by the respondent State were relevant to show that the interference was necessary. Where I part company with the majority is as to their view that the reasons were not “sufficient” and that the interests of X in protecting his professional reputation were not such as to outweigh important matters of legitimate public concern.", "It is beyond dispute that the general subject matter which was at the heart of the three articles concerned – namely, the dangers posed to the public by alcohol abuse on the part of members of certain professions, notably surgeons and pilots – was a matter of great and legitimate public interest. However, the articles of 4 January 1996 and 27 February 1996 which were the subject of the defamation proceedings against the applicant differ from that of 9 January 1996 in that they focussed on the specific case of the operation carried out by surgeon X, which resulted in the death of Mrs Haapalainen. Both articles, as found by the national courts, contained a clear allegation that X had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen and that this had led to her death – an allegation which, as the Court of Appeal observed, was of the utmost seriousness for the reputation and professional standing of a practising surgeon. Both the District Court and the Court of Appeal acknowledged that the press were free to report critically on hospitals and on any alcohol abuse that might have been established in such an institution and that, as a practising surgeon in a public hospital, X's professional activities were such that he had to accept even strong criticisms of his behaviour. But both courts also stressed that such criticism had to be appropriate and based on fact.", "While the media may not always be able to obtain confirmation of the absolute veracity of information which was to be published, such information should, in the view of the Court of Appeal, at any rate be sufficiently grounded in fact and allegations against a specific person should be critically examined. The more serious and damaging the allegation made, the stronger the obligation to confirm the truth of the information on which the allegation is based. It was the unanimous conclusion of both courts that the impugned articles did not meet those criteria. In the view of the Court of Appeal, the information gleaned from the interview with Mr Haapalainen and the selected parts of the statements in the pre-trial investigation file did not afford a reliable basis for the allegations contained in the articles. Moreover, despite being aware of the conclusions of the National Medico-Legal Board, as well as the fact that no prosecution had been brought against X, the applicant had failed to check in detail the terms of the Board's opinion or the outcome of the pre-trial investigation.", "This being so, the applicant had accused X of an offence, as well as of reprehensible conduct, “without having verified the allegations and without having had any objectively weighty grounds or likely reasons for considering the defamatory allegations truthful”. In addition, the Court of Appeal found that X had not been given the possibility of presenting his views in respect of either article. In concluding that the reasons given by the national courts, and adopted by the respondent Government, were not sufficient to justify the interference with the applicant's freedom of expression, the majority of the Chamber place reliance on a number of features of the case – the fact that it had not been claimed that the actual facts were erroneous as such; the fact that, although the reporting was somewhat one-sided, it had been based on information included in the public pre-trial records; the fact that in March 2001 the Deputy Parliamentary Ombudsman found that it would have been preferable if charges had been brought against X; the fact that at no point was X's name, age or gender mentioned in the articles in question; and the fact that X was provided with an opportunity to present his comments after publication of each article. In my view, none of these factors, whether considered individually or cumulatively, are such as to justify the conclusion that the domestic courts exceeded any acceptable margin of appreciation. Even if the national courts did not find the facts stated in the two articles to be erroneous as such, they clearly found that there was no sufficiently reliable information to support the allegation that X had been under the influence of alcohol when operating on Mrs Haapalainen.", "The fact that the information in the article of 27 February 1996 was obtained from public pre-trial records and contained direct quotations from statements by hospital staff has to be viewed in the light of the national courts' finding that the applicant had selected only those parts of the records which supported her own thesis and, more importantly, that she had omitted to mention that the County Prosecutor had issued a reasoned decision not to institute criminal proceedings – a decision reached on the basis of all the material in the pre-trial file. While accepting that this failure on the applicant's part was “problematic”, the majority of the Chamber emphasise that “although aware of the decision of the County Prosecutor, the applicant had only obtained a copy of it after the publication of 27 February 1996”. It is also pointed out that the County Prosecutor's decision has in any event to be seen in the light of the decision of 22 March 2001 of the Deputy Parliamentary Ombudsman. I do not consider that either point assists the applicant. The Prosecutor's decision had been taken in April 1994, nearly two years before the impugned articles were published.", "I find it difficult to see how the failure of the applicant to obtain a copy of the decision before publication of the two articles may be said to be consistent with the diligence expected of a responsible journalist. Moreover, when judging the necessity and proportionality of measures taken by the national courts in 1998 and 1999, I cannot attach much weight to the fact that in 2001 the Deputy Parliamentary Ombudsman voiced a view different from that of the County Prosecutor some 7 years before. Still less can I accept that the decision of the Deputy Ombudsman suggests, as the judgment of the Chamber argues, that “the applicant had not failed to verify the facts appropriately” (judgment, § 62). As to the fact that X's identity “was never expressly communicated to the general public” (judgment, § 64), I am again unable to attach the same importance to the point as the majority of the Chamber when it is borne in mind that the national courts found it to be established that, as a result of details given in the two articles, X was identifiable in his home town, in his working place and beyond his immediate circle and acquaintances. The opportunity afforded to X to reply to the allegations made against him was, as the judgment correctly acknowledges, a “somewhat limited” one.", "It is apparent from the judgments of the national court that X was given no possibility to comment in advance of the publication of either article. In this respect the case is to be distinguished from that of Bergens Tidende and Others v. Norway (no. 26132/95, ECHR 2000-IV) in which Doctor R, the subject of the articles in question, had been approached by the applicant newspaper prior to the publication of the articles and his comments invited on the interviews which the applicant had conducted with his former patients. While it is common ground that X was given an opportunity to have any comments or rejoinder published after the articles had appeared in print, this cannot in my view be regarded as affording him an effective opportunity to defend himself, the damage to his reputation having already occurred. The judgment concludes in paragraph 68 by noting that the purpose of the applicant's articles was to discuss matters of patient safety and that the operation on Mrs Haapalainen was selected as an example illustrating the problems involved.", "While I accept that it is perfectly legitimate to use individual cases to highlight a more general problem, where, as in the present case, this involves the making of serious allegations against an identifiable individual, special care must be exercised to ensure the accuracy of the allegations made. The national courts were, I consider, entitled to conclude that the necessary care had not been shown in the present case. As to the penalty imposed on the applicant, the majority of the Chamber assert that the limited nature of the fine cannot be decisive as regards the issue of necessity, the fact that the applicant was convicted being of greater significance. The relatively modest amount of the fine may not be of decisive importance but it is in my view of clear relevance to the proportionality of the interference with the applicant's Article 10 rights. Although I have reservations in principle about the use of criminal sanctions to punish statements defamatory of private individuals, neither the conviction of the applicant nor the fine imposed on her in the present case can in my view be regarded as disproportionate to the legitimate aim of protecting the rights of others.", "[1] In the original language apparently incorrectly referred to as the Board for Patient Injuries (potilasvahinkolautakunta, patientskadenämnden)." ]

[ "SECOND SECTION CASE OF GARKUSHA v. UKRAINE (Application no. 4629/03) JUDGMENT STRASBOURG 13 December 2005 FINAL 13/03/2006 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 Garkusha v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrA.B. Baka, President,MrI.", "Cabral Barreto,MrK. Jungwiert,MrV. Butkevych,MrM. Ugrekhelidze,MsD. Jočienė,MrD.", "Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 22 November 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4629/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladimir Aleksandrovich Garkusha (“the applicant”), on 16 December 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.", "3. On 23 November 2004 the Court decided to communicate 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 1937 and lives in the town of Dnipryany, the Kherson region. 5. On 15 January 2002 the Nova-Kakhovka Town Court ordered the Joint Stock Company “Pivdenelektronmash”, in which the State held 75% of the share capital, to pay the applicant UAH 4,831.83[1] in salary arrears. At that time there were bankruptcy proceedings pending against the debtor company. 6.", "On 21 February 2002 the Nova-Kakhovka Town Bailiffs’ Service instituted enforcement proceedings. 7. On the same date the Bailiffs’ Service suspended the enforcement proceedings because of the fact that the procedure for the forced sale of assets belonging to the debtor had been suspended by the moratorium on the forced sale of property belonging to State enterprises introduced by the Law of 29 November 2001. 8. On 3 June 2002 the Nova-Kakhovka Town Court, following the applicant’s request, quashed that decision.", "9. On 26 June 2002 the Bailiffs’ Service terminated the enforcement proceedings in view of the tax lien placed on the debtor’s property and its lack of funds. 10. On 15 October 2002 the same court quashed the decision of the Bailiffs’ Service and ordered the latter to resume the enforcement proceedings. 11.", "On 20 December 2002 the Bailiffs’ Service suspended the enforcement proceedings due to the bankruptcy proceedings pending against the debtor company. 12. On 4 February 2003 the same court quashed the decision of 20 December 2002 and ordered the Bailiffs’ Service to renew the enforcement proceedings. On 20 May 2003 the Kherson Regional Court of Appeal upheld decision of the first instance court. 13.", "In November 2003 the applicant was paid UAH 1,635[2]. 14. In April 2004 the applicant instituted proceedings in the Nova-Kakhovka Town Court against the Bailiffs’ Service, seeking compensation for failure to enforce the judgment given in his favour. On 7 October 2004 the court rejected the applicant’s claim as unsubstantiated. The applicant did not appeal against that decision.", "15. The judgment in the applicant’s favour remains to a large extent unenforced, the outstanding debt being UAH 3,196.83[3]. II. RELEVANT DOMESTIC LAW 16. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no.", "29439/02, §§ 18-22, 26 April 2005). THE LAW 17. The applicant complained about the State authorities’ failure to enforce the judgment of the Nova-Kakhovka Town Court of 15 January 2002 in full and in due time. He 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 ....” I. ADMISSIBILITY 18. The Government contended that the applicant has not exhausted domestic remedies as he did not lodge a request with the relevant commercial court to be included in the list of the debtor’s creditors in the course of bankruptcy proceedings against the debtor.", "The Government therefore proposed that the application be declared inadmissible or struck out of the Court’s list of cases. 19. The Court recalls that it has already dismissed the Government’s analogous contentions in similar cases (see, for instance, Romashov v. Ukraine, no. 67534/01, §§ 30-33, 27 July 2004) and finds no reason to reach a different conclusion in the present case. 20.", "The Court concludes that this application raises serious 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 21. In their observations, the Government contended that there had been no violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No.", "1 (as in the cases of Romashov, cited above, § 37, and Voytenko v. Ukraine, no. 18966/02, § 37, judgment of 29 June 2004). 22. The applicant disagreed. 23.", "The Court notes that the judgment of the Nova-Kakhovka Town Court of 15 January 2002 has remained unenforced for around three years and ten months. 24. 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, for instance, Voytenko, cited above, §§ 39-43 and 53-55, and Sokur v. Ukraine, no. 29439/02, §§ 30-37, 26 April 2005).", "25. 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 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 applicant claimed UAH 3,196.83[4], which was the amount of the judgment outstanding debt. The applicant further submitted that he suffered some pecuniary and non-pecuniary damage because of the length of the non-enforcement of the judgment.", "However, he was not able to specify the amount of his claim and left the matter to the Court’s discretion. 28. The Government maintained that the applicant’s claim was unsubstantiated and submitted that the finding of a violation would constitute sufficient just satisfaction. 29. In so far as the applicant claimed the remaining amount awarded to him by the judgment at issue, the Court considers that the Government should pay him the outstanding debt in settlement of his pecuniary damage.", "As to the applicant’s claim for non-pecuniary damage, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 1,840. B. Costs and expenses 30. The applicant 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 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, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the judgment debt still owed to him, as well as EUR 1,840 (one thousand eight hundred and forty euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, 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 claim for just satisfaction. Done in English, and notified in writing on 13 December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "S. Dollé A.B. BakaRegistrarPresident [1]. Around 805 euros – “EUR”. [2]. Around EUR 273.", "[3]. Around EUR 532. [4]. Around EUR 532." ]

[ "FOURTH SECTION CASE OF KĘDRA v. POLAND (Application no. 57944/08) JUDGMENT STRASBOURG 17 April 2012 This judgment is final. It may be subject to editorial revision. In the case of Kędra v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: George Nicolaou, President,Ledi Bianku,Vincent A. De Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 27 March 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 57944/08) 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 Henryk Kędra (“the applicant”), on 20 November 2008. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.", "On 28 June 2010 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1955 and lives in Gorzów Wielkopolski. 5.", "The applicant was involved in administrative proceedings. He claimed reinstatement to work in the police after his dismissal from the Security Service (Służba Bezpieczeństwa) and a refusal to hire him by the police, both given in 1990. The first-instance decision was issued by the Chief Officer of the Internal Security Agency (Szef Agencji Bezpieczeństwa Wewnętrznego) on 1 June 2006. That authority refused to hire the applicant and to count the period since 1990 towards his service. 6.", "The applicant requested that his case be re-examined. On 7 July 2006 the Chief Officer upheld the contested decision. On 15 January 2007 the Warsaw Regional Administrative Court quashed both the first- and second‑instance decision, finding that the authority had failed to establish the content of the applicant’s claim. 7. On 13 July 2007 the Chief Officer discontinued the proceedings, finding that in so far as the applicant had requested to be hired by the police, that request could not be determined by way of an administrative decision.", "In so far as he claimed that the period from 1990 should be counted towards the period of his service in the police, this claim had no basis in substantive law. 8. The applicant again requested that his case be re‑examined. On 25 September 2007 the Chief Officer upheld the contested decision. 9.", "The applicant appealed against this decision to the Warsaw Regional Administrative Court. That court gave a judgment in the case and dismissed the applicant’s appeal on 28 March 2008, finding that the contested decisions were lawful. 10. The applicant requested that legal-aid assistance be granted to him for the purposes of lodging a cassation appeal against this judgment with the Supreme Administrative Court. His request was granted and the local Bar Association assigned a lawyer to his case on 3 June 2008.", "The applicant gave a power of attorney for that lawyer on 10 June 2008. 11. On 2 July 2008 the lawyer lodged a cassation appeal with the Supreme Administrative Court together with a request for retrospective leave to appeal out of time (see paragraph 16 below). 12. On 10 July that court refused to grant leave to appeal out of time.", "The court found that the legal-aid lawyer had been informed that he had been assigned to represent the applicant on 3 June 2008. On 10 June 2008 that he had been served with the power of attorney, authorising him to act on the applicant’s behalf. It was only on the day following the latter date that the lawyer had had a realistic opportunity of starting to act on the applicant’s behalf in the preparation of the cassation appeal. Hence, the seven-day time limit for lodging a request for a retrospective leave to appeal out of time and lodging a cassation appeal together with it had started to run on 11 June 2008. Consequently, such a request should have been submitted to the court within seven days, on 18 June 2008 at the latest.", "The applicant’s lawyer had failed to comply with that time-limit as he had submitted his request for leave together with the cassation appeal only on 2 July 2008. 13. The applicant’s lawyer appealed against this decision, arguing that the seven-day time-limit to prepare a cassation appeal together with the request for retrospective leave to appeal, counted from the date when the legal-aid lawyer had received the power to act on the party’s behalf, was unrealistic and that it should be contrasted with the normal thirty‑day time‑limit for preparation and lodging of a cassation appeal in normal circumstances. A legally‑aided party was unduly penalised by that difference in the relevant time-limits. 14.", "On 4 September 2008 the court dismissed his appeal, sharing the conclusions of the first‑instance court. II. RELEVANT DOMESTIC LAW AND PRACTICE 15. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 12‑21, 14 September 2010.", "16. In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination. 17. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g.", "NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007). 18.", "In a number of its recent decisions the Supreme Administrative Court acknowledged the difficulties which legally‑aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed relevant case-law of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legal‑aid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case.", "The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS ACCESS TO THE SUPREME ADMINISTRATIVE COURT 19. The applicant complained that he had been denied access to the Supreme Administrative Court, in breach 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 20.", "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 21.", "The applicant complained that he had been denied access to the Supreme Administrative Court. 22. The Court has already had occasion to set out at length the relevant principles derived from its case-law in this area (Siałkowska v. Poland, no. 8932/05, §§ 99-107, 22 March 2007; Smyk v. Poland, no. 8958/04, §§ 54-59, 28 July 2009; Zapadka v. Poland, no.", "2619/05, §§ 57‑61, 15 December 2009). It adopts those principles for the purposes of the instant case. 23. The same question arises in the context of the present case as that examined by the Court in the cases referred to above, namely whether the applicant was deprived of access to the Supreme Administrative Court. 24.", "The Court observes that it has already dealt with this question in the context of criminal as well as civil procedure before the Polish courts. 25. As far as criminal procedure is concerned, it was established that – under the established case-law of the Supreme Court – the time‑limit for lodging a cassation appeal should run de novo from the day when the applicant has been informed of the legal-aid lawyer’s refusal to lodge a cassation appeal (the Supreme Court, decision II KZ 16/08 of 20 February 2002). This approach was found to satisfy Convention standards, provided that the applicant has been properly informed about his/her procedural rights at the time when the lawyer’s refusal was communicated to him or her (Kulikowski v. Poland, no. 18353/03, § 69-71, ECHR 2009‑... (extracts); Antonicelli v. Poland, no.", "2815/05, § 44-45, 19 May 2009). Subsequently, in 2008 the Supreme Court also stated that the strand of the case-law based on that approach was correct as providing adequate guarantees to the defendant by indicating in an unequivocal way the date on which the time‑limit started to run. 26. In the context of civil procedure the Court has found that the civil courts’ approach to the calculation of the time-limit for submitting a cassation appeal was stricter. Thus, a legal-aid lawyer’s refusal to prepare it did not trigger the running of the time-limit de novo.", "That approach was regarded by the Court as being incompatible with Convention standards, save for rather rare situations where the refusal of the legal-aid lawyer was notified to the applicant well before the deadline was due to expire (see Smyk v. Poland, referred to above, §§ 63‑65). 27. In so far as procedure before the administrative courts is concerned, the Court first observes that where a party to proceedings is represented by a lawyer, the procedural time-limits set by the Act on Procedure before Administrative Courts start to run on the date of the service of judicial decisions on the lawyer. In such situations no difficulties arise in connection with establishing the date on which the thirty-day time-limit for lodging a cassation appeal, applicable at the material time, would expire. 28.", "The situation is significantly different where a party does not have legal representation before the Regional Administrative Court, as in the present case, and is granted legal aid only after the second‑instance judgment has been given and served on him or her. 29. The case‑law of the Supreme Administrative Court provides that the time-limit for lodging a cassation appeal starts to run from the date on which the judgment of the Regional Administrative Court has been served on the non-represented party. The administrative courts have repeatedly held that his or her request for legal aid does not affect the running of the time‑limit (see Relevant domestic law above). However, they have also acknowledged that a party who was subsequently granted legal aid was put in a difficult position, because at the time of service the time‑limit had already started to run.", "A lawyer subsequently assigned to the case had therefore less time to examine the case and decide, still within the time-limit, whether a cassation appeal offered prospects of success and to prepare an appeal. This might lead to a situation where lawyers subsequently assigned to the case only learned about their appointments after the time‑limit for lodging the cassation appeal had expired. 30. The Supreme Administrative Court has, on numerous occasions, addressed this problem. As a result, a body of case-law has been developed to the effect that in situations where a legal-aid lawyer has been appointed after the time-limit for lodging a cassation appeal had expired and he or she is willing to prepare it, the administrative courts could grant leave for submitting a cassation appeal out of time.", "Under the case‑law of the Supreme Administrative Court the day on which the impediment for lodging the cassation appeal ceased to exist is defined as the day on which the lawyer has had a genuine possibility to prepare it. Thus, the seven‑day time‑limit begins to run only after the legal-aid lawyer has had sufficient time to study the file. The Court notes that this jurisprudential approach resulted from the administrative courts’ concern about the difficulties encountered by legally-aided parties and can be said to be compatible with the Convention standards as regards ensuring fair access to the cassation procedure (see also Subicka v. Poland (no. 2), nos. 34043/05 and 15792/06, § 10, 21 June 2011).", "The Court is of the view, in line with its case-law referred to above and also in line with the many judgments of the Polish administrative courts summarised above (see paragraphs 15-16 above) that the determination of the time-limit for legally aided parties should be made in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under legal aid scheme and by privately hired lawyers. 31. Turning to the circumstances of the present case, the Court observes that the legal-aid lawyer was assigned to the case on 3 June 2008. He obtained the authorisation to act on the applicant’s behalf on 10 June 2008. The administrative court found that it was only on the following day that the seven-day time limit for lodging a cassation appeal had started to run.", "The Court notes that the Regional Administrative Court, in its decision of 10 July 2008, and subsequently the Supreme Administrative Court in its decision of 4 September 2008, had due regard to difficulties which could have arisen for legally-aided parties in the proceedings concerning lodging of cassation appeals. The Court is satisfied that the beginning of that time-limit was determined by the administrative courts in the manner most advantageous for the applicant and with due regard being had to the necessity of alleviating the situation of legally-aided parties arising from the difficulties to examine the case and prepare a cassation appeal within the time‑limits set out by the applicable procedural law. 32. The Court therefore concludes, having regard to the circumstances of the case seen as a whole, that in the particular circumstances of the present case there has been no violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE ADMISSIBILITY AND ASSESSMENT OF THE EVIDENCE 33. The applicant complained that the domestic authorities had wrongly assessed the evidence and, as a result, had failed to establish the facts of the case correctly. They had wrongly applied domestic law and had given erroneous judgments. 34. The Court reiterates that, 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 Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no.", "140, and García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28). 35. It follows, even assuming that in the circumstances of the present case the applicant can be said to have exhausted the domestic remedies, 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning access to the Supreme Administrative Court admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 17 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıGeorge NicolaouDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF ALEKSEYEV AND OTHERS v. RUSSIA (Applications nos. 24816/17 and 4 others – see appended list) JUDGMENT STRASBOURG 21 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Alekseyev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 31 January 2019, 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.", "Notice of the applications was given 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 that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties.", "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 6 § 1 OF THE CONVENTION 6. The applicants complained that their right to a fair hearing had been breached on account of the domestic courts’ refusal of their requests to appear in court.", "They 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 ...” 7. The Court reiterates that the applicants, detainees at the time of the events, were not afforded an opportunity to attend hearings in civil proceedings to which they were parties. The details of those domestic proceedings are indicated in the appended table. The Court observes that the general principles regarding the right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59-60, ECHR 2005-II).", "The Court’s analysis of an alleged violation of the right to a fair trial in respect of cases where incarcerated applicants complain about their absence from hearings in civil proceedings includes the following elements: examination of the manner in which domestic courts assessed the question whether the nature of the dispute required the applicants’ personal presence and determination whether domestic courts put in place any procedural arrangements aiming at guaranteeing their effective participation in the proceedings (see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 48, 16 February 2016). 8. In the leading case of Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, 16 February 2016, 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, as well as the Government’s objections of six months, 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 domestic courts deprived the applicants of the opportunity to present their cases effectively and failed to meet their obligation to ensure respect for the principle of a fair trial. 10. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 11. 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.” 12. 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. 13.", "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 6 § 1 of the Convention concerning the applicants’ absence from civil proceedings; 4.", "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 during the default period plus three percentage points. Done in English, and notified in writing on 21 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAlena Poláčková Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (applicant’s absence from civil proceedings) No. Application no. Date of introduction Applicant’s name Date of birth Nature of the dispute Final decision First-instance hearing date Court Appeals Date Court Amount awarded for non-pecuniary damage and costs and expenses per applicant (in euros)[1] 24816/17 11/08/2017 Denis Viktorovich Alekseyev 01/02/1979 Challenging actions preventing him from receiving an application form of the Court 30/06/2016 Leninskiy District Court, Krasnoyarsk 07/09/2016 Krasnoyarsk Regional Court 06/06/2017 Supreme Court of Russia 2,000 28134/17 24/03/2017 Gafur Borisovich Abdushev 16/02/1988 Compensation proceedings 29/08/2016 Leninskiy District Court of Astrakhan 07/12/2016 Astrakhan Regional Court 2,000 43005/17 11/08/2017 Vyacheslav Vladimirovich Matveyev 27/12/1990 Compensation claim for inadequate detention conditions 29/11/2016 Leninskiy District Court of Ufa 27/03/2017 Supreme Court of the Bashkortostan Republic 2,000 46670/17 30/05/2017 Denis Aleksandrovich Karakov 27/01/1982 Complaint about poor conditions of detention 09/02/2016 Leninsky District Court of Perm 30/05/2016 Perm Regional Court 07/12/2016 Supreme Court of Russia 2,000 72309/17 01/09/2017 Anatoliy Anatolyevich Yarosha 10/12/1979 Tort action related to inadequate conditions of detention in a temporary detention facility 21/12/2016 Lesosibirsk Town Court of the Krasnoyarsk Region 24/04/2017 Krasnoyarsk Regional Court 2,000 [1].", "Plus any tax that may be chargeable to the applicants." ]

[ "SECOND SECTION CASE OF KÖKSAL AND DURDU v. TURKEY (Applications nos. 27080/08 and 40982/08) JUDGMENT STRASBOURG 15 June 2010 FINAL 15/09/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Köksal and Durdu v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş,Kristina Pardalos, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 25 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The cases originated in two applications (nos.", "27080/08 and 40982/08) 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 two Turkish nationals, Mr Metin Köksal and Mr Servet Durdu (“the applicants”), on 29 May and 15 August 2008, respectively. The first applicant, Mr Köksal, was represented by Mr H. Çakıroğlu, a lawyer practising in Samsun. The second applicant, Mr Durdu, was represented by Mr M. Bayat, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 2.", "On 13 May 2009 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASES 3. The applicants were born in 1973 and 1965, respectively, and live in Samsun and Ankara.", "A. Application no. 27080/08 4. On 17 October 2001 the applicant was discharged from his civil service post following his previous criminal conviction by a martial law court. The conviction had been finalised by the Military Court of Cassation's decision of 11 November 1997.", "5. On 4 January 2002 the applicant brought an action before the Samsun Administrative Court to annul the discharge order. 6. On 5 June 2002 the Samsun Administrative Court rejected the applicant's request. 7.", "On 7 February 2005 the Supreme Administrative Court upheld the judgment of the Samsun Administrative Court. The written opinions of the public prosecutor and of the judge rapporteur (“tetkik hakimi”) concerning his appeal request were not communicated to the applicant. 8. On 31 December 2007 the Supreme Administrative Court dismissed the applicant's request for rectification of its previous decision. B.", "Application no. 40982/08 9. On 11 January 2002 the applicant was discharged from his civil service post after a disciplinary decision. Criminal proceedings were also commenced against the applicant on the same grounds as those which had led to his discharge. 10.", "On 15 March 2002 the applicant brought an action before the Ankara Administrative Court to annul the discharge order. 11. On 25 June 2002 the Ankara Assize Court acquitted the applicant of the offences with which he had been charged. On 22 March 2004 the Court of Cassation upheld the applicant's acquittal. 12.", "In the meantime, on 31 March 2003 the Ankara Administrative Court refused the applicant's request to annul the discharge order. Relying on Section 131 of the Law on Civil Servants (Law no. 657), the administrative court held that the applicant's acquittal of the criminal charges did not absolve him from the disciplinary sanction. 13. On 26 April 2005 the Supreme Administrative Court upheld the judgment of the Ankara Administrative Court.", "The written opinions of the public prosecutor and of the judge rapporteur concerning his appeal request were not communicated to the applicant. 14. On 23 January 2008 the Supreme Administrative Court dismissed the applicant's rectification request. The final decision was served on the applicant on 4 March 2008. II.", "RELEVANT DOMESTIC LAW 15. A description of the relevant domestic law can be found in the case of Meral v. Turkey (no. 33446/02, §§ 22-26, 27 November 2007). THE LAW 16. Given the similarity of the applications, both as regards fact and law, the Court deems it appropriate to join them.", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 17. The applicants both complained under Article 6 § 1 of the Convention of the non-communication of the written opinions submitted by the public prosecutors to the Supreme Administrative Court concerning their appeal requests, which had denied them the opportunity to reply and had thus infringed the principle of equality of arms. The applicants also maintained under the same provision that they had been denied a trial within a reasonable time. 18.", "The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. A. Non-communication of the public prosecutor's written opinion 19. The Government contended that, unlike in criminal proceedings, the public prosecutor in administrative proceedings was not a party to the case and his or her opinion had no influence on the decision of the administrative court. The Government also argued that the principle of equality of arms had not been infringed in the instant cases as the applicants had had the option of examining their respective case files, and thus the public prosecutors' written opinions, prior to the delivery of the judgments.", "20. The Court observes that it has already examined and dismissed similar preliminary objections by the Government in previous cases and found a violation of Article 6 § 1 of the Convention (see Meral, cited above, §§ 32‑39, and Miran v. Turkey, no. 43980/04, §§ 9-18, 21 April 2009). It considers that the Government have not put forward any fact or argument in the instant cases which would require it to depart from its previous findings. There has accordingly been a violation of Article 6 § 1 of the Convention on account of the non-communication of the written opinions of the public prosecutors to the applicants.", "B. Length of administrative proceedings 21. The Court notes that the proceedings in relation to application no. 27080/08 began on 4 January 2002 and ended on 31 December 2007. They thus lasted over five years and eleven months before two levels of jurisdiction, which examined the case three times.", "The proceedings in application no. 40982/08 commenced on 15 March 2002 and came to an end on 23 January 2008. They thus lasted over five years and ten months before two levels of jurisdiction, which examined the case three times. 22. The Government argued that the period during which the applicants' rectification requests were examined by the Supreme Administrative Court could not be taken into consideration in the assessment of the length of the proceedings as the rectification of judgments was an extraordinary legal remedy and not a part of the administrative proceedings.", "They also maintained that there was no delay in either of the proceedings which could be attributed to the authorities. 23. The Court reiterates that the present cases concern civil proceedings, and that the remedy of rectification of judgments in Turkey within this context constitutes an effective domestic remedy within the meaning of generally recognised international law principles (see Molin Inşaat v. Turkey, no. 23762/94, Commission decision of 7 September 1995, and Latif Fuat Öztürk v. Turkey, no. 54673/00, § 29, 2 February 2006).", "The Court, therefore, cannot accept the Government's argument that the rectification procedure, which the applicants availed themselves of in the instant cases, was not a part of the administrative proceedings in question. 24. The Court further notes that it has frequently found violations of Article 6 § 1 of the Convention in applications raising issues similar to the ones before it (see, for instance, Şenol Uluslararası Nakliyat, İhracat ve Ticaret Limited Şirketi v. Turkey, no. 75834/01, §§ 23-28, 20 May 2008). 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 circumstances.", "The Court particularly notes that, in both applications, the cases were pending before the Supreme Administrative Court for almost five years, which delay contributed substantially to the overall length of the proceedings. 25. Having regard to its case-law on the subject, the Court therefore considers that the length of both 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 both of the administrative proceedings in question. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Alleged violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 26. The applicants argued under Article 6 § 1 of the Convention that the written opinions submitted by the judge rapporteurs to the Supreme Administrative Court had not been communicated to them. They further claimed under Article 1 of Protocol No.", "1 that they had been deprived of their future earnings and other financial rights on account of their unfair dismissals from the civil service. 27. As regards the complaint concerning the non-communication of the written opinion of the judge rapporteur, the Court notes that it has already examined and rejected this complaint in the case of Meral (cited above, §§ 40‑43). The Court finds no particular circumstances in the instant cases which would require it to depart from its findings in the Meral case. It follows that this part of the applications should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "28. As for the complaint raised under Article 1 of Protocol No. 1, the Court considers that the applicants had no “legitimate expectation” of receiving the future income which they had claimed (see Ouzounis and Others v. Greece, no. 49144/99, §§ 24 and 25, 18 April 2002). Therefore they have not shown that they had a property right requiring protection under this provision.", "It follows that this part of the applications should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. B. Alleged violation of Articles 6 § 1 and 13 of the Convention 29. The first applicant, Mr Köksal, complained under Article 6 § 1 of the Convention that the criminal conviction of the martial law court had been erroneous and unfair. He further contended under Article 13 of the Convention that he had not had an effective remedy in domestic law, without further substantiation.", "30. As regards the complaint under Article 6 § 1 of the Convention, the Court notes that the conviction ordered by the martial law court had been upheld on 11 November 1997 by the decision of the Military Court of Cassation. The applicant, however, introduced his application to the Court on 29 May 2008, more than six months later. It follows that this complaint has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention. 31.", "As regards the complaint under Article 13 of the Convention, the Court finds that this unarguable complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and in so far as the matters complained of are within its competence. It follows that this part of application no. 27080/08 should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. C. Alleged violation of Articles 6 § 2 and 7 of the Convention 32. The second applicant, Mr Durdu, complained that the failure of the administrative courts to annul the disciplinary sanction he had received, despite his acquittal by the criminal courts of the charges in relation to the same events, had violated Articles 6 § 2 and 7 of the Convention.", "33. The Court notes that the applicant was not charged with a “criminal offence” in the proceedings before the administrative courts within the meaning of Article 6 § 2 of the Convention and that his discharge was brought about by a disciplinary sanction, which did not constitute “punishment” under Article 7 of the Convention (see, mutatis mutandis, Korkmaz and Others v. Turkey (dec.), nos. 44058/04, 19807/05 and 26384/05, 23 September 2008). It follows that these complaints in application no. 40982/08 are 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 A. Damage 34. The first applicant claimed 23,000 euros (EUR) and EUR 20,000 in respect of pecuniary and non-pecuniary damage, respectively. The second applicant claimed EUR 50,000 and EUR 200,000 for pecuniary and non‑pecuniary damage, respectively.", "35. The Government contested these claims. 36. The Court does not discern any causal link between the violations found and the pecuniary damages alleged; it therefore rejects these claims. However, deciding on an equitable basis, it awards the applicants EUR 3,000 each in respect of non-pecuniary damage.", "B. Costs and expenses 37. The first applicant claimed EUR 2,975 for the costs and expenses incurred before the Court, but did not submit any documents in substantiation. The second applicant claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court. He also claimed EUR 2,500 in legal fees in connection with the presentation of the case before the Court.", "The applicant did not submit any receipts or other vouchers in respect of his costs and expenses, but only submitted documentation indicating the time spent by his legal representative on the application. 38. The Government contested these claims. 39. 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, the Court rejects the first applicant's claims under this head in the absence of any documentation. However, regard being had to the documents in its possession and the above criteria, it considers it reasonable to award the second applicant the sum of EUR 1,000 for his costs and expenses. C. Default interest 40. 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 under Article 6 § 1 of the Convention concerning the non-communication to the applicants of the public prosecutors' written opinions and the excessive length of the administrative proceedings admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the non-communication to the applicants of the public prosecutors' written opinions and the excessive length of the administrative proceedings; 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 amounts to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) to each applicant in respect of non-pecuniary damage, plus any tax that may be chargeable; (ii) EUR 1,000 (one thousand euros) to the second applicant (Mr Servet Durdu) in respect of costs and expenses, plus any tax that may be chargeable to him; (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' claims for just satisfaction.", "Done in English, and notified in writing on 15 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF MOISEI v. MOLDOVA (Application no. 14914/03) JUDGMENT STRASBOURG 19 December 2006 FINAL 19/03/2007 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 Moisei v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrM. Pellonpää,MrK. Traja,MrS. Pavlovschi,MrJ. Šikuta, judges and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 28 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14914/03) 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 a Moldovan national, Ms Pelaghia Moisei (“the applicant”), on 29 January 2003. 2. The applicant was represented by Mr Ştefan Urîtu, from The Helsinki Committee for Human Rights in Moldova, a non-governmental organisation based in Chişinău.", "The Moldovan Government (“the Government”) were represented by their Agent, Mr A. Pârlog. 3. The applicant complained that the failure to enforce the judgment of 23 July 2001 violated her right to have her civil claims determined by a court within a reasonable time, as guaranteed by Article 6 of the Convention, and her right to peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention. 4.", "The application was allocated to the Fourth Section of the Court. On 8 October 2003 a Chamber of that Section decided to communicate 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, Ms Pelaghia Moisei, is a Moldovan national, who was born in 1921 and lives in the village of Recea. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In 2000 the applicant lodged with the Străşeni District Court a civil action against the Savings Bank and the Government.", "She sought compensation in connection with her deposits in the Savings Bank pursuant to the Parliament's decision of 29 July 1994 to revalue the savings of citizens in the Savings Bank in order to compensate for losses caused by inflation. 8. On 23 July 2001 the Straseni District Court found for the applicant and ordered the Government to pay her 7,696.23 Moldovan lei (MDL), (approximately 682 euros (EUR) at the time). No appeal was lodged and the judgment became final and enforceable 15 days later. 9.", "The court issued an enforcement warrant which it sent directly to the Bailiff for enforcement. 10. On 1 November 2001 the applicant's representative lodged a written request with the President of the Chişinău District Court asking for the enforcement of the judgment of 23 July 2001. By a letter of 15 November 2001 the President of that court replied that the enforcement of the decision was impossible because the Ministry of Finance did not have funds and advised the applicant to address the Government, the Parliament and the President of Moldova, because its own requests sent to these institutions remained unheeded. 11.", "On 28 March 2002 the applicant addressed the Ministry of Justice with a request for its assistance in enforcing the judgment. The Ministry forwarded the letter to the newly created Department for the Enforcement of Judicial Decisions (“the Department”). In a letter dated 2 July 2002, the Department informed the applicant that the enforcement warrant in her name for the sum of MDL 7,696 had been forwarded to the Central Treasury of the Ministry of Finance and added that the legislation did not provide for the forced execution of judgments against the State Budget. 12. On 19 September 2002 the applicant requested the assistance of the Minister of Finance in enforcing the decision.", "In a letter of 8 October 2002, signed by the Vice-Minister of Finance, the applicant was informed that the State Treasury, which was responsible for enforcing judgments against the State, had not received an enforcement warrant for the sum mentioned by the applicant. At the same time, it had registered another warrant for the amount of MDL 2,004. The applicant was further informed that the State Budget for the year 2002 did not provide for expenditure related to enforcement of her judgment and that therefore the judgment of 23 July 2001 could not be enforced. The applicant was advised to wait for the adoption of the State Budget for the year 2003 which might provide for such expenditure. 13.", "The Government submitted evidence of the fact that the Ministry of Finance had transferred a lump sum to the Department on 29 April 2003 for the purpose of enforcing a list of enforcement warrants, including the applicant's. The applicant received her money on 27 May 2003. II. RELEVANT DOMESTIC LAW 14. The relevant domestic law has been set out in Prodan v. Moldova (no.", "49806/99, ECHR 2004‑III (extracts)). THE LAW 15. The applicant complained that the failure to enforce the judgment of 23 July 2001 had violated her rights as guaranteed by Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “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 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.” 16. The applicant also complained that the non-enforcement of the judgment had violated her rights guaranteed under Article 13 of the Convention.", "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.” 17. The applicant finally complained that the non-enforcement had violated her rights guaranteed under Article 8 of the Convention. Article 8 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.” I. THE GOVERNMENT'S PRELIMINARY OBJECTION 18. The Government submitted that the applicant had not informed the Court about the developments in her case, namely that the judgment in her favour had been enforced on 29 April 2003. They invited the Court to declare her application inadmissible since it was manifestly ill founded. 19.", "The applicant submitted that when the application had been lodged the judgment had not been enforced for over a year. Moreover, at no point had the authorities admitted a violation of her Convention rights and she had not obtained any compensation for the delay in enforcement, which was very long for an 81-year-old person. 20. The Court considers that the failure of the applicant to notify the Court about the enforcement of the judgment after the lodging of her application does not constitute an abuse of the right of individual application within the meaning of Article 35 of the Convention, having regard to the fact that the applicant did not claim the payment of the original award but rather compensation resulting from the failure to enforce. 21.", "The Government also submitted that since the award had been paid in full the applicant could no longer claim to be a victim of a violation of her Convention rights. 22. The Court notes that it has already dismissed a similar objection raised by the respondent Government because “the payment ... did not involve any acknowledgement of the violations alleged” (see, e.g., Prodan v. Moldova, cited above, § 47). Moreover, no compensation for delayed enforcement was paid. 23.", "In these circumstances, the Court considers that the applicant may claim to be a victim of a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention. 24. The Court considers that the applicant's complaints under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention, as well as under Articles 8 and 13, 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 apply 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 6 § 1 AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 25.", "The applicant complained that the non-enforcement of the judgment of 23 July 2001 in her favour violated her rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. 26. The Government considered that no violation of those rights had taken place in view of the full enforcement of the judgment within a reasonable time. 27.", "The Court notes that the judgment of 23 July 2001 remained unenforced until 27 May 2003, when the applicant received her money, that is for 22 months. The Court has found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in numerous cases concerning delays in enforcing final judgments (see, among other authorities, Prodan v. Moldova, cited above, and Luntre and Others v. Moldova, nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004). Having examined the material submitted to it, the Court notes that the file does not contain any element which would allow it to reach a different conclusion in the present case.", "In particular, the State Treasury's claim that it had not received for enforcement the warrant regarding the entire sum is contradicted by the letter from the Department (see paragraph 11 above). 28. Accordingly, the Court finds, for the reasons given in the above-mentioned cases, that the failure to enforce the judgment of 23 July 2001 within a reasonable time constitutes a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 29. The applicant further complained that she had no effective remedies in respect of her complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. 30.", "The Government argued that Article 13 was not applicable in the absence of a violation of either Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. They added that the applicant had not used all available domestic remedies in respect of her complaint under Article 13, such as requesting the initiation of administrative or criminal proceedings against the person responsible for non-enforcement. 31. The Court observes that the applicant's complaints that the refusal to enforce the judgment in her favour infringed her rights under Article 6 and Article 1 of Protocol No.", "1 were undoubtedly arguable (see paragraph 28 above). The applicant was therefore entitled to an effective remedy within the meaning of Article 13. Accordingly, the Court will examine whether such a remedy was available to the applicant. 32. The Court notes that the judgment in favour of the applicant was enforced 22 months after it had been adopted.", "The debtor in this case was a State body. According to a letter from the enforcement authority of 2 July 2002, “the legislation of the Republic of Moldova does not provide for the forcible enforcement of judicial decisions against the State Budget”. In addition, even the domestic court addressed various State institutions with a request to ensure the enforcement, but to no avail (see paragraph 10 above). The Court concludes that the remedies referred to by the Government (see paragraph 30 above) were not effective since in the absence of budgetary provisions for the purposes of enforcement no particular person could be held responsible for the failure to enforce. 33.", "It is thus apparent that the applicant had no remedy to either prevent the continuation of the violation of her rights guaranteed under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention or to obtain compensation. There has accordingly been a violation of Article 13 taken together with those Articles (Romashov v. Ukraine, no. 67534/01, § 47, 27 July 2004, and Voytenko v. Ukraine, no. 18966/02, § 43, 29 June 2004).", "IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34. The applicant finally complained that the delayed enforcement of the judgment had violated her rights guaranteed under Article 8 of the Convention. 35. The Court considers that this complaint raises essentially the same issues as those already dealt with under Article 6 and Article 1 of Protocol No.", "1. It will accordingly not examine this complaint separately. V. 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 EUR 10,217 for damage caused by the delayed enforcement of the judgment of 23 July 2001. She argued that the money awarded to her had constituted her entire life savings on which she had hoped to live upon retiring. Accordingly, she had suffered immensely when her savings were lost and when she could not obtain for two years the meagre compensation awarded by the State. She argued that, by analogy with the rules applicable in the case of delays in paying salaries, she should obtain compensation of 5% of the sum owed to her for each day of delay. 38.", "Moreover, the applicant argued that she had been humiliated and treated disdainfully during the years when she had had to travel to Chişinău from her village to prove to the public servants that she had no resources to lead a decent life. 39. The Government considered that the amount claimed was excessive. They rejected the applicability of labour legislation principles and in particular the payment of compensation in the amount of 5% per day since the judgment had not dealt with a labour dispute. They further contested the amount claimed for non-pecuniary damage, citing the Court's case-law on the issue of non-enforcement.", "40. The Court considers that the applicant must have suffered pecuniary damage as a result of the non-execution of the judgment in her favour within a reasonable time. The Court awards the applicant EUR 192 in this respect. 41. The Court also considers that the applicant must have been caused a certain amount of stress and frustration as a result of the non-enforcement of the judgment, the more so given her advanced age and the fact that the sum awarded was an essential source of revenue for her.", "It awards the applicant EUR 500 for non-pecuniary damage. B. Costs and expenses 42. The applicant also claimed EUR 900 for the costs and expenses incurred before the Court. Her representative submitted a copy of its decision of 30 March 2004 according to which the usual representation fee was fixed at the equivalent of USD 900.", "The representative added that the amount claimed would not constitute a profit for the organisation but serve to cover partly its costs in representing applicants. 43. The Government did not agree with the amount claimed, stating that the applicant had failed to prove the alleged representation expenses. 44. In the particular circumstances of the present case the Court awards the applicant EUR 600 for costs and expenses incurred.", "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 application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the late enforcement of the judgment of 23 July 2001; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention on account of the same delayed enforcement; 4. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention; 5. Holds that it is not necessary to examine separately the complaint under Article 8 of the Convention; 6.", "Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 192 (one hundred and ninety two euros) for pecuniary damage, EUR 500 (five hundred euros) for non-pecuniary damage and EUR 600 (six hundred euros) for costs and expenses, 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; 7. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 19 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. EarlyNicolas BratzaRegistrarPresident" ]